United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
State of South Carolina (“the State”) filed a
complaint alleging that Defendants United States, the United
States Department of Energy (“DOE”), the
Secretary of Energy, the National Nuclear Security
Administration (“NNSA”), and the Administrator of
NNSA (collectively “Defendants”) failed to adhere
to statutory obligations within 50 U.S.C. § 2566. (ECF
No. 1.) In earlier orders, the court dismissed the
complaint's first cause of action (asserting a
constitutional claim) and third cause of action (asserting a
claim under § 2566(d)), leaving the second cause of
action (asserting a claim under § 2566(c)) as the only
remaining matter. The case is now before the court pursuant
to the State's motion for summary judgment. (ECF No. 10).
For the reasons that follow, the court GRANTS the motion IN
PART and DENIES it IN PART.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
the relevant facts and procedural background of this case are
set forth in the court's March 14, 2017 order disposing
of Defendants' motion to dismiss:
At the end of the Cold War, the United States and Russia
engaged in efforts to consolidate and reduce their surplus
weapons-usable plutonium (“defense plutonium”)
and jointly developed plans to prevent the proliferation of
nuclear weapons. In September 2000, the United States and
Russia entered into the Plutonium Management and Disposition
Agreement (“PMDA”), under which each country is
committed to disposing of at least 34 metric tons of defense
plutonium withdrawn from their respective nuclear weapons
program. While non-proliferation discussions were underway,
DOE, over a number of years, evaluated dozens of options for
disposing of the United States' surplus defense
plutonium. Ultimately, DOE designated as its “preferred
alternative” a dual-path strategy: DOE would immobilize
a portion of the defense plutonium within glass or ceramic
materials and would convert the other portion into
mixed-oxide (“MOX”) fuel, which would be used as
fuel for commercial nuclear reactors.
Producing MOX fuel from defense plutonium required the
construction of a facility to fabricate the fuel, and, in
early 2000, DOE chose to construct a MOX fabrication facility
(“MOX Facility”) at the Savannah River Site
(“SRS”). SRS encompasses 310 square miles in
western South Carolina, adjacent to the Savannah River, which
forms much of the border between South Carolina and Georgia.
When constructed in the 1950s, SRS produced materials,
primarily plutonium, for weapons and other national defense
missions. Currently, aside from serving as the location for
the MOX Facility, SRS also is dedicated to conducting
research and development and storing plutonium and uranium
waste from around the world.
In late 2002, Congress enacted, and the President signed into
law, the Bob Stump National Defense Authorization Act for
Fiscal Year 2003, Pub. L. No. 107-314, 116 Stat. 2458 (2002),
relevant parts of which are now codified at 50 U.S.C. §
2566. As later amended, § 2566, entitled,
“Disposition of Weapons-Usable Plutonium at Savannah
River Site, ” provides a detailed plan for the MOX
Facility, including the requirement that the Secretary of
Energy submit to Congress, by a certain date, a plan for the
construction and operation of the MOX Facility. Starting in
2004, the Secretary also must submit to Congress an annual
report assessing the United States' progress toward
meeting its obligations under the PMDA and “whether the
MOX production objective has been met.” [50 U.S.C.
§ 2566(a).] The MOX production objective is defined as
the average rate at which the MOX Facility converts defense
plutonium into MOX fuel over a given period of time, but may
not be less than the equivalent of producing one metric ton
of MOX fuel per year.
In the event that the MOX production objective is not
achieved as of January 1, 2014, subsection (c)(1) states that
“the Secretary shall remove” from South Carolina
“not less than one metric ton of defense
plutonium” by January 1, 2016. [50 U.S.C. §
2566(c)(1).] . . . The statute states that the removal of the
defense plutonium is to be consistent with the National
Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., and other applicable laws.
(ECF No. 84 at 2-4 (internal citations, brackets, and
February 9, 2016, the State filed a complaint containing
three causes of action. (ECF No. 1.) In previous orders, the
court dismissed the first and third causes of action, leaving
only the second cause of action remaining. (See ECF
Nos. 56, 75, 76, 84.) In the second cause of action, the
State alleges that subsection (c)(1) imposes a mandatory,
non-discretionary duty on the Secretary to remove from South
Carolina one metric ton of defense plutonium by January 1,
2016, in the event the MOX production objective is not
achieved by January 1, 2014; that the MOX production
objective was not achieved by January 1, 2014, or thereafter;
and that the Secretary did not remove from South Carolina one
metric ton of defense plutonium by January 1, 2016, or
thereafter. (See ECF No. 1 at 27-28.) In relevant
part, the complaint requests “a declaration and order .
