STATE OF SOUTH CAROLINA v. UNITED STATES OF AMERICA; RICK PERRY, in his official
No. 18-1148
United States Court of Appeals for the Fourth Circuit
October 26, 2018
PUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Aiken. J. Michelle Childs, District Judge. (1:16-cv-00391-JMC)
Argued: September 27, 2018 Decided: October 26, 2018
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Wynn joined.
ARGUED: Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Kenneth Paul Woodington, DAVIDSON, WREN & PLYLER, PA, Columbia, South Carolina, for Appellee. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellants. Alan Wilson, Robert D. Cook, T. Parkin Hunter, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Randolph R. Lowell, Benjamin P. Mustian, John W. Roberts, WILLOUGHBY & HOEFER, P.A., Columbia, South Carolina, for Appellee.
KING, Circuit Judge:
The United States of America, the Department of Energy, the National Nuclear Security Administration, and two federal officials in their official capacities (collectively, the “DOE“)1, appeal from adverse rulings concerning the DOE‘s failure to comply with federal statutory obligations to remove not less than one metric ton of defense plutonium from South Carolina by January 1, 2016. After South Carolina sued in that regard, the district court for the District of South Carolina invoked an enforcement provision of the Administrative Procedure Act (the “APA“) and awarded summary judgment to the State. See South Carolina v. United States, No. 1:16-cv-00391, slip op. (D.S.C. Mar. 20, 2017), ECF No. 86 (the “Opinion“).2 The court then entered an injunction that required DOE to remove not less thаn one metric ton of defense plutonium from the State within two years. See id., ECF No. 109 (the “Injunction“). On appeal, the DOE maintains that the court erroneously failed to exercise its equitable discretion before deciding to award the Injunction, and that the court also abused its discretion with regard to certain provisions thereof. As explained below, we are satisfied that the court properly enforced the statutory responsibilities imposed on the DOE by Congress and that it also appropriately crafted and entered the Injunction. We therefore affirm.
I.
A.
In the year 2000, the United States and Russia entered into the Plutonium Management and Disposition Agreement, requiring each country to dispose of at least thirty-four metric tons of weapons-grade plutonium. See Agreement Between the Government of the United States of America and the Government of the Russian Federation Concerning the Management and Disposition of Plutonium No Longer Required for Defense Purposes and Related Cooperation, Russ.-U.S., Aug. 29 & Sept. 1, 2000 (entered into force July 13, 2011); see also J.A. 219.3 To fulfill those obligations on the part of our country, DOE devised a plan to convert thirty-four metric tons of defense plutonium4 into mixed-oxide fuel (“MOX fuel“) suitable for use in commercial nuclear power reactors. See Bob Stumр National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, div. C, § 3181, 116 Stat. 2458, 2747 (2002) (“NDAA FY 2003“) (codified in
DOE‘s decision to dispose of defense plutonium through the MOX facility in South Carolina was prompted in part by DOE‘s abandonment of an alternate technique for plutonium disposition called the “immobilization” process. See J.A. 106, 268. Additionally, DOE had committed to closing a nuclear facility in Colorado by 2006 and needed to locate a new site at which to store or dispose of the Colorado plutonium. DOE indicated in 2002 that transferring six metric tons of plutonium from Colorado to the SRS would also result in significant cost savings.
Although construction of the MOX facility at the SRS might help solve several of DOE‘s problems, then-Governor of South Carolina Jim Hodges expressed reservations about the project. He was concerned by DOE‘s increased reliance on the SRS and the potential adverse impact of transferring additional nuclear material into the State. In 2001 — before appropriating funds to build the MOX facility — Congress had directed the Secretary of Energy to consult with the Governor of South Carolina “regarding any decisions or plans” related to the disposition of defense plutonium at the SRS. See National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 3155, 115 Stat. 1012, 1378 (2001) (“NDAA FY 2002“). In 2001 and 2002, DOE communicated with Governor Hodges and other South Carolina officials regarding DOE‘s planned activities at the SRS. At various times, the Governor conveyed his fear that DOE‘s insufficient financial and organizational commitment to defense plutonium disposition risked making South Carolina a “permanent repository” for weapons-grade plutonium. See, e.g., J.A. 502.
