1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) CONVERDYN , ) ) Plaintiff, ) ) v. ) Civil Action No. 14

- 1012 (RBW) ) ERNEST J. MONIZ ) in his official capacity as Secretary of the ) United States Department of Energy , et al. , ) ) Defendant s . ) )

MEMORANDUM OPINION Plaintiff ConverD yn (“ the plaintiff”) brings this suit against the United States Department of Energy (“ the Department”) and Ernest J. Moniz (“ the Secretary”), in his official capacity as Secretary of the Department, alleging that certain actions taken by the defendant s violate the United States Enrichment Corporation Privatization Act (“the Privati zation Act”), 42 U.S.C. § 2297h

– 10 (2012) , and are arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C . §§ 553, 706(2)(a) (2012)

. See Complaint (“Compl.”) ¶¶ 118

– 38

. Currently
p ending bef ore the Court is the defendants’ M otio n for J udgment on the P leadings (“ Defs.’ Mot. for J. on the Pleadings ”)

. Upon careful consideration of the parties’ submissions and the entire2 record in this case, the Court concludes that it must grant in part and deny in part the defendants’ motion. 1

I. FACTUAL AND LEGAL BACKGROUND A. Statutory Framework
“I n 1996, Congress enacted the Privatization Act, which includes various provisions relating to the transfer of the [United States’ ] interest in the United States Enrichment Corporation, a government corporation previously established b y the Energy Policy Act of 1992.” ConverDyn v. Moniz , 68 F. Supp. 3d 34, 39 (D.D.C. 2014) (Walton, J.) (citation omitted). The Privatization Act “ states that [t]he [defendant s ] shall not provide enrichment

s ervices or transfer or sell any uranium (including natural uranium concentrates, natural uranium hexafluoride, or enriched uranium in any form) to any person except as consistent with this section.” Id. (citing 42 U.S.C. § 2297h

– 10(a)). One such exceptio n provides that “the [defendant s ] may, from time to time, sell natural and low

- enriched uranium (including low

enriched uranium derived from highly enrich ed uranium) from the Department[’s] . . . stockpile.” Id. (citing § 2297h

– 10(d)(1)). However, the Privatization Act prohibits the “sale or transfer of natural or low

- enriched uranium” unless: ( A) the President determines that the material is not necessary for national security needs,

1 In addition to the documents previously referenced, the Court considered the following submissions in reaching its decision: the defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion for J udgment on the P leadings (“Defs.’ Mem.”); the defendants’ Answer to Complaint ; the plaintiffs’ Motion for Summary Judgment (“Pl.’s Mot. for Summ. J.”); the defendants’ Memorandum in Support of Defendants’ Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Defs.’ Cross

- Mot. & Opp’n”) ; the Court’s May 11, 2015 Ord er ; the plaintiff’s Response to the Court’s May 11, 2015 Order (“Pl.’s Jun e 2, 2015 Resp. to the Ct.’s May 11, 2015 Order”); the defendants’ June 10, 2 015 Notice to the Court (“Defs.’ June 10, 2015 Notice to the Ct.”); the plaintiff’s Memorandum in Opposition to the Defendants’ Motion for Judgment on th e Pleadings (“Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings”); the defendants’ Reply Memorandum in Support of Motion for Ju dgment on the Pleadings (“Defs.’ Reply in Support of Mot. for J. on the Pleadings”); and the Court’s July 9, 2015 Order.3 (B) the Secretary determines that the sale of the mate rial will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry, taking into account the sales of uranium under the Russian [High Enriched Uranium] Agreement and the Suspension Agreement, and (C) the price paid to the Secretary will not be less than the fair market value of the material. Id. at 39

– 40 (citing § 2297h

– 10(d)(2)). Determinations under § 2297h

– 10(d)(2) “remain valid for two years only.” Id. at 40 (citations omitted).
B. The 2008 and 2013 Excess Uranium Inventory Management Plans In 2008, the Department issued a “document entitled United States Department of Energy
Excess Ur anium Inventory Management Plan dated December 16, 2008.” Id. 2 The 2008 Policy “set[] forth the general framework within whi ch the Department prudently [would] manage [and sell] its excess uranium inventory. ” Id. (citation omitted). The 2008 Policy stated that “ as a general matter, the introduction into the domestic market of uranium from Departmental inventories i n amounts that do not exceed ten percent of the total annual fuel requirements of all licensed nuclear power plants should not have an adverse material impact on the domestic uranium industry. ” Id. (citation omitted). The 2008 Policy further stated that “[t] he Depart ment anticipate[d] that it [might] introduce into the domestic market, in any given year, less than that amount, or, in some years for certain special purposes such as the provision of initial core loads for new reactors, more than that amount .” Id. (citation omitted). This “Policy Statement” was not “published in the Federal Register or subject to notice and comment.” Id.

2 The Court refers to this document hereinafter as “the 2008 Policy.”4 “I n July 2013, the Department transmitted to Congress a seco nd Excess Uranium
Invento ry Management Plan . . . .” Id. at 41. 3 The 2013 Policy “replace[d] the 2008 [Policy] and reflect[ e d] updated and evolving information, programs, and mission needs, including additions to and deletions from the inventory and changes to [the Department’s] uranium management strategy.” Id. (last alteration in original) (citation omitted). The 2013 Policy acknowledged the 2008 Policy’s “ reference to a Departmental guideline that, as a general matter, the introduction into the domestic market of uranium from Departmental inventories in amounts that do not exceed 10 percent of the total annual fuel requirements of all nuclear power plants should not have an adverse material impact on the domestic uranium mining, conversion, o r enrichment industry. ” Id. (citation omitted). However, the 2013 Policy repudiated this guideline, stating that “the Department . . . determined that it [could] meet its statutory and policy objectives in regard to [Department] uranium sales or transfer s without an established guideline. ” Id. (citation omitted). “Acco rdingly,” the 2013 Policy added that “the 10 percent guideline [would] no longer be used. ” Id. at 42 (citation omitted). As with the 2008 Policy, the 2013 Policy “ was neither published i n the Federal Register nor was it subject to notice and

comment. ” Id. C. The Current Litigation Pursuant to § 2297h

– 10(d), in May 2014, the Department issued a “ 2014 Secretarial Determination finding no adverse material impact on the domestic uranium mining, conversion, and enrichment industry .” Id. at 44. 4 “ The 2014 . . . Determination authorize[d] the transfer of up to 2,055 [metric tons of uranium] per year of natural uranium equivalent contained in natural

