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

Filing 485

ORDER by Judge Claudia Wilken granting in part, and denying in part, 346 Plaintiffs' Motion for Class Certification, denying 431 471 Defendants' Motions for Leave to File a Motion for Reconsideration and for Relief from a Nondispositive Order of Magistrate Judge, and granting in part, and denying in part, 439 Plaintiffs' Motion to Substitute. (cwlc2, COURT STAFF) (Filed on 9/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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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,

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United States District Court
For the Northern District of California

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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,

No. C 09-0037 CW
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)

Defendants.
________________________________/
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 its

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Director David H. Petraeus (collectively, CIA); the U.S.

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Department of Defense and its Secretary Leon Panetta

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(collectively, DOD); the U.S. Department of the Army and its

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Secretary John M. McHugh; and the U.S. Department of Veterans

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Affairs and its Secretary Eric K. Shinseki (collectively, DVA)

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oppose Plaintiffs’ motions, and move for relief from a

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nondispositive order of the Magistrate Judge.

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leave to file a motion for reconsideration of the Court’s November

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15, 2010 Order, which allowed Plaintiffs to amend their complaint

The DVA also seeks

United States District Court
For the Northern District of California

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to assert a claim against DVA.

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motions.

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their papers and the hearing on the motion for class

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certification, the Court GRANTS in part Plaintiffs’ motions for

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class certification and DENIES it in part and DENIES Defendants’

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motions.

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a motion to amend and GRANTS it in part and DENIES it in part.

Plaintiffs oppose Defendants’

Having considered the arguments made by the parties in

The Court construes Plaintiffs’ motion to substitute as

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BACKGROUND

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“Military experiments using service member[s] as subjects

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have been an integral part of U.S. chemical weapons program,

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producing tens of thousands of ‘soldier volunteers’ experimentally

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exposed to a wide range of chemical agents from World War I to

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about 1975.”

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Herb Decl., Ex. 1, 1 (describing the establishment of the Army’s

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Medical Research Division in 1922 and related research

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activities). “Formal authority to recruit and use volunteer

Sprenkel Decl., Ex. 1 at VET001_015677.1

See also

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Plaintiffs also offer evidence that volunteers for testing “were
being recruited into 1993,” but not that experiments took place
through that time. Sprenkel Decl., Ex. 3, at VET125-07490.
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subjects in [chemical warfare] experiments was initiated in 1942.”

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Id.; see also Herb Decl., Ex. 2, VET002_001801 (describing World

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War II (WWII) era testing of mustard agents and Lewisite involving

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“over 60,000 U.S. servicemen”).

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U.S. service members were experimentally treated with a wide range

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of agents, primarily at U.S. Army Laboratories at Edgewood

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Arsenal, Maryland.”

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also Answer ¶ 5 (admitting “that the DOD used approximately 7,800

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armed services personnel in the experimentation program at

“From 1955 to 1975, thousands of

Sprenkel Decl., Ex. 1 at VET001_015677.

See

United States District Court
For the Northern District of California

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Edgewood Arsenal” and that it “administered 250 to 400 chemical

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and biological agents during the course of its research at

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Edgewood Arsenal involving human subjects”).

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a variety of purposes, including increasing the country’s

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defensive and offensive capabilities for war and researching

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behavior modification.

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The experiments had

Answer ¶ 3.

Plaintiffs contend that participants were administered

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secrecy oaths2 and told that they could not discuss the

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experimentation program with anyone, under threat of a general

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court martial.

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secrecy oaths administered during WWII or the Cold War.

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Defendants have been unable to locate written

Various memoranda and regulations were intended to govern

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these experiments.

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issued the Wilson Directive to the Army, Navy and Air Force

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governing “the use of human volunteers by the Department of

In February, 1953, the Secretary of Defense

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Plaintiffs define “secrecy oath” to include “all promises or
agreements, whether written or oral, and whether formal or
informal, made by test participants after being told that they
could never speak about their participation in the testing
programs.” Mot. at 2, n.2.
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Defense in experimental research in the fields of atomic,

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biological and/or chemical warfare.”

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C001.

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human subject is absolutely essential,” and provided that, before

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such consent can be given, the participant must be informed of,

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among other things, the nature of the experiment, “all

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inconveniences and hazards reasonably to be expected; and the

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effects upon his health and person which may possibly come from

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his participation in the experiment.”

Sprenkel Decl., Ex. 26,

The Wilson Directive stated, “The voluntary consent of the

Id. at C001-02.

It further

United States District Court
For the Northern District of California

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provided, “Proper preparation should be made and adequate

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facilities provided to protect the experimental subject against

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even remote possibilities of injury, disability, or death.”

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at C003.

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repeated these requirements and further stated, “Medical treatment

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and hospitalization will be provided for all casualties of the

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experimentation as required.”

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These requirements were codified in Army Regulation (AR) 70-25,

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which was promulgated on March 26, 1962 and reissued in 1974.

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Sprenkel Decl., Ex. 28; Herb Decl., Exs. 11, 12.

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Id.

A June 1953 Department of the Army memorandum, CS:385,

Sprenkel Decl., Ex. 27, 1-2, 7.

Plaintiffs contend that, despite the memoranda and

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regulations discussed above, all volunteers participated without

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giving informed consent because the full risks of the experiments

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were not fully disclosed.

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See, e.g., Blazinski Depo. 97:8-11.

In 1990, the Army issued an updated version of AR 70-25.

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Herb Decl., Ex. 13.

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provision stating,

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Among other changes, this version added a

Duty to warn. Commanders have an obligation to ensure
that research volunteers are adequately informed
concerning the risks involved with their participation
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in 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. . . .

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United States District Court
For the Northern District of California

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Id. at 5.

“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.

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proximate result of their participation in research.”

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of human test subjects.
§§ 29.101-124).

56 Fed. Reg. 28003 (codified at 32 C.F.R.

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

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Id. at 3.

In 1991, the DOD issued regulations addressing the protection

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It further provided, “Volunteers are authorized

all necessary medical care for injury or disease that is a

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It also required the Army to create and maintain a

or in full from secrecy oaths that they may have taken in

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Project 112 referred to “the chemical and biological weapons
vulnerability-testing program of the Department of Defense
conducted by the Deseret Test Center from 1963 to 1969,” including
“the Shipboard Hazard and Defense (SHAD) project of the Navy.”
NDAA § 709(f).
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conjunction with testing.

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of Defense William Perry in March 1993, releases

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The first, issued by former Secretary

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.

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Herb Decl. Ex. 44 (the Perry memorandum).

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the Office of the Deputy Secretary of Defense on January 11, 2011,

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after the instant litigation began, does not have a date

United States District Court
For the Northern District of California

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The second, issued by

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).

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The DVA, which Plaintiffs contend participated in some

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capacity in some of the other Defendants’ testing programs,

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processes service-connected death or disability compensation

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(SCDDC) claims of class members.

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MKULTRA0000190090_0325; Sprenkel Decl., Ex. 45 VET001_009241.

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Plaintiffs also contend that the DVA engaged in human testing of

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similar substances, including LSD and Thorazine.

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Ex. 46.

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veteran’s participation in the testing programs for the purposes

See Sprenkel Decl., Ex. 44 at

Sprenkel Decl.,

To establish that a death or disability is connected to a

United States District Court
For the Northern District of California

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of SCDDC claims, individuals seeking survivor or disability

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benefits must establish that “it is at least as likely as not that

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such a relationship exists.”

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VET001_015127-28; see also Sprenkel Decl., Ex. 23, 41:2-6.

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Sprenkel Decl., Ex. 47,

Defendants have undertaken some efforts to provide notice to

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participants in the testing program.

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with the assistance of the DOD, sent notice letters to certain

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individuals who participated in some WWII and Cold War era testing

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programs.

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testing sent in 2005, DOD compiled a database of approximately

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4,495 individuals who had been exposed to mustard gas or Lewisite

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and sent letters to approximately 321 individuals or their

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survivors for whom Defendants could locate contact information.

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Sprenkel Decl., Ex. 56.4

In recent years, the DVA,

For the first round of letters related to WWII era

These letters stated in part,

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In 1990, DVA contacted 128 veterans who participated in mustard
gas testing. Herb Decl., Ex. 27, DVA014 001257. Defendants have
offered no evidence about what information was provided to these
veterans at that time or whether these 128 veterans were among the
321 veterans contacted more recently.
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You may be concerned about discussing your participation
in mustard agent or Lewisite tests with VA or your
health care provider.
On March 9, 1993 the Deputy Secretary of Defense
released veterans who participated in the testing,
production, transportation or storage of chemical
weapons prior to 1968 from any non-disclosure
restriction. Servicemembers who participated in such
tests after 1968 are permitted to discuss the chemical
agents, locations, and circumstances of exposure only,
because this limited information has been declassified.
Herb Decl., Ex. 30.
For the second round of letters, the DOD compiled a database
of approximately 10,000 individuals who participated in Cold War

United States District Court
For the Northern District of California

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era testing, sent letters to fewer than 4,000 people for whom they

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located contact information, and provided the database to the DVA.

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Sprenkel Decl., Exs. 38-40.

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individuals who fell into a number of categories, such as those

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who participated in particular types of chemical and biological

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tests.

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include in the letters the names of the chemical or biological

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agents to which the participants were exposed.

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Ex. 34.

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The DOD excluded from this database

See, e.g., Sprenkel Decl., Ex. 36.

Defendants did not

Sprenkel Decl.,

The letters sent by the DVA stated,

You may be concerned about releasing classified test
information to your health care provider when discussing
your health concerns. To former service members who
have participated in these tests, DoD has stated:
“You may provide details that affect your health to your
health care provider. For example, you may discuss what
you believe your exposure was at the time, reactions,
treatment you sought or received, and the general
location and time of the tests. On the other hand, you
should not discuss anything that relates to operational
information that might reveal chemical or biological
warfare vulnerabilities or capabilities.”
. . .
If you have questions about chemical or biological agent
tests, or concerns about releasing classified
information, contact DoD at [phone], Monday
through Friday, 7:30 a.m. to 4:00 p.m. Eastern Standard
time.
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Sprenkel Decl., Ex. 77. The letter also provided information about

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obtaining a clinical examination from the DVA and contacting the

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DVA to file a disability claim.

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sheet from the DOD.

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exposures recognized that this fact sheet “has some significant

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inaccuracies.”

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also placed some information on its public website, including the

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contents of the Perry memorandum.

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United States District Court
For the Northern District of California

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Id.

The DVA also included a fact

The DVA’s own expert in chemical agent

Sprenkel Decl., Ex. 52, DVA052 000113.

The DOD

In the instant motion, Plaintiffs seek certification of a
class consisting of
All current or former members of the armed forces, or in
the case of deceased members, the personal
representatives of their estates, who, while serving in
the armed forces, were test subjects in any human
Testing Program that was sponsored, overseen, directed,
funded, and/or conducted by the Department of Defense or
any branch thereof, including but not limited to the
Department of the Army and the Department of the Navy,
and/or the Central Intelligence Agency, between the
inception of the Testing Programs in approximately 1922
and the present. For the purposes of this definition,
“Testing Program” refers to a program in which any
person was exposed to a chemical or biological substance
for the purpose of studying or observing the effects of
such exposure.

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Reply, at 17.

Plaintiffs exclude “persons who were exclusively

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test participants in Project 112/SHAD (Shipboard Hazard and

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Defense).”

Id. at 17 n.15.

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As stated in their motion for class certification and

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clarified at the hearing, Plaintiffs seek to prosecute various

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claims arising under the United States Constitution and the

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Administrative Procedures Act (APA), 5 U.S.C. §§ 701, et seq., on

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behalf of the class against the DOD, the Army, the CIA and the

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DVA.

