Seeger v. U.S. Dep't of Def., Civil Action No. 17-639 (RMC)

MAJOR MATTHEW SEEGER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. 17-639 (RMC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 9, 2019

MEMORANDUM OPINION

Plaintiffs Major Matthew Seeger, Michael Schwartz, Cheryl Bormann, and Edwin Perry are attorneys, military and civilian, employed by the Department of Defense and assigned to represent detainees before military commissions at U.S. Naval Station Guantanamo Bay. They bring this action against the Department of Defense, the U.S. Navy, and the Director of the Office of Military Commissions and Convening Authority under the Administrative Procedure Act, alleging that Defendants arbitrarily and capriciously require Plaintiffs, as part of their duties, to work and in some cases sleep at Camp Justice, which facility is allegedly contaminated with unsafe levels of environmental hazards.

What is at issue right now is not the interesting part of the case. It is, rather, a discovery dispute. Plaintiffs argue that the recently certified Administrative Record, upon which the Court's decision will depend, is incomplete and must be supplemented. Defendants oppose. Although the Parties have resolved some of their disagreements, several outstanding issues remain and Plaintiffs seek additional discovery. Having reviewed the Parties' materials, the Court will grant in part and deny in part Plaintiffs' motion to take discovery and supplement the Administrative Record.

I. BACKGROUND

The facts of the case have not changed since the Court's last opinion, Seeger v. U.S. Dep't of Def., 306 F. Supp. 3d 265 (D.D.C 2018), and so relevant specifics are recounted only briefly.

Camp Justice is a complex at U.S. Naval Station Guantanamo Bay (NSGB) which serves as the location of the Office of Military Commissions Office of the Convening Authority (OMC), part of the Department of Defense (DoD). OMC assigns Plaintiffs housing when their work takes them to NSGB. Often, that housing is located in Containerized Housing Units (CHUs)—air-conditioned trailers—or improved tents. Less frequently, civilian Plaintiffs (i.e., all other than Maj. Seeger) may be assigned to—or independently obtain—housing outside of Camp Justice, including transient-housing townhomes, rooms at Navy Gateway Inns & Suites (NGIS), or the Navy Lodge.

Plaintiffs filed suit alleging in Count One that DoD violated the Administrative Procedure Act (APA) by arbitrarily and capriciously deciding, after an inadequate investigation, that housing at Camp Justice is safe and habitable notwithstanding the recognized presence of certain environmental hazards. Compl. [Dkt. 1] ¶¶ 129-32. Count One survived the government's motion to dismiss. See Seeger, 306 F. Supp. 3d 265; 3/30/18 Order [Dkt. 36]. On September 6, 2018, the government certified the Administrative Record (Record) pursuant to an agreed-upon briefing schedule. See Notice of Filing Certified Index to the Admin. R. (Notice) [Dkt. 39]. On October 30, 2018, Plaintiffs filed their motion to supplement. Pls.' Mot. for Supplementation of Admin. R. & for Disc. (Mot.) [Dkt. 40]. Since then, the Parties have requested several extensions of time in part to narrow the disputed issues. Although the Parties have successfully resolved some of their disputes, Plaintiffs ask to include five additional sets of documents in the Record:

1. The April 24, 2018 "Draft OMC Housing Policy" and any documents reflecting finalization or implementation of this policy;

2. All requests submitted by or on behalf of the Plaintiffs or their defense team members requesting "hard housing" accommodation and any responses thereto;

3. All documents (created at any time) reflecting the assignment of workspace within Camp Justice to the Plaintiffs' defense team¹;

4. Written orders directing Plaintiffs to report to Camp Justice; and

5. The May 11, 2018 "Memorandum for Convening Authority" regarding the "Draft OMC Housing Policy."

See Mot. at 2. Plaintiffs also ask for limited depositions of government personnel involved in the document production, as necessary to determine what other documents may have been omitted from the Record. Finally, Plaintiffs ask the Court to clarify that certain declarations submitted by the government are not part of the Administrative Record.