3 The Court refers to this document hereinafter as “the 2013 Policy.”

4 The Court refers to the 2014 Secretarial Determination hereinafter as “the 2014 Determination.”5 uranium and natural uranium from off

- spe cification non

- uranium hexafluoride transferred to [Department] contractors for cleanup services at the Paducah or Ports mouth Gaseous Diffusions Plants and up to 650 [metric tons of uranium] per year of natural uranium equivalent contained in low

- enriched uranium . . . transferred to [National Nuclear Security Administration] contractors for down

- blending highly

- enriched uranium to [low

- enriched uranium] for [National Nuclear Security Administration] programs. ” Id. (some alter ations in original) (citation omitted). The plaintiff , who , according to the Complaint, “is the sole domestic supplier of uranium conversion services in th e United States,” ¶ 2 , “ filed suit on June 13, 2014, alleging that the Department [was] acting in excess of its statutory authority by transferring conv ersion services, that the 2014 . . . Determination’ s finding that the planned transfers [would] have no advers e material impact [was] arbitrary and capricio us, and that the Department [would] receive less than fair market value for the planned transfers, in violation of the Privatization Act and the APA. ” ConverDyn , 68 F. Supp. 3d at 45 (citation omitted). The plaintiff also challenged the lawfulness of the 2013 Policy, alleging that it was “arbitrary and capricious, and otherwise not accordance with the law, in violation of the [APA].” Compl. ¶ 134

. Then, “ [o] n June 23, 2014, [ the plaintiff] filed [a] motion for a preliminary injunction seeking to enjoin all of the transfers identified in the 2014 . . . Determination.” ConverDyn , 68 F. Supp. 3d at 45 (citation omitted).

“ The Court held oral argument on [the plaintiff’s] motion [for a preliminary injunction] on July 29, 2014 and later that day, issued an order denying the motion for failure to show irreparable ha rm, with an indication that [an] opinion setti ng forth the Court’ s reasoning in full would be issued l ater.” Id. (cit ation omitted). On September 11, 2014, the plaintiff filed a motion for summary judgment. Pl.’s Mot. for Summ. J. In its motion, the plaintiff “move[d] for summary judgment to stop [the all egedly]6 unlawful transfers of uranium from the

. . . Departme nt[’s] . . . inventory into the commercial markets.” Id. at 1. On the following day, September 12, 2014, the Court issued its Memorandum Opinion (“Opinion”) setting forth the “reasons” that it “ denied [ the plaintiff’ s]

mot ion [for a preliminary injunctio n ]

. ” ConverDyn , 68 F. Supp. 3 d at 38. The Court held that, [w]hile [the plaintiff’s] projected losses [would be] quite sig nificant, if accurate, [the plaintiff] . .

. nonetheless failed to meet this Circuit’ s stringent standard for establishing irreparable harm. ” ConverDyn , 68 F. Supp. 3d at 47. Despite denying the plaintiff’s motion for a preliminary injunction on the basis that the plaintiff failed to show irreparable harm, the Court nonetheless “ discuss [ed] the remaining three factors in order to provide the parties with a complete understanding of its balance of the four preliminary injunction factors. ” Id. at 50 (citation omitted) . The Court stated that it agreed with the plaintiff “that it [was] likely to prevail on its claim that the 2014 . . . Determination’ s finding that the planned transfers [would] have no adverse material impact [was] arbitrary and capricious in violation of the APA. ” Id

. However, “[w]ith respect to [the plaintiff’s] other claims , . . . the Court [was] unpersuaded that [the plaintiff was] likely to succeed. ” Id. at 51. The Court also concluded that the balance of the equities and the public interest preliminary injunction factors did not weigh in favor of issuing a preliminary injunction. Id. at 52

– 54. On September 25, 2014, the defendant s filed a cross

- motion for summ ary judgment and opposition to the plaintiff’s moti on for summary judgment. Defs.’ Cross

- Mot. & Opp’n.

“ On May 1, 2015, the Secretary

. . . issued a determination

. . . covering continued transfers of uranium for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down

- blending of highly

- enriched u ranium to low

- enriched uranium.” Excess Uranium Management: Secretarial Determination of No Adverse Impact on the Domestic Uranium7 Mining, Conversion, and Enrichment Industries, 80 Fed. Reg. 26,366, 26,366 (May 7, 2015) ( hereinafter “2015 Determination” ) . The 2015 Determination “ covers transfers of up to the equivalent of 2,500 metric tons of natural uranium (“M TU”) per year in 2015 and up to the equivalent of 2,1 00 MTU in each year thereafter.” Id. The 2015 Determination expressly states that it “ replaces the previous determination issued in May 2014, which covered transfers for these two programs of up to the equivalent of 2,705 MTU per year. ” Id. (emphasis added); see also i d. (emphasis added) (stating that “this determination . . . supersede[s] the 2014 Determination”). Additionall y, the 2015 Determination provides that “ no further transfers pursuant to the 2014 Determination will take place. ” Id. On May 11, 2015, in light of the 2015 Determination’s issuance, the Court entered an order directing the plaintiff to “[show cause] . . . why the claims set forth in this action should not be dismissed as mo ot.” May 11, 2015 Order at 2

. The plaintiff responded to the Court’s May 11, 2015 order on June 2, 2015, contending that its challenge to the defendants’ 2014 Determination was not moot. See Pl.’s June 2, 2015 Resp. to the Ct.’s May 11, 2015 Order

