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

Filing 537

ORDER by Judge Claudia WilkenGRANTING IN PART AND DENYING IN PART PLAINTIFFS 490 MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS 495 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 7/24/2013)

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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; TIM
MICHAEL JOSEPHS; and WILLIAM
BLAZINSKI, individually, on
behalf of themselves and all
others similarly situated; SWORDS
TO PLOWSHARES: VETERANS RIGHTS
ORGANIZATION; BRUCE PRICE;
FRANKLIN D. ROCHELLE; LARRY
MEIROW; ERIC P. MUTH; DAVID C.
DUFRANE; and KATHRYN MCMILLANFORREST,
Plaintiffs,

United States District Court
For the Northern District of California

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v.

No. C 09-0037 CW
ORDER GRANTING IN
PART AND DENYING
IN PART
PLAINTIFFS’ MOTION
FOR SUMMARY
JUDGMENT (Docket
No. 490) AND
GRANTING IN PART
AND DENYING IN
PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT (Docket
No. 495)

CENTRAL INTELLIGENCE AGENCY; JOHN
BRENNAN, Director of the Central
Intelligence Agency; UNITED
STATES DEPARTMENT OF DEFENSE;
CHARLES T. HAGEL, Secretary of
Defense; UNITED STATES DEPARTMENT
OF THE ARMY; JOHN M. MCHUGH,
United States Secretary of the
Army; UNITED STATES OF AMERICA;
ERIC H. HOLDER, Jr., Attorney
General of the United States;
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS; and ERIC K.
SHINSEKI, United States Secretary
of Veterans Affairs,
Defendants.
________________________________/

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Plaintiffs Vietnam Veterans of America, Swords to Plowshares:
Veterans Rights Organization, Bruce Price, Franklin D. Rochelle,
Larry Meirow, Eric P. Muth, David C. Dufrane, Tim Michael Josephs,
William Blazinski and Kathryn McMillan-Forrest move for partial
summary judgment, holding that Defendants U.S. Department of
Defense and its Secretary Charles T. Hagel (collectively, DOD) and
the U.S. Department of the Army and its Secretary John M. McHugh

(collectively, Army) have legal obligations under the

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Administrative Procedures Act (APA) to provide notice and medical

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care to test subjects.

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any of their class or individual claims against the remaining

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Defendants or on any of their other claims against the DOD and the

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Army.

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Eric Holder; the Central Intelligence Agency and its Director John

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Brennan (collectively, CIA); the DOD; the Army; and the U.S.

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Department of Veterans Affairs and its Secretary Eric K. Shinseki

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United States District Court
For the Northern District of California

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(collectively, DVA) oppose Plaintiffs’ motion and move for summary

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judgment on all of Plaintiffs’ individual and class claims against

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them.1

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their arguments at the hearing, the Court GRANTS in part and

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DENIES in part Plaintiffs’ motion and GRANTS in part and DENIES in

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part Defendants’ cross-motion.

Plaintiffs do not seek summary judgment on

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

Having considered the papers filed by the parties and

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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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VET001_015677.

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establishment of the Chemical Warfare Service (CWS).”

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Decl., Ex. 1, Docket No. 496-1, PLTF014154.

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part of the War Department and became part of the U.S. Army on

Patterson Decl., Ex. 3, Docket No. 491-3,
“On June 28, 1918, the President directed the
Gardner

CWS was originally

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Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes Director Brennan and Secretary Hagel in place of their
predecessors.
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July 1, 1920.

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At the end of World War I, CWS was consolidated at the Edgewood

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Arsenal in Maryland.

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Medical Research Division to conduct research directed at

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providing a defense against chemical agents.”

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1, Docket No. 496-1, PLTF014154.

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Medical Research Division continued to carry out experiments

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regarding chemical warfare agents, including experiments that used

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human subjects, mostly drawn from personnel working at Edgewood

United States District Court
For the Northern District of California

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Arsenal.

Gardner Decl., Ex. 16, Docket No. 496-22, 27-28.

Id.

In about 1922, “the CWS created a

Gardner Decl., Ex.

