Vietnam Veterans of Am. v. Cent. Intelligence Agency

• Decision Date: 30 September 2012
• Docket Number: No. C 09-0037 CW,C 09-0037 CW
• Parties: VIETNAM VETERANS OF AMERICA; SWORDS TO PLOWSHARES: VETERANS RIGHTS ORGANIZATION; BRUCE PRICE; FRANKLIN D. ROCHELLE; LARRY MEIROW; ERIC P. MUTH; DAVID C. DUFRANE; TIM MICHAEL JOSEPHS; and WILLIAM BLAZINSKI, individually, on behalf of themselves and all others similarly situated, Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY; DAVID H. PETRAEUS, Director of the Central Intelligence Agency; UNITED STATES DEPARTMENT OF DEFENSE; LEON E. PANETTA, Secretary of Defense; UNITED STATES DEPARTMENT OF THE ARMY; JOHN M. MCHUGH, United States Secretary of the Army; UNITED STATES OF AMERICA; ERIC H. HOLDER, Jr., Attorney General of the United States; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; and ERIC K. SHINSEKI, United States Secretary of Veterans Affairs, Defendants.
• Court: U.S. District Court — Northern District of California

VIETNAM VETERANS OF AMERICA; SWORDS TO PLOWSHARES: VETERANS RIGHTS ORGANIZATION; BRUCE PRICE;FRANKLIN D. ROCHELLE; LARRY MEIROW; ERIC P. MUTH; DAVID C. DUFRANE; TIM MICHAEL JOSEPHS;and WILLIAM BLAZINSKI, individually, on behalf of themselvesand all others similarly situated, Plaintiffs,

v. CENTRAL INTELLIGENCE AGENCY; DAVID H. PETRAEUS, Director of the Central Intelligence Agency;UNITED STATES DEPARTMENT OF DEFENSE; LEON E. PANETTA, Secretary of Defense; UNITEDSTATES DEPARTMENT OF THE ARMY; JOHN M. MCHUGH, United States Secretary of the Army; UNITEDSTATES OF AMERICA; ERIC H. HOLDER, Jr., Attorney General of the United States;UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;and ERIC K. SHINSEKI, United States Secretary of Veterans Affairs, Defendants.

No. C 09-0037 CW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: September 30, 2012

ORDER GRANTING IN PART, AND DENYING IN PART,

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Docket No. 346),

DENYING DEFENDANTS' MOTIONS FOR LEAVE TO FILE A MOTION

FOR RECONSIDERATION AND FOR RELIEF FROM A

NONDISPOSITIVE ORDER OF MAGISTRATE JUDGE (Docket Nos. 431

and 471), AND GRANTING IN PART, AND DENYING IN PART, PLAINTIFFS'

MOTION TO SUBSTITUTE (Docket No. 439)

Plaintiffs Vietnam Veterans of America, Swords to Plowshares: Veterans Rights Organization, Bruce Price, Franklin D. Rochelle, Larry Meirow, Eric P. Muth, David C. Dufrane, Tim Michael Josephs and William Blazinski move for class certification and to substitute Kathryn McMillan-Forrest as a named Plaintiff in this action in place of her late husband, former Plaintiff Wray C. Forrest. Defendants United States of America; U.S. Attorney General Eric Holder; the Central Intelligence Agency and itsDirector David H. Petraeus (collectively, CIA); the U.S. Department of Defense and its Secretary Leon Panetta (collectively, DOD); the U.S. Department of the Army and its Secretary John M. McHugh; and the U.S. Department of Veterans Affairs and its Secretary Eric K. Shinseki (collectively, DVA) oppose Plaintiffs' motions, and move for relief from a nondispositive order of the Magistrate Judge. The DVA also seeks leave to file a motion for reconsideration of the Court's November 15, 2010 Order, which allowed Plaintiffs to amend their complaint to assert a claim against DVA. Plaintiffs oppose Defendants' motions. Having considered the arguments made by the parties in their papers and the hearing on the motion for class certification, the Court GRANTS in part Plaintiffs' motions for class certification and DENIES it in part and DENIES Defendants' motions. The Court construes Plaintiffs' motion to substitute as a motion to amend and GRANTS it in part and DENIES it in part.

BACKGROUND

"Military experiments using service member[s] as subjects have been an integral part of U.S. chemical weapons program, producing tens of thousands of 'soldier volunteers' experimentally exposed to a wide range of chemical agents from World War I to about 1975." Sprenkel Decl., Ex. 1 at VET001_015677.¹ See also Herb Decl., Ex. 1, 1 (describing the establishment of the Army's Medical Research Division in 1922 and related research activities). "Formal authority to recruit and use volunteersubjects in [chemical warfare] experiments was initiated in 1942." Id.; see also Herb Decl., Ex. 2, VET002_001801 (describing World War II (WWII) era testing of mustard agents and Lewisite involving "over 60,000 U.S. servicemen"). "From 1955 to 1975, thousands of U.S. service members were experimentally treated with a wide range of agents, primarily at U.S. Army Laboratories at Edgewood Arsenal, Maryland." Sprenkel Decl., Ex. 1 at VET001_015677. See also Answer ¶ 5 (admitting "that the DOD used approximately 7,800 armed services personnel in the experimentation program at Edgewood Arsenal" and that it "administered 250 to 400 chemical and biological agents during the course of its research at Edgewood Arsenal involving human subjects"). The experiments had a variety of purposes, including increasing the country's defensive and offensive capabilities for war and researching behavior modification. Answer ¶ 3.

