UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) MATTHEW SEEGER, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 17-639 (RMC) ) UNITED STATES DEPARTMENT ) OF DEFENSE, et al., ) ) Defendants. ) _________________________________ )

MEMORANDUM OPINION

Major 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),

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.

1 Because 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.

I. BACKGROUND

A. Camp Justice and Potential Environmental Hazards

Camp 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. 1].1 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

1 “The Office of the Convening Authority is responsible for the overall management of the military commissions process, including logistics and personnel support. The Convening Authority is empowered to convene military commissions, refer charges to trial, negotiate pre- trial agreements, and review records of trial.” Office of Military Commissions Organization Overview, http://www.mc.mil/ABOUTUS/OrganizationOverview.aspx (last visited Mar. 29, 2018).

2 AV-29 and AV-34, which are fixed structures, and AV-32, a former hangar. See

. 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.

Personnel 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.

In 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-

3 624 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 they’re there.”).

OMC’s 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.

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.2 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

2 Other individuals connected to the work of the OMC, “such as the Military Judge, witnesses, in-court simultaneous translators, and victims and family members,” are not required to stay in OMC housing and have the option of requesting base housing through NSGB personnel.

4 commissions personnel than to other individuals residing at the Naval Station, such as base

contractors, visitors, and other temporary personnel.” Compl. at ¶ 27.

At the 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.

B. The Navy’s Investigation into Environmental Hazards at Camp Justice

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.

The 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

5 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 9.3 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.

As the Final Report acknowledges, the WHO standard is significantly less

stringent than EPA standards.

. 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.

. 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.”

. “Indoor air concentrations of formaldehyde at

3 Diagrams, included in one of the reports prepared for the Navy by consulting experts, report indicate that air samples were taken from 16 of the 50 Cuzcos, each from one of the two sleeping areas in each Cuzco. See NMCPHC, Final Public Health Review Report: Camp Justice, Naval Station Guantanamo Bay, Cuba (Mar. 3, 2017) [Dkt. 14], App’x L, Resolution Consultants Supplemental Environmental Investigation for the Formaldehyde Sampling Results (May 6, 2016) (May 2016 Resolution Supplemental Formaldehyde Results) [Dkt. 14-47] at 12-13. In his report, Plaintiffs’ expert states that “84 CUZCOs located at Camp Justice were never tested”; it would have been more accurate to say that 34 out of the 50 Cuzcos, or 84 out of the 100 Cuzco bedrooms, were not tested. Killen Report at 9.

6 Camp Justice ranged from 1.9 to 61 ppb and the average concentration was 15.4 ppb.”

.

In other words, the values were well below WHO levels for noncancer and cancer risks, but

averaged above the EPA screening levels.

The 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.

Resolution 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.

(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.

Shortly 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

7 included formaldehyde.

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.

On 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.

. 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

8 acceptable risk range established by the [EPA].” Mot. to Dismiss, Ex. 1, Declaration of Paul B.

Gillooly (Gillooly Decl.) [Dkt. 10-1] at 11.

Finally, 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.4 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.

The 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.

4 The Final Report was ultimately released to the public and is available at https://www.cnic.navy.mil/regions/cnrse/installations/ns_guantanamo_bay/om/environmental_su pport/Guantanamo_Bay_PHR.html (last visited Mar. 27, 2018). 9 C. Procedural Background

Plaintiffs 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 investigation.

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. ¶¶ 129-39.5 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.

Related 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.

5 The Complaint lists these claims as the first, second, and third “Cause of Action.” For the sake of verbal economy, this Opinion will refer to them as Counts One, Two, and Three throughout.

10 Plaintiffs 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.6 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.7

II. LEGAL STANDARDS

A. Motion to Dismiss

1. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction

a. Federal-Question Jurisdiction

The APA 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

. Califano v. Sanders,

(1977). The Court sought

6 Defendants moved to dismiss the Complaint and opposed Plaintiffs’ motion for a preliminary injunction. Mot. to Dismiss [Dkt. 10]. Plaintiffs opposed. Pls.’ Opp’n to Defs.’ Mot. to Dismiss (Opp’n) [Dkt. 26]. Defendants replied. Defs.’ Reply to Opp’n to Mot. to Dismiss (Reply) [Dkt. 29]. As requested by the Court, both parties further briefed jurisdiction. See Pls.’ Brief Regarding Subject-Matter Jurisdiction (Pls.’ Juris. Br.) [Dkt. 32]; Defs.’ Response to Pls.’ Supplemental Br. on Jurisdiction (Defs.’ Juris. Br.) [Dkt. 34]. 7 The Court apologizes to the parties for the delay in this Opinion due to illness that prevented an earlier decision.

11 supplemental briefing on subject-matter jurisdiction, which has clarified its jurisdiction for the

record.

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,”

, and thus it “confer[s] jurisdiction on federal courts to review agency

action.” Oryszak v. Sullivan,

(D.C. Cir. 2009) (quoting Califano,

); see also Megapulse, Inc. v. Lewis,

, 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

.”) (citing Califano,

); Robbins v. Reagan,

(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,

(D.C. Cir. 2006) (quoting Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs.,

, 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,

(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).

b. Standing

Section 702 of the APA provides standing to sue to one “‘suffering legal wrong

because of agency action.’” Abbott Labs. v. Gardner,

(1967) (quoting 5

). 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,

(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.”

The D.C. Circuit

has characterized a “legal wrong” as “the invasion of a legally protected right.” Pennsylvania R.

Co. v. Dillon,

(D.C. Cir. 1964).

Although in some cases a “legally protected right” is one that has been bestowed

by statute, as in Pennsylvania Railroad, see

, 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,

(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.

; see also Whitzell v. Astrue,

(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

13 evidence that the congressional intent was to the contrary, courts ought not restrict access to such

review.” (internal quotation marks and citation omitted)).

2. Rule 12(b)(6)—Failure to State a Claim

Under 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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 court must dismiss the

claim. Neitzke v. Williams,

(1989) (quoting Hishon v. King & Spalding,

(1984).

There are exceptions to the “basic presumption of judicial review to one

‘suffering legal wrong because of agency action.’” Abbott Labs.,

(quoting

). An APA challenge to an agency’s refusal to take enforcement action, as opposed

to an affirmative final action, is presumptively unreviewable. See Heckler v. Chaney,

(1985). A separate, substantive statute may explicitly preclude judicial review. The

APA itself also contains statutory exceptions under which judicial review is precluded. Section

701(a)(2) of the APA excepts from review matters that are “committed to agency discretion by

law.”