Between 1920 and 1936, the

Gardner Decl., Ex. 16, Docket No. 496-22, 28.

“Formal authority to recruit and use volunteer subjects in

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[chemical warfare] experiments was initiated in 1942.”

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Decl., Ex. 1, Docket No. 496-1, PLTF014154.

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War II, “over 60,000 U.S. servicemen had been used as human

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subjects in this chemical defense research program.”

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Decl., Ex. 16, Docket No. 496-22, 1.

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subjects had participated in tests conducted with high

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concentrations of mustard agents or Lewisite in gas chambers or in

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field exercises over contaminated ground area.”

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subjects were used in these tests to test the effectiveness of

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protective clothing, among other things.

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common tests were patch, or drop, tests, in which a drop of an

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agent was put on the arm, to “to assess the efficacy of a

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multitude of protective or decontamination ointments, treatments

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for mustard agent and Lewisite burns, effects of multiple

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exposures on sensitivity, and the effects of physical exercise on

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the severity of chemical burns.”

Id.

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3

Gardner

By the end of World

Gardner

“At least 4,000 of these

Id.

Id. at 31.

Human

The most

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After the conclusion of World War II, the CWS’s research

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programs were scaled down and little research was conducted

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between 1946 and 1950.

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service members were experimentally treated with a wide range of

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

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Maryland.”

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VET001_015677; see also Answer to Fourth Am. Compl. ¶ 5 (admitting

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“that the DOD used approximately 7,800 armed services personnel in

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the experimentation program at Edgewood Arsenal”).

“From 1955 to 1975, thousands of U.S.

Patterson Decl., Ex. 3, Docket No. 491-3,

During this

United States District Court
For the Northern District of California

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time period, the focus of the human testing was on newer chemical

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agents that were “perceived to pose greater threats than sulfur

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mustard or Lewisite,” including nerve gases and psychoactive

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drugs.

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Answer to Fourth Am. Compl. ¶ 5 (admitting that the “DOD

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administered 250 to 400 chemical and biological agents during the

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course of its research at Edgewood Arsenal involving human

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subjects”).

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entered military service as conscientious objectors and ninety

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percent of whom were Seventh Day Adventists, were used as human

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subjects in experiments to test biological agents at Fort Detrick

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in Frederick, Maryland.

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183.

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Gardner Decl., Ex. 16, Docket No. 496-22, 46; see also

Between 1954 and 1973, about 2,300 individuals, who

Gardner Decl., Ex. 12, Docket No. 496-18,

The Department of Defense no longer tests live agents on

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human subjects.

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Docket No. 496-6, 45:1-46:8.

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at Edgewood Arsenal was suspended on July 28, 1976, although

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“protective suit tests” continued to take place between 1976 and

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1979.

Gardner Decl., Ex. 4 (Depo. of Anthony Lee),
Human testing of chemical compounds

Gardner Decl., Ex. 7 (Decl. of Lloyd Roberts), ¶ 4.
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Various memoranda and regulations were intended to govern

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these experiments.

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issued the Wilson Directive to the Secretaries of the Army, Navy

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and Air Force.

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In it, he informed them that “the policy set forth will govern the

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use of human volunteers by the Department of Defense in

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experimental research in the fields of atomic, biological and/or

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chemical warfare.”

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voluntary consent of the human subject is absolutely essential,”

United States District Court
For the Northern District of California

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In February 1953, the Secretary of Defense

Patterson Decl., Ex. 4, Docket No. 491-4, C-001.

Id.

The Wilson Directive stated, “The

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

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Id. at C-001-02.

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made and adequate facilities provided to protect the experimental

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subject against even remote possibilities of injury, disability,

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or death.”

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Secretaries of the Army, Navy and Air Force are authorized to

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conduct experiments in connection with the development of defense

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of all types against atomic, biological and/or chemical warfare

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agents involving the use of human subjects within the limits

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prescribed above.”

It further stated, “Proper preparation should be

Id. at C-003.

Id.

The memorandum provided, “The

The Secretary of Defense warned that the
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addressees “will be responsible for insuring compliance with the

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provisions of this memorandum within their respective Services.”

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Id.