. . enjoining and requiring Defendants to immediately remove
one metric ton of defense plutonium or defense plutonium
materials from [South Carolina] pursuant to [§] 2566(c),
” a “declaration and order”
“enjoining Defendants from . . . transferring . . .
defense plutonium . . . to [SRS] . . . until th[e] [c]ourt
enters an order finding that Defendants are in full
compliance with [§] 2566 and [are] achieving the MOX
production objective, ” and “[a] declaration and
order retaining jurisdiction over this matter regarding . . .
Defendants' compliance with [§] 2566 and this
Court's order, including the prohibition on the transfer
of defense plutonium or defense plutonium materials [and]
compliance with [§] 2566(c).” (Id. at
motion for summary judgment, the State asserts that it is
undisputed that the MOX production objective was not achieved
as of January 1, 2014, and that the Secretary did not remove
from South Carolina one metric ton of defense plutonium by
January 1, 2016. (See ECF No. 10-1 at 27.) The State
contends that subsection (c)(1) imposes a mandatory,
non-discretionary duty on the Secretary to remove from South
Carolina one metric ton of defense plutonium by January 1,
2016, if the MOX production objective is not achieved by
January 1, 2016. (See id.) Because the MOX
production objective was not met by January 1, 2014, and
because the Secretary failed to remove the one metric ton of
defense plutonium by January 1, 2016, the State argues that
the court must compel the Secretary to remove the one metric
ton of defense plutonium by an order in the nature of
mandamus, pursuant to 28 U.S.C. § 1361, or an order to
compel agency action unlawfully withheld, pursuant to §
10(e) of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1). (See
ECF No. 10 at 2; ECF No. 10-1 at 25, 30-31.) In relevant
part, the State requests a “declar[ation] that . . .
Defendants have failed to comply with their mandatory,
non-discretionary duties pursuant to 50 U.S.C. § 2566,
” a “declar[ation] and order[ that] . . .
Defendants . . . immediately remove from [South Carolina] one
metric ton of defense plutonium . . . pursuant to their
obligations under . . . [§] 2566(c), ” a
declar[ation] and order[ that] . . . Defendants not . . .
move or transfer any plutonium to South Carolina . . . until
th[e] [c]ourt enters an order finding the Secretary and DOE
are in full compliance with [§] 2566, ” and
“an order . . . retaining continuing jurisdiction over
this matter regarding . . . Defendants' ongoing and
continuous compliance with [§] 2566.” (ECF No. 10
at 2-3; see ECF No. 10-1 at 37.)
response, Defendants concede that there is no dispute that
the MOX production objective was not achieved by January 1,
2014, or thereafter or that the Secretary did not remove from
South Carolina one metric ton of defense plutonium by January
1, 2016, or thereafter. (See ECF No. 38 at 10; ECF
No. 51 at 38.) However, Defendants argue that the
State's motion nonetheless should be denied for several
reasons. First, they argue that subsection (c)(1) does not
impose a mandatory, non-discretionary duty on the Secretary
to remove one metric ton of plutonium. (See ECF No.
38 at 19-21.) Next, they argue that their current efforts to
plan and accomplish removal from South Carolina of several
metric tons of defense plutonium (as evidenced by the
extensive exhibits they have submitted) demonstrate that
Defendants are satisfying any removal obligation under
subsection (c) and, thus, should preclude the issuance of
mandamus. (See Id. at 21-26.) Defendants also argue
that the court has discretion to deny issuing mandamus based
upon equitable considerations, which, they claim, favor
denial due to the inherent practical and legal exigencies of
transferring plutonium to another location that are evidenced
by their numerous exhibits. (See Id. at 26-31).
Lastly, Defendants argue that the State's request for the
court to retain jurisdiction in this matter should be denied
because it is premised on speculation regarding future events
that are not ripe for adjudication. (See Id. at 47.)
judgment is appropriate when the materials in the record show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “[I]n ruling on a
motion for summary judgment, ‘the evidence of the
nonmovant is to be believed, and all justifiable inferences
are to be drawn in [its] favor.'” Tolan v.