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behalf of the class a declaration that the secrecy oaths are

Against the DOD, the Army and the CIA, Plaintiffs seek on

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invalid and an injunction requiring Defendants to notify class

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members that they have been released from such oaths.

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DOD and the Army, Plaintiffs seek to prosecute claims on behalf of

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the class asserting (1) under the APA, that these Defendants are

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required to provide class members with notice5 of their exposures

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and known health effects, and medical care as set forth in the

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agencies’ own policies; (2) under the Fifth Amendment, that these

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Defendants’ failure to provide class members with notice, medical

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care and a release from secrecy oaths violated their substantive

Against the

United States District Court
For the Northern District of California

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due process liberty rights, including their right to bodily

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integrity; (3) under the Fifth Amendment, that these Defendants’

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failure to provide class members with any procedures whatsoever to

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challenge this deprivation violated their procedural due process

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rights; (4) under the Fifth Amendment, that these Defendants’

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failure to comply with their own regulations and procedures

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regarding notice and medical care deprived class members of their

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due process rights; and (5) under the First and Fifth Amendment,

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that the failure to provide a release from secrecy oaths prevented

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class members from filing claims for benefits with the DVA and

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thereby violated their right of access to the courts.

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DVA, Plaintiffs seek to prosecute a claim on behalf of the class

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under the Fifth Amendment’s due process clause asserting the

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agency is an inherently biased adjudicator of class members’

Against the

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Plaintiffs define “notice” as “notice to each test participant
regarding the substances to which he or she was exposed, the doses
to which he or she was exposed, the route of exposure (e.g.,
inhalation, injection, dermal, etc.) and the potential health
effects associated with those exposures or with participation in
the tests.” Mot. at 2.
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claims for benefits.

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Tim Josephs, William Blazinski and Vietnam Veterans of America

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(VVA) as class representatives.

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They seek appointment of named Plaintiffs

Although Plaintiffs seek to substitute Kathryn McMillan-

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Forrest as a named Plaintiff in this action in place of her late

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husband, former Plaintiff Wray Forrest, they do not seek

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appointment of Ms. McMillan-Forrest as a representative for the

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class.

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United States District Court
For the Northern District of California

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DISCUSSION
I.

Motion for Class Certification
A. Legal Standard
Plaintiffs seeking to represent a class must satisfy the

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).

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Rule 23(a) provides that a case is appropriate for certification

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as a class action if: “(1) the class is so numerous that joinder

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of all members is impracticable; (2) there are questions of law or

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fact common to the class; (3) the claims or defenses of the

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representative parties are typical of the claims or defenses of

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the class; and (4) the representative parties will fairly and

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adequately protect the interests of the class.”

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23(a).

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Fed. R. Civ. P.

Plaintiffs must also establish that one of the subsections of

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Rule 23(b) is met.

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certification under subsections (1)(A) and (2).

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certify a class pursuant to Rule 23(b)(1)(A) if the plaintiffs

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establish that “prosecuting separate actions by or against

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individual class members would create a risk of . . . inconsistent

In the instant case, Plaintiffs seek

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A court may

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or varying adjudications with respect to individual class members

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that would establish incompatible standards of conduct for the

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party opposing the class.”

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23(b)(2) permits certification where “the party opposing the class

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has acted or refused to act on grounds that apply generally to the

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class, so that final injunctive relief or corresponding

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declaratory relief is appropriate respecting the class as a

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whole.”

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Fed. R. Civ. P. 23(b)(1)(A).

Rule

Fed. R. Civ. P. 23(b)(2).

Plaintiffs bear the burden of demonstrating that each element

United States District Court
For the Northern District of California

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of Rule 23 is satisfied, and a district court may certify a class

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only if it determines that the plaintiffs have borne their burden.

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Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982);

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Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir.

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1977).

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require it “‘to probe behind the pleadings before coming to rest

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on the certification question.’”

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131 S. Ct. 2541, 2551 (2011) (quoting Falcon, 457 U.S. at 160-61).

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“Frequently that ‘rigorous analysis’ will entail some overlap with

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the merits of the plaintiff’s underlying claim.

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helped.”

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certification is proper, the court may consider material beyond

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the pleadings and require supplemental evidentiary submissions by

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the parties. Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir.

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1975).

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The court must conduct a “‘rigorous analysis,’” which may

Wal-Mart Stores, Inc. v. Dukes,

Dukes, 131 S. Ct. at 2551.

That cannot be

To satisfy itself that class

B. Claims at Issue
Defendants contend that Plaintiffs improperly seek
certification to prosecute claims that are not asserted in their

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third amended complaint (3AC) or that have been abandoned or

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dismissed, and to pursue relief not requested in the 3AC.

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Defendants argue that, because in the 3AC Plaintiffs

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requested only declaratory relief regarding the validity of the

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secrecy oaths and did not demand injunctive relief requiring

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Defendants to notify test participants that they are released from

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the oaths, Plaintiffs cannot now properly seek certification of a

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class to pursue such a remedy.

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authority in support of this contention.

Opp. at 9.

Defendants cite no

Although Federal Rule of

United States District Court
For the Northern District of California

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Civil Procedure 8(a) requires that a “pleading that states a claim

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for relief must contain . . . a demand for the relief sought,

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which may include relief in the alternative or different types of

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relief,” a court is not limited to the relief sought in this

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demand when entering a final judgment.

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(final judgments other than default judgments “should grant the

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relief to which each party is entitled, even if the party has not

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demanded that relief in its pleadings”).

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applied this rule to uphold a court’s power to award declaratory

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relief when that relief was not requested in the complaint.

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Arley v. United Pacific Ins. Co., 379 F.2d 183, 186-187 (9th Cir.

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1967).

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by a request for injunctive relief.

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rejects their argument that a class, if certified, may not pursue

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injunctive relief on this claim.

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See Fed. R. Civ. P. 54(c)

The Ninth Circuit has

See

Defendants make no showing that they would be prejudiced
Accordingly, the Court

Defendants also contend that Plaintiffs seek certification of

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a class to pursue claims that were previously dismissed.

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Specifically, Defendants point to Plaintiffs’ request in their

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proposed order that the class be certified to pursue declarations
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that, by “subjecting members of the Proposed Class to

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participation in the human testing programs, DOD put members of

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the Proposed Class at risk of adverse health effects,” and that

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“DOD violated the Official Directives by failing to implement

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procedures to determine whether members of the Proposed Class have

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particular diseases--mental or physical--as a result of the

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testing programs.”

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1.f).

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lawfulness of the testing program itself, claims which the Court

Opp. at 10 (citing Proposed Order ¶¶ 1.e,

Defendants argue that these requests challenge the

United States District Court
For the Northern District of California

10

has already dismissed with prejudice.

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can more properly be viewed as part of Plaintiffs’ claims for

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notice and health care.

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implemented procedures that would allow it to recognize and

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diagnose whether members have illnesses related to their

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participation in the testing programs, for example, is part of a

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claim that the DOD and the Army have systematically failed to

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provide proper medical care to remedy such diseases.

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the request for a declaration that the DOD put Plaintiffs at risk

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of adverse health effects is part of Plaintiffs’ claim that the

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DOD and the Army failed to notify class members of such risks.

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These requests for relief have not been dismissed.

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These requests, however,

A declaration that the DOD has not

Similarly,

Defendants also contend that Plaintiffs’ statement that

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“factual issues underpinning” the due process claims include

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whether Defendants “obtained the informed consent of test

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participants, adopted reasonable testing protocols and procedures,

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and complied with their obligations to adopt procedures for

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continued medical care and treatment of casualties” improperly

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re-asserts claims about the lawfulness of the testing program that
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were already dismissed with prejudice.

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seek to litigate whether Defendants had “adopted reasonable

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testing protocols and procedures” to challenge the lawfulness of

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the testing itself, such a claim was previously dismissed and a

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class will not be certified to pursue it.

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argument that Defendants lacked reasonable testing protocols to

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obtain informed consent, so that the secrecy oaths given by class

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members were void from the beginning, relates to a claim that the

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Court has not dismissed.

United States District Court
For the Northern District of California

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Opp. at 11.

If Plaintiffs

However, Plaintiffs’

Finally, Defendants argue that Plaintiffs are trying now to

11

pursue constitutional claims for notice and health care that they

12

previously abandoned or did not include in the 3AC and that they

13

should be limited to prosecuting claims under the APA.

14

contend that they previously moved to dismiss Plaintiffs’ claims

15

in their entirety and suggest that, in response, Plaintiffs

16

disavowed any constitutional basis for their notice and health

17

care claims.

18

Plaintiffs clearly asserted the constitutional basis for these

19

claims.

20

due process and fundamental constitutional rights (and binding

21

regulations) by subjecting Plaintiffs to testing without informed

22

consent and by failing to provide follow-up information and health

23

care.”).

24

related to notice and health care against the DOD and the Army,

25

see, e.g., 3AC ¶¶ 184-86, which this Court has not previously

26

dismissed, unlike the corresponding claims previously asserted

27

against the CIA.

28

paragraphs of the 3AC were not limited to substantive due process

Defendants

However, in their opposition to that motion,

See, e.g., Docket No. 43, at 22-23 (“Defendants violated

Further, the 3AC does allege constitutional claims

The constitutional claims contained in these

15

1

challenges and can be fairly read to encompass procedural due

2

process claims, particularly in conjunction with the extensive

3

allegations of procedural deficiencies alleged elsewhere in the

4

3AC.

5
6

C. Standing and Identification of Representatives
Defendants argue that Plaintiffs have not identified a proper

7

representative.

8

stated, “The proposed class representatives are Plaintiffs VVA and

9

Swords to Plowshares,” 3AC ¶ 175, they cannot now seek to have

They state that, because in the 3AC Plaintiffs

United States District Court
For the Northern District of California

10

Josephs and Blazinski appointed as class representatives, in that

11

this would be a “functional” amendment of their complaint.

12

at 12.

13

did identify Blazinski and Josephs as proposed class

14

representatives.

15

Josephs for the first time, referring to them as the Additional

16

Plaintiffs, see 3AC at 62, and stated, “Together with one or more

17

of the original Plaintiffs, Plaintiffs may seek approval for the

18

Additional Plaintiffs to serve as class representatives,” 3AC

19

¶ 222.

Opp.

However, in a separate paragraph of the 3AC, Plaintiffs

In that pleading, Plaintiffs added Blazinski and

20

Defendants also argue that VVA does not have standing and

21

cannot serve as a class representative, because it itself is not a

22

class member and did not suffer the same injuries as class

23

members.

24

Although Defendants admit that the Ninth Circuit has recognized

25

associational standing in such situations, they argue that the

26

Supreme Court has recently made a “pronouncement” that “a class

27

representative must be part of the class and possess the same

28

interest and suffer the same injury as the class members.”

Plaintiffs respond that VVA has associational standing.

16

Opp.

1

at 12-13 (quoting Dukes, 131 S. Ct. at 2550).

2

out, this was not a new requirement set forth by the Supreme Court

3

in Dukes, which did not deal with associational standing; instead,

4

this was a quote from several earlier cases.

5

Ct. at 2550 (quoting East Tex. Motor Freight System, Inc. v.

6

Rodriguez, 431 U.S. 395, 403 (1977); Schlesinger v. Reservists

7

Comm. to Stop the War, 418 U.S. 208, 216 (1974)).

8

true that a class representative must fulfill this requirement,

9

“many courts have held that organizations with associational

As Plaintiffs point

See Dukes, 131 S.

Although it is

United States District Court
For the Northern District of California

10

standing may serve as class representatives, at least where the

11

underlying purpose of the organization is to represent the

12

interests of the class.”