(a)(2). While this exception is “very narrow,” Hi-Tech Furnace Systs., Inc.

v. FCC,

(D.C. Cir. 2000), it applies where “a court would have no meaningful

standard against which to judge the agency’s exercise of discretion.” Heckler,

.

In the D.C. Circuit, such a defense is addressed under Rule 12(b)(6) (failure to state a claim) and

not Rule 12(b)(1) (subject-matter jurisdiction). Sierra Club v. Jackson,

(D.C.

Cir. 2011) (“A complaint seeking review of agency action ‘committed to agency discretion by

14 law’ has failed to state a claim under the APA, and therefore should be dismissed under Rule

12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” (citations omitted)).8

B. Preliminary Injunction

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an injunction is in the public

interest.” Winter v. Nat. Res. Def. Council, Inc.,

(2008). Winter involved a

challenge to the Navy’s intention to conduct mid-frequency active sonar exercises, involving

ships, submarines and aircraft, in the waters off Southern California. Plaintiffs sought an

injunction until the Navy prepared an environmental impact statement due to the presence of

multiple species of marine mammals in the area. The lower courts that decided Winter before it

reached the Supreme Court had concluded that a preliminary injunction was warranted. Because

plaintiffs had demonstrated a strong likelihood of success on the merits of their claim, their

showing that there was a “possibility” of irreparable harm was sufficient to satisfy the second

prong.

. The Supreme Court disagreed, emphasizing that “[o]ur frequently reiterated

standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is

likely in the absence of an injunction.”

. The “possibility” of irreparable harm, cited by

the Ninth Circuit below, was too lenient.

Further, the Court emphasized the need to consider

the public interest and the defendant’s interest.

.

8 Sierra Club resolved inconsistent precedent as to the applicable Rule. See Sierra Club,

; see also Oryszak,

; Trudeau,

; contra Ass’n of Irritated Residents v. EPA,

(D.C. Cir. 2007), abrogated by Sierra Club,

.

15 In the past, the D.C. Circuit has generally followed a “sliding scale” approach to

analyzing the four factors that determine whether to grant a preliminary injunction: “[i]f the

movant makes an unusually strong showing on one of the factors, then it does not necessarily

have to make as strong a showing on another factor.” Davis v. Pension Ben. Guar. Corp.,

(D.C. Cir. 2009). However, in light of Winter, the D.C. Circuit has

suggested, without deciding, that “Winter could be read to create a more demanding burden,

although the opinion does not squarely discuss whether the four factors are to be balanced on a

sliding scale.”

. Further, the D.C. Circuit has opined that Winter could be read “to

suggest if not to hold” that a likelihood of success is an independent, free-standing requirement

for a preliminary injunction. Sherley v. Sebelius,

(D.C. Cir. 2011) (citing

Davis,

).

While the Fourth Circuit has read Winter to preclude the sliding-scale approach to

preliminary injunctions, its decision was vacated on other grounds and different Circuits have not

agreed. See Real Truth About Obama, Inc. v. FEC,

(4th Cir. 2009), vacated

on other grounds,

(2010); see also Alliance for the Wild Rockies v. Cottrell,

(9th Cir. 2011); Citigroup Global Mkts., Inc. v. VCG Special Opportunities

Master Fund Ltd.,

(2d Cir. 2010); Hoosier Energy Rural Elec. Coop. v. John

Hancock Life Ins. Co.,

(7th Cir. 2009)).

Whatever the viability of the “sliding scale” approach to the factors for a

preliminary injunction, it has long been held that the four factors are not equal. “Whether a

sliding-scale analysis still exists or not, courts in our Circuit have held that a failure to show a

likelihood of success on the merits alone is sufficient to defeat the motion.” Standing Rock Sioux

Tribe v. U.S. Army Corps of Eng’rs,

(D.D.C. 2017) (denying plaintiffs’

16 motion for a preliminary injunction only for failure to show likelihood of success on the merits).

Without a probability of success, “‘the Plaintiff’s purported injuries, no matter how compelling,

do not justify preliminary injunctive relief.’” Apotex, Inc. v. Sebelius,

(D.D.C. 2010) (quoting Am. Bankers Ass’n v. Nat’l Credit Union Admin.,

(D.D.C. 1999)).

Beyond likelihood of success, the likelihood of irreparable injury is also a critical

showing before a preliminary injunction will issue. See Winter,

. This Court

concludes that Chaplaincy of Full Gospel Churches v. England is abrogated to the extent it

adopted a lesser injury threshold than Winter. See

(D.C. Cir. 2006) (holding

that a movant must show “at least some injury for a preliminary injunction to issue”). Winter

emphasizes that the basis for injunctive relief must be demonstrated irreparable harm. See

Sampson v. Murray,

(1974); Gomez v. Kelly,

, (D.D.C. Feb.

27, 2017) (adopting the higher standard because the purpose of preliminary relief is “to preserve

the status quo pending resolution of the underlying litigation”) (internal quotation marks and

citations omitted).

III. ANALYSIS

A. Motion to Dismiss

1. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction

a. Federal-Question Jurisdiction

Because the APA does not confer jurisdiction, Defendants argue that the Court

should dismiss this case for lack of subject-matter jurisdiction. According to this argument,

Plaintiffs’ claims cannot proceed because they are not based upon a statutory predicate, separate

from the APA, and because DoDI 6055.05 and other internal guidance that Defendants have

17 allegedly violated do not confer legally enforceable duties. Plaintiffs counter that the Court has

subject-matter jurisdiction because their claims raise a federal question under

.

Plaintiffs argue that, even without a separate statutory predicate, the Court has subject-matter

jurisdiction where the Navy’s action is alleged to be arbitrary and capricious or taken without

observing procedures required by law.

The Court agrees with Plaintiffs that their allegations establish federal-question

jurisdiction under Section 1331, even absent allegations of a non-APA statutory violation. See

Heckler,

(before holding that there is a presumption against reviewability under

the APA of an agency’s refusal to act, noting as an initial matter that the district court had

subject-matter jurisdiction pursuant to Section 1331); Trudeau,

(finding that the

federal-question statute “is an appropriate source of jurisdiction” for a cause of action based in

the APA itself, for a “nonstatutory action, independent of the APA,” or for a constitutional

claim).