Cotton, ___ U.S.___, 134 S.Ct. 1861, 1863 (2014) (per
curiam) (brackets omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). A dispute is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party, ” and a
fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson, 477
U.S. at 248.
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in its pleadings. Rather, the non-moving party must
demonstrate that specific, material facts exist which give
rise to a genuine issue. See Id. at 324.
court's analysis proceeds by first examining whether the
State has shown that it is entitled to summary judgment on
its second cause of action with respect to the forms of
relief sought pursuant to § 1361 or § 706(1).
Second, the court considers whether the State is entitled to
an order maintaining the court's continued jurisdiction
over this matter. Third, the court examines whether the State
has shown that it is entitled to summary judgment on its
second cause of action with respect to the declaratory relief
Relief pursuant to § 1361 or § 706(1)
State asserts that it is entitled to two forms of relief
pursuant to § 1361 or § 706(1). Specifically, it
asserts that it is entitled to an order mandating the
Secretary to remove one metric ton of defense plutonium
pursuant to subsection (c)(1) and an order enjoining or
suspending Defendants' transfer of plutonium to SRS until
the court finds that Defendants are in compliance with §
2566. Before addressing the parties' arguments regarding
whether the State has shown that it is entitled to summary
judgment, such that the court could grant the relief sought,
the court finds it useful first to set forth the applicable
law, examining the interplay between § 1361 and §
Applicable law: interplay between § 1361 and §
courts “have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
the plaintiff.” 28 U.S.C. § 1361. “Mandamus
is a ‘drastic' remedy that must be reserved for
‘extraordinary situations' involving the
performance of official acts or duties.” Cumberland
Cnty Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th
Cir. 2016) (quoting Kerr v. U.S. Dist. Court for N. Dist.
of Cal., 426 U.S. 394, 402 (1976)). “[T]o
establish the conditions necessary for issuance of a writ of
mandamus, the party seeking the writ must demonstrate that
(1) [it] has a clear and indisputable right to the relief
sought; (2) the responding party has a clear duty to do the
specific act requested; (3) the act requested is an official
act or duty; (4) there are no other adequate means to attain
the relief [it] desires; and (5) the issuance of the writ
will effect right and justice in the circumstances.”
United States ex rel. Rahman v. Oncology Assocs.,
P.C., 198 F.3d 502, 511 (4th Cir. 1999).
of the elements necessary for the issuance of mandamus bear
emphasizing. First, mandamus will not issue unless the
official or agency has a clear duty to perform the action the
plaintiff requests the court to compel. See Pittson Coal
Grp. v. Sebben, 488 U.S. 105, 121 (1988) (“The
extraordinary remedy of mandamus under . . . § 1361 will
issue only to compel the performance of ‘a clear
nondiscretionary duty.'” (quoting Heckler v.
Ringer, 466 U.S. 602, 616 (1984))); Cumberland,
816 F.3d at 52 (“[T]o show that it is entitled to
mandamus relief, a plaintiff must show, among other things,
that it has a clear and indisputable right to the relief
sought and that the responding party has a clear duty to do
the specific act requested.” (internal quotation marks
omitted)); Rahman, 198 F.2d at 511 (“[T]he
party seeking [the mandamus remedy] . . . must demonstrate
not only that [it] has a clear right to the relief sought but
also that the responding party has a clear duty to perform
the act amounting to the relief sought.”); In re
First Fed. Sav. & Loan Ass'n of Durham, 860 F.2d
135, 138 (4th Cir. 1998) (“[M]andamus . . . may be
invoked only where . . . the respondent has a clear duty to
do the particular act requested by the petitioner.”);
Syngenta Crop Prot., Inc. v. U.S. Envtl. Prot.
Agency, 444 F.Supp.2d 435, 451 (M.D. N.C. 2006)
(“Because the writ of mandamus requested by [the
plaintiff] does not relate to the particular act that [the
agency] has a duty to perform, judgment on the pleadings
dismissing this claim is appropriate.”); see also
McHugh v. Rubin, 220 F.3d 53, 57 (2d Cir. 2000)
(“[A] writ of mandamus may not be granted pursuant to
§ 1361 unless there is a plainly defined and peremptory
duty on the part of the defendant to do the act in
question.” (quotation marks omitted)). Thus, in an
action seeking mandamus under § 1361, the only action
that a court may compel is the action the plaintiff asserts
the defendant has a duty to perform. Mandamus cannot be used
to compel some other action in lieu of the action that the
defendant has a duty to perform.
