Poett v. U.S.

Decision Date29 September 2009
Docket NumberCivil No. 07-1374 (CKK).
Citation657 F.Supp.2d 230
PartiesJoseph POETT, Plaintiff, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Columbia

Joan Augusta Harvill, Washington, DC, for Plaintiff.

Heather D. Graham-Oliver, U.S. Attorney's Office, Washington, DC, for Defendants.



Plaintiff, Joseph Poett, a chemist employed with the United States Department of Agriculture, brings the above-captioned lawsuit pursuant to the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("ADA"), seeking review of the decision by the Division of Select Agents and Toxins ("DSAT"), within the Centers for Disease Control and Prevention ("CDC") of the Department of Health and Human Services ("HHS"), to deny Plaintiff access to select agents and toxins within the course of his work as a chemist. According to Plaintiff, the decision is arbitrary and capricious as well as in violation of both his First Amendment right to free association and his Fifth Amendment right to due process. Plaintiff names as Defendants in this action the United States of America, the Attorney General of the United States, the Secretary of the United States Department of Agriculture, the United States Department of Agriculture, the Department of Health and Human Services, the Centers for Disease Control, and Robbin Weyant, Director of the DSAT.

Presently before the Court are the parties' cross-motions for summary judgment. Upon thorough consideration of the parties' submissions, including the attachments thereto, applicable case law, relevant statutory and regulatory authority, and the administrative record filed in this case, the Court shall remand this case to the Secretary for further explanation consistent with this Memorandum Opinion, and shall DENY WITHOUT PREJUDICE the Defendants' [24] and Plaintiff's [25] Motions for Summary Judgment, for the reasons set forth below.

A. Statutory and Regulatory Background

As part of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub.L. 107-188, Title II, § 201(a) et seq., 116 Stat. 5974, 637 (hereinafter, the "Act"), Congress established a statutory scheme for enhancing controls on dangerous biological agents and toxins. Pursuant to the Act, the Secretary of HHS (hereinafter, the "Secretary"), has established "a list of each biological agent and each toxin that has the potential to pose a severe threat to public health and safety." 42 U.S.C. § 262a(a)(1)(A); see also 42 C.F.R. §§ 73.3 & 73.4 (listing select agents and toxins). Access to these select agents and toxins is limited "to only those individuals ... determine[d] to have a legitimate need to handle or use such agents and toxins" and who have been reviewed by the Attorney General and approved by the Secretary. Id. § 262a(e)(2)(A); see also 42 C.F.R. § 73.10(a) ("an individual may not access a select agent or toxin, unless the individual is approved by the HHS Secretary ... following a security risk assessment by the Attorney General").

In order to apply for access approval, "each individual must submit the information necessary to conduct a security risk assessment to the Attorney General." 42 C.F.R. § 73.10(d); see also 42 U.S.C. § 262a(e)(3)(A). Upon receipt of this information, the Attorney General is required to "use criminal, immigration, national security, and other electronic databases that are available to the Federal Government" to determine whether the individual requesting access to the listed agents or toxins fall into one of the two following categories of individuals who may be disqualified from having access to select agents and toxins: (1) "restricted persons" and (2) "individuals [] reasonably suspected by any Federal law enforcement or intelligence agency" of certain enumerated acts or conditions. 42 U.S.C. §§ 262a(e)(3)(B)(i) & (ii); see also 42 C.F.R. §§ 73.10(f) & (g).

With respect to the first category, a "restricted person" is statutorily defined as an individual who is:

(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

(C) is a fugitive from justice;

(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(E) is an alien illegally or unlawfully in the United States;

(F) has been adjudicated as a mental defective or has been committed to any mental institution;

(G)(i) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, ... has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism, or (ii) acts for or on behalf of, or operates subject to the direction or control of, a government or official of a country described in this subparagraph;

(H) has been discharged from the Armed Services of the United States under dishonorable conditions; or

(I) is a member of, acts for or on behalf of, or operates subject to the direction or control of, a terrorist organization as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)).