13

28646, at *127 (E.D.N.Y.) (collecting cases); see also

14

International Union, United Auto., etc. v. LTV Aerospace & Defense

15

Co., 136 F.R.D. 113, 123-124 (N.D. Tex. 1991) (collecting cases).

16

Thus, the Ninth Circuit has rejected the argument that the unions

17

cannot serve as class representatives because they “are not

18

members of the class they seek to represent” as “without merit,

19

since, in their associational capacity, the unions are acting on

20

behalf of” the class members.

21

Inc. v. Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990).

22

See also Prado-Steiman v. Bush, 221 F.3d 1266, 1267 (11th Cir.

23

2000) (remanding to district court to ensure that “at least one of

24

the named class representatives possesses the requisite individual

25

or associational standing to bring each of the class’s legal

26

claims”); In re Pharm. Indus. Average Wholesale Price Litig., 277

27

F.R.D. 52, 61-62 (D. Mass. 2011) (finding that organizations with

28

associational standing may serve as class representatives).

Monaco v. Stone, 2002 U.S. Dist. LEXIS

California Rural Legal Assistance,

17

1

The Supreme Court has held that “an association has standing

2

to bring suit on behalf of its members when: (a) its members would

3

otherwise have standing to sue in their own right; (b) the

4

interests it seeks to protect are germane to the organization’s

5

purpose; and (c) neither the claim asserted nor the relief

6

requested requires the participation of individual members in the

7

lawsuit.”

8

343 (1977).

9

Holder, 676 F.3d 829, 839 (9th Cir. 2012) (applying the standard

United States District Court
For the Northern District of California

10
11

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
See also Oklevueha Native Am. Church of Haw., Inc. v.

for associational standing set forth in Hunt).
Defendants do not dispute that the VVA has met the last two

12

requirements; instead, they argue that the VVA cannot meet a

13

purported additional requirement for associational standing, that

14

there must be a “compelling need” for VVA to serve as a class

15

representative to vindicate the rights of class members not

16

currently before the Court.

17

additional requirement, Defendants cite Black Coalition v.

18

Portland School Dist., 484 F.2d 1040 (9th Cir. 1973), in which the

19

Ninth Circuit stated that “an association has standing to

20

represent its members in a class suit only if ‘there is a

21

compelling need to grant [it] standing in order that the

22

constitutional rights of persons not immediately before the court

23

might be vindicated.’”

24

Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968)).

25

However, Black Coalition was decided before the Supreme Court

26

enunciated the three part test for associational standing in Hunt

27

and has not been cited for this proposition thereafter.

28

cases, the Ninth Circuit has relied on the Hunt test alone when

Opp. at 13.

In support of such an

Id. at 1043 (quoting Norwalk CORE v.

18

In later

1

assessing associational standing.

2

Church, 676 F.3d at 839; Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,

3

1109-1113 (9th Cir. 2003).

4

Appeals has since rejected the contention “that associations never

5

have representational standing without a showing of compelling

6

need” because any such requirement “was substantially undercut by

7

later associational standing cases,” including Hunt.

8

Associated General Contractors v. Otter Tail Power Co., 611 F.2d

9

684, 688-689 (8th Cir. 1979).

See, e.g., Oklevueha Native Am.

Further, at least one other Court of

See

Indeed, after Hunt, the Ninth

United States District Court
For the Northern District of California

10

Circuit has allowed associations to represent classes along with

11

individual plaintiffs.

12

F.2d at 1175.

13

associational standing to represent the class, as long as some of

14

its members would otherwise have standing to sue in their own

15

right.6

California Rural Legal Assistance, 917

Accordingly, the Court finds that the VVA has

16

Defendants argue that Plaintiffs have not met their burden to

17

show, on a claim-by-claim basis, that at least one of the proposed

18

class representatives has standing to pursue each claim.

19

class action, standing is satisfied if at least one named

20

plaintiff meets the requirements.”

“In a

Bates v. UPS, 511 F.3d 974,

21
22
23
24
25
26
27
28

6

To meet this requirement, VVA relies on two of the named
Plaintiffs in this action, Josephs and David Dufrane, as well as
four individuals who are not named Plaintiffs, but are members of
the VVA. Defendants argue that three of the VVA members do not
have standing because they did not participate in chemical or
biological testing and participated as test subjects instead in
equipment testing or “blood work.” Opp. at 15 n.25. Plaintiffs
reply that servicemen who were “exposed to nerve agents or other
chemical substances during ‘equipment tests’ are part of the
proposed class.” Reply, at 7. The Court need not reach this
contention because Defendants and Plaintiffs agree that at least
VVA members Josephs, Dufrane and Doe were exposed to biological or
chemical testing.
19

1

985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860

2

(9th Cir. 2001)).

3

“[T]o satisfy Article III’s standing requirements, a

4

plaintiff must show (1) it has suffered an ‘injury in fact’ that

5

is (a) concrete and particularized and (b) actual or imminent, not

6

conjectural or hypothetical; (2) the injury is fairly traceable to

7

the challenged action of the defendant; and (3) it is likely, as

8

opposed to merely speculative, that the injury will be redressed

9

by a favorable decision.”

Maya v. Centex Corp., 658 F.3d 1060,

United States District Court
For the Northern District of California

10

1067 (9th Cir. 2011) (quoting Friends of the Earth, Inc., v.

11

Laidlaw Ent’l Serv., Inc, 528 U.S. 167, 180-81 (2000)).

12

Court has previously recognized, “In the context of declaratory

13

relief, a plaintiff demonstrates redressability if the court’s

14

statement would require the defendant to ‘act in any way’ that

15

would redress past injuries or prevent future harm.”

16

Veterans of Am. v. CIA, 2010 U.S. Dist. LEXIS 3787, at *15 (N.D.

17

Cal.) (quoting Mayfield v. United States, 588 F.3d 1252, 2009 WL

18

4674172, at *6 (9th Cir. 2009), replaced by 599 F.3d 964 (2010)).

19

Where a “plaintiff seeks prospective injunctive relief, he must

20

demonstrate ‘that he is realistically threatened by a repetition

21

of [the violation],’” which may be shown by demonstrating “that

22

the harm is part of a ‘pattern of officially sanctioned . . .

23

behavior, violative of the plaintiffs’ [federal] rights.’”

24

Armstrong, 275 F.3d at 860-61 (internal citations omitted).

25
26

This

Vietnam

Defendants contend primarily that Plaintiffs cannot establish
injury-in-fact or redressability for each claim.

27
28
20

1
2

1. Notice
Plaintiffs seek an order requiring that Defendants provide

3

notice to class members regarding the substances to which they

4

were exposed, the dosage of the substances, the route of exposure

5

and potential health effects of exposure or participation in the

6

experiments, and a declaration that Defendants have a continuing

7

duty to provide updated notice to all class members as more

8

information about exposures and medical effects is learned or

9

acquired.

United States District Court
For the Northern District of California

10

Defendants argue that the proposed representatives cannot

11

demonstrate that they have a redressable injury regarding notice,

12

because “they have already received all the information that they

13

could receive through this suit.”

14

the fact that Blazinski, Josephs, Dufrane and Doe requested and

15

received what Defendants refer to as their “service member test

16

files” from the DOD, which Defendants contend included information

17

regarding the substances to which they were exposed, dosage and

18

routes of exposure.

19

Josephs received a notice letter from the DVA with similar

20

information.

21

Opp. at 15.

Defendants rely on

Defendants further contend that Blazinski and

Defendants conflate standing with the ultimate merits of

22

Plaintiffs’ claims.

23

Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008)

24

(“The jurisdictional question of standing precedes, and does not

25

require, analysis of the merits.”).

26

which Defendants point are not so clear as to establish as a

27

matter of law that these individuals received the notice that

See, e.g., Equity Lifestyle Props., Inc. v.

28
21

Further, the documents to

1

Plaintiffs demand in this case.7

2

partially illegible and list substances by internally-used codes

3

or agent numbers, which were indecipherable to the recipients.

4

See, e.g., Dufrane Depo. 81:15-82:10.

5

hearing that the test files also “oftentimes”--but not

6

always--contained information about the chemical compounds to

7

which service members were exposed; however, the documents

8

themselves do not make clear which codes corresponded with

9

compounds listed elsewhere in the test files, and which were

Many of the test files are

Defendants argued at the

United States District Court
For the Northern District of California

10

undefined.

11

the proposed representatives could have called the DOD to ask what

12

the codes meant does not establish that the DOD and the Army

13

affirmatively provided notice of this information to Blazinski,

14

Josephs, Dufrane and Doe.

15

files were largely unintelligible to the class members who did

16

receive them and that this has interfered with their ability to

17

access medical care.

18

Defendants have not challenged this contention.

19

also contain little or no information about potential health

20

effects.

Further, Defendants’ contention at the hearing that

Plaintiffs also contend that the test

See, e.g., Dufrane Depo. Tr. 141:1-142:13.
The test files

21

Defendants rely on the letters from the DVA to assert that

22

each of the proposed representatives has received notice of the

23
24
25
26
27
28

7

Defendants cite “Ex. 525” apparently as the service member test
file for Doe, see Opp. at 16 (citing Ex. 525); see also Herb
Decl., Ex. 52 (Doe Depo.), 42:4-22 (Doe identifying an exhibit
“marked as Exhibit 525” as the volunteer test file that the Army
mailed him in 2011 at this request). However, Defendants did not
provide this exhibit to the Court. Accordingly, Defendants have
not established that Doe’s test file contained sufficient
information to provide the notice demanded by Plaintiffs in the
instant case.
22

1

known potential health effects associated with substances to which

2

he was exposed or with participation in studies.

3

contend that the DOD “is unaware of any general long-term health

4

effects associated with the chemical and biological testing

5

programs,” and that the DVA notices were accompanied by a fact

6

sheet from the DOD which stated that a study “did not detect any

7

significant long-term health effects in Edgewood Arsenal

8

volunteers” from “exposure to the chemicals tested.”

9

Herb Decl. Ex. 53.

Defendants

Opp. at 17;

Defendants argue that the DOD has thus

United States District Court
For the Northern District of California

10

fulfilled any obligation to provide notice of known potential

11

health effects.

12

of law, the proposed representatives lack standing.

13

letters from the DVA were not sent by the DOD and the Army, which

14

Plaintiffs claim have a duty to provide such notice.8

15

the letters only provided general information regarding the

16

testing programs, without any individualized information about

17

substances to which the particular recipient was exposed, doses or

18

possible health effects.

19

the conclusion expressed in the letters, that there are no long

These letters do not establish that, as a matter
First, the

Further,

See Herb Decl., Exs. 33, 34.9

Finally,

20
21
8

24

The DOD testified that this form letter was “a VA document,” and
that the DOD could only give “advisory” recommendations of changes
to the letter, but that the DVA ultimately decided whether to
accept or reject those suggestions and was responsible for the
content. Sprenkel Reply Decl., Ex. 88 (Kilpatrick Depo.),
518:8-519:16).

25

9

22
23

26
27
28

The Court also notes that the DVA sent Blazinski this letter
after Defendants took his deposition in this case, at which he
testified that he did not recall receiving any such letter. See
Blazinski Decl. ¶¶ 2-3; Blazinski Depo. 112:112:4-113:10; Sprenkel
Reply Decl. ¶ 4, Ex. 77. Defendants may not attempt to moot
Plaintiffs’ claims on behalf of the class by picking off the named
representatives in such a way.
23

1

term health effects from the testing, is contradicted by

2

Defendants’ own documents.

3

memorandum to its clinicians stated that “long-term psychological

4

consequences . . . are possible from the trauma associated with

5

being a human test subject,” Sprenkel Decl., Ex. 49, 3, and long-

6

term psychological health effects were not included in the DVA

7

notice letter.