Defendants cite Steenholdt v. FAA, which suggests a different conclusion: “If no

‘judicially manageable standard’ exists by which to judge the agency’s action, meaningful

judicial review is impossible and the courts are without jurisdiction to review that action.”

(D.C. Cir. 2003). Steenholdt, however, has been abrogated, insofar as it holds this

question to be jurisdictional. See Sierra Club,

. The Court need not belabor the

point: Plaintiffs’ allegations establish subject-matter jurisdiction pursuant to the federal-question

statute.

b. Standing

A plaintiff must also establish a “legal wrong” in order to bring a claim under the

APA for a non-statutory violation.

(“A person suffering legal wrong because of

18 agency action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”). Defendants argue that Plaintiffs fail to

establish that “the interest [they] seek to vindicate falls within a statute’s zone of interest.”

Defs.’ Juris. Br. at 2. The “zone of interests” test, however, is relevant to claims by plaintiffs

who were “adversely affected or aggrieved by agency action within the meaning of a relevant

statute.”

(emphasis added); see, e.g., Lujan v. Nat’l Wildlife Fed’n,

(1990); Nat’l Fed’n of Fed. Emps. v. Cheney,

(D.C. Cir. 1989). Courts have

found a “legal wrong” sufficient to establish standing under the APA where “the courts have

recognized” other grounds for judicial review. Kansas City Power,

; see also

Scanwell Labs.,

(recognizing a “nonstatutory or common-law type of review”

under the APA for a party who has suffered a “legal wrong”).

The allegations of the Complaint make a prima facie showing of such a legal

wrong: Plaintiffs allege that DoD orders or effectively forces them to live and work in areas

contaminated with harmful substances, and they charge that doing so results from arbitrary and

capricious decision-making and also violates DoDI 6055.05 and other policies binding on Navy.

For purposes of establishing a right to review, these allegations are sufficient to establish

prudential standing.

c. Mootness

Defendants also argue that Counts Two and Three in Plaintiffs’ Complaint are

moot due to intervening events since the Complaint was filed on April 11, 2017. Count Two

alleges that DoD violated the APA by unreasonably delaying the completion of its risk

assessment and the implementation of controls to address environmental hazards; Count Three

seeks a writ of mandamus requiring completion of the investigation, risk assessment and

19 implementation. Defendants argue that these allegations are no longer “live” because DoD has

completed its assessment and appropriate implementations, as described in the Final Report and

expert declarations. Defendants add that when they filed the Final Report under seal on May 19,

2017, and subsequently published it online, the delay of which Plaintiffs complained was fully

remedied.

A defendant moving for dismissal pursuant to Federal Rule of Civil Procedure

12(b)(1) for lack of subject-matter jurisdiction may argue that the claim in question is moot,

which means that “‘the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.’” City of Erie v. Pap’s A.M.,

(2000)

(quoting County of Los Angeles v. Davis,

(1979)). “[A]n actual controversy

must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans

for Official English v. Arizona,

, 68 n.22 (1997); see also 21st Century Telesis Joint

Venture v. FCC,

(D.C. Cir. 2003). The party asserting mootness carries a

“heavy burden,” Honeywell Int’l, Inc. v. NRC,

(D.C. Cir. 2010), and must

show that events have occurred which prevent the court from granting the relief sought. See

Burlington N. R. Co. v. Surface Transp. Bd.,

(D.C. Cir. 1988). A court may

dismiss a claim as moot if intervening events “have completely and irrevocably eradicated the

effects of the alleged violation.” County of Los Angeles,

.

Defendants argue that Counts Two and Three are moot because the relief sought

therein—completion of an investigation and risk assessment and implementation of appropriate

remediation and controls—is final. DoD highlights the facts that the Final Report was completed

on March 3, 2017, and submitted for internal security review; it was provided to the Court on

May 19, 2017 under seal, and subsequently released to the public. The Final Report details the

20 process that DoD and its experts undertook, over almost two years, to investigate the alleged

environmental hazards, including multiple rounds of sampling and analysis. See Final Report at

3-7 (detailing the investigations, reports, and remedial measures taken); see also Final Report

App’x A, Public Health Review Actions-to-Date (Feb. 2017) [Dkt. 14-1]. DoD emphasizes its

mitigation efforts, subsequent follow-up testing, and conclusions, as detailed in the Final Report;

steps it took to implement appropriate controls, see generally App’x F Status Report, and other

materials, such as expert declarations, that demonstrate completion of the implementation phase.

Plaintiffs argue that Counts Two and Three are not moot because the

investigation, risk management process, and other activities on which DoD relies do not satisfy

the processes set forth in DoDI 6055.05, and are thus incomplete and unreasonably delayed. See

Opp’n at 8-9. Specifically, Plaintiffs allege that DoD has not yet “completed” three final

“stages” required by DoDI 6055.05: “Step 3: developing controls and making risk decisions;

Step 4: implementing controls; and Step 5: supervising and evaluating the results.” Opp’n at 9.

In response, Defendants argue that these remaining stages are only broad categories of

requirements that are inherently discretionary. Defendants contend that they have already

conducted the analyses they believe to be sufficient, and that the Final Report establishes the

adequacy of the remediation that has been implemented. They also argue that no additional

“controls” need be developed or implemented because no further “unacceptable risks were

found.” Reply at 4. According to DoD, the results of its investigation and analysis have already

been documented in the Final Report, and DoD has supplied additional expert declarations in this

litigation to support its determinations that further mitigation is not necessary to protect those

who live and work at Camp Justice from an unacceptable risk of environmental harm. See Mot.

to Dismiss, Exs. 1-5 (expert declarations) [Dkts. 10-1 - 10-5].

21 Plaintiffs’ argument does not overcome the fact that the actions sought in their

Complaint have been undertaken and, to the extent demanded, completed. When a plaintiff has

received the relief sought but considers the outcome wrong, a charge of unreasonable delay is no

longer live and review lies in the APA’s protection against arbitrary and capricious action. See

Bldg & Constr. Trades Dep’t, AFL-CIO v. Solis,

(D.D.C. 2009). The instant

Complaint alleges unreasonable delay as to both the risk assessment and the implementation of

controls; it seeks a writ of mandamus to require these actions. Compl. ¶¶ 135, 139. However,

the Final Report constitutes the Navy’s final act as to the risk assessment and implementation of

what it considers appropriate measures to address potential hazards. Given this development,

Plaintiffs’ arguments now relate to the adequacy of these actions, not to delay.