“issuance of the writ [of mandamus] is in large part a
matter of discretion with the court to which the petition is
addressed.” Kerr, 426 U.S. at 403. Even if
“a party seeking issuance of a writ of mandamus meets
its burden of showing the prerequisites have been met, a
court still exercises its own discretion in deciding whether
or not to issue the writ.” Marquez-Ramos v.
Reno, 69 F.3d 477, 479 (10th Cir. 1995). Thus, when an
agency's “sluggishness has violated a statutory
mandate [to take action by a deadline], ” the question
remains, “whether [the court] should exercise [its]
equitable powers to enforce the deadline, ” as
“[e]quitable relief, particularly mandamus, does not
necessarily follow a finding of a violation: respect for the
autonomy and comparative institutional advantage of the
executive branch has traditionally made courts slow to assume
command over an agency's choice of priorities.”
In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C. Cir.
1991); see In re Medicare Reimbursement Litig., 414
F.3d 7, 10 (D.C. Cir. 2005) (“Even when the legal
requirements for mandamus jurisdiction have been satisfied,
however, a court may grant relief only when it finds
compelling equitable grounds.” (internal quotation
marks and ellipsis omitted)); 13th Reg'l Corp. v.
U.S. Dep't of Interior, 654 F.2d 758, 762-63 (D.C.
Cir. 1980) (“[O]ur finding that [the prerequisites of
mandamus were met] does not necessarily lead us to conclude
that this extraordinary remedy should be invoked [because, ]
. . . ‘a writ of mandamus' issuance is largely
controlled by equitable principles.'” (parentheses
omitted) (quoting Duncan Townsite Co. v. Lane, 245
U.S. 308, 312 (1917))); cf. Cumberland, 816 F.3d at
56 (citing In re Barr Laboratories with approval).
mandamus is only appropriate where no other remedy is
available. See Kerr, 426 U.S. at 403 (“[As]
condition for its issuance . . ., the party seeking
issuance of the writ [must] have no other adequate means to
attain the relief [it] desires . . . .”); accord In
re City of Va. Beach, 42 F.3d 881, 884 (4th Cir. 1994).
Where a statute provides an adequate avenue for a plaintiff
to challenge the official's failure to perform his duty,
mandamus under § 1361 is not available. See In re
Breard, 811 F.2d 818, 826 (4th Cir. 1987); Raya v.
Clinton, 703 F.Supp.2d 569, 575 (W.D. Va. 2010).
APA authorizes suit by ‘a person suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant
statute.'” Norton v. S. Utah Wilderness
All., 542 U.S. 55, 61 (2004) (brackets omitted) (quoting
5 U.S.C. § 702). “[A]gency action” is
defined for purposes of the APA to include “the whole
or part of an agency . . . failure to act, ” 5 U.S.C.
§ 551(13); see 5 U.S.C. § 701(b)(2), and
includes, for example, an agency's “failure to . .
. take some decision by a statutory deadline, ”
Norton, 542 U.S. at 63; see also Vill.
of Bald Head Island v. U.S. Army Corps of Eng'rs,
714 F.3d 186, 195 (4th Cir. 2013).
APA provides relief for a failure to act in § 706(1):
‘The reviewing court shall . . . compel agency action
unlawfully withheld or unreasonably delayed.'”
Norton, 542 U.S. at 62.
Norton, the Supreme Court ruled that “a claim
under § 706(1) can proceed only where a plaintiff
asserts that an agency failed to take a discrete
agency action that it is required to take.”
Id. at 64. Regarding the latter limitation-that the
action be one that the agency was required to take-the
Supreme Court explained that
the APA carried forward the traditional practice prior to its
passage, when judicial review was achieved through use of the
so-called prerogative writs- principally writs of mandamus
under the All Writs Act . . . . The mandamus remedy was
normally limited to enforcement of a specific, unequivocal
command, the ordering of a precise, definite act about which
an official had no discretion whatever.
Id. at 63 (internal citations, quotation marks,
brackets, and ellipsis omitted). As a result, “§
706(1) empowers a court only to compel an agency to perform a
ministerial or non-discretionary act or to take action upon a
matter, without directing how it shall act.”