. The defendant s “disagree[d] and [,therefore, represented that they ] intend[ed] to file a Motion for Judgment on the Pleadings by June 30, 2015, arguing for dismissal of [the] plaintiff’s claims challenging the May 15, 2014 Determination that [allegedly were] rendered moot by the adoption of the . . . 2015 Determination.” Defs.’ June 10, 2015 Notice to the Ct. at 1

– 2

. Consistent with this response , the defendant s filed their motion for judgment on the p leadings on June 30, 2015. Defs.’ Mot. for J. on the Pleadings

. On July 9, 2015, the Court issued an order in which it, among other things, declined to address the merits of the plaintiff’s September 11, 2014 motion fo r summary judgment. See July 9, 2015 Order at 2

– 3 . In declining to address the motion , the Court reasoned that “before it8 [could] addre ss the merits of this case, it [had to] resolve the thre shold issues of the . . . [C]ourt’ s subject matt er jurisdiction and mootness.” Id. at 2 (ellipsis in original) (citation omitted). Therefore, the Co ur t denied, without prejudice, both parties ’ cr oss - motions for summary judgment and ordered the plaintif f to respond to the defendants’ motio n for judgment on the pleadings. Id. at 3. On July 23, 2015, the plaintiff filed its memorandum in opposition to the defendants’ motion for judgment on the pleadings. Pl.’s Opp’n to Def s.’ Mot. for J. on the Pleadings . The defendant s then filed their reply on August 8, 2016, Defs.’ Reply in Support of Mot. for J. on the Pleadings , and the defendant s’ motion for judgment on the pleadings is now ripe for resolution.
II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(c) permits “a party [to] move for judgment on the pleadings” so long as the motion is made “[a]fter the pleadings are closed

— but early en ough not to delay trial.” “The standard for a motion for judgment under Rule 12(c) is essentially the same standard as a motion to dismiss under Rule 12(b)(6).” Rollins v. Wackenhut Servs. , 802 F. Supp. 2d 111, 116 (D .D.C. 2011) (citing, inter alia , Schuchart v. La Taberna Del Alabardero, Inc. , 365 F.3d 33, 35 (D.C. Cir. 2004)). Accordingly, when considering a Rule 12(c) motion, “the court must accept the nonmovant’ s allegations as true and should view the facts in the light most favorable to the non movant.” Bowman v. District of Columbia , 562 F. Supp. 2d 30, 32 (D.D.C. 2008). Therefore, “[t] he court should grant a motion for judgment on the pleadings [only] if the movant ‘is entitled t o judgment as a matter of law.’ ” Id. (quoting Burns Int’ l Sec. Servs. v. Int’ l Union , 47 F.3d 14, 16 (2d Cir. 1995)).9 III. LEGAL ANALYSIS A. The Parties’ Arguments
1. The D efendants’ A rguments The defendant s assert that their “issuance of [the] 2015 Determination moot[ed] [the] plaintiff’s challenge to the 2014 Determination.” Defs.’ Mem. at 1

. The defendant s therefore conclude that “the Cour t should grant [their] M otion for Judgment on the Pleadings and dismiss Counts I and II of [the] plaintiff’s Complaint as moot.” Id. Further, the defendant s argue that the Court should dismiss Count III because, in the defendants’ assessment, “the Court lacks subject matter jurisdiction to consider [Count III] outside a live challenge to a concrete agency action such as a Secretarial Determination.” Id. The defendant s argue that Counts I and II of the Complaint are moot and should be dismissed because “[t]he 2015 Determination unambiguously states that ‘the 2014 Determination is replaced by the [2015] [D] etermination

. . . and no further transfers pursuant t o the 2014 Determination will take place.’” Id. at 6 (quoting 2015 Determination, 80 Fed. Reg. at 26,366). The defendant s acknowledge that “‘voluntary cessation of a challenged practice’ does not necessarily render the challenge moot.” Id. at 7 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 169

– 70 (2000)) . However, the defendant s assert that this exception to mootness is inapplicable because “‘subsequent events made it absolutely clear that the alle gedly wrongful behavior could not reasonably be expected to recur.’” Id. at 7

– 8 ( quoting Laidlaw , 528 U.S. at 189). From the defendants’ standpoint, “there is no reasonable expectation that the agency action constituting the alleged violation . . . will recur” “[b]ecause10 the basis for a Secretarial Determination related to the transfer of excess uranium is necessarily particular to conditions in the uranium market s at the time of the Determination.” Id. at 8. Furthermore, the defendant s assert that “there is no reason for this Court to think that [the defendant s ] will arbitrarily issue a new determination” because “prior to issuing the 2015 . . . Determination, [ the Department] engaged in a time consuming and expensive process [in order to formulate the Determination].” Id. Additionally, the defendant s contend that “there is less concern about the recurrence of objectionable behavior” where “the defendant is a g overnment agency.” Id. at 9 (citations omitted). From the defendants’ perspective, the “capable of repetition, yet evading review” exception to mootness is likewise inapplicable. Id. at 11 (citing S. Pac. Terminal Co. v.
Interstate Commerce Comm’n , 219 U.S. 498, 515 (1911)). The defendant s note that “[t]o invoke this exception, [the] plaintiff must demonstrate that ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again .’” Id. (alterations in original) (quoting Spencer v. Kemna , 523 U.S. 1, 17 (1998)). Although the defendant s do not address the first prong of this test, th e defendant s assert that the “sam e action” requirement is not satisfied because “Determinations on uranium transfer are . . . highly fact

specific” and, accordingly , “there can be no reasonable expectation that [the] plaintiff will again be subject to the same action in the future.” Id. at 13 (citation omitted). Moreover, the defendant s note that, under Count I of the Complaint , the “plainti ff contends that [the Department ] does not have legal authority to transfer uranium he xafluoride (UF6) . . . and . . . that a practice of valuing the uranium it transfers at roughly the spot market price does not comply with the statutory requirement that [the Department] obtain fair market11 value for uranium transferred pursuant to a Secretarial Deter mination.” Id. (citations omitted). The defendant s assert that the plaintiff cannot “continue to pursue a challenge to [these] [Department] practices underlying the uranium transfers [allegedly] covered by the 2014 Determination even after the Determination itself has been replaced.” Id. The defendant s acknowl edge that, even where a plaintiff’s specific claim has been mooted, the plaintiff “may nevertheless seek declaratory relief forbidding an agency from imposing a disputed policy in the future, so long as the plaintiff has standing to bring such a forward

