Vietnam Veterans of Am. v. Cent. Intelligence Agency

Decision Date31 May 2011
Docket NumberNo. C 09-0037 CW,C 09-0037 CW
PartiesVIETNAM 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; LEON PANETTA, Director of Central Intelligence; UNITED STATES DEPARTMENT OF DEFENSE; DR. ROBERT M. GATES, Secretary of Defense; UNITED STATES DEPARTMENT OF THE ARMY; PETE GEREN, 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.
CourtU.S. District Court — Northern District of California

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'

MOTION TO DISMISS IN PART PLAINTIFFS' THIRD AMENDED

COMPLAINT AND DENYING PLAINTIFFS' MOTION TO STRIKE (Docket Nos. 187 and 211)

Defendants United States of America; U.S. Attorney General Eric Holder; the Central Intelligence Agency and its Director Leon Panetta (collectively, CIA); and the U.S. Department of Defense, its Secretary Robert M. Gates, the U.S. Department of the Army, and its Secretary Pete Geren (collectively, DOD) move to dismiss Plaintiffs Vietnam Veterans of America, et al.'s Third Amended Complaint (3AC). Defendants U.S. Department of Veterans Affairs(DVA) and its Secretary Eric K. Shinseki do not join the motion.1Plaintiffs oppose the motion in part and move to strike the CIA's administrative record lodged by Defendants. Defendants oppose Plaintiffs' motion to strike. The motions were taken under submission on the papers. Having considered the papers submitted by the parties, the Court GRANTS in part Defendants' motion to dismiss and DENIES it in part, and DENIES Plaintiffs' motion to strike.

BACKGROUND

Because the Court's Order of January 19, 2010 describes the allegations of this case in sufficient detail, they will not be repeated here in their entirety. In sum, Plaintiffs charge Defendants with various claims arising from the United States' human experimentation programs, many of which were conducted at Edgewood Arsenal and Fort Detrick, both located in Maryland. At issue in this motion are the following: (1) Plaintiffs' claims against the CIA for notice of their exposure to chemicals and for medical care; (2) their claims against Attorney General Holder; and (3) their claims against the DOD for medical care.

Plaintiffs contend that their claim for notice against the CIA has three bases. First, they cite a Department of Justice (DOJ) letter, issued in response to a CIA request for an opinion on the CIA's "obligations to the subjects of the Project MKULTRA drug-testing activities sponsored by the CIA in the 1950s and 1960s." Compl., Ex. A, at A-006. The DOJ letter stated that

the CIA may well be held to have a legal duty to notifythose MKULTRA drug-testing subjects whose health the CIA has reason to believe may still be adversely affected by their prior involvement in the MKULTRA drug-testing program; that an effort should be made to notify these subjects; that legal constraints and a concern for these subjects' privacy mandate that any notification effort be a limited and circumspect one; and, while the CIA might lawfully ask another agency to undertake the notification effort in this instance, the CIA also has lawful authority to carry out this task on its own.

Id. Specifically, the DOJ opined that, "under the common law of torts," "a duty would be found to exist on the part of the government to notify those subjects of the MKULTRA program whose health can be reasonably determined to be still adversely affected by their prior involvement in MKULTRA drug-testing." Id. at A-014.

Plaintiffs' second and third bases for their claim against the CIA for notice are testimony by its former director, Admiral Stansfield Turner, and the agency's conduct after Turner made his comments. At congressional hearings in 1977, Turner indicated that the CIA was working "'to determine whether it is practicable . . . to attempt to identify any of the persons to whom drugs may have been administered unwittingly,' and . . . 'if there are adequate clues to lead to their identification, and if so, how to go about fulfilling the Government's responsibilities in the matter.'" 3AC 1 13. At one of the hearings, Senator Edward Kennedy apparently asked, "Do you intend to notify those individuals?," to which Turner replied, "Yes." Additionally, Plaintiffs rely on the administrative record lodged by the CIA in this case, which contains statements made after the hearings which Plaintiffs believe demonstrate the CIA's understanding that it had a duty to afford notice.

To support their claim against the DOD for medical care,Plaintiffs rely on a June 30, 1953 Memorandum from the Department of the Army Office of the Chief of Staff (CS: 385) and the 1962 iteration of Army Regulation 70-25 (AR 70-25 (1962)). CS: 385 provided "guidance for all participants in research in atomic, biological and/or chemical warfare defense using volunteers," whereas AR 70-25 (1962) governed "the use of volunteers as subjects in Department of Army research." 3AC 11 125 and 12 6. Both provided that medical treatment and hospitalization "will be provided for all casualties" of the experiments. Id. 11 125b and 128. An appendix to AR 70-25 (1962) provided "opinions of The Judge Advocate General" that were intended to "furnish specific guidance for all participants in research using volunteers." Defs.' Mot., Ex. B, at 4. There, the Judge Advocate General opined,

Compensation for the disability or death of a civilian employee resulting from personal injury or disease proximately caused by his employment is payable under the Federal Employees Compensation Act, regardless of whether his employment was of a hazardous nature. The amount and type of disability compensation or other benefits payable by reason of the death or disability of a member of the Army resulting from injury or disease incident to service depends upon the individual status of each member, and is covered by various provisions of law. It may be stated generally that under present laws no additional rights against the Government will result from the death or disability of military and civilian personnel participating in experiments by reason of the hazardous nature of the operations.

Id. (citations omitted). This opinion was nearly identical to an opinion issued by the Judge Advocate General regarding CS: 385. See id., Ex. A, at 3.

On November 18, 2010, Plaintiffs filed their 3AC, which named the DVA and Secretary Shinseki as additional Defendants. On December 6, 2010, Defendants filed the current motion to dismiss.This was their third such motion and raised arguments not contained in their two previous motions. On February 18, 2011, Defendants lodged with the Court an administrative record developed by the CIA. On February 25, 2011, Plaintiffs moved to strike the administrative record.

LEGAL STANDARD

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, this principle is inapplicable to legal conclusions; "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not taken as true. Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555).

DISCUSSION

In response to Defendants' request for dismissal of their claim against the CIA for medical care, Plaintiffs state that "the medical care remedy they seek for test participants does not depend on the CIA's provision of that care." Pls.' Supp. Opp'n at 2 n.2. Plaintiffs do not offer any other response to Defendants' argumentsregarding this claim. Further, Plaintiffs do not oppose dismissal of their claims against Attorney General Holder. Accordingly, these claims are dismissed. The balance of Defendants' motion is considered below.

I. Claim Against the CIA for Notice

Plaintiffs' claim against the CIA for notice arises under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702 and 706(1). Defendants contend that Plaintiffs' claim cannot arise under the APA, but rather must be brought under the Federal Tort Claims Act because Plaintiffs seek liability based on a duty to warn imposed by state tort law. See 28 U.S.C. § 1346(b); see also Broudy v. United States, 661 F.2d 125, 127 (9th Cir. 1981). Plaintiffs respond that they "do not rely on state tort law at all." Pls.' Supp. Opp'n at 3:5-6 (emphasis in original). Instead, Plaintiffs assert, they rely on the "DOJ Letter's conclusion," Turner's testimony before Congress and the CIA's course of conduct after Turner testified. Id. at 3-5 (emphasis in original).

Section 706(1) of the APA enables federal courts to "compel agency action unlawfully withheld or unreasonably delayed." A court's "ability to 'compel agency action' is carefully circumscribed to situations where an agency has ignored a specific legislative command.'" Hells Canyon Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).

In Norton v. Southwest Utah Wilderness Alliance (SUWA), the Supreme Court established that "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discre...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT