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

Filing 281

ORDER DENYING DEFENDANTS CENTRAL INTELLIGENCE AGENCY AND MICHAEL J. MORRELLS 245 MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING WITHOUT PREJUDICE CENTRAL INTELLIGENCE AGENCY AND MICHAEL J. MORRELLS 266 MOTION TO AMEND THE SCHEDULING ORDER, AND GRANTING 252 SECTION I.A OF CENTRAL INTELLIGENCE AGENCY AND MICHAEL J. MORRELLS MOTION FOR A PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 9/2/2011. (ndr, COURT STAFF) (Filed on 9/2/2011)

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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 09-00037 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.
CENTRAL INTELLIGENCE AGENCY; MICHAEL
J. MORRELL, Acting 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.

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ORDER DENYING
DEFENDANTS CENTRAL
INTELLIGENCE AGENCY
AND MICHAEL J.
MORRELL’S MOTION FOR
JUDGMENT ON THE
PLEADINGS, DENYING
WITHOUT PREJUDICE
CENTRAL INTELLIGENCE
AGENCY AND MICHAEL
J. MORRELL’S MOTION
TO AMEND THE
SCHEDULING ORDER,
AND GRANTING SECTION
I.A OF CENTRAL
INTELLIGENCE AGENCY
AND MICHAEL J.
MORRELL’S MOTION FOR
A PROTECTIVE ORDER
(Docket No. 245, 252
266)

Defendants.
/

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Defendants Central Intelligence Agency and its Acting Director

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Michael J. Morrell (collectively, the CIA) move for judgment on the

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pleadings, to amend the scheduling order and for a protective

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order.

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protective order are currently before this Court; the remaining

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sections have been referred to Magistrate Judge Jacqueline Scott

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Corley.

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motions.

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considered oral argument and the papers submitted by the parties,

Only sections I.A and I.B of the CIA’s motion for a

Plaintiffs Vietnam Veterans of America, et al., oppose the
The motions were heard on September 1, 2011.

Having

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the Court DENIES the CIA’s motion for judgment on the pleadings,

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DENYING without prejudice the CIA’s motion to amend the scheduling

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order and GRANTS section I.A of the CIA’s motion for a protective

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order.

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BACKGROUND

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Because the Court’s previous orders describe the allegations

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of this case in sufficient detail, they will not be repeated here

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in their entirety.

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Defendants arising from the United States’ human experimentation

In sum, Plaintiffs bring various claims against

United States District Court
For the Northern District of California

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programs, many of which were conducted at Edgewood Arsenal and Fort

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Detrick, both located in Maryland.

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States Army, allegedly “planned, organized and executed” these

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programs.

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some individuals involved in administering these programs were on

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the CIA’s payroll.

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represented themselves to be Army officers, were in fact CIA

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agents.

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concealed from “enemy forces” and the “American public in general”

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because knowledge of them “would have serious repercussions in

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political and diplomatic circles and would be detrimental to the

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accomplishment of its mission.”

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quotation marks omitted).

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The CIA, along with the United

Third Am. Compl. (3AC) ¶ 2.

According to Plaintiffs,

Plaintiffs further allege that others, who

The CIA allegedly understood that its activities had to be

Id. ¶ 145 (citation and internal

At issue in this motion are Plaintiffs’ remaining claims

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against the CIA.

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claims against the CIA based on a so-called secrecy oath that test

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participants were required to take.

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participants allegedly agreed they would

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The parties do not dispute that Plaintiffs assert

Pursuant to the oath, test

not divulge or make available any information related to
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U.S. Army Intelligence Center interest or participation
in the [volunteer program] to any individual, nation,
organization, business, association, or other group or
entity, not officially authorized to receive such
information.

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3AC ¶ 156.

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agreed that a violation of the oath would “render [them] liable to

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punishment under the provisions of the Uniform Code of Military

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Justice.”