In April 2002, Governor Hodges wrote to the Secretary of Energy, acknowledging the progress they had made in reaching agreement on the construction and operation of the MOX facility at the SRS. The Governor emphasized, however: “I must insist upon an ironclad agreement that is fully enforceable in a court of law. The stakes are too high to accept mere political assurances.” See J.A. 515. Governor Hodges reminded the Secretary that DOE had promised to “set forth in a legally enforceable document” specific schedules for the MOX program and DOE‘s obligation to “retake possession of the plutonium if the Federal Government failed to live up to its commitment.” Id.
In response to Governor Hodges, the Secretary of Energy proposed a written agreement delineating DOE‘s commitments to South Carolina with respect to the MOX facility. That proposal was intended to ensure that South Carolina would not be left holding and storing unprocessed plutonium should difficulties arise with the MOX facility. See J.A. 522-23, 525-30. Pursuant to the Secretary‘s proposal, if DOE failed to meet certain production objectives or other milestones concerning the MOX facility, DOE would begin removing defense plutonium from South Carolina. Among other provisions, the Secretary‘s proposal provided that, if DOE processed “less than one metric ton of plutonium through the MOX facility” in an eighteen-month period, DOE would remove at least one metric ton of defense plutonium from the SRS “within two years,” and “all [plutonium] material” within “no more than eight years.” Id. at 528. The proposed agreement committed
Shortly thereafter, in December 2002, Congress passed the National Defense Authorization Act (the “NDAA“) for Fiscal Year 2003 that first funded the MOX facility at the SRS. The NDAA contained, nearly verbatim, language from the Secretary‘s proposed agreement that required DOE to remove not less than one metric ton of defense plutonium within two years of a missed MOX production deadline. Compare NDAA FY 2003, § 3182(c), with J.A. 528. Specifically, the NDAA for fiscal year 2003 provided that:
If the MOX production objective [to produce an average rate of 1 metric ton of MOX fuel per year] is not achieved as of January 1, 2009, the Secretary shall, consistent with the National Environmental Policy Act of 1969 and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere —
(1) not later than January 1, 2011, not less than 1 metric ton of defense plutonium or defense plutonium materials; and
(2) not later than January 1, 2017, an amount of defense plutonium or defense plutonium materials equal to the amount [transferred to the SRS after April 15, 2002, that remains unprocessed].
See NDAA FY 2003, § 3182(c), (g).
In enacting the fiscal year 2003 NDAA, Congress made several findings that are pertinent here. It acknowledged the shared interest of South Carolina and the United States in “the safe, proper, and efficient operation of the plutonium disposition facilities” at the SRS. Congress also recognized South Carolina‘s desire “to ensure that all plutonium transferred to the State” be stored safely, and that all weapons-grade plutonium transferred to the SRS “either be processed or be removed expeditiously.” See NDAA FY 2003, § 3181.
The portion of the fiscal year 2003 NDAA mandating removal of defense plutonium from South Carolina was subsequently codified at
If the MOX production objective [to produce an average rate of 1 metric ton of MOX fuel per year] is not achieved as of January 1, 2014, the Secretary shall, consistent with the National Environmental Policy Act of 1969 and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere —
(1) not later than January 1, 2016, not less than 1 metric ton of defense plutonium or defense plutonium materials; and
(2) not later than January 1, 2022, an amount of defense plutonium or defense plutonium materials equal to the amount [transferred to the SRS after April 15, 2002, that remains unprocessed].