Plaintiffs resist this conclusion by citing two D.C. Circuit cases on unreasonable

delay, both of which found that the claims at issue were not moot. See Kifafi v. Hilton Hotels

Ret. Plan,

(D.C. Cir. 2012); True the Vote, Inc. v. Internal Revenue Serv.,

(D.C. Cir. 2016). Neither case supports Plaintiffs’ argument here because both involved the

voluntary cessation of the challenged conduct, not the fulfillment of a plaintiff’s demands for

relief. In a case of voluntary cessation, the defendant is still “free to return to its old ways” and

cannot be said to have “irrevocably eradicated the effects of the alleged violation.” True the

Vote,

(internal quotation marks and citations omitted). In contrast, the “alleged

violation” here was unreasonable delay in analyzing the risk and implementing controls. There

is no longer any danger that DoD will continue to delay its risk assessment and related

implementation, because these activities have been completed, whether or not to Plaintiffs’

satisfaction.

22 Plaintiffs further argue that Defendants’ actions are incomplete because they have

not implemented all recommendations from the Final Report, “such as the implementation of an

operations and management program for asbestos-containing materials.” Opp’n at 11. Citing

True the Vote, Plaintiffs argue that even if these claims are “nearly moot,” they are still subject to

review. Opp’n at 11 (citing True the Vote,

). Defendants counter that all

necessary steps to mitigate the alleged health risks (such as changes to heating, ventilation, and

air conditioning) have been taken, and that any remaining recommendations are discretionary. In

light of the record evidence, DoD has resolved the allegations of delay advanced by Plaintiffs,

that is, delay in completing a risk assessment and delay in implementing “controls to address

environmental contamination and other unhealthy conditions.” Compl. ¶ 135. Plaintiffs’

ongoing allegations relate to the adequacy of DoD’s investigation and remediation measures, not

to unreasonable delay. The Motion to Dismiss will be granted as to Counts Two and Three and

those claims will be dismissed as moot.

2. Rule 12(b)(6)—Failure to State a Claim

Count One alleges that the decision that Camp Justice is safe and habitable, and

the requirement that Plaintiffs live and work in allegedly contaminated areas, are based on an

inadequate investigation and implementation of mitigating controls and are therefore arbitrary

and capricious and an abuse of the Navy’s discretion in violation of Section 706(2).

a. Actions “Committed to Agency Discretion by Law”

Defendants argue that the challenged actions are “committed to agency discretion

by law” and are therefore unreviewable by the Court, even under the APA. See

(a)(2). Plaintiffs respond that Defendants failed to raise this defense in their Motion to

Dismiss and that the Court should not consider it now. Plaintiffs are correct that the question of

23 agency discretion is an affirmative defense that does not go to the Court’s jurisdiction, but they

do not cite any authority for the suggestion that Defendants’ failure to raise the issue in their

Motion to Dismiss precludes the Court from determining whether the claims are reviewable and

as to which Plaintiffs have had a full opportunity to object. Indeed, under Federal Rule of Civil

Procedure 12(h)(1), failure to state a claim upon which relief can be granted is not a defense that

can be waived if a party fails to include it in a responsive pleading or other papers filed with the

Court. See Fed. R. Civ. P. 12(h), (b)(2)-(5) (providing that a party waives the defenses of lack of

personal jurisdiction, improper venue, insufficient process, and insufficient service of process by

failing to make them by motion, but that failure to state a claim may be raised by a motion under

Rule 12(c)). Moreover, although the question is not jurisdictional, it is a “threshold” question:

the Court cannot review an action that is outside the Court’s authority to review. See Heckler,

(discussing the “‘threshold question’ of whether the agency’s action was at all

reviewable” (quoting Citizens to Pres. Overton Park v. Volpe,

(1971))).

Defendants characterize the administrative action at issue as the Navy’s refusal to

take action—a category of administrative action that is presumptively unreviewable. See

Heckler,

. DoD further argues that its actions were “[o]perational military

decisions” that “fall very much within this ‘presumptively unreviewable’ category.” Defs.’ Juris.

Br. at 8. Without further elaboration, the Court cannot agree with this characterization of the

nature of the claims at issue. Plaintiffs challenge the adequacy of DoD’s investigation and

remediation efforts, not its decision to exercise enforcement discretion. Because Count Three

does not complain of a refusal to act, its allegations are not presumptively unreviewable.

As to the argument that the Navy engaged in “operational military decisions” that

are presumptively unreviewable, DoD provides no legal or factual analysis to establish that the

24 healthy maintenance of Camp Justice falls within an “operational military” category. Plaintiffs

are appointed counsel and DoD employees who are required, by virtue of their appointments, to

live and work at times on an operating base. Only Major Seeger is in the military forces.

Certainly, the Navy retains discretion to manage NSGB, but DoD does not connect its

operational mission to Camp Justice or to Plaintiffs’ allegations of serious environmental

hazards, which, at this point, the Court assumes are true. See Twombly,

.

Defendants also argue that the challenged actions are “committed to agency

discretion” by law because there are no judicially manageable standards by which to judge them.

This argument is based on Heckler, which held that a claim is unreviewable if “no judicially

manageable standards are available for judging how and when an agency should exercise its

discretion.” Heckler,

. In these circumstances, the argument amounts to stuff

and nonsense. The “arbitrary and capricious” standard of the APA is well established. Further,

judicially manageable standards are not limited to statutory terms but also “may be found in

formal and informal policy statements and regulations” because “[i]t is well settled that an

agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding

policies that limit its discretion.” Padula v. Webster,

(D.C. Cir. 1987) (citing

Vitarelli v. Seaton,

(1959); Service v. Dulles,

, 372 (1957)).