- lo oking challenge and the request for declaratory relief is ripe.” Id. at 14 (citing City of Houston v. Dep’t of Housing & Urban Dev. , 24 F.3d 1421, 1429 ( D.C. Cir. 1994)). Yet , the defendant s assert that, “in the absence of a specific agency action exerci sing and carrying out these two practices that has caused [the] plaintiff concrete and particularized injury, [the] plaintiff lacks standing.” Id. (citation omitted). This is because, in the defendants’ assessment , the Department’s “legal conclusions about its authority to transfer UF6 and a practice of seeking roughly spo t market prices for transf erred uranium cannot possibly cause plaintiff any harm in the abstract.” Id. Rather, “[i]t is only in the context of an agency action, such as a Secretarial Determination covering those uranium transfers, that these practices could arguably be said to result in any harm to plaintiff.” Id. Also, the defendant s note that the ripeness doctrine requires courts to evaluate “‘both t he fitness of the issues for judicial decision and the hardship to the parties from withholding court consideration. ’ ” Id. at 15 (quoting Abbott Labs v. Gardner , 387 U.S. 136, 149 (1967)). In the defendants’ opinion, the issues are not fit for judicial resolution because “ the determination of whether [the Department’s] valuation methods result in it receiving fair market value cannot be intelligently evaluated in the abstract, outside of final agency action.” Id. (citation omitted).12 T he defendant s urge the Court to dismiss Count III on various grounds. First, the defendant s assert that the plaintiff lacks sta nding to challenge the 2013 Policy “[f]or the same reasons that the plaintiff lacks standing to br ing a . . . challenge to the two agency policies [discussed in the preceding paragraph].” Id. at 17. Second, the plain tiff characterizes the 2013 Policy as a “general statement of policy , ” i d. at 18, and notes that such policies are “not subject to pre

- implementation judicial review” under the APA, i d. (citing Nat’l Mining Ass’n v. McCarthy , 758 F.3d 243, 251 (D.C. Cir. 2014)). According to the defendant s , in the absence of a “concrete action[]

– such as a Secretarial Determination on uranium transfers,” there is no policy to implement and, therefore, the plaintiff “cannot maintain a challenge t o the [2013 Policy] in isolation.” Id. Third, the defendant s assert that , “[f]or essentially the same reasons, [the] plaint iff’s challenge to the 2013 [Policy] in the absence of [an allegedly] non

- moot Determination where it is applied or relied upon[] is not ripe for judicial review.” Id. at 19. Finally, the defendant s a ssert that “[e]ven assuming that [the] plaintiff’s challenge to the 2013 [Policy] is unaffected by the mooting of the 2014 Determination, that claim has no merit and the Court can resolve this cla i m by granting [the] defendants’ Motion for Summary Judgment on this issue.” Id.
2. The P laintiff’s C ounterarguments Regarding Counts I and II of the Complaint , t he plaintiff argues th at the defendants’ “decision to supersede the 2014 Determinatio n

— [allegedly] made in the face of [the plaintiff’s] lawsuit and the Court’s adverse ruling

— is not enough to moot t he lawsuit.” Pl.’s Opp’n to Defs.’ Mo t. for J. on the Pleadings at 6

. As to the voluntary cessation doctrine, the plaintiff asserts that “it is by no means absolutely clea r that [the defendant s ] would not return to the higher transfer levels authorized by the 2014 Determination if they found it convenient to do so13 in the future.” Id. at 7. To bolster its assertion, the plaintiff accuses the defendant s of “already us[ing] the uranium transfer program as an extra

- budgetary slush

- fund to circumvent the Congressional appropriations process,” citing documents outside of the pleadings to substantiate this argument. Id. Furthermore, the plaintiff asserts that the defendant s hav e “offer[ed] no evidence . . . to support their claim[] that the [allegedly] flawed analysis and methodology applied in the 2014 Determination cannot be revived.” Id. at 8. Additionally, the plaintiff
expresses skepticism about the defendants’ assertion that it is unreasonable to believe that it would issue a new Determination just to avoid judicial review, stating that “that is precisely what [the defendant s ] did in this case.” Id. at 9. Moreover, the plain tiff asserts that the defendant s

mu st show that “interim relief or events [] completely and irrevocably eradicated the effects of the alleged violation,” i d. at 11 (citing Larsen v. U.S. Navy , 525 F.3d 1, 4 (2008) ) , and argue s that the defendant s have not made this showing because “the adverse impacts [of the allegedly unlawful prior transfers] linger in the market and contribute to the still

- depressed market for [the plaintiff’s] conversion services,” Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings at 11. L astly, the plaintiff states that it is “n ot claiming that [the defendant s ] will enact a new Secretarial Determination at some indeterminate point that relies on the exact same facts as the 2014 Determination,” i d. at 12, but rather, that the defendant s are “continuing to rely on the same flawed policies and practices when making the 2015 Determination,” i d. The plaintiff also contends that the “capable of repetition yet evading review” mootness exception “dooms [the defendants’ ] motion.” Id. Although t he plaintiff acknowledges that “a plaintiff may be less likely to show that it will be subject to the same action” where “ the only action challenged is . . . very fact

- specific,” i d. at 13, the plaintiff asserts that “[i]t is well

established that if a plaintiff challenges both a specific agency action and the policy that14 underlies that action, the challenge to the policy is not necessarily mooted merely because the challenge to the particular agency action is moot,” i d. (c iting City of Houston , 24 F.3d at 1428). To buttress this assertion, the plaintiff maintains that its “challenge is not just to the ultimate conclusion in the 2014 Determination that transferring 2,705 MTU per year would not have an adverse material impac t . . . , but also to the manner in which [the defendant s ] reached that result.” Id. at 14. Elaborating, the plaintiff states th at it challenges the defendants’ “practices of balancing the potential harms from the transfers against the benefits of the pr ograms funded by the transfers and comparing t he harms from the transfers to other harms affecting the market.” Id. 5 Regarding Count I of the Complaint , the plaintiff asserts that § 2297h