Plaintiffs contend that participants were administered secrecy oaths² and told that they could not discuss the experimentation program with anyone, under threat of a general court martial. Defendants have been unable to locate written secrecy oaths administered during WWII or the Cold War.

Various memoranda and regulations were intended to govern these experiments. In February, 1953, the Secretary of Defense issued the Wilson Directive to the Army, Navy and Air Force governing "the use of human volunteers by the Department ofDefense in experimental research in the fields of atomic, biological and/or chemical warfare." Sprenkel Decl., Ex. 26, C001. The Wilson Directive stated, "The voluntary consent of the human subject is absolutely essential," and provided that, before such consent can be given, the participant must be informed of, among other things, the nature of the experiment, "all inconveniences and hazards reasonably to be expected; and the effects upon his health and person which may possibly come from his participation in the experiment." Id. at C001-02. It further provided, "Proper preparation should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death." Id. at C003. A June 1953 Department of the Army memorandum, CS:385, repeated these requirements and further stated, "Medical treatment and hospitalization will be provided for all casualties of the experimentation as required." Sprenkel Decl., Ex. 27, 1-2, 7. These requirements were codified in Army Regulation (AR) 70-25, which was promulgated on March 26, 1962 and reissued in 1974. Sprenkel Decl., Ex. 28; Herb Decl., Exs. 11, 12.

Plaintiffs contend that, despite the memoranda and regulations discussed above, all volunteers participated without giving informed consent because the full risks of the experiments were not fully disclosed. See, e.g., Blazinski Depo. 97:8-11.

In 1990, the Army issued an updated version of AR 70-25. Herb Decl., Ex. 13. Among other changes, this version added a provision stating,

Duty to warn. Commanders have an obligation to ensure that research volunteers are adequately informed concerning the risks involved with their participationin research, and to provide them with any newly acquired information that may affect their well-being when that information becomes available. The duty to warn exists even after the individual volunteer has completed his or her participation in research. . . .

Id. at 5. It also required the Army to create and maintain a "volunteer database" so that it would be able "to readily answer questions concerning an individual's participation in research" and "to ensure that the command can exercise its 'duty to warn.'" Id. at 3, 13-14. It further provided, "Volunteers are authorized all necessary medical care for injury or disease that is a proximate result of their participation in research." Id. at 3.

In 1991, the DOD issued regulations addressing the protection of human test subjects. 56 Fed. Reg. 28003 (codified at 32 C.F.R. §§ 29.101-124). These regulations adopted some of the basic principles of informed consent set forth in the Wilson Directive. See 32 C.F.R. § 219.116.

In 2002, Congress passed section 709 of the National Defense Authorization Act for Fiscal Year 2003 (NDAA), Pub. L. No. 107314, Div. A, Title VII, Subtitle A, § 709(c), 116 Stat. 2586, which required the Secretary of Defense to work to identify projects or tests, other than Project 112,³ "conducted by the Department of Defense that may have exposed members of the Armed Forces to chemical or biological agents."

The DOD has issued two memoranda releasing veterans in part or in full from secrecy oaths that they may have taken inconjunction with testing. The first, issued by former Secretary of Defense William Perry in March 1993, releases

any individuals who participated in testing, production, transportation or storage associated with any chemical weapons research conducted prior to 1968 from any nondisclosure restrictions or written or oral prohibitions (e.g., oaths of secrecy) that may have been placed on them concerning their possible exposure to any chemical weapons agents.

Herb Decl. Ex. 44 (the Perry memorandum). The second, issued by the Office of the Deputy Secretary of Defense on January 11, 2011, after the instant litigation began, does not have a date restriction and states,

In the 1990s, several reviews of military human subject research programs from the World War II and Cold War eras noted the common practice of research volunteers signing "secrecy oaths" to preclude disclosure of research information. Such oaths or other nondisclosure requirements have reportedly inhibited veterans from discussing health concerns with their doctors or seeking compensation from the Department of Veterans Affairs for potential service-related disabilities.

. . .

To assist veterans seeking care for health concerns related to their military service, chemical or biological agent research volunteers are hereby released from non-disclosure restrictions, including secrecy oaths, which may have been placed on them. This release pertains to addressing health concerns and to seeking benefits from the Department of Veterans Affairs. Veterans may discuss their involvement in chemical and biological agent research programs for these purposes. This release does not affect the sharing of any technical reports or operational information concerning research results, which should appropriately remain classified.

. . .

This memorandum, which is effective immediately, does not affect classification or control of information, consistent with applicable authority, relating to other requirements pertaining to chemical or biological weapons.

Herb Decl. Ex. 46 (the 2011 memorandum).

The DVA, which Plaintiffs contend...