Seeger v. U.S. Dep't of Def.

Citation306 F.Supp.3d 265
Decision Date30 March 2018
Docket NumberCivil Action No. 17–639 (RMC)
Parties Matthew SEEGER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
CourtU.S. District Court — District of Columbia

Daniel A. Small, Johanna M. Hickman, Cohen Milstein Sellers & Toll PLLC, Margaret K. Fawal, Michael C. Davis, Venable LLP, Washington, DC, for Plaintiffs.

Jason Todd Cohen, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

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), 5 U.S.C. §§ 500 et seq (2012). They allege that DoD, the U.S. Navy, and the Director of the Office of Military Commissions and Convening Authority have failed to investigate adequately environmental hazards, including airborne formaldehyde and other carcinogens, present at Camp Justice, where Plaintiffs are assigned to work and in some cases sleep while at Guantanamo Bay. They further allege that Navy's investigation into these alleged hazards was incomplete and flawed, rendering arbitrary and capricious DoD's conclusions that Plaintiffs can continue safely to live and work at Camp Justice. Plaintiffs ask the Court to require further investigation of the alleged hazard mitigation, as well as alternative living and working facilities until that is done, for which they seek a preliminary injunction until this litigation concludes.

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 AV–29 and AV–34, which are fixed structures, and AV–32, a former hangar. See id. at 1–3. Most of Plaintiffs' work is done in the SCIF, which is inside prefabricated structures that Plaintiffs allege to be contaminated. See Tr. of Prelim. Inj. Hr'g (PI Tr.) [Dkt. 30] at 18 (testimony of Major Seeger regarding structures of ELC). Plaintiffs also have dedicated office space in AV–34, outside the ELC, but that is a less convenient space, and Plaintiffs use it less frequently than spaces within the ELC, because classified documentation cannot be taken outside the SCIF. Id.

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–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. Id. Other limited exceptions have been made on a case-by-case basis and "in an ad hoc manner based upon requests," including requests from the Military Commissions Defense Organization for trial team members to stay in other NSGB housing when available. Id.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 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. Id.

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 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...

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