See
In 2012, DOE began using the SRS not only to convert plutonium into MOX fuel, as theretofore planned, but also to dispose of defense plutonium through a new and different process called “downblending.” See J.A. 847. Downblending involves mixing plutonium with other materials to ensure that defense plutonium is not “readily recoverable.” See id. n.6. As the district court defined it: “‘Downblending’ is a process in which defense (‘weapons usable‘) plutonium is transformed into non-defense (not ‘weapons usable‘) plutonium.” See Injunction 4 n.3.6
The downblending process requires a “glovebox,” which is a specialized protective installation in which the downblending occurs. See J.A. 843 n.1, 849, 852. As of August 2017, the MOX facility at the SRS contained a single glovebox; but additional gloveboxes could become operational by 2026 if DOE receives adequate funding. With a single operational glovebox, it takes approximately two days to downblend about 4.4 kilograms of plutonium.7
As DOE explored and developed the downblending process, its work on the MOX facility at the SRS experienced continual delays and unforeseen cost increases. Consequently, DOE reduced its funding request in 2013 for the MOX facility in its annual budget proposal. DOE reported to Congress that it planned to “slow down the MOX project” while it assessed “alternative plutonium disposition strategies.” See J.A. 547. By 2014, DOE had concluded that the MOX fuel conversion process was “not viable within available resources.” Id. at 426. DOE‘s 2014 congressional budget request thеrefore conveyed its intention to place the MOX facility in “cold stand-by,” operating at minimal levels while DOE reviewed its options. Id. DOE simultaneously acknowledged that it would not meet the MOX production objective established by
Faced with DOE‘s apparent abandonment of the MOX project at the SRS, South Carolina filed suit against DOE in the District of South Carolina in March 2014. See South Carolina v. U.S. Dep‘t of Energy, No. 1:14-cv-00975 (D.S.C. 2014). The parties soon entered into a stipulated dismissal of those proceedings, however, when DOE agreed to continue constructing the MOX facility. See id., ECF No. 19. In its consolidated appropriations bill for fiscal year 2016, Congress‘s explanatory statement asserted that the funds allocated for the construction of the MOX facility “shall be available only” for that purpose. See J.A. 569, 583 (emphasis added).
By the fall of 2015, it was clear that DOE would neither achieve its MOX production objective nor remove not less than one metric ton of defense plutonium from SRS by the statutory deadline of January 1, 2016. In September 2015, the State‘s Attorney General wrote the Secretary of Energy and sought a commitment that DOE would “abide by its legal duties.” See J.A. 416-19. On December 14, 2015, then-Governor Nikki Haley wrote to the Secretary and notified him of “South Carolina‘s intent to enforce federal law” and collect the assistance payments provided for under
B.
In February 2016, South Carolina filed the complaint underlying this lawsuit in the District of South Carolina, seeking to compel DOE to comply with the terms of
In February 2017, the district court dismissed South Carolina‘s claim for payments under
Only a week later, on March 20, 2017, the district court granted South Carolina‘s motion for summary judgment on its claim for enforcement of
Because the State was entitled to relief under
In so ruling, the Opinion conducted a searching analysis of the text and history of
Although the Opinion recognized that in some respects
The district court did not, however, award the specific relief sought by South Carolina. Although
Although the district court requested that the parties prepare a “joint written statement” to aid its preparation of an injunctive order, the parties could not agree and therefore made separate submissions. South Carolina proposed an injunction that, inter alia, would require DOE to remove not less than one metric ton of defense plutonium from South Carolina within two years; initiate a NEPA review of such removal within sixty days; and provide the court with regular progress reports. South Carolina also requested that the court retain jurisdiction until DOE fully complied with the injunction.
In its separate submission, DOE reiterated its preference for downblending and explained that, if it pursued downblending, it could not remove a metric ton of plutonium from South Carolina within two years. Relying on the declaration of a DOE Plutonium Program Manager at the SRS (the “Gunter Declaration“), DOE estimated that it could first remove a ton of plutonium through downblending “by the end of [fiscal year] 2025.” See South Carolina, No. 1:16-cv-00391, ECF No. 100 at 9. DOE thus askеd the district court to exercise its discretion in fashioning an injunction, and requested that the court merely enjoin DOE to use its “best efforts to expeditiously comply with the timeline set forth” in the Gunter Declaration. Id. at 14.
DOE also defended its preference for downblending, arguing that there was “no guarantee whatsoever” that pursuing the MOX project would result in a more expeditious removal of plutonium from South Carolina than by using downblending. Id. at 14-22. Relying on the Gunter Declaration, DOE maintained that downblending provided a safer and less challenging means of plutonium disposition than continuing to pursue the MOX fuel conversion process. Finally, DOE asserted that — using any removal method — South Carolina‘s proposed two-year deadline was impossible to achieve. DOE emphasized that South Carolina had conceded that flexibility was needed in setting the removal deadline and the DOE faulted the State for failing to demonstrate that its proposed two-year timeline was feasible.