In determining whether administrative policies or internal statements establish

judicially manageable standards, courts look to whether statements “[impose] rights or

obligations on the respective parties” and whether an agency intended to transform a

pronouncement into a binding norm. Id. (citing American Bus Ass’n v. U.S.,

(D.C. Cir. 1980); Doe v. Hampton,

(D.C. Cir. 1977)); see also Steenholdt,

(“In determining whether agency statements create such a standard, the Court

25 inquires whether the statements create binding norms by imposing rights or obligations on the

respective parties.”). Such intent is “ascertained by an examination of the provision’s language,

its context, and any available extrinsic evidence.” Doe v. Hampton,

. Plaintiffs

allege, and DoD denies, that Defendants failed to follow internal policies and procedures that

have the force and effect of binding norms. Specifically, Plaintiffs cite DoDI 6055.05, which

articulates, as a risk management principle, that Commanders “[a]ccept no unnecessary risks” in

the context of occupational and environmental health; DoDI 6055.05 also requires the Navy and

the Convening Authority to investigate the nature and extent of health hazards, develop controls

and make risk decisions, and, in Plaintiffs’ summary, “determine which risks are acceptable and

unacceptable by balancing operational benefits against the potential for adverse health effects

(i.e., severity and likelihood of occurrence).” Compl. ¶ 123. Plaintiffs emphasize that DoDI

6055.05 specifies the categories of actions that military commanders should take to assess risks,

implement controls, and monitor implementation.

Plaintiffs additionally rely on other directives, underlying documents, and

“applicable regulatory standards” that they argue set forth factors that DoD should have taken

into account in making its DoDI-mandated determination, including:

 DoD Directive (DoDD) 4715.1E, which Plaintiffs characterize as requiring DoD to implement an Environment, Safety, and Occupational Health management system, see Compl. ¶¶ 66, 123(a);

 DoDI 6055.01, which governs DoD’s safety and occupational health program, see Compl. ¶ 66;

 EPA standards that Plaintiffs allege Defendants acknowledge apply (for example, by using those standards in the Final Report), see, e.g., Opp’n at 7-8 n.2;

 Instructions from the Chief of Naval Operations (OPNAVIST) that govern safety and occupational health and require that,

26 among other things, identified hazards must be promptly abated, see Compl. ¶¶67-69;

 Navy guidance, including the Navy’s Industrial Hygiene Field Operations Manual, see id. ¶ 70-71, and the Navy Policy on the Use of Background Chemical Levels, see id. ¶¶ 72, 85, 92.

These policies and procedures, Plaintiffs contend, establish DoD’s intent to bind its personnel to

certain steps to address environmental hazards that were not followed at NSGB.

Defendants argue that these directions “very clearly commit the protection of

DoD personnel” to the Navy’s discretion. Defs.’ Juris. Br. at 6. In support, DoD cites a handful

of DoDD and DoDI provisions, but these are insufficient, on a motion to dismiss, to demonstrate

that none of the Directives, Instructions, or other documents cited by Plaintiffs “create[s] binding

norms by imposing rights or obligations on the respective parties.” Steenholdt,

.

Indeed, while the materials cited by Defendants allow for discretion in aspects of system

implementation and in the authority of commanders to make health-related risk/benefit

determinations, none suggests that the Navy has full discretion to ignore them. On its face,

DoDI 6055.05 appears to require that the Navy and Convening Authority take certain steps to

assess risks, weigh them, establish controls, and consult other materials to make risk assessments

and mitigate harms as necessary. See Doe v. Hampton,

(providing that the

language of a document can provide evidence of intent that the document binds agency action).

Certainly, there are discretionary aspects to these requirements, and it may be that DoD’s various

investigations, reports, and mitigation activities satisfied the requirements that do apply—but

those questions cannot be resolved on a motion to dismiss, where the Court must accept all of

Plaintiffs’ allegations as true. See Twombly,

.

27 b. Final Agency Action

Finally, Defendants argue that Plaintiffs have failed to challenge a “final agency

action” by which APA review might be available. Count One challenges DoD’s assignment of

Plaintiffs to sleep in Cuzcos at Camp Justice during work trips, as well as the determination that

the Camp Justice facilities are safe and habitable. Compl. ¶ 131. Defendants argue that Count

One should be dismissed for failure to state a claim under Rule 12(b)(6), because Plaintiffs’

allegations do not identify a final action by Defendants and therefore fail to state an APA claim.

Final agency action is clearly required before judicial review. See

(“Agency action made reviewable by statute and final agency action for which there is no other

adequate remedy in a court are subject to judicial review.”). “The District Court’s authority to

review the conduct of an administrative agency is limited to cases challenging ‘final agency

action.’” Reliable Automatic Sprinkler Co., Inc. v. CPSC,

(D.C. Cir. 2003).

The APA defines an “agency action” as “the whole or a part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof.”

(13). “This list is

expansive,” and is “‘meant to cover comprehensively every manner in which an agency may

exercise its power.’” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

(D.C. Cir. 2006) (quoting Whitman v. Am. Trucking Ass’ns, Inc.,

(2001)).

To be deemed final, an agency action “must ‘mark the consummation of the

agency’s decisionmaking process,’ i.e., it is not ‘merely tentative or interlocutory.’ . . . Second,

‘the action must be one by which rights or obligations have been determined, or from which

legal consequences will flow.’” Safari Club Int’l v. Jewell,

(D.C. Cir.

2016) (quoting Bennett v. Spear,

(1997)). This is a “pragmatic” and

“flexible” inquiry. Safari Club,

(quoting Nat’l Ass’n of Home Builders v. U.S.

28 Army Corps of Eng’rs,

(D.C. Cir. 2005)). The possibility that a decision

may later be revised based on new information does not render “an otherwise definitive decision

nonfinal.” Safari Club,

(quoting U.S. Army Corps of Eng’rs v. Hawkes Co.,

(2016)).

The first question raised by Defendants’ argument is what action or actions

Plaintiffs actually challenge in their lawsuit. Count One of the Complaint describes the actions

at issue as “[t]he Navy’s decision that Camp Justice is safe and habitable, and Defendants’

decision that Plaintiffs and other personnel must live and work in contaminated areas at Camp

Justice.” Compl. ¶ 131. In brief, Plaintiffs characterize their complaint as a challenge to DoD’s

“flawed and incomplete risk management process and the resulting orders to live and work at

Camp Justice.” Opp’n at 8. Plaintiffs also reference “DoD’s repeated orders assigning Plaintiffs

to live and work at Camp Justice,” and suggest that these orders provide evidence that DoD

“determined that Camp Justice was safe and habitable and that personnel should continue to live

and work there.” Id. at 13. Finally, Plaintiffs describe the “agency actions” in question as

“DoD’s repeated, health-threatening orders that the Plaintiffs live and work in contaminated

areas of Camp Justice, DoD’s failure to protect the Plaintiffs from environmental hazards, and

DoD’s determination that Camp Justice is safe and habitable.” Opp’n at 14. For purposes of

determining whether Plaintiffs have challenged “final agency actions,” the Court interprets these

passages collectively as a challenge to two categories of agency action: (1) DoD’s assignment of

Plaintiffs to live and work in contaminated areas at Camp Justice during work trips, and (2)

DoD’s “determination” that Camp Justice safe and habitable.