– 10(d) “bars [the defendant s ] from transferring material other than natural and low enriched uranium regardless of whether it will have an adverse material impact, and bars [the defendant s ] from receiving less

5 Additionally, the plaintiff notes that the defendant s argued in their motion for judgment on the pleadings “that this case is moot because the Court [allegedly] lacks broad equitable powers to provide any remedy for harms caus ed by issuance of the . . . 2014 Det ermination.” Pl.’s Opp’n t o Defs.’ Mot

. for J. on the Pleadings at 17 . The plaintiff disputes this argument on the ground that it “is not just seeking to stop or mitigate the ongoing harmful effects of the prior . . . transfers,” id. , but rather, “to prevent further reliance by [t he defendant s] on [their allegedly] flawed underlying methodology and to avoid revival of the invalid 2014 Determination,” id. Moreover, the plaintiff contends that, pursuant to its equitable powers, the Court could “enjoin a quantity of uranium transfers going forward to counteract the effects of the quantity transferred unlawfully.” Id. at 18. According to the plaintiff, the defendant s “transferred approximately 2,700 MTU under the auspices of the 2014 Determination,” id. , and “[e]njoining the next 2,700 MTU . . . will help to remedy this continuing harm by putting the parties in the position they would have been in had [the defendant] not made [these] transfers,” id. The Court declines to address this issue because it is outside of the scope of the defendants’ motion for judgment on the pleadings. For one thing, the defendant s did not make this argument in response to the Complaint’s allegedly insufficient allegations, but rather, to a position that the plaintiff too k in its June 2, 2015 response to the Court’ s May 11, 2015 order. See Pl.’s June 2, 2015 Resp. to the Ct.’s May 11, 2015 Order at 6

– 7; May 11, 2015 Order . Moreover , this issue is fact

- intensive and, therefore, is more appropriately addressed on summary ju dgment. Cf. McFadden v. Wash. Metro. Area Transit Auth. , 949 F. Supp. 2d 21 4, 222 (D.D.C. 2013) (noting that “question[s] of f act . . . [are ] more appropriately addressed on summary judgment”). Thus, while enjoining uranium transfers under a purportedly valid Determination to compensate for transfers made un der a repealed Determination would be unusual, cf. Theodore Roosevelt Conservation P’ship v. Salazar , 661 F.3d 66, 79 (D.C. Cir. 2011) (“We are not going to invalidate a valid [agency decision] to reme dy the alleged non

- enforcement of an [agency decision] which has no current force or effect.”), it is premature to address this issue at this time

.15 than the fair market value of the material regardless of whether it will have an adverse material impact.” I d. at 22 (citations omitted). In the plaintiff’s view, “Count I of [the] Complaint makes clear that it is challenging [the aforementioned alleged] [v]iolations of the . . . Privatization Act and [APA], not just a violation of the Secretarial Determination requirement.” Id. As for Count III of the Complaint , the plaintiff asserts that its “claim that [the defendant s ’ ] improperly abolished the 10% [l]imit without following requisite notice and comment procedures and did so arbitrarily and capriciously has nothing to [do] with the Secretarial Determination process.” Id. at 24. “As a result,” the plaintiff continues, “ issuance of the 2015 Determination, or any other new Determination, does not moot the claims.” Id. Further, the plaintiff states that the defendant s are “currently making excess uranium transfers above the 10% [l]imit and will continue to do so.” Id. at 25. “The ongoing nature of these transfers,” the plaintiff concludes, “fatally undermine [s] [the defendants’ ] claim that there is no final agency action.” Id.
B. Discussion
1

. The Doctrine of Mootness and Its Exceptions “Article III, § 2[] of the Constitution limits the jurisdict ion of federal courts to ‘Cases’ and ‘Controversies,’ which restricts the authority of federal courts to resolving the legal rights of litigants in actual controversies.” Genesis Healthcare Corp. v. Symczyk ,
__ U.S

.
__ ,
__ , 133 S.
Ct. 1523, 1528 ( 2013) (citations om itted). Therefore, “[i]n order to invoke federal

- court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or personal stake, in the outcome of the action.” Id. (citation omitted). “This requirement [of standing] ensures that the Federal Judiciary confines itself to its constitutionally limited role of16 adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties inv olved.” Id. “A corollary to this case

- or - controversy requirement is that an actual controversy must be extant at all stages of review, not merely at th e time the complaint is filed.” Id

. “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Id. (citation omitted). Thus, “[a] case is moot if the judgment

. . . will neither presently affect the parties’ rights nor have a more

- than

- speculative chance of affecting them in the future.” Noble v. Sombrotto , 525 F.3d 1230, 1241 (D.C. Cir. 2008) (citation omitted); see also Del Monte Fresh Produce Co . v. United States , 570 F.3d 316, 321 (D.C. Cir. 2009) (citation omitted) (“ A case is moot when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated in circumstances where it becomes impossible for the court to grant any effectual relief whatever to the prevailing party .”). In certain cases, however, “ the fact that the specific conduct that gave rise to the case has ceased does not mean that the challenge to the legality of that conduct is moot. ” Del Monte , 570
F .3d at 321 (citation omitted). “ A claim for declaratory relief will not be moot if the claim ‘ fits the exception for cases that are capable of repetition, yet evading review, or falls within the voluntary cessation doctrine. ’ ” Jackson v. U.S . Parole Comm’ n , 806 F. Supp. 2d 201, 205 (D.D.C. 2011) (quoting City of Houston , 24 F.3d at 1429 ). Under the voluntary cessation doctrine, it “ i s well settled that a defendant’ s voluntary cessation of a challenged practice does not deprive a federal court of its power to determi ne the legality of the practice excep t when the defendant meets its heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Worth v. Jackson , 451 F.3d 854, 860 (citing , inter17 alia , Friends of the Earth , 528 U.S. at 189 )

