UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRATERNAL ORDER OF POLICE )
et al., )
Plaintiffs, )
)
v. ) Civil Case No. 08-0039 (RJL)

)
ROBERT M. GATES, )
)
Defendant. )
)

"l...

MEMORANDUM OPINION

(March _&, 2009) [#12]

Plaintiffs Fraternal Order of P0lice, D.C. Lodge l, NDW Labor Committee, Inc.;
Fratemal Order of Police, First Federal Lodge l-F; Joseph Barbetta; Anthony Anzideo;
and J ames W. Waters, individually and on behalf of all other similarly situated police
offlcers, brought this action against defendant Robert M. Gates, in his official capacity as
Secretary of the Department of Defense. Plaintiffs allege that defendant’s policy
allowing use of a direct-impact spray of oleoresin capsicum ("OC"), also known as
pepper spray, in its non-lethal weapons training program must be set aside as unlawful
under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2). The Court finds
that the plaintiffs have failed to state a claim upon which relief can be granted, and

therefore GRANTS defendant’s motion to dismiss.

BACKGROUND

Plaintiffs, Navy civilian police officers employed by the Department of Defense
("DoD") and the labor organizations that represent them, (Compl. 1]1[ 6-10), object to the
Navy’s use of pepper spray in its non-lethal weapons training program. Specifically, the
officers object to "Level I" training, which involves a direct spray into the faces of
trainees. (Compl. 11 27; Compl. at ll.) The complaint does not point to a specific
document that provides the details of this program, but plaintiffs refer to two agency
directives which allegedly authorize the use of OC spray to train civilian police officers.
(Compl. 1111 23-26.)

On July 9, 1996, the DoD issued Directive 3000.3, "Policy for Non-Lethal
Weapons," which applied to all military departments and set forth policy regarding the
development and employment of non-lethal weapons. DoD Directive Number 3000.3
(Jul. 9, 1996). Pursuant to that directive, the Defense Department implemented a training
program that included exposure to OC spray. (Compl. 11 24.) In January 2007, the
Department of the Navy issued Chief of Naval Operations Instruction 5530. l4D
("OPNAVINST 5530. l4D"), which approved use of non-lethal weapons training for
civilian police officers employed by the Navy. (Compl. 11 25.) The Navy instruction does
not lay out a specific training program involving the use of pepper spray, and states only,
"[L]aw enforcement personnel for the performance of law enforcement activities may use
OC spray . . . [i]n training." OPNAVINST 5530.l4D, § l304(p)(6) (Jan. 30, 2007).

The Navy training program consists of three levels. (Compl. 11 27.) In Level I,

trainees are subjected to a direct facial spray of OC. (Id.) Levels II and III involve

different methods of non-impact exposure to OC, such as smearing OC beneath the eyes
of a trainee. (Id.) In this lawsuit, plaintiffs challenge the Level l training program,
claiming it could result in numerous harms, such as pain, swelling, redness, blistering,
allergic reactions, cyanosis or respiratory arrest. (Compl. 11 31.)

Plaintiffs ask the Court to hold the Level I training program unlawful under the
APA and set it aside. (Compl. 1111 34-49.) Defendant moved to dismiss the complaint
under Federal Rules of Civil Procedure l2(b)(l) and l2(b)(6), alleging, among other
things, that plaintiffs failed to state a claim upon which relief can be granted. For the
following reasons, the Court agrees and dismisses the complaint.'

LEGAL STANDARD

Under Rule l2(b)(6), dismissal of a complaint is appropriate when a plaintiff has
failed to state a claim upon which relief can be granted. Fed. R. Civ. P. l2(b)(6),
Although "detailed factual allegations" are not necessary to survive a Rule l2(b)(6)
motion to dismiss, a plaintiff must furnish "more than labels and conclusions" or "a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly,
127 S.Ct. 1955, 1964-65 (2007). The factual allegations in the complaint must be enough
"to raise a right to relief above the speculative level . . . on the assumption that all the
allegations of the complaint are true (even if doubtful in fact)." ld. at 1965.

