United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Matthew Seeger of the United States Army, Michael Schwartz,
Cheryl Bormann, and Edwin Perry are lawyers employed by the
United States Department of Defense (DoD) who represent
detainees before a military commission at U.S. Naval Station
Guantanamo Bay, Cuba (NSGB). They bring this action under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 500
et seq (2012). They allege that DoD, the U.S. Navy,
and the Director of the Office of Military Commissions and
Convening Authority have failed to investigate adequately
environmental hazards, including airborne formaldehyde and
other carcinogens, present at Camp Justice, where Plaintiffs
are assigned to work and in some cases sleep while at
Guantanamo Bay. They further allege that Navy's
investigation into these alleged hazards was incomplete and
flawed, rendering arbitrary and capricious DoD's
conclusions that Plaintiffs can continue safely to live and
work at Camp Justice. Plaintiffs ask the Court to require
further investigation of the alleged hazard mitigation, as
well as alternative living and working facilities until that
is done, for which they seek a preliminary injunction until
this litigation concludes.
the issuance of a Final Report, which is now public, renders
Plaintiffs' complaint of unreasonable delay moot, the
Court will dismiss Counts Two and Three. However, because
Defendants' orders that Plaintiffs live and work in the
allegedly contaminated areas are final actions subject to
review under the APA, the Court will deny Defendants'
Motion to Dismiss Count One. Plaintiffs' Motion for a
Preliminary Injunction will be denied because Plaintiffs have
not adequately demonstrated that they are likely to succeed
on the merits or that they are likely to suffer irreparable
harm if a preliminary injunction is not granted.
Camp Justice and Potential Environmental Hazards
Justice is a complex at NSGB that was built in 2007 on the
site of a former airfield. It serves as the location of the
Office of Military Commissions Office of the Convening
Authority (OMC). See Compl. ¶ 19 [Dkt.
Within Camp Justice is a fenced area called the Expeditionary
Legal Complex (ELC) which includes a Secure Compartmented
Information Facility (SCIF), at which most of the intensive
work of the OMC occurs due to the classified nature of the
underlying information. The ELC is comprised of several
structures: a sheet metal structure (ELC-1) that contains a
courtroom and office areas; three trailers (ELC-3, ELC-4,
ELC-5) that function as office spaces; and three CONEX
shipping containers (ELC-8, ELC-9, ELC-10). See Ex.
17, Motion for Preliminary Injunction, Indoor Air Quality
Assessment Report [Dkt. 4-19] at 1-4. Camp Justice includes
three additional workspaces outside the ELC: Buildings AV-29
and AV-34, which are fixed structures, and AV-32, a former
hangar. See id. at 1-3. Most of Plaintiffs' work
is done in the SCIF, which is inside prefabricated structures
that Plaintiffs allege to be contaminated. See Tr.
of Prelim. Inj. Hr'g (PI Tr.) [Dkt. 30] at 18 (testimony
of Major Seeger regarding structures of ELC). Plaintiffs also
have dedicated office space in AV-34, outside the ELC, but
that is a less convenient space, and Plaintiffs use it less
frequently than spaces within the ELC, because classified
documentation cannot be taken outside the SCIF. Id.
housing units under OMC's direct control within Camp
Justice are primarily located in Containerized Housing Units,
also known as CHUs or “Cuzcos.” Fifty of the
Cuzcos provide housing; they are air-conditioned trailers,
each with two single bedrooms and a shared bathroom,
comprising 100 beds total. OMC can also house personnel in
360 beds in air-conditioned tents with plywood floors. Of
these, 60 beds are in “improved” tents with
partitions and the other 300 are cots rather than beds. Both
the Cuzcos and the tents are located on what used to be an
aircraft runway called McCalla Field, made of asphalt. OMC
also rents four nearby transient-housing townhomes from the
NSGB Commanding Officer, two each for prosecution and defense
trial teams (predominately used during trial). Other
convenient on-base housing options include 202 beds managed
by Navy Gateway Inns & Suites (NGIS), as well rooms at
the Navy Lodge. See Defs.' Opp'n to
Pls.' Appl. for a Prelim. Inj. and Mot. to Dismiss (Mot.
to Dismiss) [Dkt. 10] at 8-10 (describing the on-base housing
options). While some Plaintiffs have stayed in these
facilities during work trips, availability is not guaranteed
and demand can sometimes outstrip capacity.