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

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repeated the requirements set forth in the Wilson Directive and

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further stated, “Medical treatment and hospitalization will be

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provided for all casualties of the experimentation as required.”

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Patterson Decl., Ex. 5, Docket No. 491-5, VVA 024544.
These requirements were codified in Army Regulation (AR) 70-

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United States District Court
For the Northern District of California

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25, which was promulgated on March 26, 1962 and later reissued in

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1974.

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Both versions set forth “[c]ertain basic principles” that “must be

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observed to satisfy moral, ethical, and legal concepts.”

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Decl., Ex. 47, Docket No. 496-55, 1; Gardner Decl., Ex. 48, Docket

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no. 496-56, 1.

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provided, “Voluntary consent is absolutely essential,” and stated,

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The volunteer will have legal capacity to give consent,
and must give consent freely without being subjected to
any force or duress. He must have sufficient
understanding of the implications of his participation
to enable him to make an informed decision, so far as
such knowledge does not compromise the experiment. He
will be told as much of the nature, duration, and
purpose of the experiment, the method and means by which
it is to be conducted, and the inconveniences and
hazards to be expected, as will not invalidate the
results. He will be fully informed of the effects upon
his health or person which may possibly come from his
participation in the experiment.

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See Gardner Decl., Exs. 47, 48, Docket Nos. 496-55, 496-56.

Gardner

Like the earlier memoranda, the regulations

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Gardner Decl., Ex. 47, Docket No. 496-55, 1; Gardner Decl., Ex.

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48, Docket No. 496-56, 1.

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“Required medical treatment and hospitalization will be provided

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for all casualties.”

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Gardner Decl., Ex. 48, Docket No. 496-56, 2.

The regulations also mandated,

Gardner Decl., Ex. 47, Docket No. 496-55, 2;

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On August 8, 1979, Army General Counsel Jill Wine-Volner

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issued a memorandum to various high-level Army officials,

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entitled, “Notification of Participants in Drug or

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Chemical/Biological Agent Research.”

Patterson Decl., Ex. 6,

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Docket No. 491-6, VET123-084994-95.

In the memorandum, Wine-

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Vollner asked for input regarding the creation of a program to

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“notify those individuals who were not fully informed participants

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and may have suffered injury or be subject to a possible injury.”

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Id. at VET123-084994.

She stated that “the legal necessity for a

United States District Court
For the Northern District of California

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notification program is not open to dispute” and that the Army may

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be held to have a legal obligation to notify those who are still

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adversely affected by their prior involvement in its testing

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programs.

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1979, Wine-Volner advised the Director of the Army Staff, “If

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there is reason to believe that any participants in such research

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programs face the risk of continuing injury, those participants

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should be notified of their participation and the information

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known today concerning the substance they received.”

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Decl., Ex. 7, Docket No. 491-7, VET017-000279.

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place “regardless of whether the individuals were fully informed

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volunteers at the time the research was undertaken.”

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Id.

In a subsequent memorandum issued on September 24,

Patterson

This was to take

Id.

On October 25, 1979, John R. McGiffert, Director of the Army

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Staff, issued a memorandum to establish “Army Staff

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responsibilities for review of past Army research involving

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possible military applications of drug or chemical/biological

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agents,” with the objective “to identity and notify those research

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participants who may face the risk of continuing injury.”

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Patterson Decl., Ex. 8, Docket No. 491-8, VET030-022686.
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The

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memorandum provided, “In the event that long-term hazards of a

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substance are not known, The Surgeon General (TSG) should continue

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to monitor research developments, and if at some future time more

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information makes it necessary to take some action, TSG should

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recommend appropriate action, including notification.”

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VET030-022687.

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this notification plan and the plan of the Surgeon General to ask

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the National Academy of Sciences to assist in reviewing the

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effects of the drugs and agents.

United States District Court
For the Northern District of California

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Id. at

On November 2, 1979, the Army informed Congress of

Patterson Decl., Ex. 9, Docket

No. 491-9, VET030-022692-93.

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On December 11, 1981, the Army published in the Federal

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Register a proposed amendment to a record keeping system.

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Reg. 60,639.