In reply, South Carolina stressed that DOE‘s objection to a two-year deadline simply presumed that NEPA required DOE to conduct a new Environmental Impact Statement (“EIS“) before embarking on removal. As the State explained, NEPA also allows a federal agency, in the proper circumstances, to make an abbreviated environmental analysis. The State contended that DOE had failed to support its assertion that removal required a full EIS rather than, for example, a more concise Environmental Assessment. The State
After assessing those submissions, the district court entered its Injunction on December 20, 2017. The court therein chastised DOE for attempting to rehash its previously litigated arguments and for its “non-responsive” submission. Having received minimal assistance from DOE to evaluate viable removal methods, the court predicated its Injunction on the available record and the terms of
The Injunction rejected DOE‘s request for an open-ended timeline or a 2025 deadline. As the Injunction explained, beyond the fact that those proposals ignored the two-year timeframe set out in
The Injunction, however, did not adopt South Carolina‘s proposal in its entirety. The Injunction declined to order DOE to reprogram or request funds for removal, recognizing that a court could not dictate how an agency may accomplish its statutorily mandated tasks. The court also declined to impose monetary sanctions on the DOE in advance of a failure to comply with the Injunction. Thus, the Injunction of December 20, 2017, provides, inter alia, as follows:
- The Secretary of Energy must, consistent with NEPA and other laws, remove not less than one metric ton of defense plutonium from South Carolina within two years of the Injunction, or at the latest by January 1, 2020;
- The district court retains jurisdiction to enforce the Injunction;
- DOE must provide the court and South Carolina with copies of all of DOE‘s reports to Congress regarding the removal of defense plutonium from South Carolina;
- DOE must submit progress reports to the court and South Carolina every 180 days; and
- The Secretary of Energy must submit a sworn attestation alerting the court and South Carolina once DOE accomplishes the required removal of plutonium from the State.
See Injunction 10-11.
DOE has timely appealed the judgment of the district court. The DOE maintains that we possess final decision jurisdiction pursuant to
II.
This Court reviews “an order granting an injunction for abuse of discretion, reviewing factual findings for clear error and legal conclusions de novo.” PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 125 (4th Cir. 2011). The scope of injunctive relief likewise rests within the “sound discretion” of the district court. Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). A district court abuses its discretion if its injunctive order “is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” PBM Prods., LLC, 639 F.3d at 125. A district court also abuses its discretion if it “otherwise acts arbitrarily or irrationally in its ruling.” SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 385 (4th Cir. 2017) (internal quotation marks omitted).
III.
On appeal, the DOE presents two challenges to the district court‘s rulings. First, the DOE maintains that the court erred as a matter of law when it concluded that, because the DOE had unlawfully withheld a legally-required agency action, the court lacked any discretion to deny relief to South Carolina. More specifically, DOE contends that the principles governing mandamus proceedings, as well as fundamental principles of injunctive relief, control the award of an injunction under the APA. DOE argues that those principles required the court — even after identifying an unlawfully withheld agency action — to exercise its equitable discretion and not award any injunctive relief to South Carolina. The State, on the other hand, contends that the district court correctly applied the plain terms of the APA. Pursuant thereto, South Carolina argues, the court was obliged to compel DOE to take the statutorily-required action it had unlawfully withheld — namely, the removal of not less than a metric ton of defense plutonium from South Carolina.
By way of its second apрellate contention, the DOE argues that the two-year deadline imposed by the Injunction for removing defense plutonium from South Carolina was an abuse of the district court‘s discretion.8 More specifically, the DOE argues that the court lacked any sound legal or factual basis for entering the Injunction, and it maintains that compliance with the Injunction is simply impossible. In opposing this
contention, South Carolina counters that the court carefully considered the applicable legal principles and relevant facts and thus did not abuse its broad discretion. We will address and resolve those issues in turn.
The district court granted relief to South Carolina only after concluding in its Opinion that when an agency — such as the DOE — has unlawfully withheld a legally-required action,
The DOE disputes the district court‘s understanding of
This appeal presents a question we have not heretofore resolved: Does a district court possess discretion to grant or deny injunctive relief against unlawfully withheld agency action pursuant to
1.
The common-law writ of mandamus, codified in the All Writs Act at
The availability of the mandamus writ is controlled by two additional factors. First, a plaintiff must demonstrate “a clear and indisputable right to the relief sought” and show that “the responding party has a clear duty to do the specific act requested.” Cumberland Cty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th Cir. 2016); see also Kerr, 426 U.S. at 403. Second, “the issuing court, in the
In its complaint in this litigation, South Carolina sought to enforce the plutonium removal provision of
Section 706 of the APA provides that: “The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed.” See
Here,
The DOE does not contest the proposition that South Carolina can obtain the relief it seeks under the APA, or that such relief bars any related redress by way of mandamus. The DOE contends that the district court erred in concluding that
2.