addition, OMC can use 53 beds, to the extent they are
available, in Building AV-624, a permanent structure on the
opposite, or leeward, side of Guantanamo Bay, that is, the
physical water inlet for which the Naval Station is named,
from the ELC. Transportation to AV- 624 is relatively
inconvenient, because access is by ferry only and takes
approximately 25 minutes. Plaintiffs argue that their ability
to work would be severely hindered if they were forced to
stay on the leeward side of the bay, in particular because
much of their work must be done in or near the SCIF, and
ferry service is limited. See PI Tr. at 32
(Plaintiffs' counsel arguing that “[i]t's not
the New York Subway. So for folks who are working very long
days, it cuts down on the amount of time they can work while
Housing Policy, issued on May 19, 2011, requires “all
OMC personnel” and contractors to stay in the Cuzcos or
tents at Camp Justice. See Mot. to Dismiss at 9.
Although the lead counsel representing detainees who are
charged with capital crimes are considered contractors, they
are exempt from the requirement that they stay in the Cuzcos
or tents, under an exception in the policy that permits
members of prosecution and defense trial teams to stay in the
four townhouses. Id. Other limited exceptions have
been made on a case-by-case basis and “in an ad hoc
manner based upon requests, ” including requests from
the Military Commissions Defense Organization for trial team
members to stay in other NSGB housing when available.
Id. Members of trial teams who are also
enlisted military are not eligible for these exceptions. In
practice, Ms. Bormann, Mr. Schwartz, and Mr. Perry have
stayed in preferred “hard housing, ” such as the
Navy Lodge, for all or most of their trips to NSGB since
2014; Major Seeger, as an Army officer, is always required to
stay in the Cuzcos. PI Tr. at 44-47. To receive a housing
assignment, the prospective traveler submits a request to
OMC, which then assigns housing based on the request,
availability, and other demands. Plaintiffs allege that the
Navy “assigns a lower priority to providing hard
housing to military commissions personnel than to other
individuals residing at the Naval Station, such as base
contractors, visitors, and other temporary personnel.”
Compl. at ¶ 27.
heart of their case, Plaintiffs complain that Camp Justice is
contaminated with cancer-causing and otherwise hazardous
chemicals and other materials including formaldehyde,
benzo(a)pyrene, asbestos, lead-based paint, and mold. During
a discovery teleconference on June 23, 2017, Plaintiffs'
attorneys indicated that the primary hazard at issue is
airborne formaldehyde, which allegedly leaches out of
materials in modular units at Camp Justice. Plaintiffs
report, and Defendants do not contest, that the Environmental
Protection Agency (EPA) has classified formaldehyde as a
“probable human carcinogen.” Pls.' Mem. in
Support of Mot. for Prelim. Inj. (Mot. PI) [Dkt. 4-1] at 6.
The Navy's Investigation into Environmental Hazards at
Following an initial complaint about potential environmental
hazards, the Navy undertook a multi-step process, comprising
repeated site visits and several reports prepared both
internally and by external consultants. Beginning in August
2015, the Navy conducted a “preliminary
investigation” at Camp Justice, including a review of
available documents concerning prior use, a walk-through, and
air sampling; it concluded that “the buildings, tents,
and trailers where people live and work are habitable for
occupancy.” Mot. PI, Ex. 16, NMCPHC, Public Health
Report for Camp Justice (Aug. 21, 2015) [Dkt. 4-18] at 4.
While the Navy did not find any immediate health risks, it
did determine that there were “data gaps, ”
particularly related to exposure to carcinogens, which did
not render the buildings uninhabitable but did warrant
further environmental sampling and analysis. Id.
Navy and Marine Corps Public Health Center (NMCPHC) continued
to investigate. In October 2015, it conducted sampling at
Camp Justice and tested the samples for known toxins
including formaldehyde. The samples in question were taken in
workspaces- Buildings AV-29 and AV-32 and spaces in the
ELC-and in 16 of the 50 Cuzcos used as living spaces.
See Mot. for PI at 6-7; Mot. PI, Ex. 3, Expert
Report of Dr. Mark A. Killen (Killen Report) [Dkt. 4-5] at
DoD characterizes this stage of testing as incorporating
various “conservative” measures of potential harm
such as “EPA screening levels . . . and OSHA
permissible exposure limits, ” or PELs. Mot. to Dismiss
at 4. Some samples tested at higher concentrations than these
“conservative” screening levels, although the
Final Report stated that they were all under the minimum
“likely to be a human carcinogen” established by
the World Health Organization (WHO). NMCPHC, Final Public
Health Review Report, Camp Justice, Naval Station Guantanamo
Bay, Cuba (Mar. 3, 2017) (Final Report) [Dkt. 14] at 61.
