Doe v. Rumsfeld, No. CIV.A.03-707(EGS).

CourtU.S. District Court — District of Columbia
Writing for the CourtSullivan
Citation341 F.Supp.2d 1
PartiesJohn DOE # 1, et al, Plaintiffs, v. Donald H. RUMSFELD, et al., Defendants.
Docket NumberNo. CIV.A.03-707(EGS).
Decision Date27 October 2004

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341 F.Supp.2d 1
John DOE # 1, et al, Plaintiffs,
v.
Donald H. RUMSFELD, et al., Defendants.
No. CIV.A.03-707(EGS).
United States District Court, District of Columbia.
October 27, 2004.

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COPYRIGHT MATERIAL OMITTED

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Mark S. Zaid, Krieger & Zaid, PLLC, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

SULLIVAN, District Judge.


I. Introduction

Six plaintiffs, known as John and Jane Doe # 1 through # 6, bring this action to challenge the lawfulness of the government's Anthrax Vaccination Immunization Program ("AVIP"). Specifically, plaintiffs, who are members of the active duty or National Guardsmen components of the Armed Forces and civilian contract employees of the Department of Defense ("DoD") who have submitted or have been instructed to submit to anthrax vaccinations without their consent pursuant to AVIP, have filed a Motion for Summary Judgment challenging the Food & Drug Administration's ("FDA") determination that anthrax vaccine adsorbed ("AVA") is licensed for the purposes of combating inhalation anthrax (also known as aerosolized or weaponized anthrax). Defendants, the Secretary of Defense (Donald Rumsfeld), the Secretary of Health and Human Services (Tommy Thompson), and the Commissioner of the Food and Drug Administration (Mark McClellan) have filed a Cross Motion for Summary Judgment asking this Court to declare that FDA's Final Rule and Order determining that AVA is licensed for anthrax regardless of the route of exposure is not arbitrary and capricious.

In 1997, the Department of Defense ("DoD") instituted AVIP and began inoculating service members with AVA to prevent the harmful effects caused by exposure to anthrax.1 Compl. ¶ 33. Anthrax is an acute bacterial disease caused by infection with spores of Bacillus anthracis, which can enter the body in three ways: by skin contact (cutaneous), by ingestion (gastrointestinal), and by breathing (inhalation). See 50 Fed.Reg. at 51,058.

The AVIP is a multi-service vaccination program for active duty, Reserve and National Guard service members. Compl. ¶ 33. Under AVIP, military personnel are ordered to submit to a series of AVA inoculations over the course of eighteen months, followed by an annual booster vaccine. Compl. ¶ 47. If military personnel refuse to submit to the AVA inoculations, plaintiffs claim that they will be subject to military disciplinary actions, including court-martial convictions, forfeitures of pay, incarceration and other sanctions. Compl. ¶ 35. Civilian plaintiffs who refuse to comply with AVIP are subject to dismissal as DoD employees or defense contractors. Id.

II. Statutory & Regulatory Framework

A. The Public Health Service Act & The Food, Drug, and Cosmetic Act

The Public Health Service Act ("PHSA"), 42 U.S.C. §§ 201 et seq., and the Federal Food, Drug, and Cosmetic Act

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("FDCA"), 21 U.S.C. §§ 301, et seq., govern the regulation of biological products in the United States. The FDCA charges FDA with approving drugs, including vaccines, that are safe, effective, and not misbranded. 21 U.S.C. § 355(d). The PHSA grants FDA authority to issue licenses for products that are "safe, pure, and potent." 42 U.S.C. § 262(a)(2)(C)(i)(I).

Prior to 1972, the National Institute of Health ("NIH") was charged with implementing the PHSA's licensing requirement. In 1972, this authority was transferred to FDA. See Statement of Organization, Functions, and Delegations of Authority, 37 Fed.Reg. 12,865 (June 19, 1972). Upon the transfer of responsibility, FDA promulgated regulations establishing procedures for reviewing the safety, effectiveness, and labeling of all biological products previously licensed by the NIH. See Procedures for Review of Safety, Effectiveness and Labeling, 37 Fed.Reg. at 16,679. These regulations are codified in 21 C.F.R. § 601.25.

B. 21 C.F.R. § 601.25

21 C.F.R. § 601.25 established a two-stage process for reviewing biological products licensed prior to July 1, 1972. It directs FDA's Commissioner ("Commissioner") to appoint an advisory panel (1) to evaluate the safety and effectiveness of the previously licensed product, (2) to review the labeling of the product, and (3) to advise the Commissioner "on which of the biological products under review are safe, effective, and not misbranded." See 21 C.F.R. § 601.25(a).

