Vietnam Veterans of America et al v. Central Intelligence Agency et al

Filing 233

ORDER by Judge Claudia Wilken GRANTING in part and DENYING in part 187 Defendants' Motion to Dismiss in Part; DENYING 211 Plaintiffs' Motion to Strike (cwlc2, COURT STAFF) (Filed on 5/31/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 09-0037 CW
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,

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United States District Court
For the Northern District of California

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Plaintiffs,
v.

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)

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.
/

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Defendants United States of America; U.S. Attorney General

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Eric Holder; the Central Intelligence Agency and its Director Leon

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Panetta (collectively, CIA); and the U.S. Department of Defense,

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its Secretary Robert M. Gates, the U.S. Department of the Army, and

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its Secretary Pete Geren (collectively, DOD) move to dismiss

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Plaintiffs Vietnam Veterans of America, et al.’s Third Amended

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Complaint (3AC).

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Defendants U.S. Department of Veterans Affairs

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(DVA) and its Secretary Eric K. Shinseki do not join the motion.1

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Plaintiffs oppose the motion in part and move to strike the CIA’s

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administrative record lodged by Defendants.

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Plaintiffs’ motion to strike.

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submission on the papers.

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by the parties, the Court GRANTS in part Defendants’ motion to

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dismiss and DENIES it in part, and DENIES Plaintiffs’ motion to

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strike.

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United States District Court
For the Northern District of California

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Defendants oppose

The motions were taken under

Having considered the papers submitted

BACKGROUND
Because the Court’s Order of January 19, 2010 describes the

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allegations of this case in sufficient detail, they will not be

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repeated here in their entirety.

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Defendants with various claims arising from the United States’

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human experimentation programs, many of which were conducted at

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Edgewood Arsenal and Fort Detrick, both located in Maryland.

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issue in this motion are the following: (1) Plaintiffs’ claims

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against the CIA for notice of their exposure to chemicals and for

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medical care; (2) their claims against Attorney General Holder; and

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(3) their claims against the DOD for medical care.

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In sum, Plaintiffs charge

At

Plaintiffs contend that their claim for notice against the CIA

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has three bases.

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letter, issued in response to a CIA request for an opinion on the

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CIA’s “obligations to the subjects of the Project MKULTRA drug-

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testing activities sponsored by the CIA in the 1950s and 1960s.”

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Compl., Ex. A, at A-006.

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First, they cite a Department of Justice (DOJ)

The DOJ letter stated that

the CIA may well be held to have a legal duty to notify

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For simplicity, the Court refers to the Moving Defendants as
Defendants below.
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those 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.

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Id.

Specifically, the DOJ opined that, “under the common law of

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torts,” “a duty would be found to exist on the part of the
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government to notify those subjects of the MKULTRA program whose
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health can be reasonably determined to be still adversely affected
United States District Court
For the Northern District of California

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by their prior involvement in MKULTRA drug-testing.”

Id. at A-014.

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Plaintiffs’ second and third bases for their claim against the
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CIA for notice are testimony by its former director, Admiral
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Stansfield Turner, and the agency’s conduct after Turner made his
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comments.

At congressional hearings in 1977, Turner indicated that

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the CIA was working “‘to determine whether it is practicable . . .
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to attempt to identify any of the persons to whom drugs may have
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been administered unwittingly,’ and . . . ‘if there are adequate
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clues to lead to their identification, and if so, how to go about
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fulfilling the Government’s responsibilities in the matter.’”

3AC

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¶ 13.

At one of the hearings, Senator Edward Kennedy apparently

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asked, “Do you intend to notify those individuals?,” to which
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Turner replied, “Yes.”

Additionally, Plaintiffs rely on the

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administrative record lodged by the CIA in this case, which
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contains statements made after the hearings which Plaintiffs
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believe demonstrate the CIA’s understanding that it had a duty to
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afford notice.
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To support their claim against the DOD for medical care,
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Plaintiffs rely on a June 30, 1953 Memorandum from the Department

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of the Army Office of the Chief of Staff (CS: 385) and the 1962

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iteration of Army Regulation 70-25 (AR 70-25 (1962)).