. By comparison, “[u] nder the capable of repetition yet evading review exception to mootness, the p laintiff must demonstrate that (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subje cted to the same action again.” Del Monte , 570 F.3d at 322 (alteration in original).

a. Count II Count II of the plaintiff’s Complaint is moot. Count II exclusively challenges the 2014 Determination, alleging that it violates the Privatization Act’s requirement that the Department determine that the “uranium transfers will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment ind ustry.” Compl. ¶ 127 ; see also i d. ¶¶ 128

– 29 ( exclusively challenging the lawfulness of the 2014 Determination). Yet , the 2015 Determination unequivocally states that “ the 2014 Determination is re placed by the determination described below, and no further transfers pursuant to the 2014 Determination will take place. ” 2015 Determination, 80 Fed. Reg. at 26,366. Likewise, the 2015 Determination states that it “ supersede [s] the 2014 Determination.” Id. Therefore, the conduct that the plain tiff challenges under Count II ( i.e., the 2014 D etermination) has ceased, and any ruling on Count II would not affect the plaintiff’s rights. Accordingly, Count II of the plaintiff’s Complaint is moot, unless one of the theories that defeats mootness applies. On the record here, the Court is convinced that Count II is not saved by either the voluntary cessation or the capable of repetition, yet evading review exceptions to mootness. Regarding the voluntary cessation exception, it would be unreasonable to think that the defendant s would reissue the 2014 Determination. The C ourt agrees with the defendants’ assessment that “ the basis for a Secretarial Determination related to the transfer of excess18 uranium is necessarily particular to conditions in the uranium markets at the ti me of the Determination,” Defs.’ Mem. at 8 , and the pl aintiff appears to concede that it is “not claiming that [the defendant s ] will enact a new Secretarial Determination at some indeterminate point that relies on the exact same facts as the 2014 Determination,” Pl.’s Opp’n to Def s .’ Mot. for J. on the Pleadings at 12 . Moreover, where, as here, “ the defendant is a government act or

— and not a private litigant

— there is less concern about the recurrence of objectionable behavior .” Citizens for Responsibility & Ethics in Wash. v. SEC , 858 F. Supp. 2d 51, 61 (D.D.C. 2012) (collecting cases). Admittedly , the defendant s issued the 2015 Determination in the wake of the Court’s Septe mber 12, 2014 Opinion, which held that the plaintiff was “ likely to prev ail on its claim that the 2014 Secretarial Determination’s finding that the . . . transfers [would] have no adverse

mater ial impact [was] arbitrary and capricious in violation of the APA .” ConverDyn v. Moniz , 68 F. Supp. 3d at 50 . And , the defendant s acknowledge that “ this Court’s criticism of [the Department’s] reasoning in su pport of the 2014 Determination . . . was one factor informing [the Department’s] analysis for the new Secretarial Determination that attempts to address the Court’s

concerns. ” Defs.’ Mem. at 10

. Nonetheless , as a result of the Department’s reevaluation, “ [t] he [2015] Determination covers transfers of up to the equivalent of 2,500 metric tons of natural uranium (“MTU”) per year in 2015 and up to the equivalent of 2,100 MTU in each year thereafter ,” 80 Fed. Reg. at 26,366, which is a reduction from “the pr evious d etermination issued in Ma y 2014, which covered transfers . . . up to the e quivalent of 2,705 MTU per year,” i d. On this record , the defendant s have carried their “ heavy burden of persuading the [C] ourt that the [2014 Determination] cannot reasonab ly be expected to [be reissued] .” Worth , 451 F.3d at 860 (citing, inter alia , Friends of the Earth , 528 U.S. at 189)

.19 For similar reasons, the “capable of repetition, yet evading review” exception to mootness is inapplicable to Count II. Under the first prong of this exception, t he defendant s do not dispute that the 2014 Determination “cannot be fully litigated prior to cessation or expiration ,” Del Monte , 570 F.3d at 322 (citation omitted), evidently because “ Determinations under [§ 2297h

- 10(d)(2)] remain valid for two years only, ” ConverDyn , 68 F. Supp. 3d at 40 (citations omitted) . Nevertheless, under the second prong, the C ourt agrees with the defendants’ contention that there is no reasonable expectation that the plaintiff will again be subject to the
2 014 Determination. Defs.’ Mem. at 11 (citing Spencer , 523 U.S. at 17) . As the plaintiff seems to acknowledge , Pl.’s Opp’n to Defs.’ Mot

. for J. on the Pleadings at 13 , the defendant s’ Determinations are “ highly fact

- specific ,” Fun d for Animals , 460 F.3d at 22. Therefore, because the 2014 Determination “ is highly dependent upon a series of facts unlikely to be duplicated in the future,” i d. at 23 (citation omitted), Count II “ cannot be saved from mootnes s on the ground that it raises issues or wr ongs capable of repetition yet evading review ,” i d. at 22. 6 The plaintiff responds that it is challenging “ both a specific agency action [i.e., the 2014 Determination] and the policy that underlies that action, [and that] the challenge to the policy is not necessarily mooted merely because the challenge to the pa rticular [Determination] is moot.” City of Houston , 24 F.3 d at 1428 (citations omitted). The plaintiff describes the a lleged policy as the defendants’ “practices of balancing the potential harm s from the transfers against the benefits of the programs funded by the transfers and comparing the harms from the transfers to

6 See also Spencer , 523 U.S. at 17 (alterations in original) (emphasis added) (citations omitted) (stating that the “capable

- of

- repetition doctrine applies only . . . where . . . there [is] a reasonable expectation that the same complaining party [will] be subject to the sa me action again”); Defs.’ Mot. for J. on the Pleadings at 12 (citing cases) ; see generally 2015 Determination, 80 Fed. Reg. at 26,266 (embodying a fact