Id. at 64 (internal quotation marks omitted).
the Supreme Court in Norton, a number of other
courts have recognized that § 706(1) “carried
forward” the practice of judicial review of agency
actions under the traditional mandamus remedy, now codified
at § 1361. See S. Utah Wilderness All. v.
Norton, 301 F.3d 1217, 1226 n.6 (10th Cir. 2002)
(“Courts have often explained that the standards for
compelling agency action through a writ of mandamus and
through § 706(1) are very similar . . . .”),
rev'd on other grounds, 542 U.S. 55 (2004);
Indep. Mining Co., Inc. v. Babbitt, 105 F.3d 502,
507 (9th Cir. 1997) (citing Japanese Whaling Ass'n v.
Am. Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986));
Hyatt v. U.S. Patent & Trademark Office, 146
F.Supp.3d 771, 781 & n.25 (E.D. Va. 2015); Aslam v.
Mukasey, 531 F.Supp. 736, 742 (E.D. Va. 2008). Courts
have also noted that, in some important ways, “the
exact interplay between these two statutory schemes has not
been thoroughly examined by the courts.” Indep.
Mining Co., 105 F.3d at 507. However, as relevant to
this case, two facets of the interplay between § 706(1)
and § 1361 are clear.
the availability of judicial review for challenged agency
conduct under the APA precludes review of, and issuance of
mandamus for, the same conduct under § 1361. Although
neither the Fourth Circuit nor this court appear to have
addressed the issue, at least two other district courts
within the Fourth Circuit have, and both have concluded that
mandamus relief pursuant to § 1361 is not available when
relief is available under the APA, because the APA presents
an adequate alternative remedy. See Callaway Golf Co. v.
Kappos, 802 F.Supp.2d 678, 690 (E.D. Va. 2011);
Klock v. Kappos, 731 F.Supp.2d 461, 470 (E.D. Va.
2010); Burandt v. Dudas, 496 F.Supp.2d 643, 652-53
(E.D. Va. 2007); Syngenta Crop Prot., 444 F.Supp.2d
at 452-53. Moreover, every other court of appeals that has
addressed the issue has also concluded that the availability
of relief under the APA forecloses the issuance of mandamus
under § 1361. See Serrano v. U.S. Attorney
Gen., 655 F.3d 1260, 1264 (11th Cir. 2011);
Hollywood Mobile Estates Ltd. v. Seminole Tribe of
Fla., 641 F.3d 1259, 1268 (11th Cir. 2011); Sharkey
v. Quarantillo, 541 F.3d 75, 93 (2d Cir. 2008);
Benzman v. Whitman, 523 F.3d 119, 124, 132-33 (2d
Cir. 2008); Mt. Emmons Mining Co. v. Babbitt, 117
F.3d 1167, 1170 (10th Cir. 1997); Stehney v. Perry,
101 F.3d 925, 934 (3d Cir. 1996); Thompson v. U.S.
Dep't of Labor, 813 F.2d 48, 52 (3d Cir. 1987);
Seiden v. United States, 537 F.2d 867, 870 (6th Cir.
1976); see also Indep. Mining Co., 105 F.3d at 507
n.6 (“[W]e question the applicability of the
traditional mandamus remedy under [§ 1361] where there
is an adequate remedy under the APA.”).
if, under § 706(1), a plaintiff alleges that an
agency's inaction has resulted in the unlawful
withholding of an agency action, the APA authorizes the court
only to compel the particular action that the plaintiff
alleges has been unlawfully withheld. This conclusion is
strongly suggested (if not outright reached) by the Supreme
Court in Norton, which determined that “the
only agency action that can be compelled under the APA is
action legally required, ” a determination it
based largely on the prior practice of courts compelling
agency action through mandamus. 542 U.S. at 63-64. As
described above, that practice permitted courts to compel the
performance of only the particular non-discretionary duty
that the agency was alleged to have failed to perform.
See Pittson Coal Grp., 488 U.S. at 121;
Ringer, 466 U.S. at 616; Cumberland, 816
F.3d at 52; McHugh, 220 F.3d at 57; Rahman,
198 F.2d at 511; In re First Fed. Sav. & Loan
Ass'n, 860 F.2d at 138; Syngenta Crop
Prot., 444 F.Supp.2d at 451. Whether relying on prior
mandamus practice or not, a number of courts have concluded
that, under § 706(1), they are authorized only to compel
the agency action that is alleged to have been unlawfully
withheld. See, e.g., Firebaugh Canal ...