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provided “guidance for all participants in research in atomic,

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biological and/or chemical warfare defense using volunteers,”

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whereas AR 70-25 (1962) governed “the use of volunteers as subjects

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in Department of Army research.”

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provided that medical treatment and hospitalization “will be

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provided for all casualties” of the experiments.

3AC ¶¶ 125 and 126.

CS: 385

Both

Id. ¶¶ 125b and

United States District Court
For the Northern District of California

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128.

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Judge Advocate General” that were intended to “furnish specific

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guidance for all participants in research using volunteers.”

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Defs.’ Mot., Ex. B, at 4.

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opined,

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An appendix to AR 70-25 (1962) provided “opinions of The

There, the Judge Advocate General

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.

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Id. (citations omitted).

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opinion issued by the Judge Advocate General regarding CS: 385.

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See id., Ex. A, at 3.

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This opinion was nearly identical to an

On November 18, 2010, Plaintiffs filed their 3AC, which named

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the DVA and Secretary Shinseki as additional Defendants.

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December 6, 2010, Defendants filed the current motion to dismiss.
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On

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This was their third such motion and raised arguments not contained

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in their two previous motions.

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lodged with the Court an administrative record developed by the

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CIA.

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administrative record.

On February 25, 2011, Plaintiffs moved to strike the

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On February 18, 2011, Defendants

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

Fed. R.

When considering a motion to dismiss under Rule

United States District Court
For the Northern District of California

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12(b)(6) for failure to state a claim, dismissal is appropriate

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only when the complaint does not give the defendant fair notice of

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a legally cognizable claim and the grounds on which it rests.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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considering whether the complaint is sufficient to state a claim,

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the court will take all material allegations as true and construe

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them in the light most favorable to the plaintiff.

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v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

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principle is inapplicable to legal conclusions; "threadbare

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recitals of the elements of a cause of action, supported by mere

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conclusory statements," are not taken as true.

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___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550

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U.S. at 555).

In

NL Indus., Inc.

However, this

Ashcroft v. Iqbal,

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DISCUSSION

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In response to Defendants’ request for dismissal of their

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claim against the CIA for medical care, Plaintiffs state that “the

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medical care remedy they seek for test participants does not depend

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on the CIA’s provision of that care.”

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Plaintiffs do not offer any other response to Defendants’ arguments
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Pls.’ Supp. Opp’n at 2 n.2.

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regarding this claim.

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of their claims against Attorney General Holder.

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these claims are dismissed.

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considered below.

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I.

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Further, Plaintiffs do not oppose dismissal
Accordingly,

The balance of Defendants’ motion is

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).

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Defendants contend that Plaintiffs’ claim cannot arise under the

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APA, but rather must be brought under the Federal Tort Claims Act

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United States District Court
For the Northern District of California

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because Plaintiffs seek liability based on a duty to warn imposed

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by state tort law.

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United States, 661 F.2d 125, 127 (9th Cir. 1981).

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respond that they “do not rely on state tort law at all.”

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Supp. Opp’n at 3:5-6 (emphasis in original).

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assert, they rely on the “DOJ Letter’s conclusion,” Turner’s

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testimony before Congress and the CIA’s course of conduct after

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Turner testified.

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See 28 U.S.C. § 1346(b); see also Broudy v.
Plaintiffs
Pls.’

Instead, Plaintiffs

Id. at 3-5 (emphasis in original).

Section 706(1) of the APA enables federal courts to “compel

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agency action unlawfully withheld or unreasonably delayed.”

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court’s “ability to ‘compel agency action’ is carefully

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circumscribed to situations where an agency has ignored a specific

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legislative command.’”

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Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).

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A

Hells Canyon Preservation Council v. U.S.