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allegedly received letters indicating that the Department of

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Defense (DoD) granted them a partial release from the oath.

According to Plaintiffs, the test participants further

Id.

In or about September 2006, some test participants

The

United States District Court
For the Northern District of California

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letters stated that the test participants could “discuss exposure

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information with their health care providers, but warn[ed] them not

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to ‘discuss anything that relates to operational information that

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might reveal chemical or biological warfare vulnerabilities or

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capabilities.’”

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oath violated their constitutional rights and seek a declaration

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that they “are released from any obligations or penalties” imposed

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by the oath.

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Id. ¶ 160.

Plaintiffs allege that the secrecy

Id. ¶ 183.

The parties dispute whether Plaintiffs have any other claims

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against the CIA.

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“Constitutional due process claims” against the CIA related to the

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agency’s alleged obligations to notify test participants of the

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experiments’ effects and to provide health care.

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10-11.

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Order concerning the agency’s December 6, 2010 motion to dismiss.

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In its motion, the CIA sought

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Plaintiffs maintain they continue to assert

Pls.’ Opp’n at

The CIA disagrees, pointing to the Court’s May 31, 2011

dismissal of two of Plaintiffs’ claims against it:
(1) Plaintiffs’ claim that the CIA is obligated to
provide the individual Plaintiffs with notice of
chemicals to which they were allegedly exposed and any
known health effects related thereto; and (2) Plaintiffs’
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claim that the CIA is obligated to provide medical care
to the individual Plaintiffs.

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Defs.’ Partial Mot. to Dismiss Pls.’ 3AC at 6.

With respect to

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Plaintiffs’ so-called notice claim against it, the CIA asserted
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that “Plaintiffs must identify a source of substantive law that
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would require the CIA to provide notice to Plaintiffs.”

Id. at 7.

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Likewise, the CIA asserted that Plaintiffs’ so-called health care
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claim against it had no legal basis.

Id. at 15.

In opposition to

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the CIA’s motion to dismiss their notice claim, Plaintiffs did not
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assert that it was grounded in the United States Constitution.
United States District Court
For the Northern District of California

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Plaintiffs did not offer any substantive argument regarding their
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health care claim against the CIA, asserting
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Plaintiffs’ core claim against the CIA seeks to require
the CIA to comply with its duty to notify test subjects
about tests to which they were subjected. Although
Plaintiffs believe that the Court also could require the
CIA to provide medical care to test subjects harmed by
the CIA’s testing programs, Plaintiffs note that the
medical care remedy they seek for test participants does
not depend on the CIA’s provision of that care.

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Pls.’ Supp. Opp’n to Defs.’ Partial Mot. to Dismiss at 2 n.2.

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After considering the parties’ papers, the Court granted the CIA’s

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motion and dismissed Plaintiffs’ claims against the agency for

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notice and health care.

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On July 28, 2011, the CIA filed its present motion, seeking

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judgment on the pleadings or, in the alternative, summary judgment.

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On August 9, 2011, the Court indicated that it would not convert

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the CIA’s motion into a motion for summary judgment, noting that

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the parties had stipulated to have all dispositive motions heard on

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April 5, 2012 at 2:00 p.m.

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DISCUSSION
I.

Motion for Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides,

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“After the pleadings are closed but within such time as not to

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delay the trial, any party may move for judgment on the pleadings.”

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Judgment on the pleadings is proper when the moving party clearly

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establishes on the face of the pleadings that no material issue of

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fact remains to be resolved and that it is entitled to judgment as

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a matter of law.

United States District Court
For the Northern District of California

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Hal Roach Studios, Inc. v. Richard Feiner & Co.,

Inc., 896 F.2d 1542, 1550 (9th Cir. 1990).
The CIA asserts that, based on their allegations, Plaintiffs

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lack standing to bring claims against the agency regarding the

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alleged secrecy oath.

