United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
Major Matthew Seeger, Michael Schwartz, Cheryl Bormann, and
Edwin Perry are attorneys, military and civilian, employed by
the Department of Defense and assigned to represent detainees
before military commissions at U.S. Naval Station Guantanamo
Bay. They bring this action against the Department of
Defense, the U.S. Navy, and the Director of the Office of
Military Commissions and Convening Authority under the
Administrative Procedure Act, alleging that Defendants
arbitrarily and capriciously require Plaintiffs, as part of
their duties, to work and in some cases sleep at Camp
Justice, which facility is allegedly contaminated with unsafe
levels of environmental hazards.
at issue right now is not the interesting part of the case.
It is, rather, a discovery dispute. Plaintiffs argue that the
recently certified Administrative Record, upon which the
Court's decision will depend, is incomplete and must be
supplemented. Defendants oppose. Although the Parties have
resolved some of their disagreements, several outstanding
issues remain and Plaintiffs seek additional discovery.
Having reviewed the Parties' materials, the Court will
grant in part and deny in part Plaintiffs' motion to take
discovery and supplement the Administrative Record.
facts of the case have not changed since the Court's last
opinion, Seeger v. U.S. Dep't of Def., 306
F.Supp.3d 265 (D.D.C 2018), and so relevant specifics are
recounted only briefly.
Justice is a complex at U.S. Naval Station Guantanamo Bay
(NSGB) which serves as the location of the Office of Military
Commissions Office of the Convening Authority (OMC), part of
the Department of Defense (DoD). OMC assigns Plaintiffs
housing when their work takes them to NSGB. Often, that
housing is located in Containerized Housing Units
(CHUs)-air-conditioned trailers-or improved tents. Less
frequently, civilian Plaintiffs (i.e., all other
than Maj. Seeger) may be assigned to-or independently
obtain-housing outside of Camp Justice, including
transient-housing townhomes, rooms at Navy Gateway Inns &
Suites (NGIS), or the Navy Lodge.
filed suit alleging in Count One that DoD violated the
Administrative Procedure Act (APA) by arbitrarily and
capriciously deciding, after an inadequate investigation,
that housing at Camp Justice is safe and habitable
notwithstanding the recognized presence of certain
environmental hazards. Compl. [Dkt. 1] ¶¶ 129-32.
Count One survived the government's motion to dismiss.
See Seeger, 306 F.Supp.3d 265; 3/30/18 Order [Dkt.
36]. On September 6, 2018, the government certified the
Administrative Record (Record) pursuant to an agreed-upon
briefing schedule. See Notice of Filing Certified
Index to the Admin. R. (Notice) [Dkt. 39]. On October 30,
2018, Plaintiffs filed their motion to supplement. Pls.'
Mot. for Supplementation of Admin. R. & for Disc. (Mot.)
[Dkt. 40]. Since then, the Parties have requested several
extensions of time in part to narrow the disputed issues.
Although the Parties have successfully resolved some of their
disputes, Plaintiffs ask to include five additional sets of
documents in the Record:
1. The April 24, 2018 “Draft OMC Housing Policy”
and any documents reflecting finalization or implementation
of this policy;
2. All requests submitted by or on behalf of the Plaintiffs
or their defense team members requesting “hard
housing” accommodation and any responses thereto;
3. All documents (created at any time) reflecting the
assignment of workspace within Camp Justice to the
Plaintiffs' defense team;
4. Written orders directing Plaintiffs to report to Camp
5. The May 11, 2018 “Memorandum for Convening
Authority” regarding the “Draft OMC Housing
See Mot. at 2. Plaintiffs also ask for limited
depositions of government personnel involved in the document
production, as necessary to determine what other documents
may have been omitted from the Record. Finally, Plaintiffs
ask the Court to clarify that certain declarations submitted
by the government are not part of the Administrative Record.
The matter is now ripe for review.
keeping with the principle that a court sitting to review
agency action under the APA does not engage in a de
novo review of the matter, judicial review is generally
limited to the administrative record. Camp v. Pitts,
41 U.S. 138 (1973). To facilitate such review, the law
requires that the agency identify and produce the complete
administrative record. NRDC v. Train, 519 F.2d 287,
291 (D.C. Cir. 1975). That record “properly consists of
the materials before the agency and no more nor less, ”
see Oceana, Inc. v. Ross, 290 F.Supp.3d 73, 78
(D.D.C. 2018), which “includes all materials [the
agency] directly or indirectly relied on to make all
decisions, not just final decisions.” Nat'l
Wilderness Inst. v. U.S. Army Corps of Eng'rs, No.
01-0273, 2002 WL 34724414, at *3 (citing Amfac Resorts,
LLC v. U.S. Dep't of the Interior, 143 F.Supp.2d 7,
10 (D.D.C. 2001)); see also CTS Corp. v. EPA, 759
F.3d 52, 64 (D.C. Cir. 2014) (“It is black-letter
administrative law that in an [Administrative Procedure Act]
case, a reviewing court should have before it neither more
nor less information than did the agency when it made its
decision.” (citations omitted)). “As part of the
record, the Court may consider any document that might have
influenced the agency's decision and not merely those
documents the agency expressly relied on in reaching its
final determination.” Charleston Area Med. Ctr. v.
Burwell, 216 F.Supp.3d 18, 23 (D.D.C. 2016) (citing