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11, 1982, was called the “Research and Experimental Case Files”

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and maintained records for individuals who were “[v]olunteers

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(military members, Federal civilian employees, state prisoners)

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who participated in Army tests of potential chemical agents and/or

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antidotes from the early 1950’s until the program ended in 1975.”

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Id.

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the Army: (1) to follow up on individuals who voluntarily

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participated in Army chemical/biological agent research projects

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for the purpose of assessing risks/hazards to them, and (2) for

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retrospective medical/scientific evaluation and future scientific

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and legal significance.”

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46 Fed.

The proposed system, to become effective on January

The purpose of the system was for use by “the Department of

Id.

On June 30, 1986, the Army proposed the creation of a new

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record system entitled the “Medical Research Volunteer Registry.”

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51 Fed. Reg. 23,576.

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military members, civilian employees, and non-DOD civilian

Included in the system were “[r]ecords of

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volunteers participating in current and future research sponsored

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by the U.S. Army Medical Research and Development Command.”

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Among the purposes of the system were to “assure that the U.S.

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Army Medical Research and Development Command (USAMRDC) can

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contact individuals who participated in research

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conducted/sponsored by the Command in order to provide them with

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newly acquired information, which may have an impact on their

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health,” and to “answer inquiries concerning an individual’s

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participation in research sponsored/conducted by USAMRDC.”

Id.

Id.

United States District Court
For the Northern District of California

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AR 70-25 was not listed among the authorities for the maintenance

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of the system.

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Both record systems were amended several times during the

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1980s.

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which changed the name of the “Medical Research Volunteer

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Registry” to “Research Volunteer Registry” and expanded it to

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encompass research conducted by the U.S. Army Chemical Research,

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Development and Engineering Center (CRDEC).

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On May 10, 1988, the Army published a proposed change,

53 Fed. Reg. 16,575.

On August 8, 1988, the Army issued an updated version of AR

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70-25, which became effective on September 30, 1988.2

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Reply Decl., Ex. 87, Docket No. 513-13, 1.

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this version added a provision stating,

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Gardner

Among other changes,

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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Until Defendants filed their reply brief, the parties apparently
did not realize that there were versions of AR 70-25 released in
1988 and 1989, and instead focused their analysis on the 1990
version. The parties have represented these versions were
“substantively identical for the purposes of the issues in this
case.” Defs.’ Reply, Docket No. 513-1, 8 n.8; see also Hr’g Tr.,
Docket No. 523, 4:21-5:2.
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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. To accomplish this, the
MACOM [(major Army Commands)] or agency conducting or
sponsoring research must establish a system which will
permit the identification of volunteers who have
participated in research conducted or sponsored by that
command or agency, and take actions to notify volunteers
of newly acquired information. (See a above.)

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United States District Court
For the Northern District of California

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Id. at 5.

Section a, which was referred to in this passage,

requires that MACOM commanders and organization heads “[p]ublish
directives and regulations for . . . [t]he procedures to assure
that the organization can accomplish its ‘duty to warn.’”
5.

Id. at

The regulation also required the Army to create and maintain a

“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 18.

It mandated, “The data base must contain items of

personal information, for example, name, social security number
(SSN), etc., which subjects it to the provisions of The Privacy
Act of 1974.”

Id.

It further provided, “Volunteers are

authorized all necessary medical care for injury or disease that
is a proximate result of their participation in research.”
4.

Id. at

The regulation also required that informed consent be given in

accordance with appendix E.

Id. at 6, 20.

Appendix E included,

among other things:

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E-3. Description of the study

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A statement that the study involves research. An
explanation of the purpose of the study and the expected
duration of the subject’s participation. A description
of the procedures to be followed. An identification of
any experimental procedures. A statement giving
information about prior, similar, or related studies
that provide the rationale for this study.

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E-4. Risks

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A description of any reasonably foreseeable risks or
discomforts to the subject.

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E-5. Benefits

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A description of the benefits, if any, to the subject or
to others that may reasonably be expected from the
study. If there is no benefit to the subject, it should
be so stated.

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. . .

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E-9. Subject’s rights

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A statement that--

United States District Court
For the Northern District of California

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a. Participation is voluntary.