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show: “(1) he or she has suffered an injury in fact that is

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concrete and particularized, and actual or imminent; (2) the injury

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is fairly traceable to the challenged conduct; and (3) the injury

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is likely to be redressed by a favorable court decision.”

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Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th

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Cir. 2008).

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not allege specifically that the agency administered the secrecy

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oath, Plaintiffs do not demonstrate traceability and

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redressability.

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To establish standing, a plaintiff must

Salmon

The CIA contends primarily that, because Plaintiffs do

It is not evident from the 3AC that the CIA did not have any

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role in the secrecy oaths or that a court order against the agency

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would not redress Plaintiffs’ alleged injuries.

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facts about the CIA’s pervasive involvement in planning, funding

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and executing the experimentation programs.

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that the CIA had an interest in concealing the programs from “enemy
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Plaintiffs plead

Plaintiffs also plead

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forces” and “the American public in general.”

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and internal quotation marks omitted).

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construed in Plaintiffs’ favor, suggest that the challenged secrecy

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oath could be traced fairly to the CIA and that a court order

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directed at the CIA could redress Plaintiffs’ alleged injuries.

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3AC ¶ 145 (citation

These allegations,

Based on their pleadings, Plaintiffs have standing to bring

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claims against the CIA regarding the secrecy oath.

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the CIA’s motion for judgment on the pleadings must be denied.

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II.

United States District Court
For the Northern District of California

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Consequently,

Motion to Amend the Scheduling Order
The CIA moves to amend the scheduling order to permit it to

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have its summary judgment motion heard before April 5, 2012 at 2:00

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p.m., the date and time set by Court order pursuant to the parties’

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stipulation.

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Plaintiffs’ claim regarding the alleged secrecy oaths, which the

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CIA understands to be the remaining claim against it.

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The CIA seeks to move for summary judgment on

As noted above, the parties dispute whether Plaintiffs have

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claims against the CIA, other than that regarding the secrecy

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oaths.

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for notice and health care under the Fifth Amendment’s Due Process

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Clause.

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Plaintiffs maintain that they have claims against the CIA

The Court disagrees.

The CIA’s previous motion to dismiss

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clearly specified that it was directed at Plaintiffs’ claims for

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notice and health care.

The motion indicated that these claims

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lacked any legal basis.

Plaintiffs were on notice that the CIA was

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challenging these claims and had the opportunity to oppose

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dismissal by clarifying that the Due Process Clause afforded a

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basis for them.

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They did not do so.

Plaintiffs argue that, because the CIA’s motion to dismiss
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“characterized Plaintiffs’ injunctive and declaratory request for

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notice as arising under the [Administrative Procedure Act (APA)]

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and neglected to address the Constitutional basis for the claims,”

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they were required to address only the “APA-based arguments” in

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their opposition.

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Pleadings at 12:1-2.

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sought to dismiss Plaintiffs’ claims for notice and health care in

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their entirety.

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sought dismissal of these claims only to the extent that they were

Pls.’ Opp’n to CIA’s Mot. for J. on the
The flaw in this argument is that the CIA

Nowhere in its motion did the CIA state that it

United States District Court
For the Northern District of California

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based on the APA.

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underlying their claims, to avoid dismissal, Plaintiffs had a duty

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in their opposition to inform the CIA and the Court.

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their opposition to Defendants’ motion to dismiss their first

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amended complaint, Plaintiffs endeavored to clarify their claims

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for relief to avoid dismissal.

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Dismiss 1st Am. Compl. 5:10-11 (noting that Defendants’ argument

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“rests on a fundamental mischaracterization of Plaintiffs’ claims

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and a misinterpretation of the APA”); id. at 7:9-11 (“Once again,

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Defendants mischaracterize Plaintiffs’ claim: it is based on

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Defendants’ failure to act in accordance with their legal duties,

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not a challenge to Defendants’ final actions.”) (emphasis in

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original).

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December 6, 2010 motion to dismiss.