29 i. Did DoD’s Assignment of Plaintiffs to Allegedly Contaminated Accommodations Constitute Final Agency Action?

The Complaint alleges that “[e]ach time military commissions hearings are

scheduled at Camp Justice, the legal teams and support personnel request travel arrangements

from the Convening Authority and receive orders from the Convening Authority assigning them

to specific housing.” Compl. ¶ 26. At the hearing on their motion for a preliminary injunction,

Plaintiffs acknowledged that only Major Seeger, as an Army officer, is required without

exception to stay in the allegedly contaminated Camp Justice housing; the non-military Plaintiffs

may stay in preferable hard housing such as the townhouses or nearby hotel rooms, subject to

availability which has usually been arranged. See PI Tr. at 44-46.9

Plaintiffs complain further that their support staff, such as legal assistants who

accompany them to NSGB for detainee hearings, are inconvenienced and endangered by the

housing assignments, which impedes Plaintiffs’ work by limiting or interfering with their ability

9 DoD counsel proffered, without contradiction, that Plaintiff Michael Schwartz stayed on-base for a total of 29 days in 2016, always staying at the Navy Lodge or NSGB housing; from January-July 2017 he stayed at the Navy Lodge for seven days and in Cuzcos for four days. PI Tr. at 44. Plaintiffs Cheryl Bormann and Edwin Perry have traveled to NSGB numerous times since 2014 and 2015, respectively, and both have always stayed in “hard housing”: Ms. Bormann stayed at either the Navy Lodge or NSGB “hard housing” during her four days on-base in 2014, 46 days in 2015, 40 days in 2016, and 22 days in January-July of 2017, and as of July 2017 she had received “hard housing” assignments for her remaining work trips in 2017; Mr. Perry stayed in the Navy Lodge or NSGB “hard housing” for a total of 21 days in 2015, 56 days in 2016, and 21 days in January-July 2017, and also had hard housing reservations for the remainder of his 2017 trips as of July 2017. Id. at 44. As an Army officer, Major Seeger stayed in Cuzcos for a total of 18 days in 2015, 63 days in 2016, and 23 days in January-July 2017, with no option of requesting hard housing even if available. Id. at 46. Defendants do not challenge Mr. Schwartz’s, Ms. Bormann’s, or Mr. Perry’s standing on the grounds that they have stayed in “hard housing” for all or the vast majority of their time on-base. Because Plaintiffs’ allegations are based on the potential harm of both living and working in allegedly contaminated housing, and because the operative housing policy does not guarantee “hard housing” to Plaintiffs and apparently prioritizes their right to preferable housing below the needs of other visitors to NSGB, the Court does not find any impediments to these Plaintiffs’ standing on such grounds.

30 to bring support staff. See Compl. ¶ 29. Plaintiffs also complain that the work they are assigned

requires them to spend the majority of their working hours on base in allegedly contaminated

areas because the SCIF and designated defense workspaces convenient to the SCIF have been

built in hazardous containerized housing. See Compl. ¶ 30.

Defendants respond that Plaintiffs do not cite “any specific regulation, policy, or

decision” that requires them to live and work in the allegedly contaminated areas, so that “there

is no final agency action, nor is there an administrative record on which such an action could

have been based.” Mot. to Dismiss at 17. In support, Defendants cite Fraternal Order of Police

v. Gates, which held that a challenge to the Navy’s exposure of trainees to pepper spray failed to

state a claim, because those plaintiffs had been “less than clear as to which agency action is at

issue” and had failed to “connect the [challenged] training to the language of the DoD and Navy

documents” cited in their complaint.

(D.D.C. 2009).

Defendants’ reliance on Fraternal Order is unpersuasive. The Fraternal Order

court found that the right to relief was “speculative,” Twombly,

, because the

plaintiffs had not identified the precise agency actions challenged, leaving the Court to “guess.”

Fraternal Order,

. Here, however, there is no need to guess which actions

Plaintiffs challenge or what law and policies upon which they rely. Defendants are mistaken

when they argue that Plaintiffs fail to point to any decision that requires Plaintiffs to stay at

Camp Justice. Plaintiffs’ pleadings, which the Court accepts as accurate in this procedural

posture, clearly allege that there is a procedure in place whereby attorneys and other visiting

personnel submit housing requests for upcoming work trips, and that the Convening Authority

orders them to specific housing. Further, the nature of their work as attorneys requires them to

31 work in the SCIF where relevant documents are available and classified briefs can be prepared

but which is allegedly contaminated.

It is well established that “a completed universe” of orders can establish a final

agency action subject to APA review: less central to the analysis than the format of the orders is

whether “the scope of the controversy has been reduced to manageable proportions, and its

factual components fleshed out, by concrete action that harms or threatens to harm the

complainant.” Lujan,

. Particularly when viewed within the “pragmatic” and

“flexible” framework of the inquiry into “final agency action” and the acceptance given to a

plaintiff’s fact allegations, the Complaint adequately alleges final agency action. Nat’l Ass’n of

Home Builders,

. The orders are a “consummation of the agency’s

decisionmaking process,” imposing on Plaintiffs the requirement that they work, and possibly

stay, in the facilities of which they complain. Safari Club,

. That decision in

turn places Plaintiffs’ health at risk, according to their pleadings. The housing orders and

necessary work areas are clearly connected to the alleged policy violations, and the Court

concludes that Plaintiffs have alleged final agency action sufficient to state a claim.

ii. Did DoD’s Determination that Camp Justice Is Safe and Habitable Constitute Final Agency Action?

Plaintiffs allege that DoD’s “determination that Camp Justice is sufficiently safe

and habitable to live and work there” is final agency action, because “there is no indication that

Defendants will alter their position regarding the environmental contamination at Camp Justice.”

Opp’n at 15; see also Compl. ¶ 8 (“Defendants’ decision to require Plaintiffs and other personnel

to live and work [at Camp Justice] should be set aside as arbitrary and capricious.”). Plaintiffs

allege that DoD’s repeated orders assigning Plaintiffs to live and work at Camp Justice are

evidence of a final decision. Opp’n at 12. Plaintiffs also allege that Defendants “fail[ed] to

32 properly complete the risk management process required by DoD Instruction 6055.05 . . . and to

determine whether the operational benefits of requiring personnel to live and work there

outweigh the risk to those individuals’ health.”

