Vietnam Veterans of Am. v. Cent. Intelligence Agency, C 09-0037 CW

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Decision Date24 July 2013
Docket NumberNo. C 09-0037 CW,C 09-0037 CW
PartiesVIETNAM VETERANS OF AMERICA; TIM MICHAEL JOSEPHS; and WILLIAM BLAZINSKI, individually, on behalf of themselves and all others similarly situated; SWORDS TO PLOWSHARES: VETERANS RIGHTS ORGANIZATION; BRUCE PRICE; FRANKLIN D. ROCHELLE; LARRY MEIROW; ERIC P. MUTH; DAVID C. DUFRANE; and KATHRYN MCMILLAN-FORREST, Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY; JOHN BRENNAN, Director of the Central Intelligence Agency; UNITED STATES DEPARTMENT OF DEFENSE; CHARLES T. HAGEL, 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.

VIETNAM VETERANS OF AMERICA; TIM MICHAEL JOSEPHS;
and WILLIAM BLAZINSKI, individually,
on behalf of themselves and all others similarly situated;
SWORDS TO PLOWSHARES: VETERANS RIGHTS ORGANIZATION;
BRUCE PRICE; FRANKLIN D. ROCHELLE;
LARRY MEIROW; ERIC P. MUTH; DAVID C. DUFRANE;
and KATHRYN MCMILLAN-FORREST, Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY; JOHN BRENNAN,
Director of the Central Intelligence Agency;
UNITED STATES DEPARTMENT OF DEFENSE;
CHARLES T. HAGEL, 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.

No. C 09-0037 CW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: July 24, 2013


ORDER GRANTING IN
PART AND DENYING
IN PART
PLAINTIFFS' MOTION
FOR SUMMARY
JUDGMENT (Docket
No. 490) AND
GRANTING IN PART
AND DENYING IN
PART DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT (Docket
No. 495)

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, William Blazinski and Kathryn McMillan-Forrest move for partial summary judgment, holding that Defendants U.S. Department of Defense and its Secretary Charles T. Hagel (collectively, DOD) and the U.S. Department of the Army and its Secretary John M. McHugh

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(collectively, Army) have legal obligations under the Administrative Procedures Act (APA) to provide notice and medical care to test subjects. Plaintiffs do not seek summary judgment on any of their class or individual claims against the remaining Defendants or on any of their other claims against the DOD and the Army. Defendants United States of America; U.S. Attorney General Eric Holder; the Central Intelligence Agency and its Director John Brennan (collectively, CIA); the DOD; the Army; and the U.S. Department of Veterans Affairs and its Secretary Eric K. Shinseki (collectively, DVA) oppose Plaintiffs' motion and move for summary judgment on all of Plaintiffs' individual and class claims against them.1 Having considered the papers filed by the parties and their arguments at the hearing, the Court GRANTS in part and DENIES in part Plaintiffs' motion and GRANTS in part and DENIES in part Defendants' cross-motion.

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." Patterson Decl., Ex. 3, Docket No. 491-3, VET001_015677. "On June 28, 1918, the President directed the establishment of the Chemical Warfare Service (CWS)." Gardner Decl., Ex. 1, Docket No. 496-1, PLTF014154. CWS was originally part of the War Department and became part of the U.S. Army on

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July 1, 1920. Gardner Decl., Ex. 16, Docket No. 496-22, 27-28. At the end of World War I, CWS was consolidated at the Edgewood Arsenal in Maryland. Id. In about 1922, "the CWS created a Medical Research Division to conduct research directed at providing a defense against chemical agents." Gardner Decl., Ex. 1, Docket No. 496-1, PLTF014154. Between 1920 and 1936, the Medical Research Division continued to carry out experiments regarding chemical warfare agents, including experiments that used human subjects, mostly drawn from personnel working at Edgewood Arsenal. Gardner Decl., Ex. 16, Docket No. 496-22, 28.