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If the CIA had mischaracterized the legal theory

Indeed, in

See, e.g., Pls.’ Opp’n to Mot. to

Plaintiffs did not do the same in opposing the CIA’s

Plaintiffs’ claims against the CIA for notice and health care

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have been dismissed.

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they may file a supplemental opposition to the CIA’s December 6,

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2010 motion to dismiss their claims against the agency for notice

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and health care.

If Plaintiffs wish to pursue these claims,

In any supplemental opposition, Plaintiffs must
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brief how such claims are cognizable under the United States

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Constitution.

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dismiss.

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supplemental opposition is filed.

The CIA may file a reply in support of its motion to

The CIA’s reply shall be due fourteen days after any

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After it has been determined which claims Plaintiffs have

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against the CIA, the agency may request leave to notice for hearing

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an early motion for summary judgment.

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administrative motion, pursuant to Civil Local Rule 7-11, to make

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this request.

The CIA may file an

As discussed at the September 1, 2011 hearing,

United States District Court
For the Northern District of California

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Plaintiffs and the CIA may reach an agreement regarding Plaintiffs’

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secrecy oath claim against the agency, which may eliminate that

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claim.

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against the CIA will depend on their supplemental opposition to the

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CIA’s motion to dismiss.

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III. Motion for a Protective Order

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Whether Plaintiffs have claims for notice and health care

In section I.A of the CIA’s motion for a protective order, the

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CIA argues that Plaintiffs do not have constitutional claims for

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notice and health care against the CIA and, accordingly, are not

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entitled to discovery on such claims.

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Plaintiffs presently do not have any claims against the CIA for

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notice and health care.

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to discovery on these claims.

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As explained above,

Accordingly, Plaintiffs are not entitled

As it stands, Plaintiffs’ secrecy oath claim will go forward.

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Section I.B of the CIA’s motion for a protective order concerns the

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scope of discovery as to this claim and is referred to Magistrate

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Judge Corley.

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CONCLUSION
For the foregoing reasons, the Court DENIES the CIA’s motion
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for judgment on the pleadings (Docket No. 245), DENIES without

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prejudice CIA’s motion to amend the scheduling order (Docket No.

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266) and GRANTS section I.A of the CIA’s motion for a protective

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order (Docket No. 252).

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CIA for declaratory and injunctive relief regarding the challenged

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secrecy oaths are their only outstanding claims against the agency.

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Thus, Plaintiffs shall not take discovery based solely on claims

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against the CIA for notice or health care.

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address the scope of discovery against the CIA as to Plaintiffs’

Presently, Plaintiffs’ claims against the

This ruling does not

United States District Court
For the Northern District of California

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secrecy oath claim or their claims against other Defendants.

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As explained above, if Plaintiffs wish to pursue claims

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against the CIA for notice and health care, they must file a

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supplemental opposition to the CIA’s December 6, 2010 motion to

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dismiss.

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against the CIA for notice and health care are cognizable under the

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United States Constitution.

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fourteen days after any supplemental opposition is filed.

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Plaintiffs’ supplemental opposition and the CIA’s response shall

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not exceed ten pages.

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decide the matter on the papers.

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This supplemental opposition shall brief how claims

The CIA’s response shall be due

Unless a hearing is set, the Court will

Once it is determined which claims Plaintiffs assert against

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the CIA, the agency may file an administrative motion for leave to

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file an early summary judgment motion on any claims against it.

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any administrative motion, the CIA must show that filing an early

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motion would serve interests of judicial efficiency.

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Section I.B of the CIA’s motion for a protective order is
referred to Magistrate Judge Jacqueline Scott Corley.
A further case management conference and a hearing on
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In

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Defendants’ dispositive motion will be held on April 5, 2012 at

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2:00 p.m.

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IT IS SO ORDERED.

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Dated: 9/2/2011
CLAUDIA WILKEN
United States District Judge

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cc: JSC
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United States District Court
For the Northern District of California

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