- intensive analysis); compare 42 U.S.C. § 2297h

– 10(d)(2) (providing that the Department shall not sell or transfer “natural or low

- enriched uranium” unless certain conditions are satisfied), with ConverDyn , 68 F. Supp. 3d at 40 (citations omitted) (noting that “Determinations under [§ 2297h

– 10(d)(2)] rem ain valid for two years only”)

.20 ot her harms affecting the market.” Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings at 14

. But the Complaint is bereft of any allegations regarding such a policy. See generally Compl

. Nevertheless, the plaintiff notes that “[t] he Court recogn ized this aspect of [the plaintiff’s] challenge in its preliminary injunction decision .” Pl.’s Opp’n t o Defs.’ Mot. for J. on the Pleadings at 1 4 (citation omitted)

. While this representation is certainly correct , the policy reference in the Court’s Opinion related to “ the 2014 S ecretarial D etermination,” ConverDyn , 68 F. Supp. 3d at 51 , which has since been replaced. The plaintiff further contends that “ [t]he 2015 Determination did not reject, and indeed reaffirms and continues, this same flawed approach to evaluating adver se impacts.” Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings at 1 4 (citation omitted)

. Again, however, this unproven “fact” is nowhere in the Complaint , see generally Compl. , and courts typically “ may not rely on facts outside of the pleadings ” when ruling on a motion for judgment on the pleadings, Robinson v. District o f Columbia , 403 F. Supp. 2d 39, 47 (D.D.C. 2005)

. The plaintiff’s argument that the alleged policy described above precludes a mootness defense also fails because this exception applies only to claims for “declaratory relief.” Del
Monte , 570 F.3d at 321; see also City of Houston , 24 F.3d at 1429 (emphasis added) (footnote omitted) (“[T]his circuit’ s case l aw provides that if a plaintiff’ s specific claim has been mooted, it may nevertheless seek declaratory relief forbidding an agency from imposing a disputed policy in the future, so long as the plaintiff has standing to bring such a forward

- looking challenge and the request for declaratory relief is ripe.”). Here, however, in the Complaint’s prayer for relief, th e plaintiff’s requests for declaratory relief have nothing to do with this alleged policy. See Compl. at 27

– 28

. Accordingly, because no exception to mootness applies to the plaintiff’s21 challenge to the 2014 Determination, the Court dismisses Count II of the plaintiff’s Complaint with prejudice. b

. Count I Count I of the Complaint consists of three distinct components . The first component
asserts that the defendants’ “2014 Determination is arbitrary, capricious, and unlawful” i n violation of the APA. See id. ¶¶ 120, 122 . The second component asserts that the defendants’ “transfers of UF6 further . . . violate[] the . . . Privatization Act [and the APA] because [the defendant s allegedly are] not authorized to transfer the conversion or enrichment services component of UF6, only the natural uranium and low enriched uranium component.” See i d. ¶¶
1 20, 123. The third component asserts that the defendants’ “transfers . . . also violate the . . . Privatization Act because [the defendant s allegedly] must receive fair market value for the material[] [and the defendant s allegedly value] the material at a price that is below fair market value.” See i d. ¶¶ 120, 124. The first component of Count I is dismissed with prejudice for the reasons stated in Part III.B.1.a of this Memorandum Opinion . In short, the first component of Count I duplicates the plaintiff’s challenge to the 2014 Determination as set forth in Count II, which the Court has already concluded must be dismissed with prejudice. The Court declines to dismiss, howe ver, the second and third components of Count I. In its earlier Memorandum Opinion, although the Court held that the second and third components of Count I were “ [un] likel y to succeed,” ConverDyn , 68 F. Supp. 3d at 51 , it implicitly recognized the existence of these c omponents of Count I in the plaintiff’s lawsuit, see id. at 51

– 52

. The defendant s assert that the plaintiff cannot “continue to pursue a challenge to [these] [Department] practices underlying the uranium transfers [allegedly] covered by the 201422 Determination even after the Determination it self has been replaced.” Defs.’ Mem. at 13

. However, a s the defendant s acknowledge , the plaintiff “may

. . . seek declaratory relief forbidding an agency from imposing a disputed policy in the future, so long as the plaintiff has standing to bring such a forward

- looking challenge and the request fo r declarato ry relief is ripe.” Cit y of Houston , 24 F.3d at 1429

. Here, the Complaint unequivocally identifies the policies that the secon d and third components challenge, s ee, e.g. , Compl. ¶¶ 123, 124 , and the plaintiff expressly seeks a declaration from the Court invalidating these policies, i d. at 28. Furthermore, while the defendant s dispute the ex istence of such policies, Defs.’ Reply in Support of Mot. for J. on the Pleadings at 8

– 9 , their argument implicate s facts outside of the pleadings, see i d. (citing, inter alia , Pl.’s Mot. for Summ. J.) . Moreover, at this time, the defendants’ argument is “inadequately developed” to support an award of judgment on the pleadings

. See Westcott v. McHugh , 39 F. Supp. 3d 21, 31 (D.D.C. 2014) (Walton, J.) (citing Ry. Labor Execs.’ Ass’n v. U.S. R.R. Ret. Bd. , 749 F.2d 856, 859 n.6 (D.C. Cir. 1984) ) . For example, the defendants make this argument in two paragraphs and fail to cite any cases to support it. See Defs.’ Reply in Support of Mot. for J. on the Pleadings at 8

– 9 ; but cf. Westcott , 39 F. Supp. at 31 (acknowledging that the defendant might be able to “ file an appropriately sup ported motion raising the issue” at a later stage in the proceedings and declining to “address the defendant’ s inadequately developed argument at [that] time ”).
T he defendant s contend that, even assuming that the plaintiff sufficiently pleaded the existence of these two policies, the plaintiff lacks standing to challenge them and th a t such challenge s are not ripe. This contention lacks merit. As to standing, the defendant s argue that