Well-established practice and controlling precedent both confirm that equitable discretion inheres in the issuance of a writ of mandamus. See, e.g., Rahman, 198 F.3d at 511. By contrast, the Opinion concluded that the plain language of
We are satisfied, however, that the DOE‘s preferred view of
As explained below, we reach this conclusion only after carefully assessing de novo four legal issues presented in this regard. First, we examine the plain text of
a.
We begin our analysis by considering the statutory language of the APA at issue in this appeal. See Murphy v. Smith, 138 S. Ct. 784, 787 (2018) (emphasizing that statutory analysis begins with the “specific statutory language in dispute“). The plain text of
As the district court concluded, nothing in the APA‘s text or legislative history calls into question the ordinary meaning of the word “shall” as it is used in
b.
We observe initially that there is no precedent that supports a rule that requires a district court to apply judicially-created mandamus rules to the text of the APA. Contrary to DOE‘s assertion in that regard, neither the Supreme Court‘s decision in SUWA nor any other precedent compels such a proposition.
In SUWA, the leading Supreme Court case concerning
The DOE has seized upon that comment by the Court and argues today that
More specifically, the reference in
The SUWA decision emphasized the foregoing principle (that only discrete, mandаtory agency actions are contestable in the courts) and invoked it to support the Court‘s textual analysis of “agency action,” as used in the APA. The Court simply recognized that, in this regard, the APA did not depart from the practice in use prior to the APA or from present practice under the All Writs Act. See id. at 63-64. The Court did not, however,
In sum, the SUWA decision does not mandate an exercise of equitable discretion before a district court grants relief against an “agency action unlawfully withheld” under
Our conclusion in this regard fully comports with the rulings of our sister circuits. Only two other courts of appeals have directly considered whether
court to award injunctive relief in the face of unlawfully withheld agency action: the Ninth Circuit in Vietnam Veterans of America v. Central Intelligence Agency, 811 F.3d 1068 (9th Cir. 2015), and the 1999 Tenth Circuit decision Forest Guardians, 174 F.3d 1178. Relying primarily on the plain text of
[W]hen Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers.
Forest Guardians, 174 F.3d at 1190.
According deference to the applicable congressional command compels the same conclusion. In
c.
We now distinguish South Carolina‘s challenge to an “unlawfully withheld” agency action from separate statutory claims against “unreasonably delayed” agency actions. Because of the close connection between the relief the APA provides in both of those circumstances, it behooves us to recognize the distinction between the two claims. As explained below, a court can and should weigh equitable factors in assessing whether to grant relief for unreasonably delayed agency actions but may not do so in awarding relief for actions unlawfully withheld.
The DOE correctly points out that district courts addressing claims for unreasonably delayed agency action have often employed equitable factors in deciding whether to grant injunctive relief. See Reply Br. of Appellants 3. Because “unreasonable delay” claims derive from the very statutory provision —
The D.C. Circuit‘s 2001 decision in Cobell v. Norton illustrates the validity of that distinction. See 240 F.3d 1081 (D.C. Cir. 2001). In Cobell, the federal government had failed to timely comply with its fiduciary obligations to Native American beneficiaries of certain trust accounts. See 240 F.3d at 1086, 1095-96. The applicable statute contained “no deadlines,” and the court analyzed the agency‘s inaction as being “unreasonably delayed” rather than “unlawfully withheld.” See id. at 1096. Like other courts, the Cobell court applied a series of factors derived from that Circuit‘s precedent. See Telecomms. Research & Action Ctr. v. Fed. Commc‘ns Comm‘n, 750 F.2d 70 (D.C. Cir. 1984) (”TRAC“). The TRAC factors weigh, inter alia, the interests at stake and the effect of expediting the delayed agency action in granting an injunction. Id. at 80. The TRAC decision also determined that an injunction need not issue automatically, even if the plaintiff has demonstrated a right to relief. See id. at 79. But the TRAC court carefully confined its analysis to unreasonably delayed agency actions, and thus preserved an important distinction that is supported by several sound reasons.