Final Report acknowledges, the WHO standard is significantly
less stringent than EPA standards. Id. at 60-61. The
Navy contends that the EPA standard for noncancer risks-7.8
parts per billion (ppb)-is so very low that any measurement
of formaldehyde that shows a concentration lower than 7.8 ppb
establishes essentially no risk, while measurements above 7.8
may or may not indicate risk. Id. at 60. According
to the Final Report, WHO standards establish that any
indoor-air formaldehyde value under 100 ppb is
“considered safe for the entire population against
sensory irritation, ” and that any value under 80 ppb
is “not likely to be a human carcinogen.”
Id. at 61. “Indoor air concentrations of
formaldehyde at Camp Justice ranged from 1.9 to 61 ppb and
the average concentration was 15.4 ppb.” Id.
at 61. In other words, the values were well below WHO levels
for noncancer and cancer risks, but averaged above the EPA
Navy insists that tests showing screening levels in excess of
initial EPA standards did not establish a clear risk, but was
only a signal that further investigation was warranted.
Indeed, the record demonstrates that the Navy undertook
further investigation and remediation measures following the
initial testing. Plaintiffs' expert, Dr. Mark A. Killen,
who holds degrees in civil, agricultural, and chemical
engineering and is a licensed environmental engineer,
characterized these initial results as exceeding “the
EPA nine month resident cancer exposure risk.” Killen
Report at 9.
Consultants, a contractor hired by the Navy to examine air
quality in the Cuzcos, issued an “Indoor Air Quality
Assessment Report” in January 2016. Mot. PI, Ex. 17,
Indoor Air Quality Assessment Report (Jan. 12, 2016) [Dkt.
4-19]. In this January 2016 assessment, the consultants
recommended asbestos sampling, cleaning ceiling light covers
and a closet ceiling and wall where excessive moisture or
suspected microbial growth had been observed, actions to
reduce moisture and humidity levels, and an inspection of
heating, ventilation, and air conditioning (HVAC) systems to
address low airflow. Id. at 22-23 (chapter 4.0).
Plaintiffs complain that the Navy “has never suggested
in any of its subsequent reports that it has taken any of the
recommended steps.” Mot. PI at 13.
thereafter, in February 2016, NMCPHC published the results of
a “preliminary public health screening risk assessment,
” which had found that levels of certain toxins
measured in indoor air in certain structures, including some
Cuzcos, “were of potential concern and warranted
further evaluation.” Final Report at 6. The toxins of
potential concern included formaldehyde. Id.
Specifically, the Navy had concluded that formaldehyde levels
in the Cuzcos were “of potential concern”
because, although below applicable limits set by the
Occupational Safety and Health Administration (OSHA) for U.S.
workplaces, further study was needed to “take into
consideration risks related to multiple constituents and
pathways of exposure.” Final Report App'x H, NMCPHC
Preliminary Public Health Screening Risk Assessment Report
for Camp Justice (Feb. 23, 2016) (February 2016 Navy
Preliminary Assessment) [Dkt. 14-32] at 4. The February 2016
Navy Preliminary Assessment recommended certain actions,
which were taken, to improve HVAC systems in modular
buildings in order to remediate airborne formaldehyde; their
experts determined that formaldehyde levels had been reduced
and did not pose a health risk to occupants of the structures
in question. See PI Tr. at 40-41. The Navy had
previously concluded that it was safe for people to live and
work at Camp Justice in the meantime. See Final
Report at 26.
April 7, 2016, Resolution Consultants issued its
“Overseas Baseline Environmental Assessment Report,
” which assessed the site's historic use as an
airfield and concluded that environmental conditions at Camp
Justice were acceptable for its current uses. Mot. to Dismiss
at 4-5. On April 11, 2017, Resolution Consultants completed
its “Environmental Investigation Report” (EIR),
which included the results of extensive environmental
sampling and site visits. Id. at 5. Resolution
Consultants also reported the results of follow-up air
sampling of formaldehyde levels in May 2016. See May
2016 Resolution Supplemental Formaldehyde Results. Based on
these and other testing results, Defendants' expert Dr.