8

chemical agent exposures, stated that the representations about

9

health effects in the letter were “clearly incorrect.”

Specifically, an internal DVA

Further, Mark Brown, the DVA’s own expert in

Sprenkel

United States District Court
For the Northern District of California

10

Decl., Ex. 52, DVA052 000113.

11

letter’s statement that a particular study “did not detect any

12

significant long-term health effects in Edgewood Arsenal

13

volunteers” because the study did find some such effects, and he

14

suggested that the letter be rephrased to state that the study

15

found “few significant long-term health effects.”

16

change was not made in the fact sheet sent to the proposed

17

representatives.

18

letters do not establish that the proposed class representatives

19

have received notice of the potential health effects associated

20

with participating in the testing.

21

individually from receiving the notice that they seek on behalf of

22

the class.

23

Josephs, and the VVA, through Josephs, Dufrane and Doe, have

24

standing to prosecute the claims for notice.

25

Specifically, he rejected the

See Herb Decl., Exs. 33, 34.

Id.

This

Accordingly, these

Thus, they could benefit

Accordingly, the Court concludes that Blazinski,

2. Health care

26

Plaintiffs seek declaratory and injunctive relief requiring

27

the DOD and the Army to provide medical care to all participants

28

for conditions arising from the testing program.
24

1

Defendants challenge on several grounds the standing of the

2

proposed representatives to assert this claim.

3

argue that Josephs, Blazinski and Doe have not sought medical care

4

from the DOD and the Army since they left the service.

5

they have only sought such care from the DVA and therefore cannot

6

establish that they were injured by the failure of the DOD and the

7

Army to provide health care.

8

Dufrane did attempt to seek medical care from the DOD and the

9

Army, by sending them a letter about his health issues, and that

First, Defendants

Rather,

Defendants do not dispute that

United States District Court
For the Northern District of California

10

“[n]othing ever happened” as a result.

11

at 77:2-12, 77:25-79:9.

12

DOD and the Army did not have any mechanism for individuals to

13

make a claim for medical treatment.

14

that the proposed representatives had no way to make such a

15

request is itself an injury that could be remedied by their claim.

See Sprenkel Decl., Ex. 79

Further, as Defendants acknowledge, the

See Opp. at 18.

The fact

16

Second, Defendants contend that the proposed class

17

representatives were able to seek care from the DVA and thus

18

cannot establish that they suffered any injury from their

19

inability to seek medical care from the DOD and the Army.

20

However, this does not necessarily relieve the DOD and the Army

21

from being required independently to provide medical care,

22

particularly because Plaintiffs may be able to establish that the

23

scope of their duty may be different than that of the DVA.

24

Finally, Defendants argue that Plaintiffs’ claim for medical

25

care is in fact for money damages, not for equitable relief, and

26

thus that the APA’s waiver of sovereign immunity does not apply to

27

this claim.

28

not have jurisdiction to afford relief, Plaintiffs’ injuries

Defendants claim that, because the Court would thus

25

1

cannot be redressed.

2

second motion to dismiss the health care claims, see Docket No.

3

218, 12-13, which the Court denied, see Docket No. 233, 8-10.

4

Defendants raised the same argument in their

Further, the cases upon which Defendants rely do not counsel

5

the result that they urge.

6

1259 (Fed. Cir. 2002), the Federal Circuit held that compensation

7

of members of the military, including claims for benefits that are

8

compensation for services rendered, is governed by statute and not

9

contract.

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

316 F.3d at 1273.

There, the plaintiffs were seeking

United States District Court
For the Northern District of California

10

full, free lifetime health care coverage as a form of deferred

11

compensation for military service, premised on an implied-in-fact

12

contract for such coverage.

13

medical care as a form of deferred compensation for their military

14

service.

Here, Plaintiffs are not seeking

15

In Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979), the

16

plaintiff sought “either the provision of medical services by the

17

Government or payment for the medical services,” which the Third

18

Circuit characterized as “a traditional form of damages in tort

19

compensation for medical expenses to be incurred in the future.”

20

Id. at 715.

21

the plaintiff’s claim, the court concluded that it was actually a

22

claim for money damages.

23

explained that the principle derived from Jaffee is “that an

24

important factor in identifying a proceeding as one to enforce a

25

money judgment is whether the remedy would compensate for past

26

wrongful acts resulting in injuries already suffered, or protect

27

against potential future harm.”

28

Envtl. Res., 733 F.2d 267, 276-277 (3d Cir. 1984).

Because the “payment of money would fully satisfy”

Id.

The Third Circuit subsequently

Penn Terra, Ltd. v. Dept. of

26

Here,

1

Plaintiffs’ injury could not be fully remedied by money damages.

2

Further, they seek to end purported ongoing rights violations, not

3

compensation for harms that took place completely in the past.

4

Finally, in Zinser v. Accufix Research Inst., Inc., 253 F.3d

5

1180 (9th Cir. 2001), the Ninth Circuit did not “rule[] that a

6

claim seeking service connection for an ailment or entitlement to

7

ongoing medical care is essentially one for damages,” as

8

Defendants represent.

9

case, which did not involve military service, the Ninth Circuit

Opp. at 40.

In that products liability

United States District Court
For the Northern District of California

10

found, in determining whether the relevant claim was equitable or

11

for money damages, the “salient facts” were that the operative

12

complaint sought the creation of a “medical monitoring fund” and

13

requested an award of compensatory and punitive damages.

14

253 F.3d at 1194 (emphasis in original).

15

issue here.

16

Zinser,

Such requests are not at

Accordingly, the Court concludes that Josephs, Blazinski, and

17

the VVA, through Josephs, Dufrane and Doe, have standing to

18

prosecute the claims for medical care.

19
20

3. Secrecy Oaths
Defendants argue that, because Blazinski, Josephs, Dufrane

21

and Doe no longer feel constrained by any secrecy oath and

22

Defendants have already released all putative class members from

23

any secrecy oath through the 1993 and 2011 memoranda, Plaintiffs

24

cannot establish any injury that could be redressed through the

25

relief sought here.

26

Plaintiffs reply that Defendants’ argument would mean that

27

anyone who feels unconstrained enough by the secrecy oath to come

28

forward to represent the class would thereby lose standing.
27

1

Plaintiffs also offer evidence that Dufrane testified that he

2

continued to feel bound by the secrecy oath to some extent.

3

Dufrane Depo. 93:13-20.

4

fact that these individuals have made some disclosures about the

5

testing, including to their spouses, counsel and other named

6

Plaintiffs, does not mean that they do not suffer ongoing effects

7

of the secrecy oaths, such as a continuing fear of prosecution.

8

Further, Defendants have not issued a complete release for

9

See

Further, as Plaintiffs point out, the

the proposed representatives and VVA members who participated in

United States District Court
For the Northern District of California

10

testing after 1968, including Josephs, Blazinski and Doe.

11

Decl., Exs. 19, 49; Doe Depo. 47:5-18.

12

allows test participants to speak about their involvement in

13

chemical and biological agent testing for the limited purposes of

14

addressing health concerns and seeking benefits from DVA.

15

not clear, for example, whether they are allowed to obtain

16

therapeutic counseling, participate in group therapy or discuss

17

their experiences with their spouses or other family members,

18

without fear of prosecution.

Herb

The 2011 memorandum only

It is

19

Further, Defendants have not established that they

20

communicated the release provided in the Perry memorandum to

21

Dufrane, who participated in testing prior to 1968.

22

Decl., Ex. 80.

23

quoted above, which allowed only disclosure of “details that

24

affect your health to your health care provider.”

25

Depo. 92:17-23; Herb Decl., Ex. 82.

26

that they communicated an unconditional release to him.

See Herb

Dufrane received the notice letter from the DVA

See Dufrane

Defendants cite no evidence

27

Accordingly, Josephs, Blazinski, Doe and Dufrane could

28

benefit from equitable relief that would invalidate the secrecy
28

1

oaths altogether and that would require Defendants to communicate

2

that release clearly to class members.

3

Defendants also assert that the proposed representatives lack

4

standing to prosecute the secrecy oath claim against the CIA,

5

because “Plaintiffs’ 3AC contains not a single allegation that the

6

CIA was involved in the administration of secrecy oaths or that

7

any of the named Plaintiffs or VVA members believes he has a

8

secrecy oath with the CIA,” because none of the Plaintiffs and

9

individual VVA members testified to personal knowledge of the

United States District Court
For the Northern District of California

10

CIA’s involvement and because the CIA itself has determined that

11

“no such agreements” with these individuals exist.

12

In denying the CIA’s motion for judgment on the pleadings, the

13

Court has already held that

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Opp. at 21.

Plaintiffs plead facts about the CIA’s pervasive
involvement in planning, funding and executing the
experimentation programs. Plaintiffs also plead that
the CIA had an interest in concealing the programs from
“enemy forces” and “the American public in general.”
3AC ¶ 145 (citation and internal quotation marks
omitted). These allegations, construed in Plaintiffs’
favor, suggest that the challenged secrecy oath could be
traced fairly to the CIA and that a court order directed
at the CIA could redress Plaintiffs’ alleged injuries.
Based on their pleadings, Plaintiffs have standing to
bring claims against the CIA regarding the secrecy oath.
Docket No. 281, 5-6.
rejected.

Thus, Defendants’ argument has already been

The CIA’s self-serving statement that it cannot locate

records of secrecy oaths that it directly administered, and thus
does not believe that such oaths were made, does not establish
this fact or that other secrecy oaths cannot be traced fairly to
the CIA.

Similarly, the fact that Plaintiffs stated in a response

to an interrogatory prior to the completion of discovery that, at
the time, they did not have “facts identifying specific
29

1

circumstances where the Central Intelligence Agency directly

2

administered secrecy oaths to Plaintiffs” does not prove as a

3

matter of law that the CIA was not involved in the secrecy oaths

4

at all, especially because Plaintiffs also stated that they had

5

evidence that the CIA financially supported testing by other

6

entities with the knowledge that secrecy oaths were administered.

7

Herb Decl., Ex. 43.

8
9

Accordingly, the proposed representatives have standing to
bring claims against the CIA related to the secrecy oath.

United States District Court
For the Northern District of California

10

4. Claims of a biased adjudication by the DVA

11

Defendants argue that the proposed representatives cannot

12

establish that they suffered an actual injury from the DVA’s

13

allegedly biased adjudications of their claims.

14

their arguments to Blazinski and Josephs only, contending that

15

these individuals cannot show how the outcomes of their disability

16

claims was in error or would be altered if they win relief on this

17

claim.10

18

disability based on his exposure to Agent Orange while serving in

19

Vietnam and would not be granted a higher rating if the DVA were

20

to find that his illness was also connected to the testing to

21

which he was exposed at Edgewood Arsenal, although they admit that

22

the DVA never issued a decision regarding this issue.

23

also contend that the denial of Blazinski’s claim for benefits

24

would not have been different if DVA were unbiased, because he did

25

not submit sufficient documentation of his illnesses to the DVA

Defendants direct

Defendants argue that Josephs was granted forty percent

Defendants

26
27
10

28

Defendants do not contend that Dufrane or Doe do not have
standing to assert this claim.
30

1

and did not appeal the denial of his claim to the Board of

2

Veterans’ Appeals.

3

Defendants misconstrue the nature of this claim.

Plaintiffs

4

need not establish that they were denied benefits; instead, the

5

cause of action is based on the denial of a procedural due process

6

right to a neutral, unbiased adjudicator.

7

Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1356 (D.

8

Ariz. 1990) (“When a person is denied the procedural opportunity

9

to influence an administrative decision, standing is based on the

See Raetzel v.

United States District Court
For the Northern District of California

10

denial of that right, even if that decision would not have been

11

affected.”).