DoD’s limited response argues that DoDI

6055.05 and other “[i]nternal guidelines” are “insufficient to connect agency action to specific

regulatory authorization or to raise a right to relief above the speculative level.” Reply at 7

(citing Fraternal Order,

).10

Plaintiffs argue that the decision that Camp Justice is safe and habitable is

“concrete” and “reviewable” because the orders and assignments to live and work in allegedly

contaminated housing and work space “operate as a de facto risk management decision” that

violates DoDI 6055.05. Opp’n at 13. As the Court found above, Navy undertook a

“decisionmaking process” which “consummate[ed]” in the issuance of the Final Report. Bennett,

520 U.S. at 178.

What is less clear is whether any of the allegedly flawed investigation, risk

assessment, mitigation, and Final Report constitute final agency action. Such a study does not fit

the statutory definition of agency action, that is, “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof.”

(13). Even if the

Final Report were “definitive,” it is the resulting order, not the preceding study that has a “‘direct

and immediate . . . effect on the day to day business’ of the party challenging the agency action.”

Reliable Automatic Sprinkler,

(quoting FTC v. Standard Oil Co. of Cal., 449

10 Defendants also cite Schweiker v. Hansen,

(1981), for the proposition that internal guidelines “do not create an actionable duty for an agency.” Reply at 7. While an accurate point, reference to Schweiker is curious because that case did not analyze any APA questions, much less whether agency action is final, and there is no shortage of Supreme Court and D.C. Circuit cases more squarely considering the question. Plaintiffs allege that the Navy at NSGB was required to abide by the various directives and instructions they cite, and Defendants do not overcome those allegations.

, 239 (1980)). Applied here, it is Navy’s orders, whether explicit or functional, that are

the means through which it “may exercise its power.” Whitman,

. As the D.C.

Circuit noted in Fund for Animals, “[m]uch of what an agency does is in anticipation of agency

action. Agencies prepare proposals, conduct studies, . . . and engage in a wide variety of

activities that comprise the common business of managing government programs.”

. In the context of potential harms to Plaintiffs, the determination that the areas in question

are safe and habitable is such an anticipatory step, while the housing orders and necessary

location of work assignments are the final actions on which Plaintiffs’ claim is based.

B. Preliminary Injunction

First, the Motion for a Preliminary Injunction will be denied as moot as to Counts

Two and Three, because those claims do not survive DoD’s Motion to Dismiss.

Second, as Winter recently emphasized, a preliminary injunction is “an

extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter,

. Since Winter was decided, the D.C. Circuit has twice

declined to abandon the sliding-scale approach. See Sherley,

(“We need not

wade into this circuit split today.”); Davis v. Pension Ben. Guar. Corp.,

(D.C. Cir. 2009) (“We need not decide whether a stricter standard applies.”). Recognizing the

Circuit’s silence, this Court nonetheless concludes that Winter makes clear that a plaintiff must

make, at the least, a strong showing on likelihood of success on the merits and irreparable harm,

or he cannot obtain preliminary injunctive relief.

1. Likelihood of Success on the Merits

Plaintiffs argue that they have demonstrated a likelihood of success on the merits

because “[t]here is simply no reasonable or rational justification for requiring Plaintiffs and

34 others to live and work in dangerous, contaminated areas, particularly where, as here,

uncontaminated alternatives exist,” which renders the Navy’s orders arbitrary and capricious.

Mot. PI at 11 (citing

(2)(A)). Plaintiffs cite DoDD 4715.1E, which charges DoD

components with ensuring compliance with applicable “laws, regulations, and DoD policies,”

and which Plaintiffs take to include environmental safety and occupational health laws and

policies, such as EPA standards for environmental health and safety. Mot. PI at 12. Plaintiffs

contend that the Navy violated these policies by failing to address “data gaps”; conducting

insufficient “additional environmental sampling”; failing to address moisture and microbial

growth; and inadequately mitigating risks posed by formaldehyde and benzo(a)pyrene identified

in sampling. More generally, Plaintiffs allege that the investigation itself was inadequate. Their

summary allegation is that the Navy’s orders that Plaintiffs “continue to live and work in

contaminated areas at Camp Justice . . . materially deviate from the Navy’s own regulations,

policies, and guidance (as well as recommendations from its own consultants).”

.

DoD’s response emphasizes the process and reasoning behind its determination

that the facilities at Camp Justice are habitable without undue risk:

NMCPHC’s Final PHR Report concluded that there is no evidence that the old runway at Camp Justice was contaminated from prior use, no evidence that Camp Justice personnel are exposed to carcinogens or toxic substances above the acceptable risk ranges established by the EPA, OSHA, and other regulatory agencies, and no evidence that any verifiable cancer cases are linked to environmental or occupational exposure at Camp Justice. [The Report’s] findings and recommendations are well-founded, and it would not be the Court’s place to second-guess the NMCPHC’s expert analysis.

Mot. to Dismiss at 20 (citing Lee Mem’l Health Sys. v. Burwell,

, 321

(D.D.C. 2016)).

35 Plaintiffs raise particular concern regarding the February 2016 Navy Preliminary

Assessment, which the Navy characterizes in the Final Report as a “preliminary public health

screening risk assessment.” Final Report at 6. Plaintiffs charge that Navy had concluded in

February 2016 that “formaldehyde and benzo(a)pyrene found in the samples exceeded the

screening levels [NMCPHC] had established for a 9-month active duty military worker.” Mot.

PI at 13; see also Final Report at 6-8. The Court recognizes that formaldehyde is of particular

concern to Plaintiffs. Indeed, based on the prominent placement of discussions of formaldehyde

levels and remediation, this appears to be an issue of great concern in the Final Report as well.11

However, the Final Report provides significant detail, beyond the February 2016 Navy

Preliminary Assessment, that undercuts Plaintiffs’ likelihood of success.