The matter is now ripe for review.²

II. LEGAL STANDARD

In keeping with the principle that a court sitting to review agency action under the APA does not engage in a de novo review of the matter, judicial review is generally limited to the administrative record. Camp v. Pitts, 41 U.S. 138 (1973). To facilitate such review, the lawrequires that the agency identify and produce the complete administrative record. NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). That record "properly consists of the materials before the agency and no more nor less," see Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 78 (D.D.C. 2018), which "includes all materials [the agency] directly or indirectly relied on to make all decisions, not just final decisions." Nat'l Wilderness Inst. v. U.S. Army Corps of Eng'rs, No. 01-0273, 2002 WL 34724414, at *3 (citing Amfac Resorts, LLC v. U.S. Dep't of the Interior, 143 F. Supp. 2d 7, 10 (D.D.C. 2001)); see also CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) ("It is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision." (citations omitted)). "As part of the record, the Court may consider any document that might have influenced the agency's decision and not merely those documents the agency expressly relied on in reaching its final determination." Charleston Area Med. Ctr. v. Burwell, 216 F. Supp. 3d 18, 23 (D.D.C. 2016) (citing Nat'l Courier Ass'n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975) (quotation omitted)). Indeed, to be complete, the record must include "all materials that 'might have influenced the agency's decision,' and not merely those on which the agency relied in its final decision." Amfac Resorts, 143 F. Supp. 2d at 12 (citations omitted).

An agency enjoys a presumption of regularity with respect to the administrative record it prepares; as the decisionmaker, it is generally in the best position to identify and compile the record. Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) ("[A]bsent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record." (citations omitted)). Therefore, to prevail on a motion to supplement or complete the record, a plaintiffmust "put forth concrete evidence and identify reasonable, non-speculative grounds for [its] belief that the documents were considered by the agency and not included in the record." Oceana, 290 F. Supp. 3d at 78-79 (citations omitted). If a court finds that the record produced "clearly do[es] not constitute the 'whole record' compiled by the agency," it will order the agency to complete the record. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Charleston Area Med. Ctr., 216 F. Supp. 3d at 23.

III. ANALYSIS

A. The 2018 Draft OMC Housing Policy

Plaintiffs ask to include in the Record the April 24, 2018 Draft OMC Housing Policy, as well as documents reflecting the finalization and implementation of the 2018 Draft OMC Housing Policy. The government states that the Housing Policy dated May 19, 2011 (2011 Housing Policy), is the "current written direction that addresses where OMC personnel, including the Plaintiffs, are to be housed while working at [Naval Station Guantanamo Bay]." Notice, Ex. 1, Decl. of Wendy A. Kelly Accompanying Certified Index of Admin. R. (Kelly Certification Decl.) [Dkt. 39-1] ¶ 4. Although not included in the certified index of the Record, the 2011 Housing Policy was included with the certified index as an attachment to an earlier Declaration provided by Ms. Kelly and the government states that it intended to incorporate the 2011 Housing Policy into the Record by reference. Opp'n at 7; see also Defs.' Opp'n to Pls.' Appl. for Prelim. Injunc. & Mot. to Dismiss Pls.' Compl., Ex. 2, Decl. of Wendy A. Kelly (Kelly MTD Decl.) [Dkt. 9-2].

Plaintiffs contend that the 2018 Draft OMC Housing Policy, which differs in certain respects from the 2011 Housing Policy, is already being implemented (at least in part) and/or informs current and ongoing decisions by OMC regarding Plaintiffs' housingassignments, and thus should be included as part of the Record. In support, Plaintiffs submit a Memorandum for the Convening Authority from Brigadier General John Baker, dated May 11, 2018 which states: "While reference (a) described [the 2018 Draft OMC Housing Policy] as a draft policy and requested input from all interested parties, I was disappointed to learn that your staff appears to have notified NGIS to begin to implement this policy immediately." Mot., Ex. 2, Mem. for the Convening Auth. (Baker Memo) [Dkt. 40-3] at 1 fn. 1. The Baker Memo included an attached email from NGIS that stated that it was "no longer making reservations for OMC personnel's [sic]" because it was "told that all OMC personnel must check with OMC/CLO for their housing assignment's [sic]." Baker Memo at 2.

The government responds merely that the 2018 Draft OMC Housing Policy "has not been finalized or implemented" and that the belief that there is "some sort of implementation of the draft policy is simply incorrect." Opp'n at 7. Anticipating this response, Plaintiffs ask, in the alternative, for discovery to determine whether the 2018 Draft OMC Housing Policy has been finalized or implemented, in whole or in part.

As discussed above, the government enjoys a presumption of regularity when...