"Formal authority to recruit and use volunteer subjects in [chemical warfare] experiments was initiated in 1942." Gardner Decl., Ex. 1, Docket No. 496-1, PLTF014154. By the end of World War II, "over 60,000 U.S. servicemen had been used as human subjects in this chemical defense research program." Gardner Decl., Ex. 16, Docket No. 496-22, 1. "At least 4,000 of these subjects had participated in tests conducted with high concentrations of mustard agents or Lewisite in gas chambers or in field exercises over contaminated ground area." Id. Human subjects were used in these tests to test the effectiveness of protective clothing, among other things. Id. at 31. The most common tests were patch, or drop, tests, in which a drop of an agent was put on the arm, to "to assess the efficacy of a multitude of protective or decontamination ointments, treatments for mustard agent and Lewisite burns, effects of multiple exposures on sensitivity, and the effects of physical exercise on the severity of chemical burns." Id.

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After the conclusion of World War II, the CWS's research programs were scaled down and little research was conducted between 1946 and 1950. "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." Patterson Decl., Ex. 3, Docket No. 491-3, VET001_015677; see also Answer to Fourth Am. Compl. ¶ 5 (admitting "that the DOD used approximately 7,800 armed services personnel in the experimentation program at Edgewood Arsenal"). During this time period, the focus of the human testing was on newer chemical agents that were "perceived to pose greater threats than sulfur mustard or Lewisite," including nerve gases and psychoactive drugs. Gardner Decl., Ex. 16, Docket No. 496-22, 46; see also Answer to Fourth Am. Compl. ¶ 5 (admitting that the "DOD administered 250 to 400 chemical and biological agents during the course of its research at Edgewood Arsenal involving human subjects"). Between 1954 and 1973, about 2,300 individuals, who entered military service as conscientious objectors and ninety percent of whom were Seventh Day Adventists, were used as human subjects in experiments to test biological agents at Fort Detrick in Frederick, Maryland. Gardner Decl., Ex. 12, Docket No. 496-18, 183.

The Department of Defense no longer tests live agents on human subjects. Gardner Decl., Ex. 4 (Depo. of Anthony Lee), Docket No. 496-6, 45:1-46:8. Human testing of chemical compounds at Edgewood Arsenal was suspended on July 28, 1976, although "protective suit tests" continued to take place between 1976 and 1979. Gardner Decl., Ex. 7 (Decl. of Lloyd Roberts), ¶ 4.

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Various memoranda and regulations were intended to govern these experiments. In February 1953, the Secretary of Defense issued the Wilson Directive to the Secretaries of the Army, Navy and Air Force. Patterson Decl., Ex. 4, Docket No. 491-4, C-001. In it, he informed them that "the policy set forth will govern the use of human volunteers by the Department of Defense in experimental research in the fields of atomic, biological and/or chemical warfare." Id. The Wilson Directive stated, "The voluntary consent of the human subject is absolutely essential," and provided,

This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experiment subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

Id. at C-001-02. It further stated, "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 C-003. The memorandum provided, "The Secretaries of the Army, Navy and Air Force are authorized to conduct experiments in connection with the development of defense of all types against atomic, biological and/or chemical warfare agents involving the use of human subjects within the limits prescribed above." Id. The Secretary of Defense warned that the

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addressees "will be responsible for insuring compliance with the provisions of this memorandum within their respective Services." Id.

A June 1953 Department of the Army memorandum, CS: 385, repeated the requirements set forth in the Wilson Directive and further stated, "Medical treatment and hospitalization will be provided for all casualties of the experimentation as required." Patterson Decl., Ex. 5, Docket No. 491-5, VVA 024544.

These requirements were codified in Army Regulation (AR) 70-25, which was promulgated on March 26, 1962 and later reissued in 1974. See Gardner Decl., Exs. 47, 48, Docket Nos. 496-55, 496-56. Both versions set forth "[c]ertain basic principles" that "must be observed to satisfy moral, ethical, and legal concepts." Gardner Decl., Ex. 47, Docket No. 496-55, 1; Gardner Decl., Ex. 48, Docket no. 496-56, 1. Like the earlier memoranda, the regulations provided, "Voluntary consent is absolutely essential," and stated,

The volunteer will have legal capacity to give consent,
...

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