Mcmillan v. Togus Regional Office
| Decision Date | 25 November 2003 |
| Docket Number | No. 03-CV-1074 (JBW).,03-CV-1074 (JBW). |
| Citation | 294 F.Supp.2d 305 |
| Parties | James E. McMILLAN III, Plaintiff, v. TOGUS REGIONAL OFFICE, DEPARTMENT OF VETERAN AFFAIRS, National Academy of Sciences, Institute of Medicine, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
James E. McMillan III, pro se.
Robert H. Pees, Natasha G. Kohne, Joseph P. Esposito, P.C., Akin, Gump, Strauss, Hauer & Feld LLP, National Academy of Sciences (James Wright, General Counsel, Audrey B. Mosley, Deputy General Counsel, of Counsel), for National Academy of Sciences and the Institute of Medicine.
Lawsuits such as this one would significantly imperil and inhibit free and effective scientific inquiry and research, threatening the public interest. It will not be permitted to proceed.
Plaintiff seeks a declaratory judgment that the National Academy of Sciences and Institute of Medicine (collectively, the Academies) failed to adequately review scientific evidence concerning the association between the herbicide Agent Orange exposure and illnesses among Vietnam veterans. The study was required by the Agent Orange Act of 1991. Pub.L. No. 102-4, § 3 (1991) ("Act"). He also seeks injunctive relief.
The Academies, private non-governmental institutions that support research on scientific issues pursuant to federal charter, move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss by some dozen federal government and international agencies has been granted. See Order filed November 18, 2003. For reasons indicated below, the remaining defendants are now dismissed.
Plaintiff is a veteran of the Vietnam War, having served from November 1966 to June 1968. He distinguished himself in combat. He was awarded the Vietnam Service Medal with Three Bronze Stars, an Army Commendation Medal, a Meritorious Unit Commendation, and the Vietnam Gallantry Cross with a Palm Unit Citation. He claims that he was exposed to Agent Orange during his tour of duty: he ingested it by drinking contaminated water while taking government-supplied malaria and water purification pills; he consumed herbicide-contaminated meat; mosquitos injected herbicides they had imbibed when they bit; and he constantly inhaled fumes from burning herbicide-contaminated plants. Plaintiff attributes his own ailments to Agent Orange exposure, including, among twelve diseases, serious respiratory disorders; and he claims that teratogenetic effects caused his children to be born with birth defects. He receives a 30% disability benefit for a Post Traumatic Stress Disorder arising from his Vietnam service from the Veteran's Administration.
It is plaintiff's view that the Academies research authorized under the Act is incomplete and, particularly as it relates to himself and his children, inaccurate. He contends that "All parties I have named ... [are] guilty of a Conspiracy Cover-Up."
It is impossible to question the plaintiff's bona fides. Sympathy for his suffering and that of his family — and for many others who served in Vietnam — is deeply felt by all his fellow citizens.
The National Academy of Sciences (Academy) is a federally-chartered corporation. 36 U.S.C. § 150301. It is authorized to construct its own organization, including adopting a constitution and bylaws. 36 U.S.C. § 150302. Pursuant to its federal charter, the Academy, "[o]n request of the United States Government, [will] investigate, examine, experiment, and report upon any subject of science or art." 36 U.S.C. § 150303.
Although federally chartered, the Academy is a private nonprofit non-governmental organization, a "self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare." Inst. of Med., Veterans and Agent Orange: Update 2002, (the "Report") at iv; see LeFevre v. Secretary, Dept. of Veterans Affairs, 66 F.3d 1191, 1193 (Fed.Cir.1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1674, 134 L.Ed.2d 778 (1996); see also Agent Orange Act of 1991, at § 3(a), Pub. L No. 102-4, 105 Stat. 11 (1991) ().
The Institute of Medicine ("Institute") was established in 1970 by the Academy to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to public health. The Institute acts under the power granted to the Academy by its congressional charter to be an advisor to the federal government. See Academy Constitution, Art. II, Section 10 ().