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. . .

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Id. at 12.

The definition for “human subject” included, with

limited exceptions, a “living individual about whom an
investigator conducting research obtains data through interaction
with the individual, including both physical procedures and
manipulations of the subject or the subject’s environment.”

Id.

at 20.
In 1989 and 1990, AR 70-25 was again updated.

Gardner Decl.,

Ex. 49, Docket No. 496-57, i; Gardner Reply Decl., Ex. 88, Docket
No. 513-14, 1.

The 1990 version added a provision stating that

the regulation applied to “Research involving deliberate exposure
of human subjects to nuclear weapons effect, to chemical warfare
agents, or to biological warfare agents.”

Gardner Decl., Ex. 49,

Docket No. 496-57, 1.
On November 21, 1990, the name of the “Research Volunteer
Registry” was changed to the “Medical Research Volunteer
Registry.”

55 Fed. Reg. 48,671.

At that time, its system

identification number was changed to “A0070-25DASG.”
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Id.

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On September 24, 1991, the Army proposed changes to both the

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“Research and Experimental Case Files” and the “Medical Research

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Volunteer Registry” record systems.

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48,187.

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earlier versions.

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56 Fed. Reg. 48,179-81,

At that time, both were kept materially the same as the

In 1991, the DOD issued regulations addressing the protection

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of human test subjects.

56 Fed. Reg. 28,003 (codified at 32

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C.F.R. §§ 29.101-124).

These regulations adopted some of the

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basic principles of informed consent set forth in the Wilson

United States District Court
For the Northern District of California

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Directive.

See 32 C.F.R. § 219.116.

On December 1, 2000, the Army proposed the deletion of the

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“Research Volunteer Registry,” stating that its records “have been

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incorporated” into a new system of records, the “Medical

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Scientific Research Data Files.”

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records system was also given the system identifier of “A0070-25

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DASG.”

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maintenance of that records system.

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data system included, “To answer inquiries and provide data on

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health issues of individuals who participated in research

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conducted or sponsored by U.S. Army Medical Research Institute of

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Infectious Diseases, U.S. Army Medical Research and Development

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Command, and U.S. Army Chemical Research, Development, and

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Engineering Center,” and to “provide individual participants with

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newly acquired information that may impact their health.”

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Among the categories of people whose records were included in the

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new system were “individuals who participate in research sponsored

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by the U.S. Army Medical Research and Development Command and the

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U.S. Army Chemical Research, Developments, and Engineering Center;

Id.

65 Fed. Reg. 75,249.

This new

AR 70-25 was identified among the authorities for the

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Id.

The purposes of the new

Id.

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and individuals at Fort Detrick who have been immunized with a

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biological product or who fall under the Occupational Health and

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Safety Act or Radiologic Safety Program.”

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database “may specifically be disclosed . . . [t]o the Department

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of Veteran Affairs to assist in making determinations relative to

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claims for service connected disabilities; and other such

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benefits.”

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9

Id.

Information in the

Id.

In 2002, Congress passed section 709 of the National Defense
Authorization Act for Fiscal Year 2003 (NDAA), Pub. L. No. 107-

United States District Court
For the Northern District of California

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314, Div. A, Title VII, Subtitle A, § 709(c), 116 Stat. 2458 (the

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“Bob Stump Act”), which required the Secretary of Defense to work

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to identify projects or tests “conducted by the Department of

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Defense that may have exposed members of the Armed Forces to

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chemical or biological agents.”

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The DOD has issued two memoranda releasing veterans in part

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

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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.
Gardner Decl., Ex. 42, Docket No. 496-50, VVA 025766-67.

24

The second, issued by the Office of the Deputy Secretary of

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Defense on January 11, 2011, after the instant litigation began,

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does not have a date restriction and states,

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In the 1990s, several reviews of military human subject
research programs from the World War II and Cold War
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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.
. . .

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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.

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. . .

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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.

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United States District Court
For the Northern District of California

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Gardner Decl., Ex. 53, Docket No. 496-61, VET021-000001-02.
The DVA processes service-connected death or disability

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compensation (SCDDC) claims of class members.