12

procedural due process is an injury in its own right, “does not

13

depend on the merits of the claimant’s substantive assertions,”

14

and is actionable even without proof of other injury.

15

Piphus, 435 U.S. 247, 266 (1978).

16

Auth., 69 F.3d 321, 333 (9th Cir. 1995) (“the ‘absolute’ right to

17

adequate procedures stands independent from the ultimate outcome

18

of the hearing”); Kuck v. Danaher, 600 F.3d 159, 165 (2d Cir.

19

2010) (“The viability of [the plaintiff’s] due process claim does

20

not turn on the merits of his initial challenge; rather, it

21

concerns whether he received the process he was due.”).

22

both Blazinski and Josephs applied for benefits, they have

23

standing to pursue this claim, regardless of whether or not they

24

will ultimately receive more benefits as a result of this action.

25

The Supreme Court has held that the denial of

Carey v.

See also Clements v. Airport

Because

Defendants also contend that, to assess whether Plaintiffs

26

were injured, the Court would be required to review DVA’s

27

procedures, which it lacks jurisdiction to do under 38 U.S.C.

28

§ 511.

The Court has already addressed, and rejected, this
31

1

contention.

2

against the DVA, the Court acknowledged that § 511 “precludes

3

federal district courts from reviewing challenges to individual

4

benefits determinations, even if they are framed as constitutional

5

challenges.”

6

on claims that “purport not to challenge individual benefits

7

decisions, but rather the manner in which such decisions are

8

made,” has not been addressed by the Ninth Circuit.

9

Court then reviewed several decisions from other Circuit Courts of

In granting Plaintiffs leave to assert this claim

Docket No. 177, 8.

Nonetheless, the effect of § 511

Id.

The

United States District Court
For the Northern District of California

10

Appeals that did address this issue.

11

detail Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006); Beamon v.

12

Brown, 125 F.3d 965, 972 (6th Cir. 1997)).

13

set forth in Broudy and Beamon, the Court held,

14
15
16
17
18
19
20
21
22

Id. at 9-11 (discussing in

Applying the standards

Section 511 does not bar Plaintiffs’ claim under the
Fifth Amendment. Under this theory, they mount a facial
attack on the DVA as the decision-maker. They do not
challenge the DVA’s procedures or seek review of an
individual benefits determination. Nor do they attack
any particular decision made by the Secretary. The crux
of their claim is that, because the DVA allegedly was
involved in the testing programs at issue, the agency is
incapable of making neutral, unbiased benefits
determinations for veterans who were test participants.
This bias, according to Plaintiffs, renders the benefits
determination process constitutionally defective as to
them and other class members. Whether the DVA is an
inherently biased adjudicator does not implicate a
question of law or fact “necessary to a decision by the
Secretary” related to the provision of veterans’
benefits. See Thomas v. Principi, 394 F.3d 970, 975
(D.C. Cir. 2005).

23

Docket No. 177, 11.

24

motion for reconsideration of the Court’s conclusion, asserting

25

that the Ninth Circuit’s recent decision in Veterans for Common

26

Sense v. Shinseki, 678 F.3d 1013 (2012), compels a different

27

result.

Docket No.

Defendants have moved for leave to file a

431.

Arguing that such reconsideration would

28
32

1

preclude the sole claim against the DVA, Defendants also have

2

moved for relief from a nondispositive order of the magistrate

3

judge granting discovery from DVA that was related to this claim.

4

Docket No. 471.

5

Veterans for Common Sense does not require reconsideration of

6

the Court’s prior conclusion.

7

organizations challenged delays in the provision of care and

8

adjudication of claims by the DVA and the lack of adequate

9

procedures during the claims process.

In that case, two nonprofit

The court found that the

United States District Court
For the Northern District of California

10

challenges to delays were barred by § 511, because to adjudicate

11

those claims, the district court would have to examine the

12

circumstances surrounding the DVA’s provisions of benefits to

13

individual veterans and adjudication of individual claims.

14

1027-30.

15

circuits in Broudy, Beamon and several other cases, the court

16

concluded that it did have jurisdiction over the claims seeking

17

review of the DVA’s procedures for handling benefits claims at its

18

regional offices.

19

stated that, unlike the other claims, this claim “does not require

20

us to review ‘decisions’ affecting the provision of benefits to

21

any individual claimants” and noted that the plaintiff “does not

22

challenge decisions at all.”

23
24
25
26
27
28

Id. at

However, after discussing the decisions reached by other

Id. at 1033-35.

In so holding, the court

Id. at 1034.

The court explained,

A consideration of the constitutionality of the
procedures in place, which frame the system by which a
veteran presents his claims to the VA, is different than
a consideration of the decisions that emanate through
the course of the presentation of those claims. In this
respect, VCS does not ask us to review the decisions of
the VA in the cases of individual veterans, but to
consider, in the “generality of cases,” the risk of
erroneous deprivation inherent in the existing
procedures compared to the probable value of the
additional procedures requested by VCS. . . . Evaluating
33

under the Due Process Clause the need for subpoena
power, the ability to obtain discovery, or any of the
other procedures VCS requests is sufficiently
independent of any VA decision as to an individual
veteran’s claim for benefits that § 511 does not bar our
jurisdiction.

1
2
3
4

Id. at 1034.11

5

authority and applied a similar standard as this Court did in its

6

earlier order.

7

if it had had the benefit of the decision in Veterans for Common

8

Sense at that time.12

Thus, the Ninth Circuit considered some of the same

This Court would have reached the same conclusion

Accordingly, the Court DENIES Defendants’

9
10
United States District Court
For the Northern District of California

11

17

The court also found that the fact that the organizational
plaintiff could not “bring its suit in the Veterans Court, that
court cannot claim exclusive jurisdiction over the suit,” and
because it could not assert the claim within the exclusive review
scheme set forth by the Veterans’ Judicial Review Act, “that
scheme does not operate to divest us of jurisdiction.” Veterans
for Common Sense, 678 F.3d at 1034-35. However, such a finding
was not necessary to the decision. The court noted, “Even if an
individual veteran could raise these claims in an appeal in the
Veterans Court or the Federal Circuit, that fact alone does not
deprive us of jurisdiction here.” Id. at 1035 n.26. Because the
claim raised here “is sufficiently independent of any VA decision
as to an individual veteran’s claim for benefits,” id. at 1034,
the Court need not reach this alternative ground.

18

12

11
12
13
14
15
16

19
20
21
22
23
24
25
26
27
28

Nor does the Supreme Court’s decision in Elgin v. Dept. of
Treasury, 132 S. Ct. 2126 (2012), compel a different result. In
Elgin, the Supreme Court considered whether the statutory scheme
of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101,
et seq., provided “the exclusive avenue to judicial review when a
qualifying employee challenges an adverse employment action by
arguing that a federal statute is unconstitutional.” 132 S. Ct.
at 2130. Elgin is inapplicable for a number of reasons. First,
the Court considered a statutory scheme other than that at issue
here, while in Veterans for Common Sense, the Ninth Circuit
considered the precise statutory scheme at issue in this case.
Second, in Elgin, the petitioners challenged the specific adverse
employment actions that were taken against them, and sought relief
including reinstatement to their former positions and backpay.
132 S. Ct. at 2131. It was central to the Court’s decision that
they brought such challenges, because it found that the CSRA was
the exclusive method by which covered employees could obtain
review of adverse employment actions taken against them, whatever
the grounds for the challenge were, with one limited exception.
See id. at 2133-34, 2138-40. Here, Plaintiffs do not seek to
challenge any particular DVA decision as to an individual
34

1

motions for leave and for relief (Docket Nos. 431 and 471) and

2

reaffirms its conclusion that it does have jurisdiction to

3

adjudicate this claim.

4

D. Class Definition

5

While it is not an enumerated requirement of Rule 23, courts

6

have recognized that “in order to maintain a class action, the

7

class sought to be represented must be adequately defined and

8

clearly ascertainable.”

9

(5th Cir. 1970) (citing Weisman v. MCA Inc., 45 F.R.D. 258 (D.

DeBremaeker v. Short, 433 F.2d 733, 734

United States District Court
For the Northern District of California

10

Del. 1968)).

11

of unnamed plaintiffs by describing a set of common

12

characteristics sufficient to allow a member of that group to

13

identify himself or herself as having a right to recover based on

14

the description.”

15

LEXIS 3410, at *24 (N.D. Cal. 2010) (quoting Moreno v. Autozone,

16

Inc., 251 F.R.D. 417, 421 (N.D. Cal. 2008)).

17

class members must be ascertainable by reference to objective

18

criteria.”

19

(2001).

20

of the class is “definite enough so that it is administratively

21

feasible for the court to ascertain whether an individual is a

22

member.”

23

(C.D. Cal. 1998).

24

broad or unascertainable, the court has the discretion to narrow

25

it.

“A class is ascertainable if it identifies a group

Hanni v. Am. Airlines, Inc., 2010 U.S. Dist.

“The identity of

5 James W. Moore, Moore’s Federal Practice, § 23.21[1]

Thus, a class definition is sufficient if the description

O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319
Where the class definition proposed is overly

26
27
28

veteran’s claim for benefits and the review of their claim would
not necessitate such an inquiry.
35

1

In their opposition, Defendants made three arguments that the

2

proposed class definition was unascertainable.

3

subsequently revised their proposed definition to address two of

4

Defendants’ contentions, that the definition did not require that

5

class members were service members when they were test subjects

6

and that it did not explain testing programs.

7

Defendants confirmed that Plaintiffs’ modifications resolved their

8

concerns about these two issues.

9

Plaintiffs

At the hearing,

In their third argument, Defendants contend that the class

United States District Court
For the Northern District of California

10

definition is overly broad because it includes individuals who

11

have not applied for DVA benefits based on testing or whose

12

applications were approved or otherwise not rejected.

13

argument is essentially the same as Defendants’ contention that

14

Blazinski and Josephs do not have standing to prosecute the claim

15

that the DVA is a biased adjudicator.

16

cause of action seeks to remedy, not the denial of benefits, but

17

the denial of a neutral, unbiased adjudicator to review a claim

18

for benefits.

19

to prevent future harm based on a policy or practice generally

20

applicable to the class, it is not required that all of the class

21

members have already been injured by the unlawful policy or

22

practice.

23

1998) (explaining that, for a class to be certified under Rule

24

23(b)(2), “[i]t is sufficient if class members complain of a

25

pattern or practice that is generally applicable to the class as a

26

whole[,] [e]ven if some class members have not been injured by the

27

challenged practice”).

28

or may apply for benefits in the future may all be class members

This

As discussed above, the

Further, when a plaintiff pursues injunctive relief

See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.

Thus, test participants who have applied

36

1

for the purposes of the claim against the DVA.

2

definition is not overly broad.

3

E. Rule 23(a) Requirements

4
5

The proposed

1. Numerosity
Plaintiffs contend that they have met the numerosity

6

requirement because “the Proposed Class has at least tens of

7

thousands of members.”

8

“Defendants admit that as many as 100,000 military personnel, at

9

numerous facilities over several decades, were subjected to the

Mot. at 11.

Plaintiffs also assert that

United States District Court
For the Northern District of California

10

testing programs.”

11

have satisfied the numerosity requirement, and the Court finds

12

that they have.

13

Id.

Defendants do not dispute that Plaintiffs

2. Adequacy

14

Rule 23(a)(4) of the Federal Rules of Civil Procedure

15

establishes as a prerequisite for class certification that “the

16

representative parties will fairly and adequately protect the

17

interests of the class.”

18

conflicts of interest between the proposed representatives and the

19

absent class members and that their counsel has extensive

20

experience prosecuting complex litigation involving veterans, as

21

well as sufficient resources available for the representation.

22

Mot. at 23.

23

proposed representatives or their counsel.