In Norton v. Southwest Utah Wilderness Alliance (SUWA), the

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Supreme Court established that “a claim under § 706(1) can proceed

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only where a plaintiff asserts that an agency failed to take a

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discrete agency action that it is required to take.”

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64 (2004) (emphasis in original).

542 U.S. 55,

“Discrete” actions include
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providing “rules, orders, licenses, sanctions, and relief.”

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Canyon, 593 F.3d at 932.

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when “the agency’s legal obligation is so clearly set forth that it

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could traditionally have been enforced through a writ of mandamus.”

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Id. (citing SUWA, 542 U.S. at 63).

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agency action rules out judicial direction of even discrete agency

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action that is not demanded by law (which includes, of course,

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agency regulations that have the force of law).”

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65 (emphasis in original).

Hells

A discrete action is legally required

“The limitation to required

SUWA, 542 U.S. at

“Even a less formal agency ‘plan’ may

United States District Court
For the Northern District of California

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‘itself create[] a commitment binding on the agency,’ if there is

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‘clear indication of binding commitment in the terms of the plan.’”

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Veterans for Common Sense v. Shinseki, ___ F.3d ___, 2011 WL

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1770944, at *19 (9th Cir.) (quoting SUWA, 542 U.S. at 69, 71); see

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also Soda Mountain Wilderness Council v. Norton, 424 F. Supp. 2d

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1241, 1260 (E.D. Cal. 2006).

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Nothing now cited by Plaintiffs supports their claim against

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the CIA for notice.

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own, does not impose an obligation on the CIA.

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promulgated pursuant to APA procedures, nor did it reflect the

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CIA’s commitment to a particular plan.

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based on state tort law, which Plaintiffs now assert is not the

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basis of their claim.

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The DOJ’s opinion on a legal matter, on its
The opinion was not

The DOJ’s conclusion was

Nor did Turner’s testimony legally bind the CIA.

Turner

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simply responded “yes” to Senator Kennedy’s inquiry into whether

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the agency intended to provide notice.

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are different concepts.

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Inc., 495 F.3d 1340, 1347 (Fed. Cir. 2007) (noting distinction

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between intention not to sue and commitment not to sue).

Intention and commitment

Cf. Benitec Australia, Ltd. v. Nucleonics,

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Furthermore, an agency may only be compelled to take discrete

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action.

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not specify any particular steps the Court can order the CIA to

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undertake.

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Turner’s response, even if deemed to be a commitment, did

Finally, the CIA’s conduct after Turner testified did not

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commit the agency to any particular action.

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July 24, 1978 memorandum from the CIA’s general counsel to Turner,

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indicating that Turner had “already committed the Agency to

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supporting a [notification] program.”2

Plaintiffs point to a

AR VET022-000012.

However,

United States District Court
For the Northern District of California

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this was “an internal administrative communication that lacks the

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force of law.”

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(citing Rank v. Nimmo, 677 F.2d 692, 698-99 (9th Cir. 1982)).

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of the internal memoranda cited by Plaintiffs legally bound the

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agency to take discrete agency action.

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Veterans for Common Sense, 2011 WL 1770944, at *19
None

Accordingly, the Court dismisses Plaintiffs’ claim against the

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CIA for its alleged failure to notify them about their chemical

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exposures and the known health effects, and failure to provide all

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available documents and evidence concerning their exposures.

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II.

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Claim for Medical Care Against the DOD
As noted above, Plaintiffs’ claim for medical care against the

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DOD is premised on CS: 385 and AR 70-25 (1962).

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that the Judge Advocate General’s interpretations of CS: 385 and AR

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70-25 (1962) demonstrate that the DOD never intended to provide

Defendants argue

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Defendants complain that this argument requires
consideration of material beyond Plaintiffs’ complaint. However,
Plaintiffs’ complaint relies on the July 24 memorandum, 3AC ¶ 14,
which Defendants provided to the Court as part of the CIA’s
administrative record. Thus, the Court may consider this evidence
without converting Defendants’ motion into one for summary
judgment. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.
2001).
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lifetime medical care for experiment participants.
The Judge Advocate General’s interpretations do not bear the

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weight of Defendants’ argument.