Paul B. Gillooly, the Navy's experienced Health Risk
Assessor and an expert in industrial hygiene and occupational
safety, concluded that there was “[n]o evidence that
there are complete exposure pathways (air, water[, ] soil)
resulting in risks to carcinogens above the acceptable risk
range established by the [EPA].” Mot. to Dismiss, Ex.
1, Declaration of Paul B. Gillooly (Gillooly Decl.) [Dkt.
10-1] at 11.
in March 2017, NMCPHC completed its Final Public Health
Review Report, which was filed with the Court under seal on
May 25, 2017, and is now public. See Final
Report. The Report assessed the historic uses of
the Camp Justice location, analyzed environmental sampling,
and included a review of relevant medical records of
personnel who have been stationed at Camp Justice since 2004.
Taking these findings and risk factors into account, the
Navy's Final Report concluded that “[c]urrent and
future potential cancer risks related to environmental
sources within Camp Justice . . . were within the [EPA]
acceptable risk range of 1E-06 to 1E-04 (e.g., 1 in 1, 000,
000 to 1 in 10, 000). The cumulative cancer risk for Camp
Justice for all [chemicals of potential concern] ranged from
1.2E-07 to 6.1E-05.” Final Report at 7.
Final Report further noted that sampling conducted in April
2016, during the course of the investigation, confirmed that
HVAC modifications and other recent risk-management actions
had effectively reduced formaldehyde exposure risks.
See Final Report at 28; see generally Final
Report App'x F, Status of Previous Public Health Review
Risk Management Recommendations (Feb. 2017) (App'x F
Status Report) [Dkt. 14-30] (describing the recommendations
and modifications made to date). The Navy also determined
that formaldehyde levels in the Cuzcos were comparable to
those considered typical by the Centers for Disease Control
and Prevention (CDC) for similar housing structures, such as
mobile homes constructed of the same materials, in the United
States. See PI Tr. at 40-41; Final Report at 59.
bring the following causes of action in their Complaint:
Count One: Plaintiffs allege that DoD violated the
APA by arbitrarily and capriciously deciding that Camp
Justice is safe and habitable, based on an inadequate
Count Two: Plaintiffs allege that DoD violated the
APA by unreasonably delaying the completion of an adequate
risk assessment and also delaying the implementation of
adequate controls to address environmental contamination and
other unhealthy conditions at Camp Justice.
Count Three: Plaintiffs ask the Court to issue a
writ of mandamus requiring Defendants to complete the
investigation and risk assessment and implement appropriate
remediation measures at Camp Justice.
Compl. ¶¶ 129-39. Plaintiffs allege that the
Navy's investigation and conclusions violate Navy and DoD
Directives, Instructions, and other internal policies and
guidelines, in particular DoD Instruction (DoDI) 6055.01,
which governs DoD's safety and occupational health
program. See Compl. ¶ 66.
to these allegations, Plaintiffs ask the Court to: (1)
declare that Defendants' decisions regarding the safety
and habitability of Camp Justice are arbitrary and capricious
and set them aside; (2) order Defendants to conduct a
thorough and timely investigation and risk assessment; (3)
order Defendants to implement appropriate remediation on a
timely basis; (4) enjoin Defendants from assigning Plaintiffs
to live or work at Camp Justice until-after a proper
investigation, risk assessment, and appropriate
remediation-it is found to be safe and habitable; (5) retain
jurisdiction to monitor and enforce compliance; and (6) award
attorneys' fees and costs. Compl. at 38.
filed their Complaint on April 11, 2017, and, three days
later, moved for a preliminary injunction to require
provision of alternative accommodations pending the outcome
of this lawsuit. See Mot. PI. At the
Court's hearing on Plaintiffs' motion for a
preliminary injunction on July 26, 2017, the Court requested
supplemental briefing on its subject-matter jurisdiction.
See 7/27/2017 Minute Order (setting schedule for
supplemental briefing). The parties filed supplemental briefs
on jurisdiction. The Motion to Dismiss and Motion for a
Preliminary Injunction are ripe for review. Because briefing
on the Motion to Dismiss was completed before the hearing on
the Motion for a Preliminary Injunction, the Court considers
both motions in this Opinion.
Motion to Dismiss
Rule 12(b)(1)-Lack of Subject-Matter Jurisdiction a.
does not confer subject-matter jurisdiction on a district
court. Rather, a court has subject-matter jurisdiction over
an APA claim if (1) the claim alleges a violation of another
statute, which in turn confers jurisdiction, or (2) the claim
raises a federal question under 28 U.S.C. § 1331.