The complaint "is construed liberally in the plaintiffs’ favor, and [the Court
should] grant plaintiffs the benefit of all inferences that can be derived from the facts

alleged." Kowal v. MCI C0mmc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

' The Court has analyzed defendant’s arguments that the complaint must be dismissed under Rule l2(b)(l) for lack
of subject matterjurisdiction and found them to be without merit.

However, the court need not accept as true "legal conclusions cast in the form of factual
allegations." Id.; see also McManus v. District of Columbia, 530 F. Supp. 2d 46, 64
(D.D.c. 2007).2
ANALYSIS
If an agency has taken a final action, a court may set it aside if it is, among other
things: (l) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law; (2) contrary to constitutional right, power, privilege, or immunity; or (3) in
excess of statutory jurisdiction, authority, or limitations. 5 U.S.C. § 706(2)(A)-(C).
Plaintiffs argue the Court must set aside the agency action under all three provisions.
However, to properly state a claim for relief under the APA, plaintiffs must first

identify the final agency action being challenged. 5 U.S.C. § 704 (iudicial review is
limited to agency action made reviewable by statute and "final agency action for which
there is no other adequate remedy in court."). In this case, plaintiffs are less than clear as
to which agency action is at issue. The complaint references DoD Directive 3000.3 and
OPNAVINST 55 30.l4D, which approve non-lethal weapons training generally, (Compl.
1[1] 23-26), but do not specifically authorize the Level I training to which plaintiffs object.
Because plaintiffs do not connect the Level I training to the language of the DoD and
Navy documents, the Court is lef`t to guess which of these agency actions - or what

aspects of the actions - is being challenged by the plaintiffs. This deficiency alone is

2 In deciding this motion, the Court can consider materials outside the eomplaint, such as DoD Directive 3000.3 and
OPNAVINST 5530.l4D, without converting the motion to one for summaryjudgment because these documents are
incorporated into the complaint and are central to the plaintiffs’ claims. See Jacobsen v. Oliver, 201 F. Supp. 2d 93,
110 (D.r).c. 2002),

sufficient for the Court to conclude that the factual allegations do not "raise a right to
relief above the speculative level." Twombly, 127 S.Ct. at 1965.

Further reason for dismissal exists, however, because, as outlined below, plaintiffs
have failed to state a claim upon which relief can be granted for any of the three APA
provisions upon which they rely.

I. Arbitrary and Capricious

Agency action is entitled to a "presumption of regularity," Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (l97l), and, accordingly, the scope of
review under the arbitrary and capricious standard "is narrow and a court is not to
substitute its judgment for that of the agency." Motor Veh. Mfrs. Ass ’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (l983). In making the arbitrary and capricious
inquiry, the reviewing court "must consider whether the [agency’s] decision was based
on a consideration of the relevant factors and whether there has been a clear error of
judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting
Volpe, 401 U.S. at 4l6);KarstEnvt1. Ea’uc. and Prot., Inc. v. U.S. Envtl. Prot. Agency,
403 F. Supp. 2d 74, 79 (D.D.C. 2005). An action will usually be arbitrary and capricious
if

the agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to evidence before

the agency, or is so implausible that it could not be ascribed to a difference

in view or the product of agency expertise.

Motor Veh. Mfrs. Ass ’n, 463 U.S. at 43.

Plaintiffs argue that "creating an unreasonable risk of injury and/or death and/or
inflicting severe psychological and emotional injury to the plaintiffs" qualifies on its face
as arbitrary and capricious, (Compl. jj 47.) However, this conclusory statement sheds no
light on any of the criteria established by the Supreme Court. A simple description of the
risks of harm from OC spray does not demonstrate, for example, agency reliance "on
factors which Congress had not intended it to consider" or agency "fail[ure] to consider
an important aspect of the problem." Motor Veh. Mfrs. Ass ’n, 463 U.S. at 43.

The use of direct-impact OC spray indisputably risks injury, but the agency
decided that this risk was offset by the benefits of training. Plaintiffs’ allegation that the
action was "clearly not the product of reasoned thought," Pl. Opp. at 19, is little more
than a legal conclusion and provides insufficient support for its claim that the agency
decision was arbitrary and capricious, Without more, this cause of action must be
dismissed.

