Adkins v. Rumsfeld
| Decision Date | 16 September 2005 |
| Docket Number | No. CIV. 04-1453-JJF.,CIV. 04-1453-JJF. |
| Citation | 389 F.Supp.2d 579 |
| Parties | Ssgt. Jason A. ADKINS, Usaf, Plaintiff, v. Donald H. RUMSFELD, Secretary of Defense; James G. Roche, Secretary of the Air Force; Gen. John W. Handy, Commander Air Mobility Command, Col. John I. Pray, Jr., 436th Air Wing Commander, in their official capacities, Defendants. |
| Court | U.S. District Court — District of Delaware |
Thomas S. Neuberger, Esquire and Stephen J. Neuberger, Esquire of the Neuberger Firm, P.A., Wilmington, DE, Of Counsel: John W. Whitehead, Esquire and Douglas McKusick, Esquire of the Rutherford Institute, Charlottesville, VA.
Peter D. Keisler, Esquire, Assistant Attorney General; Colm F. Connolly, Esquire, United States Attorney; Rudolph Contreras, Esquire, Assistant United States Attorney; Vincent M. Garvey, Esquire, Deputy Branch Director; and Jeffrey D. Kahn, Esquire, Trial Attorney, Federal Programs Branch, Civil Division of the United States Department of Justice, Washington, DC, Of Counsel: Lt. Col. Donna M. Verchio, Esquire, Staff Judge Advocate, of Dover Airforce Base, Dover, DE.
Pending before the Court is a Motion To Dismiss (D.I. 9) filed by Defendants, Secretary of Defense Donald H. Rumsfeld, Secretary of the Air Force James G. Roche, General John W. Handy and Colonel John I. Pray, Jr. For the reasons discussed, Defendants' Motion To Dismiss will be denied.
Plaintiff is a Staff Sergeant in the United States Air Force. Plaintiff enlisted in October 1990, is a decorated airman, and had an unblemished military record until the incident giving rise to this lawsuit. Currently, Plaintiff serves as a flight engineer and technical sergeant on C-5 aircraft at Dover Air Force Base ("DAFB").
Between 1998 and 2004, Plaintiff received a series of anthrax vaccinations, six of which Plaintiff alleges were tainted with squalene, a substance used to increase the potency of the vaccination, as part of an experimental program. Plaintiff alleges that the military engaged in a program to cover-up airmen's concerns about the health and safety of the tainted vaccine, and airmen were actively discouraged to speak about this topic. Beginning on October 10, 2004, and continuing through the present, the News Journal paper began a series of articles investigating this issue. Plaintiff alleges that Defendants were angered and displeased by the media scrutiny and sought to do whatever they could to squelch the story, including pressuring senior officers and the chain of command to stifle all speech related to health concerns associated with the contaminated anthrax vaccine. At least one court has issued a permanent injunction against Defendant Secretary Rumsfeld preventing the use of the anthrax vaccine, absent informed consent or a Presidential waiver, "on the basis that the vaccine is either a drug unapproved for its intended use or an investigational new drug within the meaning of 10 U.S.C. § 1107." Doe v. Rumsfeld, 341 F.Supp.2d 1, 19 (D.D.C.2004).
On the evening of October 20, 2004, Plaintiff was on alert status for a high-priority mission. That evening, Plaintiff contends that he suffered from a severe and incapacitating headache which continued throughout the morning of October 21, 2004. At noontime, Plaintiff left his home in Smyrna to report to the flight surgeon at DAFB. Plaintiff did not contact DAFB before he left home and did not notify DAFB personnel that he had been experiencing debilitating headaches the night before.
While Plaintiff was en route to DAFB, Technical Sergeant Terry Miller telephoned Plaintiff's house to inform Plaintiff that he was required to participate in a high-priority alert mission the next morning. Plaintiff's wife contacted Plaintiff by cell phone to relay the message, and Plaintiff contacted TSgt. Miller shortly thereafter. Plaintiff told TSgt. Miller that he was unsure whether he would be able to participate in the required flight, because the flight surgeon might change his status to "Duties Not to Include Flying." Plaintiff stated that he would notify TSgt. Miller once his status was determined by the flight surgeon.