First, as the TRAC court acknowledged — and as we have recognized — an action that is “delayed” rather than “withheld” is not generally a “final action” that can be addressed under the APA. See TRAC, 750 F.2d at 79 (“Claims of unreasonable agency delay clearly fall into that narrow class of interlocutory appeals from agency action over which we appropriately should exercise our jurisdiction.“); see also In re City of Va. Beach, 42 F.3d at 885 (reviewing “interlocutоry” challenge by way of mandamus but observing that “final action” by agency would be reviewed under APA). Accordingly, claims of unreasonable delay can be properly addressed through a mandamus proceeding, and ordinary equitable considerations will apply. See TRAC, 750 F.2d at 79; cf. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002) (declining to apply the TRAC factors against agency action “unlawfully withheld” because “Congress has specifically provided a deadline for performance” by the agency and thus “no balancing of factors is required or
Second, the “unreasonably delayed” provision in
By contrast, no such qualifier applies to an agency action “unlawfully withheld,” such as an agency‘s failure to meet a hard statutory deadline. See Forest Guardians, 174 F.3d at 1190 (citing Sierra Club, 828 F.2d at 794-95 & nn. 77-80) (distinguishing “unreasonably delayed” and “unlawfully withheld” actions). As previously discussed, the text of
The only appeals court decision that comes close to supporting the DOE‘s preferred position is Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002). There, the Ninth Circuit addressed a claim under the Endangered Species Act, which the court reviewed under the APA as an unlawfully withheld agency action. See id. at 1176-77 & n.11. In enforcing the Interior Department‘s statutory obligations, the court suggested that injunctive relief for violation of a federal statute should issue only if “necessary to effectuate the congressional purpose behind the statute.” Id. at 1177 (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)). This pronouncement, however, fails to support DOE‘s contention that relief for unlawfully withheld agency actions depends upon an exercise of the court‘s equitable discretion. We emphasize three supporting reasons.
First, an analysis of the congressional purpose of a federal statute does not equate to an exercise of equitable discretion. Indeed, the Ninth Circuit‘s Badgley decision distinguished the two modes of analysis. See id. (explaining that statutory purpose controlled issuance of injunсtive relief “regardless of the equities involved“). Second, in addressing injunctive relief, the Badgley court did not consider or address the text of
d.
Lastly, before turning to the provisions of the Injunction, we will evaluate the impact of the principles of equitable relief on the application of
As an initial matter, the DOE relies on the Supreme Court‘s decision in Abbott Laboratories v. Gardner and argues the proposition that all injunctive relief is necessarily discretionary. See 387 U.S. 136 (1967). Abbott Laboratories addressed injunctive relief being sought under, inter alia, the APA, and observed that “injunctive and declaratоry judgment remedies” are “equitable in nature.” Id. at 148, 155. But the Court made those comments in assessing a ripeness issue, not the propriety or scope of available relief under
We also recognize, as the Supreme Court has explained, that the courts “do not lightly assume that Congress has intended to depart from established principles” of injunctive relief. Weinberger, 456 U.S. at 313. But “Congress may intervene and guide or control the exercise of the courts’ discretion,” and limit our equitable powers “in so many words, or by a necessary and inescapable inference.” Id. Notably, Congress has done so here. The text of
In sum, the decisions relied on by DOE that apply equitable principles, see id., or expound on the scope of mandamus relief, see, e.g., Cheney, 542 U.S. at 380, do not dictate our analysis of
Indeed, no federal court that has granted injunctive relief to redress unlawfully withheld agency action appears to have engaged in equitable balancing. See Viet. Veterans of Am., 811 F.3d at 1080, 1082 (affirming order compelling agency action without discussing equitable factors); Massie v. U.S. Dep‘t of Hous. & Urban Dev., 620 F.3d 340, 347, 354-57 (3d Cir. 2010) (ordering defendant agency to take unlawfully withheld action without considering equities); Firebaugh Canal Co. v. United States, 203 F.3d 568, 578 (9th Cir. 2000) (affirming order compelling agency action
B.
We review the provisions of an injunctive order for abuse of discretion. See PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 125 (4th Cir. 2011). For such orders issued under
Although the district court was obliged to compel the DOE‘s compliance with the statutory mandate of
Thus, a determination of appropriate injunctive relief requires an exercise of the trial court‘s broad discretion, permitting application of the ordinary standard of appellate review. Accordingly, we will assess whether the district сourt abused its discretion in crafting the Injunction. More specifically, we address the DOE‘s objection to the two-year deadline for removing not less than one metric ton of defense plutonium from South Carolina. DOE contends that the text and history of
1.