“ in the absence of a specific agency action exercising and carrying out these two practices that has caused plaintiff concrete and particularized injury, [the] plaintiff lacks standing. ” Defs.’23 Mem. at 14 (citing Lujan v. Defenders of Wildlife , 504 U.S. 55 5, 560 (1992) )

. However, the plaintiff adequately identifies both alleged policies in the Complaint, see, e.g. , Compl. ¶¶ 106

– 17, 123

– 24 , and contends that various harms flow from them, see, e.g. , i d. ¶¶ 96, 98

– 99, 113,
12 5. And the defendant s have not shown that intervening developments have eliminated these alleged policies. See Defs.’ Mem. at 14

– 16 ; Defs.’ Reply in Support of Mot. for J

. on the Pleadings at 8

– 9 . Therefore, the plainti ff has sufficiently pleaded the existence of these two policies and the concre te and particularized harm purportedly resulting from them. The defend ants’ ripeness argument fail s for similar reasons. The premise of th e ripeness argument is that “the determination of whether [the Depart ment ]’s valuation methods result in it receiving fair market value cannot be intelligently evaluated in the abstract, outside of final agency action.” Defs.’ Mem. at 15 (citation omitted)

. However, for pleading purposes, the plaintiff has sufficiently identified the agency actions (i.e., the two polici es) that are allegedly causing the harm. Therefore, this argument is also meritless. For the foregoing reasons, the Court grants in part and denies in part the d efendants’ motion for judgment on the p leadings with respect to Count I I of the Complaint. Accordingly , the Court dismisses, with prejudice, the first component of Count II, and declines to di smiss the second and third components of Count II

. 7

c . Count III Under Count III of the Complaint , the plaintiff challenges the 2013 Policy on two primary grounds. The first ground is based on the allegation that the 2013 Policy changed a prior policy limiting uranium transfers to 10%, an action that the plaintif f characterizes as “arbitrary

7 T he defendant s also assert that the Court “can grant judgment to [the ] defendants on these issues for the reasons set forth in the memorandum accompanying [the ] defendants’ M otio n for Summary Judgment.” Defs.’ Mem. at 16 (citation omitted)

. However, it is premature to address these arguments because the defendants’ motion for summary judgment is not currently before the Court.24 and capricious, and otherwise not in accordance with law, in violation of the [APA].” Compl. ¶
134 . The second ground is based on the allegation that the defendant s issued the 2013 Policy

“ without formal notice and without g iving the public the opportunity to comment.” Id. ¶ 134. In its earlier Memorandum Opinion, the Court held that “ it is apparent that

. . . the

. . . 2013 Plan[] [is a] general statement[] of policy

. . . exempt from notice and comm ent requirements under the APA.” ConverDyn , 68 F. Supp. 3d at 52 (citation omitted)

. The Court stands by its prior ruling “ due to the non

- binding language of the document[] , the express reservation of the Department’s ability to revise its p[olicy] [] , and [the] document[’s] failure to create any ri ghts or impose any obligations,” id. (citing Wilderness Soc’y v. Norton , 434 F.3d
58 4, 595 (D.C. Cir. 2006)), and because the Department “ never published a final version of the [2013] Polic[y] in either the Federa l Register or, more significantly, in the Code of Federal Regulations,” Wilderness Soc’y , 434 F.3d at 595

– 96 ; s ee also ConverDyn , 68 F. Supp. 3d at 42 (“ The 2013 Plan was neither published in the Federal Register nor was it subject to notice and

comment. ”). The District of Columbia Circuit has held that “general statements of policy” are not “subject to pre

- enforcement judicial review” under the APA. Nat’l Min ing , 758 F.3d at 251 (citing cases). Likewise, “general statements of policy” do not “require notice and comment” under the APA. Id. Here, the 2014 Determination was the only conceivable action that the plaintiff alleged to be enforcing the 2013 Policy. However, because the 2014 Determinat ion has now been replaced, the Complaint no longer alleges any action enforcing the 2013 Policy. Consequently, the first ground on which the plaintiff challenges the 2013 Policy fails to state a claim upon which relief may be granted . Therefore, the Court dismisses Count III with respect to this first ground.25 However, this dismissal is without prejudice because, as the d efendant s seem to acknowledge, “ if [the] plaintiff

. . . is suffering harm from these practices now, it could

. . . amend its complaint

. . . [to] challeng[e] the legality of the 2015 Determination .” Defs.’ Mem. at 15

. By contrast, with respect to the second ground, the Court dism isses Count III with prejudice. Because the 2013 Policy is a general statement of policy exempt from the APA’s notice

- and

- rulemaking requirements, the second ground on which the plaintiff challenges the 2013 Policy fails to state a viable claim.
IV. CONCLUSION For the foregoing reasons, the Court grants in part and denies in part the defendants’ motion for judgment on the p leadings. Consequently , the Court : (1) dismisses, with prejudice, Count II of the Complaint; (2) dismisses, with prejudice, Count I of the C omplaint with respect to first component of this Count ; (3) dismisses, without prejudice, Count III of the Complaint with respect to the first ground on which the plaintiff challenges the 2013 Policy; and (4) dismisses, with prejudice, Count III of the Com plaint with respect to the second ground on which the plainti ff challenges the 2013 Policy. 8
SO ORDERED this 11 th day of May , 2016. 9
REGGIE B. WALTON United States District Judge

8 The preceding analysis is not intended to suggest that the Court would be powerless to find either of the except ions to mootness discussed above applicable if the circumstances warranted the inference that the defen dant s were issuing Determinations to preclude the plaintiff from obtaining meanin gful judicial review. As the 2015 Determination will not be valid beyon d May 1, 2017, see ConverDyn , 68 F. Supp. 3d at 39 (citations omitted) (stating that Determinations “ remain valid for two years only ” ); 2015 Determination, 80 Fed. Reg. at 26,366 (stating that the 2015 Determination is effective on “May 1, 2015”) , it is im perative to proceed as expeditiously toward the resolution of this case as the circumstances will permit.

9 An Order consistent with this Memorandum Opinion shall be issued contemporaneously.