Each panel must submit a report. See § 601.25(e). The report must contain a "statement ... designat[ing] those biological products determined by the panel to be safe and effective and not misbranded" and this statement "may include any conditions relating to active components, labeling, tests required prior to release of lots, product standard, or other conditions necessary or appropriate for their safety and effectiveness." § 601.25(e)(1).

After reviewing the recommendation, the Commissioner must publish the panel report and a proposed order. See 21 C.F.R. § 601.25(f). After reviewing comments on the proposed order, the Commissioner "shall publish ... a final order on the matters covered" therein, which shall "constitute final agency action from which appeal lies to the courts." See §§ 601.25(g), 601.25(i).

C. Expert Panel Review

In 1973, FDA announced the Section 601.25 safety and effectiveness review of several "bacterial vaccine[s]" previously licensed under PHSA, including AVA, and solicited relevant data and information from manufacturers in order to determine whether the drugs were "safe, effective, and not misbranded." See Safety, Effectiveness and Labeling Review; Request for Data Information, 38 Fed.Reg. 5,358 (Feb. 28, 1973).

A scientific Advisory Panel was convened, and in 1980, after considering the relevant data and information, the Panel submitted its report. See A.R. 1-600. The Panel observed that AVA "appears to offer significant protection against cutaneous anthrax." The Panel noted that "there is sufficient evidence to conclude that anthrax vaccine is safe and effective under the limited circumstances for which [it] is employed." See A.R. at 338, 342. Therefore, the Report recommended that AVA "be placed in Category I" (safe, effective, and not misbranded) and that the appropriate licenses be continued because there is substantial evidence of safety and effectiveness for this product." Id. at 342. In the Panel's review of "recommended use," it found that "this product is intended solely for immunization of high-risk of exposure industrial populations such as individuals

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who contact imported animal hides, furs, bone meal, wool, hair (especially goathair) and bristles" along with "laboratory investigators handling the organism." Id. at 340.

In arriving at this decision, the Panel considered two sets of data: (1) a human field trial conducted by Drs. Brachman, Glod, Plotkin, Fekety, Werrin, and Ingraham in the 1950's ("Brachman study"), A.R. 3732-45, and (2) surveillance data collected and summarized by the Center for Disease Control ("CDC"). See A.R. at 337-38.

The Brachman study involved 1,249 workers in four textile mills that processed imported goat hair. See A.R. 3732-33. A portion of the workers received the anthrax vaccine, a portion received a placebo vaccine, and a portion received no treatment. See A.R. 3737 (Table 2), A.R. 3736 (Table 4); 50 Fed.Reg. at 51,058 (Panel). During the evaluation period, which included an "outbreak" of inhalation anthrax, twenty-six cases of anthrax occurred. See A.R. 3733. The results can best be summarized as follows:

-------------------------------------------------------------------------------
                 Total Anthrax No
                 Cases (26) Vaccine Placebo vaccine
                -------------------------------------------------------------------------------
                 Inhalation 5 0 2 3
                -------------------------------------------------------------------------------
                 Cutaneous 21 3 15 3
                 (2 incomplete (2 incomplete
                 vaccine) vaccine)
                -------------------------------------------------------------------------------
                

A.R. 3733-36. The Brachman study calculated the effectiveness of the anthrax vaccine at 92.5 percent. See A.R. 3737. The authors of the study based their calculations on a comparison between the placebo and the anthrax vaccine group regardless of the route of exposure.

While relying on the Brachman study for its recommendation of effectiveness, the Panel stated that the study demonstrates "93 percent ... protection" against only cutaneous anthrax and that "[i]nhalation anthrax occurred too infrequently to assess the protective effect of vaccine against this form of the disease." 50 Fed.Reg. at 51,058 (Panel).

The Panel also considered surveillance data collected by the CDC "on the occurrence of anthrax in at-risk industrial settings." 50 Fed.Reg. at 51,058 (Panel). While twenty-seven cases were observed, no cases occurred in persons who were fully vaccinated. Id.