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that the benefit owed to military employees of the Army “by reason

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of the death or disability. . . depends upon the individual status

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of each member, and is covered by various provisions of law.”

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Defs.’ Mot., Ex. B, at 4.

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shows that neither CS: 385 nor AR 70-25 (1962) can provide a basis

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for a medical care claim because “neither the 1952 memorandum nor

The Judge Advocate General opined

Defendants contend that this statement

United States District Court
For the Northern District of California

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AR 70-25 is a law.”

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its January 19, 2010 Order on Defendants’ first and second motions

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to dismiss, Army regulations have the force of law.

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Enters. v. Bowen, 851 F.2d 291, 293 (9th Cir. 1988); Kern Copters,

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Inc. v. Allied Helicopter Serv., Inc., 277 F.2d 308, 310 (9th Cir.

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1960).

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(1962), as a provision of law, supports Plaintiffs’ claim.

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Id. 22:9.

However, as this Court stated in

See Nat’l Med.

Thus, under the Judge Advocate General’s opinion, AR 70-25

Defendants also point to the Judge Advocate General’s opinion

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that “under present laws no additional rights against the

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Government will result from the death or disability of

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military . . . personnel participating in experiments by reason of

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the hazardous nature of the operations.”

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This statement, however, does not establish that experiment

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participants are not entitled to medical care under AR 70-25

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(1962).

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experiments does not create additional rights.

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inconsistent with providing medical care for injuries caused by the

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experiments.

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Defs.’ Mot., Ex. B, at 4.

The passage states only that the “hazardous nature” of the
This is not

Finally, Defendants argue that, because AR 70-25 (1962) was
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promulgated pursuant to 5 U.S.C. § 301,3 it cannot confer an

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entitlement, such as medical care.

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executive and military departments with authority to establish

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regulations pertaining to “‘housekeeping’ matters like internal

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policies and procedures.”

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1277 (Fed. Cir. 2002).

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statute are so limited, such regulations “cannot authorize the

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creation of a benefit entitlement.”

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in AR 70-25 (1962) or Plaintiffs’ complaint to suggest that the

United States District Court
For the Northern District of California

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Section 301 provides heads of

Schism v. United States, 316 F.3d 1259,

Because regulations issued pursuant to the

Id.

However, there is nothing

regulation was issued pursuant to section 301.
Accordingly, Defendants do not justify dismissal of

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Plaintiffs’ claim against the DOD for medical care.

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III. Plaintiffs’ Motion to Strike Administrative Record

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Plaintiffs move to strike the CIA’s Administrative Record,

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lodged by Defendants on February 18, 2011, asserting that its

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submission violates the Civil Local Rules.

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Administrative Record is not necessary.

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on the Administrative Record in their opposition to Defendants’

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motion to dismiss.

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Notably, Plaintiffs relied

Accordingly, Plaintiffs’ motion to strike is denied.

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Striking the

CONCLUSION
For the foregoing reasons, the Court GRANTS in part

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In full, section 301 provides,

The head of an Executive department or military
department may prescribe regulations for the government
of his department, the conduct of its employees, the
distribution and performance of its business, and the
custody, use, and preservation of its records, papers,
and property. This section does not authorize
withholding information from the public or limiting the
availability of records to the public.
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Defendants’ motion to dismiss and DENIES it in part (Docket No.

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187), and DENIES Plaintiffs’ motion to strike (Docket No. 211).

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Plaintiffs’ notice and medical care claims against the CIA and

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their claims against Attorney General Holder are dismissed.

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other respects, Defendants’ motion to dismiss is DENIED.

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In all

Pursuant to the Court’s April 14, 2011 Order, Defendants DVA

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and Eric K. Shinseki shall answer Plaintiffs’ complaint within

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fourteen days of the date of this Order.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: May 31, 2011
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CLAUDIA WILKEN
United States District Judge

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