The flight surgeon examined Plaintiff, and Plaintiff explained to him that he had been having severe headaches for a long time and that they might be migraines.2 Plaintiff discussed with and told the flight surgeon that he believed his headaches were associated with the anthrax vaccine. The flight surgeon downplayed any connection between Plaintiff's headaches and the anthrax vaccine and told Plaintiff that the military would not have exposed him to any dangerous substances. At the conclusion of the examination, the flight surgeon changed Plaintiff's status to "Duties Not to Include Flying" ("DNIF") and prescribed medication for his symptoms.
Following his examination, Plaintiff notified TSgt. Miller of his change in flying status. Within 3½ hours, Plaintiff was ordered to appear at DAFB the following morning in full uniform to meet with his squadron commander, Lieutenant Colonel Cristos Vasilas and Chief Flight Engineer, Senior Master Sergeant Ronald J. Mahoney. After that meeting, Plaintiff met with SMSgt. Mahoney and TSgt. Miller, who accused Plaintiff of, among other things, dereliction of duty and faking his medical condition. SMSgt. Mahoney then gave Plaintiff an administrative letter of reprimand ("LOR") and an additional duty assignment. Plaintiff alleges that the LOR was issued in violation of military regulations concerning progressive discipline.
The LOR stated that Plaintiff was being reprimanded for actions that decreased the readiness of a high-priority alert mission, caused last minute schedule disruptions and could have resulted in a loss of training or the inability of the assets of the Department of Defense to execute their mission. The LOR advised Plaintiff that he was expected in the future to "stay in contact with the engineer scheduler and give him/her lead time when you decide to go DNIF for non-emergency conditions." (D.I. 1, Exh. 1). The LOR also warned Plaintiff that future incidents would result in more severe discipline and advised Plaintiff that he could submit matters pertaining to the LOR within three duty days for incorporation into the record. Plaintiff signed the LOR and indicated that he would submit matters pertaining to it within three duty days.
Plaintiff alleges that the LOR "killed Plaintiff's Air Force career," because it will bar him from future promotion, access to specialty schools, choice assignments and possibly even re-enlistment. Plaintiff alleges that at least one Air Force attorney has characterized the LOR as a "bad one" and has indicated that it is unusual for an LOR to be issued for going on sick call. Other less severe forms of discipline require letters of counseling and letters of admonishment.
Plaintiff alleges that he was given the LOR in retaliation for his speech to the flight surgeon connecting his headaches with the tainted anthrax vaccine. Plaintiff alleges that we was made a public example at DAFB to discourage others from speaking out about the symptoms they were experiencing and questioning whether their medical conditions were related to the tainted anthrax vaccine.
Plaintiff also alleges that immediately after Plaintiff was retaliated against, Defendant Pray and Defendant Handy, through their public affairs staff, ordered that all uniformed personnel at DAFB be forbidden from speaking about the anthrax vaccine program and warned that they would be held accountable for violation of these orders. Plaintiff also alleges that the media informed Defendants about the retaliation against Plaintiff, but Defendants refused to void the adverse action taken against Plaintiff.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). When considering a motion to dismiss, a court must accept as true all allegations in the complaint and must draw all reasonable factual inferences in the light most favorable to the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994). The Court is "not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost, 1 F.3d at 183. Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The burden of demonstrating that the plaintiff has failed to state a claim upon which relief may be granted rests on the movant. Young v. West Coast Industrial Relations Assoc., Inc., 763 F.Supp. 64, 67 (D.Del.1991) (citations omitted).
As a general matter, a court may not consider matters outside the pleadings when adjudicating a motion to dismiss. However, a court may consider "document[s] integral to or explicitly relied upon in the complaint" without converting a motion to dismiss to a motion for summary judgment. In re Rockefeller Center Properties, Inc. Securities Litigation, 184 F.3d 280, 287 (3d Cir.1999).
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter. The standards that apply to Rule 12(b)(6) also apply to motions brought under Rule 12(b)(1). In reviewing a facial challenge to the court's subject matter jurisdiction under Rule 12(b)(1), a court may only consider the...
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