D. FDA's Proposed Rule and Order

In 1985, citing Section 601.25's procedural requirements, FDA published notice of a Proposed Rule to reclassify bacterial vaccines and toxoids covered by the Panel Report. See Bio. Prods; Bacterial Vaccines & Toxoids; Implementation of Efficacy Review; Proposed Rule, 50 Fed.Reg. 51,002 (Dec. 13, 1985) ("Proposed Rule").2 The Proposed Rule adopted the Panel Report verbatim with respect to AVA, including the Panel's recommendation to classify AVA as Category I and the Panel's note that "[i]mmunization with this vaccine is indicated only for certain occupational groups with risk of uncontrollable or unavoidable exposure to the organism." See 50 Fed.Reg. at 51,058. The Proposed Rule found that "the benefit-to-risk assessment is satisfactory" for this "limited high-risk population." 50 Fed.Reg. at 51,059.

The Proposed Rule required comments "on the proposed classification of products

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into Category I ... be submitted by March 13, 1986." 50 Fed.Reg. at 51,002. Four total comments were received, none of them specifically addressing the proposal to reclassify AVA. See 69 Fed.Reg. 255, 256-259 ("Final Rule and Order"). FDA took...

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  • Dist. of Columbia v. U.S. Dep't of Agric., Civil Action No. 20-119 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 13, 2020
    ...injunction context. See, e.g. , id. at 67–68 (applying National Mining in granting a preliminary injunction); Doe v. Rumsfeld , 341 F. Supp. 2d 1, 18–19 (D.D.C. 2004) (entering a permanent injunction, after having issued a preliminary injunction, of the Department of Defense's "involun......
  • Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs., Civil Action No. 20-1630 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 2, 2020
    ...67–72 (D.D.C. 2019), rev'd on other grounds sub nom. Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020) ; Doe v. Rumsfeld, 341 F. Supp. 2d 1, 17–19 (D.D.C. 2004) ; Am. Lands All. v. Norton, No. 00-2339, 2004 WL 3246687, at *3 (D.D.C. June 2, 2004) ; see also Planned Parenthood Fe......
  • Millican v. United States, Civil Action No. 06–1582 (GK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 13, 2010
    ...Plaintiffs in that case were threatened with discipline for their individual refusal to receive the vaccine. See Doe # 1 v. Rumsfeld, 341 F.Supp.2d 1, 3 (D.D.C.2004). The Administrative Record in this case makes clear that Major Millican was not disciplined for his individual refusal to rec......
  • Martin v. Donley, Civil Action No. 11–1590 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 21, 2012
    ...the FDA's rule and order because “the FDA failed to follow [required] notice and comment procedures.” Id. ¶ 37 (citing Doe v. Rumsfeld, 341 F.Supp.2d 1, 16 (D.D.C.2004)). Finding a clear statutory prohibition on inoculation with investigational drugs, “Judge Sullivan issued a permanent inju......
  • Request a trial to view additional results
15 cases
  • Dist. of Columbia v. U.S. Dep't of Agric., Civil Action No. 20-119 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 13, 2020
    ...injunction context. See, e.g. , id. at 67–68 (applying National Mining in granting a preliminary injunction); Doe v. Rumsfeld , 341 F. Supp. 2d 1, 18–19 (D.D.C. 2004) (entering a permanent injunction, after having issued a preliminary injunction, of the Department of Defense's "involun......
  • Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs., Civil Action No. 20-1630 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 2, 2020
    ...67–72 (D.D.C. 2019), rev'd on other grounds sub nom. Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020) ; Doe v. Rumsfeld, 341 F. Supp. 2d 1, 17–19 (D.D.C. 2004) ; Am. Lands All. v. Norton, No. 00-2339, 2004 WL 3246687, at *3 (D.D.C. June 2, 2004) ; see also Planned Parenthood Fe......
  • Millican v. United States, Civil Action No. 06–1582 (GK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 13, 2010
    ...Plaintiffs in that case were threatened with discipline for their individual refusal to receive the vaccine. See Doe # 1 v. Rumsfeld, 341 F.Supp.2d 1, 3 (D.D.C.2004). The Administrative Record in this case makes clear that Major Millican was not disciplined for his individual refusal to rec......
  • Martin v. Donley, Civil Action No. 11–1590 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 21, 2012
    ...the FDA's rule and order because “the FDA failed to follow [required] notice and comment procedures.” Id. ¶ 37 (citing Doe v. Rumsfeld, 341 F.Supp.2d 1, 16 (D.D.C.2004)). Finding a clear statutory prohibition on inoculation with investigational drugs, “Judge Sullivan issued a permanent inju......
  • Request a trial to view additional results

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