No federal funds are directly appropriated to the Academy for its activities. It prepares reports of a scientific and technical nature, primarily for the federal government pursuant to contracts, grants, and cooperative agreements with federal agencies. Although the majority of Academy reports are prepared pursuant to contracts, grants, and cooperative agreements with federal sponsors, it performs many studies which are supported solely with Academy funds, and some studies which are supported by private foundations. See Report of the Treasurer to the Council for the Year Ended December 31, 2002, at 4.
Because most Academy reports are pursuant to contracts or grants from outside the Academy, the subjects are generally specified by the sponsoring entity. The Agent Orange reports were prepared in response to Public Law 102-4, the Agent Orange Act of 1991 ("the Act"), adopted in February 1991. The Act, codified as 38 U.S.C. § 1116, directed the Secretary of Veterans Affairs to contract with the Academy to conduct an independent, comprehensive review and evaluation of scientific and medical information regarding the health effects of exposure to Agent Orange. See Act, § 3(b).
The Academy was asked to "determine (to the extent that available scientific data permit meaningful determinations)," the following regarding associations between specific health outcomes and exposure to chemicals in herbicides:
(A) whether a statistical association with herbicide exposure exists, taking into account the strength of the scientific evidence and the appropriateness of the statistical and epidemiological methods used to detect the association;
(B) the increased risks of the disease among those exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and
(C) whether there exists a plausible biological mechanism or other evidence of a causal relationship between herbicide expose and the disease.
The Academy's most recent report on Agent Orange (Report) was supported by Contract No. V101(93) P-1637 between the Academy and the United States Department of Veterans Affairs. In conducting its work, the Academy operated independently of the Department of Veterans Affairs and other government agencies. See Report at ii.
Consisting of over six hundred pages, the Report is titled, "Veterans and Agent Orange, Update 2002, Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides (Fourth Biennial Update), Board on Health Promotion and Disease Prevention, Institute of Medicine of the National Academies (The National Academic Press, Wash. D.C. 2003)".
While the Act specified the issues to be covered by Academy reports, see Act, § 3(d), it required the Secretary of Veterans Affairs to make an independent judgment as to whether to compensate any particular veteran for exposure to Agent Orange. See LeFevre, 66 F.3d at 1198-99. The Academy was not asked to and did not make judgments regarding specific cases in which individual veterans claimed injury from herbicide exposure. See Report at 2.
The Academy is required by its contract with the United States to suggest further studies. It may
make any recommendations it has for additional scientific studies to resolve areas of continuing scientific uncertainty relating to herbicide exposure. In making recommendations for further study, the Academy shall consider the scientific information that is currently available, the value and relevance of the information that could result from additional studies, and the cost and feasibility of carrying out such additional studies.
Act at § 3(e); see also Report at 10. Recommendations for additional research are set forth on page 10 and in Chapter 10 of the Report. Some of the recommended action includes research by agencies of the federal government. See id. The Academy will not supervise research conducted by the federal government, nor will it decide what, if any, additional research is actually undertaken, or what entity will conduct it.
Pursuant to the statute, a number of reports have been issued by the Academy in connection with its Agent Orange studies. For each report, the Academy convened a committee of volunteer scientists, representing various relevant scientific disciplines, who were assisted by Academy personnel.
The Academy's careful procedures in preparing a report are summarized in Plough Inc. v. National Academy of Sciences, 530 A.2d 1152, 1156 (D.C.1987). Committee members are required to disclose any potential sources of bias or conflicts of interest related to the topic under study. Effective December 17, 1997, they are subject to section 15 of the Federal Advisory Committee Act. The Academy is required to "make its best efforts to ensure that (A) no individual appointed to serve on the committee has a conflict on interest that is relevant to the functions to be performed, unless such conflict is promptly and publicly disclosed and the Academy determines that the conflict is unavoidable ..." See Pub.L. No. 105-153, 111 Stat. 2689 (...
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