24

finds that Plaintiffs have fulfilled their burden to establish

25

that this requirement is satisfied.

26
27
28

Plaintiffs argue that there are no

Defendants do not challenge the adequacy of the
Accordingly, the Court

3. Commonality
Rule 23(a)(2) requires that there be “questions of law or
fact common to the class.”

Fed. R. Civ. P. 23(a)(2).
37

It requires

1

that such common questions exist; it does not require that they

2

predominate over individual questions, unlike Rule 23(b)(3), under

3

which Plaintiffs do not seek certification.

4

The Ninth Circuit has explained that Rule 23(a)(2) does not

5

preclude class certification if fewer than all questions of law or

6

fact are common to the class:

7
8
9

United States District Court
For the Northern District of California

10

The commonality preconditions of Rule 23(a)(2) are less
rigorous than the companion requirements of Rule
23(b)(3). Indeed, Rule 23(a)(2) has been construed
permissively. All questions of fact and law need not be
common to satisfy the rule. The existence of shared
legal issues with divergent factual predicates is
sufficient, as is a common core of salient facts coupled
with disparate legal remedies within the class.

11

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

12

That “commonality only requires a single significant question of

13

law or fact” was recently recognized both by the Supreme Court and

14

the Ninth Circuit.

15

Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012).

16

class certification, there must be at least one “common contention

17

. . . of such a nature that it is capable of classwide

18

resolution--which means that determination of its truth or falsity

19

will resolve an issue that is central to the validity of each one

20

of the claims in one stroke.”

21

See Dukes, 131 S. Ct. at 2556; Mazza v. Amer.
Thus, for

Dukes, 131 S. Ct. at 2551.

22

a. APA claims for notice and medical care and
constitutional claim for due process violations based
on failure to adhere to policies and regulations

23

Defendants contend that commonality cannot be found for these

24

claims.

25

duty to provide health care or notice to test participants because

26

different regulations and memoranda were in effect throughout the

27

class period; each can only apply to individuals who were later

They assert that there is no common source of a legal

28
38

1

subjected to testing and none can retroactively provide benefits.

2

Defendants also argue that to ascertain whether the Army or DOD

3

has failed to provide medical care or notice will require an

4

examination of whether each individual class member knew about the

5

substances to which he or she was exposed or has suffered health

6

effects as a result of the test.13

7

Plaintiffs reply that the regulations and directives upon

8

which they rely contain similar provisions, which are “forward-

9

looking obligations to all test participants regardless of the

United States District Court
For the Northern District of California

10

date of their testing.”

11

Reply at 20.

Plaintiffs are correct.

The various regulations and

12

documents contain identical or similar provisions.

13

Plaintiffs do not seek retroactive application of these

14

obligations.

15

created additional entitlements with respect to the medical care

16

test participants may have received prior to the creation of any

17

relevant regulations.

18

and DOD be held liable for failure to provide medical care based

19

on the regulations prior to such date.

20

contention is that the regulations create prospective obligations

21

to provide for future testing-related medical needs for all test

22

volunteers, and an ongoing duty to warn.

23

version of the regulations or other documents that limits these

Further,

Plaintiffs do not contend that the regulations

For example, they do not ask that the Army

Instead, Plaintiffs’

There is nothing in any

24
25
26
27
28

13

Defendants also challenge commonality regarding these claims
based on their argument that “Plaintiffs’ proposed class is
overbroad.” Opp. at 29, 32. As previously noted, Plaintiffs
revised their proposed class definition to address the particular
issues raised in this section, and Defendants agreed at the
hearing on this motion that the revisions addressed their
concerns.
39

1

forward-looking provisions to those people who became test

2

volunteers after the regulation was created.

3

In the 1990 version of AR 70-25, the definition for human

4

subject or experimental subject included, with limited exceptions,

5

“a living individual about whom an investigator conducting

6

research obtains data through interaction with the individual,

7

including both physical procedures and manipulations of the

8

subject or the subject’s environment.”

9

The definition does not exclude individuals who were subjected to

Herb Decl., Ex. 13, 16.

United States District Court
For the Northern District of California

10

testing prior to the date of the regulations.

11

terms, the section in the 1990 regulation regarding the duty to

12

warn contemplates an ongoing duty to volunteers who have already

13

completed their participation in research.

14

maintain that the human experimentation programs ended in 1975.

15

Whether the 1990 regulations created such duties toward any of the

16

class members is a common question, which is central to the

17

validity of these claims and can be accomplished on a class-wide

18

basis.

19

Further, by its

Id. at 5.

Defendants

Defendants point to potential questions of fact that may

20

affect whether they ultimately will be found to have violated a

21

duty toward any particular class member.

22

their liability will differ based on whether the class member was

23

provided some amount of notice, whether there are actually any

24

known health effects related to the testing of the particular

25

substances to which the class member was exposed or whether the

26

class member suffered adverse health effects that Defendants

27

failed to treat.

28

identical for this requirement to be met.

Defendants argue that

Not all questions of law and fact must be

40

Because there is a

1

common question of law regarding whether Defendants had duties to

2

provide notice and health care to class members, the Court finds

3

that Plaintiffs have met their burden to establish commonality on

4

these claims.

5
6

b. Secrecy oath claims
Plaintiffs argue that their claim seeking a declaration that

7

the secrecy oaths taken by members of the proposed class are

8

invalid and that Defendants must notify test participants that

9

they are released from any secrecy oaths raises common questions

United States District Court
For the Northern District of California

10

“whether [the] secrecy oaths are valid, and whether members of the

11

Proposed Class should be unconditionally released from any such

12

oaths.”

13

met their burden to establish these questions are common to the

14

class.

Reply at 23.

The Court finds that Plaintiffs have not

15

First, Plaintiffs have offered no evidence that class members

16

were required uniformly to take secrecy oaths or that the contents

17

of such oaths were similar.

18

predicate, the Court is unable to make a class-wide determination

19

whether the oaths are unenforceable.

20

contention that “Participants were required to swear to Secrecy

21

Oaths and told that they could never speak about their

22

participation, under threat of general court martial,” Plaintiffs

23

cite several pieces of evidence.

24

National Academy of Sciences study, entitled “Veterans at Risk,”

25

and written in response to a request for research made by the DVA.

26

Sprenkel Decl., Ex. 13, VET123-002589.

27

and Lewisite testing during WWII, the report states, “All of the

28

men in the chamber and field tests, and some of the men in the

Without a showing of such a factual

In support of their

One of these documents is a

41

In discussing the mustard

1

patch tests, were told at the time that they should never reveal

2

the nature of the experiments.”

3

The authors also state, “It is clear that there may be many

4

exposed veterans and workers who took an oath of secrecy during

5

WWII and remain true to that oath even today.”

6

2606-2607; see also Sprenkel Decl., Ex. 1, VET001_015682 (quoting

7

the “Veterans at Risk” study).

8

also provided a National Academies report titled, “Health Effects

9

of Perceived Exposure to Biochemical Warfare Agents.”

Herb Decl., Ex. 2, VET002-001801.

VET123-002593,

In their reply brief, Plaintiffs

Sprenkel

United States District Court
For the Northern District of California

10

Reply Decl., Ex. 80.

11

about predictive factors for post-traumatic stress disorder in

12

veterans who participated in mustard gas and Lewisite testing

13

during World War II, this report stated, “Because the tests were

14

secret, some participants were compelled to take an oath of

15

secrecy and were subject to criminal prosecution if they disclosed

16

their participation.”

17

(Hamed Depo.), 158:5-10 (former DOD employee recounting that

18

veterans who participated in testing during WWII told her that

19

they had been administered secrecy oaths).14

In summarizing findings of an earlier study

Id. at 13.

See also Sprenkel Decl., Ex. 10

Nor have Plaintiffs

20
21
22
23
24
25
26
27
28

14

Plaintiffs also rely on the deposition testimony of Blazinski
and Josephs, who both participated in Cold War era testing at
Edgewood Arsenal. However, the testimony cited does not establish
that these individuals swore a secrecy oath, as defined by
Plaintiffs, but rather that they were given varying instructions
not to discuss their participation and that the tests were top
secret. See Sprenkel Decl., Ex. 11 (Blazinski Depo.), 101:5-22
(testifying that before he participated in the experiments, he was
“told right up front that this was top secret. We weren’t to
discuss this with anyone, any tests that were taken there,
anything about the program.”); 104:2-13 (stating that he did not
recall if he signed a secrecy agreement); Sprenkel Decl, Ex. 12
(Josephs Depo.), 160:3-22 (“I remember discussions that I was not
to discuss this with anyone. I -- I think maybe your immediate
family was permitted, but, of course, they had to know where you
42

1

submitted evidence of a policy requiring that secrecy oaths be

2

given prior to participation in testing.

3

in addition to being hearsay, is insufficient to make a prima

4

facie showing that class members throughout the class period swore

5

similar secrecy oaths, the enforceability of which could be

6

adjudicated on a class-wide basis.

7

Court cannot consider whether a complete release from secrecy

8

oaths is appropriate on a class-wide basis, because the Court

9

would need to consider the terms of the oath which each individual

United States District Court
For the Northern District of California

10
11

The evidence they offer,

Without such a showing, the

swore, if any.
Second, Plaintiffs’ legal theory is that, “[b]ecause no test

12

participant was provided with information sufficient to enable

13

informed consent, the Secrecy oaths should be deemed valid ab

14

initio.”

15

validity of the secrecy oaths turns on what information was

16

provided to the class members when they swore them.

17

Plaintiffs cite in support of this argument is two pages of a

18

statement made by the former General Counsel of the Army during

19

Congressional hearings in 1975.

20

that it can be determined a class-wide basis.

21

the General Counsel discussed the testing of LSD on thirty-one

22

individuals at Edgewood between 1958 and 1960 and acknowledged

23

that certain information was withheld from participants.

24

Decl. Ex. 15 at 160-62.

Mot. at 15.

Under this theory, a determination of the

The evidence

This evidence does not establish
In the document,

Sprenkel

This included the exact properties of the

25
26
27
28

were. . . . But I don’t know if a secrecy oath was involved.”);
see also Mot. at 2, n.2 (defining “secrecy oath” as “all promises
or agreements, whether written or oral, and whether formal or
informal, made by test participants after being told that they
could never speak about their participation in the testing
programs.”) (emphasis added).
43

1

material to be administered and in some cases the time, location

2

or method of administration.

3

that other information was supposed to be given to them, including

4

the general nature of the experiments and that the subject could

5

terminate the experiment at any time, but that available records

6

did not indicate what information was actually given in each case.

7

Id.

8

information was withheld from these particular subjects and that,

9

even for them, there was variance in the information provided.

Id.

The General Counsel also stated

This testimony only supports the conclusion that certain

United States District Court
For the Northern District of California

10

Plaintiffs introduce no evidence that there was a general policy

11

or practice not to provide such information to test subjects

12

before requiring them to sign a secrecy oath.

13

evidence, the Court cannot make a class-wide determination of

14

whether such oaths are invalid ab initio.

15

Without such

Accordingly, the Court finds that Plaintiffs have not met the

16

commonality requirement for their claims based on the secrecy

17

oaths.

18
19

c. Claims of a biased adjudication by the DVA
Plaintiffs contend that there are many common questions of

20

law or fact on this claim, including whether the DVA was involved

21

in testing programs, and whether it had an interest in determining

22

there were no long-term health effects from such testing.

23

Defendants have not challenged Plaintiffs’ showing of commonality

24

on this claim.

25

fulfilled their burden to establish that the requirement is

26

satisfied for this claim.

Accordingly, the Court finds that Plaintiffs have

27
28
44

1

4. Typicality

2

Rule 23(a)(3)’s typicality requirement provides that a “class
representative must be part of the class and possess the same

4

interest and suffer the same injury as the class members.”