The Final Report states that “[t]he results of the preliminary public health

screening risk assessment [i.e., the February 2016 Navy Preliminary Assessment] indicated that

mercury and formaldehyde concentrations in indoor air, and arsenic and benzo(a)pyrene

concentrations in soil were of potential concern and warranted further evaluation at specific

locations in Camp Justice,” although the mercury and formaldehyde levels measured in indoor

air were within the acceptable OSHA range.12 Final Report at 6. As Defendants’ counsel

explained at oral argument, the concentrations at that time warranted further evaluation because

they exceeded EPA screening standards set forth in the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA, commonly known as the Superfund), 42

11 Because formaldehyde is the most serious potential hazard of which Plaintiffs complain, the Court’s analysis on the Motion for a Preliminary Injunction focuses on formaldehyde exposure. Plaintiffs have raised other issues of concern but none satisfies the standards for a preliminary injunction. 12 OSHA sets Permissible Exposure Limits, or PELs, which are enforceable regulatory standards for determining allowable exposures in U.S. workplaces. See Gillooly Decl. at 12.

et seq. See PI Tr. at 38-39. Contrary to Plaintiffs’ contention that DoD has

“conceded” that “EPA CERCLA risk guidance must be used,” PI Tr. at 26, Defendants argue

that CERCLA guidelines do not impose requirements on an overseas base such as NSGB, but

were only “borrow[ed]” for use as a benchmark during the investigation prior to the Final

Report.

.

The Final Report concluded that “[c]umulative cancer risks were within the

[EPA] acceptable risk range of 1E-06 to 1E04 (i.e., 1 in 1,000,000 to 1 in 10,000)” for “Adult

Resident/Workers Inside Camp Justice.” Final Report at 41. The Final Report stated that, after

“engineering controls” including HVAC modifications, formaldehyde levels in “almost all

modular buildings” decreased by an average of 63 percent.

. It also reported that the

“concentrations of formaldehyde detected in indoor air at Camp Justice were within the range of

concentrations considered ‘Low’ to ‘Mid’ by the CDC for typical concentrations observed in

manufactured homes” in the United States.

. The Final Report recommended new

procedures to document modifications and monitor the functionality of HVAC systems going

forward, and suggested that the Navy “consider sampling formaldehyde annually during the

summer to verify and demonstrate that engineering controls are effective at keeping

formaldehyde levels at their current reduced levels.”

. Although Plaintiffs’ expert, Dr.

Killen, expressed his concern regarding identified toxins and possible exposure pathways, see

Killen Report at 1, Navy experts reviewed the same data and concluded that the detected

formaldehyde levels, and historical use and effects of the area, did not indicate an unacceptable

risk. See, e.g., Gillooly Decl. at 7-11 (discussing the iterative process of repeated formaldehyde

sampling and mitigation efforts).

37 Plaintiffs further challenge DoD’s conclusions because its samples came from

only 16 of the 100 Cuzco sleeping spaces, and because they did not test and re-test all of them.

See, e.g., Killen Report at 10 (“[I]n a serious deviation from appropriate testing protocol and

methodology, not all CUZCOSs appear to have been sampled, even though formaldehyde was

detected in all locations that were sampled.”). Dr. Killen does not explain in sufficient detail to

counter the Final Report why it is methodologically unsound to sample some but not all of a

collection of nearly identical structures situated in close proximity. Notably, the subsequent

HVAC modifications, shown in later sampling to have been effective in reducing formaldehyde

exposure, was implemented in all of the Cuzcos used for sleeping.

Plaintiffs’ motion does not sufficiently demonstrate that DoD’s conclusion was an

unreasonable risk assessment or that DoD wholly disregarded the broad guidelines set forth in

DoDI 6055.05 and the other relevant policies. The investigation into potential hazards was

apparently considered with competing needs. DoD considered factors such as housing demand,

convenience to the ELC, and other reasons to assign legal team members to live and work in the

contested housing.

Plaintiffs’ motion does not show a likelihood of success on the merits. DoD

appears to have examined the relevant data and articulated “‘a rational connection between the

facts found and the choice made.’” Americans for Safe Access v. DEA,

(D.C.

Cir. 2013) (quoting MD Pharm. Inc. v. DEA,

(D.C. Cir. 1998)). The Court

concludes that Plaintiffs have not shown that they are likely to succeed on the merits, such that

the extraordinary remedy of a preliminary injunction is warranted.

38 2. Irreparable Injury

The Court finds that Plaintiffs also have failed to demonstrate irreparable injury.

Such harm must be “certain, great, actual, and imminent.” Mylan Labs. Ltd. v. FDA,

(D.D.C. 2012) (citing Wis. Gas Co. v. FERC,

, 674 (D.C. Cir.

1985)). While the alleged harm—risk of cancer—is no doubt “great,” the record does not show

that it is currently “certain,” “actual,” or “imminent.” DoD has made important upgrades,

including HVAC modifications in modular buildings and additional actions in the Cuzco living

quarters. See App’x F Status Report at 21-22. The fact that these upgrades have been made, and

have been shown to mitigate potential harms, lessens the likelihood of irreparable harm.

3. Balance of Equities and Public Interest

Plaintiffs contend that the equities and the public interest favor granting their

requested injunction. These two factors merge when relief is sought against the government.

United States Ass’n of Reptile Keepers, Inc. v. Jewell,

(D.D.C. 2015)

(citing Nken v. Holder,

(2009)). Plaintiffs cite the “significant risk due to the

exposures summarized herein” and the “readily available” alternative facilities at NSGB. Mot.

PI at 20. They also cite the public interest in the proper functioning of the Military

Commissions. Id. at 21. Through declarations from persons with relevant experience and

knowledge, the Navy responds that the Military Commissions have specific housing and

workspace requirements, due to the specialized security requirements for its cases, and that there

are no other facilities at NSGB that would meet those requirements. See Mot. to Dismiss, Exs.

2-4 (declarations of Wendy A. Kelly; Capt. David Culpepper, USN; and Sandra Greenwell). The

Navy argues that if it were required to house all lawyers for detainees in hard housing and

39 provide new work facilities, the operations of the base would be affected for its personnel and its

mission.

“In each case, courts ‘must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested relief.’” Winter,

(quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska,

(1987)).

The parties present their arguments in abbreviated form and without sufficient detail for the

Court to perform the balancing of interests as required before an injunction can be issued.

Plaintiffs have therefore failed to demonstrate that the current balance of equities and the public

interest favor issuance of an injunction.

CONCLUSION

For the reasons discussed above, Plaintiffs’ motion for a preliminary injunction

will be denied. Defendants’ motion to dismiss will be granted as to Counts Two and Three and

denied as to Count One. A memorializing Order accompanies this Memorandum Opinion.

Date: March 30, 2018

/s/ ROSEMARY M. COLLYER United States District Judge

40