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State v. United States

United States District Court, D. South Carolina, Aiken Division

March 20, 2017

State of South Carolina, Plaintiff,
v.
United States; United States Department of Energy; Rick Perry, in his official capacity as Secretary of Energy; National Nuclear Security Administration; and Lt. General Frank G. Klotz, in his official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security, Defendants.

          ORDER AND OPINION

         The 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.[1] 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.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Much of 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Agreement (“PMDA”), under which each country is committed to disposing of at least 34 metric tons of defense plutonium withdrawn from their respective nuclear weapons program.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 ellipses omitted).)

         On 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 27-28, 31-32.)

         In its 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.)

         In 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.)[2] 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.)

         II. LEGAL STANDARD

         Summary 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.

         The 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.

         III. ANALYSIS

         The 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 it seeks.

         A. Relief pursuant to § 1361 or § 706(1)

         The 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 § 706(1).

         1. Applicable law: interplay between § 1361 and § 706(1)

         District 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).

         Three 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.

         Second, “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).

         Third, 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).

         “The 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).

         “The 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.

         In 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).

         Like 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.

         First, 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.”).

         Second, 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 ...


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