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death or disability is connected to a veteran’s participation in

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the testing programs for the purposes of SCDDC claims, individuals

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seeking survivor or disability benefits must establish that “it is

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at least as likely as not that such a relationship exists.”

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To establish that a

Plaintiffs contend that the DVA participated in some capacity

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in some of the other Defendants’ testing programs.

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also argue that the DVA engaged in human testing of similar

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substances, including LSD and Thorazine.
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Plaintiffs

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Defendants have undertaken some efforts to contact and

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provide notice to participants in the testing programs.

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the DVA contacted 128 veterans who participated in World War II

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mustard gas testing; Defendants do not provide evidence of what

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information these individuals were provided then.

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Ex. 15, DVA014 001257.

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compiled by DOD and its contractor, Batelle Memorial Institute,

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sent notice letters to certain individuals who participated in

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some WWII and Cold War era testing programs.

In 1990,

Gardner Decl.,

In recent years, the DVA, using databases

For the first round

United States District Court
For the Northern District of California

10

of letters related to WWII era testing, which were sent in 2005,

11

DOD identified approximately 6,400 individuals who had been

12

exposed to mustard gas or other agents during WWII and compiled a

13

database with 4,618 entries.

14

letters to approximately 319 individuals or their survivors for

15

whom DVA could find current contact information.

16

stated in part,

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

Starting in March 2005, the DVA sent

These letters

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.
In response to the passage of the Bob Stump Act, DOD began in
2004 to search for Cold War era test information.

In addition, in

April 2005, members of Congress on the House Veterans’ Affairs
Committee requested that the DVA provide written notice to the
living veterans who participated in the test programs at Edgewood
15

1

Arsenal and Fort Detrick.

2

about Cold War era test veterans with, among other things,

3

information on the substances they were exposed to, the dose and

4

the route of administration, and where the information was

5

available.

6

participant files for each person.

7

to the DVA for use in making service-connected health care and

8

disabilities determinations.

9

providing DVA with the names of test subjects and continued to do

DOD created a database of information

The information came primarily from the test
DOD provided this information

In December 2005, the DOD began

United States District Court
For the Northern District of California

10

so after that when new information was located.

11

time, the DOD has given the DVA the names of 16,645 Cold War era

12

test subjects.

13

database for whom it could locate current contact information,

14

which at present totals about 3,300 individuals.

15

As of the present

The DVA has sent letters to each veteran in the

Defendants did not include in the letters to Cold War era

16

test subjects the names of the chemical or biological agents to

17

which the participants were exposed or information that was

18

tailored to the individual recipient.

19

they did not do so for several reasons, including that it would

20

have taken too long, the information provided by the DOD to the

21

DVA was changing, the DVA did not want to send veterans inaccurate

22

information, alarm them or make them think they would suffer

23

adverse effects if these were unlikely.

24
25
26
27

Defendants explain that

The letters sent to the Cold War era test subjects 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:

28
16

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
18
19
20
21
22
23
24
25
26
27
28

“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.
The letter also provided information about obtaining a clinical
examination from the DVA and contacting the DVA to file a
disability claim.

If individuals called DOD’s 1-800 number

provided in the letter, they could obtain further information
about the tests and staff at the hotline would, at least
sometimes, refer them to an Army FOIA officer who had the
authority to copy and send them their own individual test files;
since requests were tracked starting in 2006, the Army has
received approximately 114 such requests.
Docket No. 496-37, 16:18-17:4.
from the DOD.

Gardner Decl., Ex. 29,

The DVA also included a fact sheet

The DVA’s expert in chemical agent exposures

recognized that this fact sheet “has some significant
inaccuracies.”
Defendants have also engaged in other types of outreach to
past test participants.

The DOD has placed some information on

its public website, including general information about the
testing conducted, the contents of the Perry memorandum and
information about how to contact the DOD’s 1-800 hotline for
additional information.

DVA’s website also contains some

substantive information about the WWII and Cold War era testing
17

1

programs.

2

veteran service organizations.