Califano v. Sanders, 430 U.S. 99, 105-06 (1977). The
Court sought supplemental briefing on subject-matter
jurisdiction, which has clarified its jurisdiction for the
federal-question statute provides that “[t]he district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States, ” 28 U.S.C. § 1331, and thus it
“confer[s] jurisdiction on federal courts to review
agency action.” Oryszak v. Sullivan, 576 F.3d
522, 525 (D.C. Cir. 2009) (quoting Califano, 430
U.S. at 105); see also Megapulse, Inc. v. Lewis, 672
F.2d 959, 966 n.30 (D.C. Cir. 1982) (“Even though the
APA itself technically grants no jurisdiction, power to
review any agency action under the APA exists under 28 U.S.C.
§ 1331.”) (citing Califano, 430 U.S. at
97); Robbins v. Reagan, 780 F.2d 37, 42 (D.C. Cir.
1985) (“Section 1331 vests jurisdiction to review
agency action in the district court.”). The D.C.
Circuit has held that “[i]t is clear that the APA
‘suppl[ies] a generic cause of action in favor of
persons aggrieved by agency action.'” Trudeau
v. FTC, 456 F.3d 178, 188 (D.C. Cir. 2006) (quoting
Md. Dep't of Human Res. v. Dep't of Health &
Human Servs., 763 F.2d 1441, 1445 n.1 (D.C. Cir. 1985)).
Thus, while many APA claims are brought pursuant to a
separate substantive statute, a court may alternatively have
jurisdiction under Section 1331 over a claim under the APA,
based on allegations that an agency action was arbitrary and
capricious or that an agency took action without observing
procedures required by law. See, e.g.,
Trudeau, 456 F.3d at 185 (finding that Section 1331
“is an appropriate source of jurisdiction” for a
cause of action based on the APA itself, for a
“nonstatutory action, independent of the APA, ”
or for a constitutional claim).
702 of the APA provides standing to sue to one
“‘suffering legal wrong because of agency
action.'” Abbott Labs. v. Gardner, 387
U.S. 136, 140 (1967) (quoting 5 U.S.C. § 702). Soon
after the APA became law, the term “legal wrong”
became the subject of scrutiny and explication in the courts.
In 1955, the United States Circuit Court for the District of
Columbia Circuit explained that “legal wrong” is
a “term of art” which “means such wrong as
particular statutes and the courts have recognized as
constituting grounds for judicial review.” Kansas
City Power & Light Co. v. McKay, 225 F.2d 924, 932
(D.C. Cir. 1955) (holding that plaintiff power company did
not have standing to sue because it would not suffer a
“legal wrong” as a consequence of a
federally-supported power program likely to increase
competition). The Kansas City Power court cited the
APA legislative history to note that the courts have a
“continuing role . . . in determining . . . who is
entitled to judicial review.” Id. The D.C.
Circuit has characterized a “legal wrong” as
“the invasion of a legally protected right.”
Pennsylvania R. Co. v. Dillon, 335 F.2d 292, 294
(D.C. Cir. 1964).
in some cases a “legally protected right” is one
that has been bestowed by statute, as in Pennsylvania
Railroad, see Id. at 295, other legally
cognizable rights may also warrant review. Thus, the D.C.
Circuit has recognized a “so-called nonstatutory or
common-law type of review” under the APA, whereby
“[i]f a party can show that he is ‘suffering
legal wrong' . . . he should have some means of judicial
redress.” Scanwell Labs., Inc. v. Shaffer, 424
F.2d 859, 865 (D.C. Cir. 1970) (quoting S. Doc. No. 248, 79th
Cong., 2d Sess. 37-38 38 (1946)). Such a legal wrong includes
an agency's basing its “decisions on arbitrary or
capricious abuses of discretion, ” so that “one
who makes a prima facie showing alleging such action on the
part of an agency . . . has standing to sue” under the
APA. Id. at 869; see also Whitzell v.
Astrue, 589 F.Supp.2d 100, 109 (D. Mass. 2008)
(“Although [the relevant statute] does not give this
Court jurisdiction to adjudicate the merits of the complaint,
[plaintiff] is correct to seek review from this Court because
she has nowhere else to turn. . . . In the absence of clear
and convincing evidence that the congressional intent was to
the contrary, courts ought not restrict access to such
review.” (internal quotation marks and citation
Rule 12(b)(6)-Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “If
as a matter of law ‘it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations, '” then the ...