5

Falcon, 457 U.S. at 156 (quoting E. Tex. Motor Freight Sys., Inc.

6

v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks

7

omitted).

8

interest of the named representative aligns with the interests of

9

the class.”

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th

10
United States District Court
For the Northern District of California

3

Cir. 1992).

“[T]he typicality requirement is ‘permissive’ and

11

requires only that the representative’s claims are ‘reasonably co-

12

extensive with those of absent class members; they need not be

13

substantially identical.’”

14

1124 (9th Cir. 2010) (internal citations omitted).

15

is satisfied where the named plaintiffs have the same or similar

16

injury as the unnamed class members, the action is based on

17

conduct which is not unique to the named plaintiffs, and other

18

class members have been injured by the same course of conduct.

19

Id.

20

putative class representative is subject to unique defenses which

21

threaten to become the focus of the litigation.”

22

Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner &

23

Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990).

24

The purpose of the requirement is “to assure that the

Rodriguez v. Hayes, 591 F.3d 1105,
Rule 23(a)(3)

Class certification is inappropriate, however, “where a

Id. (quoting

Defendants argue that the claims of Blazinski, Josephs and

25

the VVA members related to notice and medical care are not typical

26

of claims of putative class members who participated in testing

27

prior to the issuance of the Wilson Directive in 1952.

28

28, n.37.

Opp. at

Having found that the claims regarding the obligations
45

1

derived from the 1990 regulations are as applicable to those who

2

participated in testing prior to their issuance as after that

3

date, the Court rejects Defendants’ contention.

4

In a footnote, Defendants state, without elaboration, that

5

“Plaintiffs have not identified a single individual whose claims

6

are typical of widows,” Opp. at 28, n.37, apparently referring to

7

Plaintiffs’ request to include in their class definition, “in the

8

case of deceased members, the personal representatives of their

9

estates,” Mot. at 1-2; Reply, at 17.

In reply, Plaintiffs

United States District Court
For the Northern District of California

10

acknowledge that none of the proposed class representatives are

11

survivors of veterans but assert that the proposed representatives

12

are typical of deceased veterans’ survivors because “the claims

13

that deceased veterans’ representatives assert are the claims of

14

those deceased veterans.”

15

original); see also Mot. to Substitute 2-3 (arguing that Ms.

16

McMillan-Forrest “stands in her late husband’s shoes for purposes

17

of filing a [dependency and indemnification compensation] claim”).

18

Pursuant to 38 U.S.C. § 5121(a) and 38 C.F.R. § 3.5(a), a

Reply at 25, n.25 (emphasis in

19

deceased veteran’s spouse, children or dependent parents are

20

entitled to receive benefits accrued by the veteran at the time of

21

his death, such as disability benefits.

22

that the DVA is a biased adjudicator of such benefits are the

23

same, whether asserted by the veterans themselves or the personal

24

representatives of deceased veterans’ estates.

Thus, claims asserting

25

However, the survivors’ own entitlement to dependency and

26

indemnity compensation is separate from the claims of the deceased

27

veterans themselves; such entitlements arise only upon the

28

service-connected deaths of veterans and accrue to the survivors,
46

1

not the estates of deceased veterans.

2

Plaintiffs have not proposed a class representative with an

3

entitlement to dependency and indemnity compensation.

4

proposed class representatives’ claims are not typical of claims

5

that the DVA is a biased adjudicator of dependency and indemnity

6

compensation claims.

7

See 38 C.F.R. § 3.5(a)(1).

Thus, the

Further, the claims by the veterans themselves for notice are

8

not reasonably coextensive with the claims of deceased veterans’

9

personal representatives.

Plaintiffs contend that the veterans

United States District Court
For the Northern District of California

10

are entitled to notice under the APA and the Constitution based on

11

the DOD and the Army’s own regulations.15

12

their motion to substitute Ms. McMillan-Forrest, to which

13

Plaintiffs refer in support of this argument in their reply on

14

their class certification motion, Plaintiffs contend that

15

Defendants’ duty toward the test participants applies “whether

16

they are alive or deceased,” and that, as “a practical matter, to

17

discharge this duty to deceased test participants, Defendants must

18

give Notice to the personal representative of the test

19

participant’s estate . . .”

20

at 2.

21

Defendants provide information to the test participants regarding

22

the possible effects upon their own health or person.

In their briefing on

Reply in Supp. of Mot. to Substitute

The Wilson Directive and versions of AR 70-25 mandate that

Plaintiffs

23
24
15

25
26
27
28

Although Plaintiffs have also sought certification of claims
that the combination of Defendants’ failure to provide class
members with notice, medical care and a release from secrecy oaths
together violated their substantive due process liberty rights,
including their right to bodily integrity, and of a lack of
procedures to challenge this failure, the Court has already
concluded that the constitutional claims based on the secrecy
oaths lack commonality.
47

1

do not explain how such a duty to the test participants may

2

continue after they are deceased, when effects upon health and

3

person can no longer occur.

4

survivors are entitled to notice regarding the veteran’s exposure,

5

doses and potential health effects because such information may be

6

relevant or necessary for survivors to submit claims for accrued

7

benefits or dependency and indemnity compensation, not because

8

such notice is required by the APA, the Constitution and the

9

regulations, the basis of the claimed duty toward the test

Instead, they contend that the

United States District Court
For the Northern District of California

10

participants.

11

have conceded that the medical care claims do not survive a

12

veteran’s death and cannot be asserted by a veteran’s personal

13

representative on behalf of his or her estate.

14

the proposed class representatives’ notice and health care claims

15

are not typical of deceased veterans’ personal representatives’

16

claims.

17

See Mot. to Substitute, 2-3.

Further, Plaintiffs

Id. at 1.

Thus,

Defendants also make several arguments that the proposed

18

class representatives’ secrecy oath claims are atypical of those

19

of the class.

20

have not met the commonality requirement for these claims, the

21

Court does not reach these arguments.

22
23

Because the Court has already found that Plaintiffs

F. Rule 23(b) requirements
Plaintiffs seek certification under either Rule 23(b)(1)(A)

24

or 23(b)(2).

25

certification under Rule 23(b)(3), no such requirement exists for

26

either subsection under which Plaintiffs seek certification.

27

Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998).

28

Accordingly, Defendants’ various arguments that individual issues

Although common issues must predominate for class

48

See

1

predominate and preclude certification are not on point.

2

at 36, 38.

3

See Opp.

Rule 23(b)(2) permits certification where “the party opposing

4

the class has acted or refused to act on grounds that apply

5

generally to the class, so that final injunctive relief or

6

corresponding declaratory relief is appropriate respecting the

7

class as a whole.”

8

Defendants have uniformly failed to fulfill their legal

9

obligations to the class, “as all class members were participants

Fed. R. Civ. P. 23(b).

Plaintiffs argue that

United States District Court
For the Northern District of California

10

in human testing programs, were denied Notice and medical care,

11

and had their constitutional rights violated by the Secrecy

12

oaths.”

13

failed to act as a neutral adjudicator of class members’ claims.

14

For certification under this provision, “[i]t is sufficient

Mot. at 24.

Plaintiffs also argue that the DVA uniformly

15

if class members complain of a pattern or practice that is

16

generally applicable to the class as a whole.

17

members have not been injured by the challenged practice, a class

18

may nevertheless be appropriate.”

19

7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

20

Practice & Procedure § 1775 (2d ed. 1986) (“All the class members

21

need not be aggrieved by or desire to challenge the defendant’s

22

conduct in order for some of them to seek relief under Rule

23

23(b)(2).”).

24

the viability or bases of class members’ claims for declaratory

25

and injunctive relief, but only to look at whether class members

26

seek uniform relief from a practice applicable to all of them.”

27

Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010).

28

certification under Rule 23(b)(2) is appropriate only where the

Even if some class

Walters, 145 F.3d at 1047; see

Rule 23(b)(2) does not require a court “to examine

49

“Class

1

primary relief sought is declaratory or injunctive.”

2

Accufix Research Institute, Inc., 253 F.3d 1180, 1195 (9th Cir.

3

2001).

4

Zinser v.

Defendants contend that Plaintiffs cannot meet the Rule

5

23(b)(2) requirement for several reasons.

6

contend that “at least three different sets of regulations and

7

directives . . . have governed DOD’s alleged notice duty for the

8

members of the putative class” from 1953 and later, which would

9

require this “Court to have to adjudicate and provide relief

First, Defendants

United States District Court
For the Northern District of California

10

dependent on the applicable legal framework.”

11

Rodriguez, the Ninth Circuit has rejected similar arguments in the

12

context of the certification of a class to prosecute claims based

13

on the denial of bond hearings in immigration proceedings.

14

ruling, the court noted, “The particular statutes controlling

15

class members’ detention may impact the viability of their

16

individual claims for relief, but do not alter the fact that

17

relief from a single practice is requested by all class members.

18

Similarly, although the current regulations control what sort of

19

process individual class members receive at this time, all class

20

members[] seek the exact same relief as a matter of statutory or,

21

in the alternative, constitutional right.”

22

1126.

23

1988) (emphasizing that, although “the claims of individual class

24

members may differ factually,” certification under Rule 23(b)(2)

25

is a proper vehicle for challenging “a common policy”).

26

Plaintiffs also “seek uniform relief from a practice applicable to

27

all of them.”

Opp. at 38. In

In so

Rodriguez, 591 F.3d at

See also Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.

Rodriguez, 591 F.3d at at 1125.

28
50

Here,

1

Defendants also argue that this requirement cannot be met

2

because “at least 4,000 individuals have received some form of

3

notice,” referring to the DVA’s form letters to veterans.

4

39.

5

do not negate Plaintiffs’ contention that the DOD and the Army

6

refused to send notice.

7

facially insufficient to satisfy the basic components of the

8

notice that Plaintiffs allege Defendants have the duty to provide

9

because they omit any information specific to the class members

United States District Court
For the Northern District of California

10

Mot. at

As the Court explained above, these were sent by the DVA and

Further, these letters by themselves are

themselves.

11

Finally, Defendants contend that certification under Rule

12

23(b)(2) is inappropriate because “Plaintiffs’ claim for medical

13

care” is “essentially a claim for monetary damages.”

14

The Court has rejected above Defendants’ characterization of this

15

claim.

16

Opp. at 39.

Accordingly, the Court finds that Plaintiffs have established

17

that certification under Rule 23(b)(2) is appropriate.

18

does not reach Plaintiffs’ alternative argument that certification

19

can be granted under Rule 23(b)(1)(A).

The Court

20 II.

Motion to Substitute

21

Plaintiffs move to substitute Kathryn McMillan-Forrest as a

22

named Plaintiff in this action, in place of her late husband,

23

Plaintiff Wray Forrest, who passed away on August 31, 2010.

24

On April 11, 2012, Defendants filed a statement noting “the

25

death during the pendency of this action of Wray Forrest, a

26

Plaintiff in this action.”

Docket No. 411.

27

Less than ninety days later, on June 5, 2012, Plaintiffs

28

filed the instant motion to substitute pursuant to Federal Rule of
51

1

Civil Procedure 25(a)(1).

2

party dies and the claim is not extinguished, the court may order

3

substitution of the proper party.”

4

Ms. McMillan-Forrest to prosecute Mr. Forrest’s APA and

5

constitutional claims regarding notice and his claim that the DVA

6

is a biased adjudicator of SCDDC claims.

7

to substitute Ms. McMillan-Forrest to prosecute his secrecy oath

8

claim and claims for medical care, which they acknowledge do not

9

survive his death.