18 U.S.C. § 175b(d)(2). If the Attorney General determines that an individual is a "restricted person," the Secretary is required to deny access to that individual. 42 U.S.C. § 262a(e)(2)(C); see also 42 C.F.R. § 73.10(g).

With respect to the second category, an individual applicant may be denied access if he or she is identified by the Attorney General as being "reasonably suspected by any Federal law enforcement agency or intelligence agency of:"

(I) committing a crime set forth in section 2332b(g)(5) of Title 18 [i.e., a Federal crime of terrorism];

(II) knowing involvement with an organization that engages in domestic or international terrorism (as defined in section 2331 Title 18) or with any other organization that engages in intentional crimes of violence; or

(III) being an agent of a foreign power (as defined in section 1801 of Title 50).

42 U.S.C. § 262a(e)(3)(b)(ii). If the Attorney General determines an individual is reasonably suspected of satisfying one of these three enumerated conditions, the Secretary, in consultation with the Attorney General, may "limit or deny access to agents and toxins, ... if limiting or denying such access by the individuals involved is determined appropriate by the Secretary, in consultation with the Attorney General." Id. § 262a(e)(2)(D); see also 42 C.F.R. § 73.10(g).

The Attorney General must promptly notify the Secretary of the results of this review once completed. 42 U.S.C. § 262a(e)(3)(C). The Secretary is then required to determine whether the individual should be granted or denied access and communicate the same to the individual applicant in question. Id. § 262a(e)(4).

An individual whose access approval has been denied or limited may appeal the Secretary's decision. 42 C.F.R. § 73.10(h). The appeal must be in writing, state the factual basis for the appeal, and be submitted to the Secretary within 30 calendar days of the decision. Id. § 73.20. If the denial, limitation, or revocation of an individual's access approval was originally based upon an identification by the Attorney General, the request for review will be forwarded to the Attorney General for review. Id. The Secretary's decision constitutes final agency action for purposes of the APA. Id.; see also 42 U.S.C. § 262a(e)(7)(iii).1

B. Factual Background

As previously stated, Plaintiff is a chemist employed by the United States Department of Agriculture ("USDA"). Administrative Record, Docket No. [22-2] (hereinafter, "A.R")2 at 12, 18. During the course of his work with the Midwestern Laboratory, Office of Public Health Science in the Food Safety Inspection Service ("FSIS") at the USDA, Plaintiff applied for and was ultimately denied access to select agents and toxins. A.R. at 39-40. He has now filed the instant civil action seeking review of that decision.

1. January 9, 1992 Letter from Plaintiff to the British Ambassador

At the heart of the parties' current dispute is a letter, dated January 9, 1992, written by Plaintiff to the British Ambassador. A.R. at 4. In the letter, Plaintiff expresses "regret" over his past "participation" with the Irish Northern Aid Committee in America ("NORAID")—an organization that has been identified by the United States as an organization that engages in international terrorism or international violence. A.R. at 39. The letter reads as follows:

Dear Sir [Ambassador]:

I regret my past participation in the Irish Northern Aid Committee in America (Noraid), fearring [sic] the funds others and I have solicited may have fallen into the wrong hands. I will pray for the peaceful resolution between the British and Irish People.

Realizing now that in any way supporting violence against British civilians is wrong, I would gladly participate in any means [to] peacefully put an end to the fighting between two great nations.

At your disposal,


Joseph R. Poett

A.R. at 4. As will become apparent below, this letter, and Plaintiff's alleged involvement with NORAID, form the basis of the now-challenged decision to deny Plaintiff access to select agents and toxins.

2. Plaintiff's Application for Access to Select Agents and Toxins

On May 4, 2006, as part of the process for requesting the necessary security risk assessment required to obtain access to select agents and toxins, Plaintiff signed and submitted a FD-961 (Federal Bureau of Investigation Bioterrorism Preparedness Act: Entity/Individual Information). See A.R. at 6-8. The FD-962 was then sent to the Federal Bureau of Investigation's Criminal Justice Information Services Division (hereinafter, the "FBI")...

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