The DOD and DVA have also held briefings for some

3

LEGAL STANDARD

4

Summary judgment is properly granted when no genuine and

5

disputed issues of material fact remain, and when, viewing the

6

evidence most favorably to the non-moving party, the movant is

7

clearly entitled to prevail as a matter of law.

8

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

9

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

United States District Court
For the Northern District of California

10
11

Fed. R. Civ. P.

1987).
The moving party bears the burden of showing that there is no

12

material factual dispute.

13

true the opposing party’s evidence, if supported by affidavits or

14

other evidentiary material.

15

815 F.2d at 1289.

16

in favor of the party against whom summary judgment is sought.

17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

18

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

19

F.2d 1551, 1558 (9th Cir. 1991).

20

Therefore, the court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

Material facts which would preclude entry of summary judgment

21

are those which, under applicable substantive law, may affect the

22

outcome of the case.

The substantive law will identify which

23

facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

24

242, 248 (1986).

25

Where the moving party does not bear the burden of proof on

26

an issue at trial, the moving party may discharge its burden of

27

production by either of two methods:

28
18

3

The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show that
the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its
ultimate burden of persuasion at trial.

4

Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d

5

1099, 1106 (9th Cir. 2000).

1
2

If the moving party discharges its burden by showing an

7

absence of evidence to support an essential element of a claim or

8

defense, it is not required to produce evidence showing the

9

absence of a material fact on such issues, or to support its

10
United States District Court
For the Northern District of California

6

motion with evidence negating the non-moving party’s claim.

11

see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);

12

Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

13

the moving party shows an absence of evidence to support the non-

14

moving party’s case, the burden then shifts to the non-moving

15

party to produce “specific evidence, through affidavits or

16

admissible discovery material, to show that the dispute exists.”

17

Bhan, 929 F.2d at 1409.

18

Id.;

If

If the moving party discharges its burden by negating an

19

essential element of the non-moving party’s claim or defense, it

20

must produce affirmative evidence of such negation.

21

F.3d at 1105.

22

burden then shifts to the non-moving party to produce specific

23

evidence to show that a dispute of material fact exists.

24

Nissan, 210

If the moving party produces such evidence, the

Id.

If the moving party does not meet its initial burden of

25

production by either method, the non-moving party is under no

26

obligation to offer any evidence in support of its opposition.

27

Id.

28

ultimate burden of persuasion at trial.

This is true even though the non-moving party bears the

19

Id. at 1107.

1

DISCUSSION

2

Defendants assert that there is no legally enforceable duty

3

under the APA to provide notice to past test subjects.

4

argue that the Court lacks subject matter jurisdiction over

5

Plaintiffs’ APA claim for medical care for class members and

6

contend that there is no statutory authority for the DOD or the

7

Army to provide the care requested and no duty to do so created by

8

the various memoranda or regulations.

9

class members have no constitutional entitlement to notice or

They also

They further argue that the

United States District Court
For the Northern District of California

10

health care.

11

claims against the CIA and DOD regarding secrecy oaths.

12

they seek summary judgment on Plaintiffs’ “biased adjudicator”

13

claim against the DVA.

14

I.

15

Defendants also seek summary judgment on Plaintiffs’
Finally,

APA claims regarding notice and medical care
Title 5 U.S.C. § 702, the judicial review provision of the

16

APA, “permits a citizen suit against an agency when an individual

17

has suffered ‘a legal wrong because of agency action’ . . . .”

18

Rattlesnake Coalition v. United States EPA, 509 F.3d 1095, 1103

19

(9th Cir. 2007) (quoting 5 U.S.C. § 702).

20

U.S.C. § 706 “prescribes standards for judicial review and

21

demarcates what relief a court may (or must) order.”

22

Neighborhood Ass’n v. United States EPA, 581 F.3d 1169, 1172 n.2

23

(9th Cir. 2009).

24

act, a court can grant relief by compelling “agency action

25

unlawfully withheld or unreasonably delayed.”

26

For § 702 claims, 5

Rosemere

When a plaintiff asserts an agency’s failure to

5 U.S.C. § 706(1).

Plaintiffs’ claims in the Fourth Amended Complaint against

27

the DOD and the Army assert that, under the APA, they are required

28

to provide class members with notice of their exposures and known
20

1

health effects, and medical care as set forth in the agencies’ own

2

policies.