To the extent the DOE objects to any injunction being entered, that contention readily fails in light of our analysis of
Finally, nothing in the history or structure of
In addition to the foregoing, our assessment of the text and history of
On appeal, the DOE has presented us with no authority that limits a district court‘s ability to set firm deadlines to compel a lawful agency action, either generally or in this situation. In fact, other federal courts faced with missed deadlines for agency action have set firm dates for compliance. See Badgley, 309 F.3d at 1178 (affirming injunctive order, including deadlines and denial of additional time for compliance)11; Forest Guardians, 174 F.3d at 1193 (remanding for district court to set compliance deadline)12; Natural Res. Def. Council, Inc. v. Train, 510 F.2d 692, 704-05 (D.C. Cir. 1974) (affirming district court‘s timetable given missed statutory deadline and lack of progress toward compliance). DOE has instead emphasized its continuing preference for downblending and described the obstacles it faces in accomplishing plutonium disposal at SRS through that method. But the district court properly rejected those arguments in light of
Defendants [the DOE] are permitted to pursue the downblending process to meet their statutory obligations only if it assists in removing the defense
plutonium from South Carolina in the most expeditious way possible while in compliance with § 2566(c)(1).
See Injunction 5; see also Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 193 (D.C. Cir. 2016) (ruling that, when agency has failed to comply with statutory deadline, court must curtail agency‘s discretion and agency must “find some other way” to meet deadline, because “congressionally imposed mandates and prohibitions trump discretionary decisions“); Forest Guardians, 174 F.3d at 1193 (ruling that order compelling agency action must be entered “without regard” to agency‘s “preferred priorities“).
In framing the provisions of the Injunction, the district court appropriately considered the importance of the second deadline imposed by
2.
DOE‘s final substantive contention is that the removal of not less than a metric ton of defense plutonium from South Carolina within two years is simply impossible if DOE also complies with NEPA and the applicable regulations, as
First, DOE failed to produce any evidence showing that its compliance with a two-year removal deadline was truly impossible. For example, the DOE never provided the district court with a reasonable explanation of the possible timelines if alternate means for removal were used. The estimates it supplied the court were imprecise, amounting to a period of more than five years. DOE‘s estimates also assumed that the removal would require a lengthy
Second, the district court did not abuse its discretion in ruling that DOE could raise its impossibility argument at a later time — if necessary — after the Injunction was entered. We have previously affirmed an injunction where the defendant agency contended that the mandated act was impossible. See Robertson v. Jackson, 972 F.2d 529, 535 (4th Cir. 1992) (compelling defendant commissioner‘s compliance with statutory obligation and ruling that commissioner could raise impossibility defense at any subsequent contempt proceeding). Because DOE failed to convince the court that compliance with the Injunction was actually impossible (rather than merely difficult, inconvenient, or potentially impossible), the court was entitled to order compliance. See id. (citing United States v. Rylander, 460 U.S. 752, 757 (1983) (explaining that contеmpt proceedings contemplate defenses of “a present inability to comply“)).
We thus affirm the principle that a district court retains discretion to order agency compliance, including by fixing firm deadlines if appropriate, and even when full compliance may be unlikely. Such an injunction will serve, in part, to ensure that the delinquent agency makes serious, “vigorous[]” attempts to fulfill its statutory responsibilities. See id.; see also Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir. 1991) (“Impossibility of perfect compliance, then, may be a defense to contempt, but it does not preclude an injunction requiring compliance . . . when a pattern of non-compliance has been shown . . . .“); Forest Guardians, 174 F.3d at 1192-93 (rejecting impossibility defense at remedy stage in favor of assertion in subsequent contempt proceedings).13
DOE is not, as it suggests, being forced into potential liability for contempt by our conclusion today. DOE can always petition the district court for relief from the Injunction and seek to show its sincere and diligent efforts to comply therewith. See Brown v. Plata, 563 U.S. 493, 545 (2011) (affirming injunctive order containing firm deadline but instructing that court “must remain open to appropriate modification“); Train, 510 F.2d at 333-34 (affirming date-certain deadline for agency action but recognizing that defendant could petition for modification).
IV.
Pursuant to the foregoing, we reject the DOE‘s appellate contentions and affirm the Injunction entered by the district court.
AFFIRMED