Rule 25(a)(1) provides in part, “If a

Plaintiffs seek to substitute

Plaintiffs do not seek

Plaintiffs also seek to add to the complaint

United States District Court
For the Northern District of California

10

the following sentence: “Plaintiff Kathryn McMillan-Forrest is the

11

surviving spouse of Wray Forrest, has filed a claim for accrued

12

disability benefits and dependency and indemnity compensation, and

13

is substituted in Wray Forrest’s place as named Plaintiff.”

14

at 4.

15

Mot.

In opposition, Defendants primarily contend that Plaintiffs’

16

motion is properly considered as a motion to amend because Mr.

17

Forrest was no longer a party at the time the motion was made. On

18

November 15, 2010, the Court granted Plaintiffs leave to file

19

their 3AC within three days of that date, and directed them to

20

“make any correction necessitated by the passing of Plaintiff Wray

21

Forrest.”

22

filed their 3AC, which is the operative complaint in this action,

23

they removed Mr. Forrest from the list of Plaintiffs in the

24

caption, and referred to him as a “former” Plaintiff throughout

25

the body of the 3AC.

26

Forrest’s name when they listed the Plaintiffs in this action,

27

until they filed their motion for class certification and, shortly

28

thereafter, their administrative motion to substitute Ms.

See Docket No. 177, at 18.

When Plaintiffs timely

Subsequently, they consistently omitted Mr.

52

1

McMillan-Forrest.

2

the 3AC, Docket No. 188; Pls.’ Mot. to Strike Admin. Record,

3

Docket No. 211.

4

remove Mr. Forrest on November 15, 2010, he was no longer a party

5

to this action when Plaintiffs first sought to substitute Ms.

6

McMillan-Forrest in his place on March 6, 2012.

7

Defendants urge, the Court construes Plaintiffs’ motion as a

8

motion for leave to amend.

See, e.g., Pls.’ Opp. to Defs.’ Mot. to Dismiss

Because Plaintiffs amended their complaint to

Accordingly, as

Federal Rule of Civil Procedure 15(a) provides that leave of

10
United States District Court
For the Northern District of California

9

the court allowing a party to amend its pleading “shall be freely

11

given when justice so requires.”

12

liberal policy towards amendment, the nonmoving party bears the

13

burden of demonstrating why leave to amend should not be granted.”

14

Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-531

15

(N.D. Cal. 1989).

16

propriety of a motion for leave to amend: undue delay, bad faith,

17

futility of amendment, prejudice to the opposing party and whether

18

the plaintiff has previously amended the complaint.

19

Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 n.3 (9th Cir.

20

2009).

21

specifically, “delay alone no matter how lengthy is an

22

insufficient ground for denial of leave to amend.”

23

v. Webb, 655 F.2d 977, 980 (9th Cir. 1981).

24

amendment, by contrast, can alone justify the denial of a motion

25

for leave to amend.

26

1995); Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.

27

Cal. 1988).

Because “Rule 15 favors a

Courts consider five factors when assessing the

Ahlmeyer v.

However, these factors are not of equal weight;

United States

Futility of

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

28
53

1

Defendants contend that amendment would be futile for a
variety of reasons.

3

the DVA, Defendants reassert the same arguments regarding the

4

Court’s lack of jurisdiction that the Court has already rejected

5

in this and previous Orders.

6

Defendants have not established that this claim is futile.

7

the notice claims, Defendants also repeat arguments rejected in

8

this and prior Orders.

9

that Ms. Wray-Forrest will not ultimately be able to prove these

10
United States District Court
For the Northern District of California

2

claims, “a proposed amendment is futile only if no set of facts

11

can be proved under the amendment to the pleadings that would

12

constitute a valid and sufficient claim or defense.”

13

F.2d at 214.

14

asserted in a motion for summary judgment.

15

As to the biased adjudicator claim against

Thus, the Court concludes that
As to

To the extent that they further contend

Miller, 845

Such evidence-based arguments are more properly

Defendants also contend that any claim asserted by Ms. Wray-

16

Forrest for notice under the APA would be futile, because the

17

regulations and other documents could only support an obligation

18

to warn or provide notice to the test participant himself or

19

herself and not to that person’s next-of-kin.

20

Plaintiffs fail to explain how a duty to warn test participants of

21

the effects of testing upon their health and person may continue

22

after the participants have passed away and such effects can no

23

longer continue.

24

these participants require this information to obtain access to

25

their own entitlements.

26

it does not support a non-discretionary duty to warn survivors

27

under the APA based on the regulations and related documents.

As addressed above,

Instead, they contend that the survivors of

Although this may support other claims,

28
54

1

Accordingly, Defendants have established that Ms. Wray-Forrest’s

2

APA claim for notice would be futile.

3

Defendants also contend that Plaintiffs unduly delayed in

4

seeking amendment.

5

believed that the Court had already granted leave to substitute

6

Ms. Wray-Forrest as a “correction” contemplated by the Court’s

7

November 15, 2010 Order and that the three day period referred to

8

in that Order was to file an amended pleading, not to substitute

9

Ms. Wray-Forrest as well.

Plaintiffs respond that they mistakenly

See Reply to Admin. Mot. to Substitute,

United States District Court
For the Northern District of California

10

Docket No. 374, 1-2;

11

10:9-11-1.

12

between Mr. Forrest’s death and the filing of the initial motion

13

to substitute constitutes undue delay.

14

April 5, 2012 Hrg. Tr., Docket No. 414,

For this reason, the Court does not find the time

Finally, Defendants argue that they were prejudiced by the

15

delay in the filing of this motion, arguing that Plaintiffs seek

16

amendment “in order to have an individual plaintiff with standing

17

to seek dependency and indemnity compensation from VA for the

18

purposes of their class certification motion.”

19

Substitute, 4.

20

appoint Ms. Wray-Forrest as a class representative, and thus her

21

inclusion in the action as an individual Plaintiff is not relevant

22

to the resolution of the motion for class certification.

23

Defendants also contend that they were deprived of a fair

24

opportunity to address the potential inclusion in the class of

25

personal representatives of the estates of deceased test

26

participants in their opposition to Plaintiffs’ motion for class

27

certification, contending that this was an “abstract” notion until

28

Plaintiffs moved to substitute shortly before their opposition was

Opp. to Mot. to

However, Plaintiffs have not asked the Court to

55

1

due.

2

class to include such individuals, giving Defendants sufficient

3

notice that this was at issue in the motion so that Defendants

4

could present their arguments in opposition to the inclusion of

5

these individuals.

6

Defendants’ sole request for an extension of time and additional

7

pages to oppose the motion for class certification, see Docket

8

Nos. 353, 360, and that they did not seek any additional time to

9

file their opposition after Plaintiffs moved to substitute Ms.

United States District Court
For the Northern District of California

10
11

However, in their motion, Plaintiffs defined their proposed

Further, the Court notes that it granted

Wray-Forrest or seek leave to file a supplemental brief.
Accordingly, the Court GRANTS in part and DENIES in part

12

Plaintiffs’ motion to amend.

13

a fourth amended complaint, within four days of the date of this

14

Order, adding Ms. Wray-Forrest to the caption of the action and

15

adding the following language to the body of the complaint:

16

“Plaintiff Kathryn McMillan-Forrest is the surviving spouse of

17

Wray Forrest, has filed a claim for accrued disability benefits

18

and dependency and indemnity compensation, and is substituted in

19

Wray Forrest’s place as named Plaintiff, except as to the APA

20

claim for notice, the secrecy oath claims and claims for medical

21

care.”

Plaintiffs are granted leave to file

22 III. Appointment of Class Counsel
23
24
25
26
27
28

Rule 23(g)(1) of the Federal Rules of Civil Procedure
provides in part:
Unless a statute provides otherwise, a court that certifies a
class must appoint class counsel. In appointing class
counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or
investigating potential claims in the action;
56

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13

(ii) counsel’s experience in handling class
actions, other complex litigation, and the types of
claims asserted in the action;
(iii) counsel’s knowledge of the applicable law;
and
(iv) the resources that counsel will commit to
representing the class;
(B) may consider any other matter pertinent to counsel’s
ability to fairly and adequately represent the interests
of the class;
(C) may order potential class counsel to provide
information on any subject pertinent to the appointment
and to propose terms for attorney’s fees and nontaxable
costs;
(D) may include in the appointing order provisions about
the award of attorney’s fees or nontaxable costs under
Rule 23(h); and
(E) may make further orders in connection with the
appointment.
Fed. R. Civ. P. 23(g)(1).
Plaintiffs represent that their counsel, the law firm of

14

Morrison & Foerster LLP, has sufficient resources to pursue the

15

instant case vigorously, expertise in prosecuting class actions of

16

this nature, and knowledge of the applicable law.

17

Gordon Erspamer, who will serve as lead counsel, has prosecuted

18

several notable cases on behalf of veterans, including Veterans

19

for Common Sense, discussed above.

20

has devoted considerable time and resources working on behalf of

21

the putative class thus far.

22

Morrison and Foerster LLP as class counsel.

In particular,

The Court notes that counsel

Accordingly, the Court APPOINTS

23

CONCLUSION

24

For the reasons set forth above, the Court GRANTS in part

25

Plaintiffs’ motion for class certification and DENIES it in part

26

(Docket No. 346).

27

against the DVA, except as to claims for dependency and indemnity

28

compensation, the Court certifies a class defined as

To prosecute the biased adjudicator claim

57

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17

All current or former members of the armed forces, or in
the case of deceased members, the personal
representatives of their estates, who, while serving in
the armed forces, were test subjects in any human
Testing Program that was sponsored, overseen, directed,
funded, and/or conducted by the Department of Defense or
any branch thereof, including but not limited to the
Department of the Army and the Department of the Navy,
and/or the Central Intelligence Agency, between the
inception of the Testing Programs in approximately 1922
and the present. For the purposes of this definition,
“Testing Program” refers to a program in which any
person was exposed to a chemical or biological substance
for the purpose of studying or observing the effects of
such exposure.
To prosecute the APA and constitutional claims against the DOD and
the Army premised on the violation of their own regulations, the
Court certifies a class defined as
All current or former members of the armed forces, who,
while serving in the armed forces, were test subjects in
any human Testing Program that was sponsored, overseen,
directed, funded, and/or conducted by the Department of
Defense or any branch thereof, including but not limited
to the Department of the Army and the Department of the
Navy, and/or the Central Intelligence Agency, between
the inception of the Testing Programs in approximately
1922 and the present. For the purposes of this
definition, “Testing Program” refers to a program in
which any person was exposed to a chemical or biological
substance for the purpose of studying or observing the
effects of such exposure.

18

The Court further GRANTS Plaintiffs’ request to appoint VVA, Tim

19

Josephs and William Blazinski as class representatives and

20

Morrison & Foerster LLP as class counsel.

21

The Court DENIES Defendants’ motions for leave to file a

22

motion for reconsideration and for relief from a nondispositive

23

order of the Magistrate Judge (Docket Nos. 431 and 471).

24

Finally, the Court GRANTS in part and DENIES in part

25

Plaintiffs’ motion to substitute, which the Court construed as a

26

motion to amend (Docket No. 439).

27

file a fourth amended complaint, within four days of the date of

28
58

Plaintiffs are granted leave to

1

this Order, adding Ms. Wray-Forrest to the caption of the action

2

and adding the following language to the body of the complaint:

3

“Plaintiff Kathryn McMillan-Forrest is the surviving spouse of

4

Wray Forrest, has filed a claim for accrued disability benefits

5

and dependency and indemnity compensation, and is substituted in

6

Wray Forrest’s place as named Plaintiff, except as to the APA

7

claim for notice, the secrecy oath claims and claims for medical

8

care.”

9

IT IS SO ORDERED.

United States District Court
For the Northern District of California

10
11
12

Dated: September 30, 2012

CLAUDIA WILKEN
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
59