II. Contrary to Constitutional Right

Plaintiffs further allege that defendant violated the Constitution, specifically their
rights under the due process and equal protection clauses. (Compl. 1]‘|] 34-45.) These
claims, too, are without merit.

A. Substantive Due Process

The threshold question for a substantive due process claim challenging executive
action is whether "the behavior of the government officer is so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience." County of Sacramento

v. Lewis, 523 U.S. 833, 847 n.8 (1998). To determine whether government action shocks
the conscience, courts look to factors such as

the need for the application of force, the relationship between the need and

the amount of force that was used, the extent of injury inflicted, and

whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing
harm.
Norrz`s v. Distrz`ct of Columbia, 737 F.Zd 1148, 1150 (D.C. Cir. 1984); Feirson v.
District of Columbia, 315 F. Supp. 2d 52, 61 (D.D.C. 2004).

The first three factors are, at best, inconclusive, but the final factor weighs
heavily in favor of defendant. Plaintiffs nowhere allege that defendant harbored a
malicious or sadistic intent to injure plaintiffs. In similar circumstances, a district
court held that a police officer who sustained severe injuries during a mandatory
combat training exercise did not endure behavior that "shocked the conscience"
because there was no intent to injure and the police department "had an important
interest in training its officers to use the tools and weapons with which they are
equipped." Feirson, 315 F. Supp. 2d at 62-63. The Navy also has an important
interest in training its officers to use the tools and weapons with which they are
equipped, such as pepper spray. While a direct impact spray may "result in
serious and/or potentially fatal harm to the plaintiffs," (Compl. 1[ 37), that, alone,

is not enough to shock the conscience in this context. Therefore, plaintiffs’

substantive due process claim must be dismissed.

B. Pr0cedural Due Process

Plaintiffs’ procedural due process claim is also infirm because plaintiffs fail to
identify what process, if any, is due. See Doe v. District of Columbia, 93 F.3d 861, 868
(D.C. Cir. 1996) (by framing a claim as one of procedural due process, plaintiff
"necessarily presents the question of what, if any, additional process is due."); McManus
v. Dz'strict of Columbia, 530 F. Supp. 2d 46, 73 (D.D.C. 2007) (motion to dismiss
procedural due process claim granted when plaintiffs did not identify the specific
procedural safeguards to which they were entitled, but failed to receive). Plaintiffs state

only that they were subject to direct impact spraying "without due process of law."

(Compl. 1143.) A general citation to the Fifth Amendment is not a specific "process" due.

Therefore, plaintiffs have failed to state a due process claim upon which relief can be
granted.

C. Equal Protection

Plaintiffs’ equal protection claim is equally devoid of substance. Plaintiffs have
not alleged that they were members of a protected class or that they were treated
differently from other similarly situated individuals; without such allegations, an equal
protection claim must fail. See Forrester v. Fed. Bureau of Prisons, No. 06-1945, 2007
WL 2616916, at *2 (D.D.C. Sept. 12, 2007). Indeed, plaintiffs may realize the futility of
this claim, as they did not even address it in their opposition papers and have therefore, in

essence, conceded it. Bancoult v. McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002).

Because plaintiffs have failed to state a violation of either the due process or equal
protection clauses, there is no basis for this Court to set aside the agency action as
contrary to constitutional right, and these claims must be dismissed.

III. Excess of Statutory Authority

Finally, plaintiffs have failed to identify sufficient facts to support their claim that
defendant’s actions are in excess of its statutory jurisdiction, authority, or limitations. At
best, plaintiffs provide a conclusory statement that direct impact spraying "creat[es] an
unreasonable risk of injury," Compl. 11 49, and utterly fail to address how the
promulgation of the training program at issue exceeds the authority Congress gave to the
Secretary of the Navy, subject to the authority, direction and control of the Secretary of
Defense, to conduct "all affairs of the Department of the Navy," including training. 10
U.S.C. § 50l3(b)(5). Therefore, plaintiffs have not stated a claim upon which relief can
be granted under this theory of judicial review.

CONCLUSION

Thus, for all of the foregoing reasons, defendant’s motion to dismiss is

,Z.`.a~

RrcnAao.l.-élzoN
United States District Judge

GRANTED.