3

participant regarding the substances to which he or she was

4

exposed, the doses to which he or she was exposed, the route of

5

exposure (e.g., inhalation, injection, dermal, etc.) and the known

6

or potential health effects associated with those exposures or

7

with participation in the tests.”

8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

By notice, Plaintiffs mean “notice to each test

Mot. at 1 n.1.

A. Claim for notice
1. Whether the regulations and memoranda have the “force of
law”
Defendants contend that the Wilson Directive, CS: 385 and AR
70-25 “lack the force of law.”

Defs.’ Corrected Reply, Docket No.

513-1, 3.
A “‘claim under § 706(1) can proceed only where a plaintiff
asserts that an agency failed to take a discrete agency action
that it is required to take.’”

Sea Hawk Seafoods, Inc. v. Locke,

568 F.3d 757, 766 (9th Cir. 2009) (quoting Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004)) (emphasis in
original).

“Discrete” actions include providing “rules, orders,

licenses, sanctions, and relief.”

Hells Canyon, 593 F.3d at 932.

A discrete action is legally required when “the agency’s legal
obligation is so clearly set forth that it could traditionally
have been enforced through a writ of mandamus.”
Norton, 542 U.S. at 63).

Id. (citing

“The limitation to required agency

action rules out judicial direction of even discrete agency action
that is not demanded by law (which includes, of course, agency
regulations that have the force of law).”
(emphasis in original).
21

Norton, 542 U.S. at 65

1

In its January 19, 2010 and May 31, 2011 orders resolving

2

Defendants’ motions to dismiss, the Court recognized that “Army

3

regulations have the force of law.”

4

233, 9; see also Kern Copters, Inc. v. Allied Helicopter Serv.,

5

Inc., 277 F.2d 308, 310 (9th Cir. 1960) (stating that “Army

6

regulations have the force of law”).

7

contend that “not all regulations possess the force of law” and

8

that AR 70-25 was promulgated pursuant to 10 U.S.C. §§ 3013 and

9

4503, which are “housekeeping” statutes, merely authorizing day to

Docket No. 59, 15; Docket No.

Defendants nonetheless

United States District Court
For the Northern District of California

10

day internal operations, so this regulation cannot serve as the

11

basis for Plaintiffs’ APA claims.

12

Docket No. 495, 16-17; Defs.’ Corrected Reply, Docket No. 513-1,

13

4-5.

14

motion to dismiss Plaintiffs’ third amended complaint, Defendants

15

argued that the 1962 version of AR 70-25 was promulgated pursuant

16

to 5 U.S.C. § 301, which was a housekeeping statute, and thus

17

could not create a benefits entitlement.

18

argument, stating “there is nothing in AR 70-25 (1962) or

19

Plaintiffs’ complaint to suggest that the regulation was issued

20

pursuant to section 301.”

21

Defs.’ Opp. and Cross-Mot.,

Defendants have previously made similar arguments.

In their

The Court rejected this

Docket No. 233, 10.

In support of their new argument, Defendants rely primarily

22

on Chrysler Corporation v. Brown, 441 U.S. 281 (1979), in which

23

the Supreme Court considered whether certain regulations

24

promulgated by the Department of Labor’s Office of Federal

25

Contract Compliance Programs (OFCCP) had the force of law.

26

that case, the Court said, “In order for a regulation to have the

27

‘force and effect of law,’ it must have certain substantive

28

characteristics and be the product of certain procedural
22

In

1

requisites.”

2

rules” that “affect[] individual rights and obligations” and

3

“interpretive rules, general statements of policy, or rules of

4

agency organization, procedure, or practice.”

5

v. Hegstrom, 793 F.2d 1018, 1022 (9th Cir. 1986) (explaining that

6

substantive rules “implement existing law, imposing general,

7

extrastatutory obligations pursuant to authority properly

8

delegated by Congress,” whereas “[i]nterpretive rules clarify and

9

explain existing law or regulations” and “are issued without

Id. at 302.

It distinguished between “substantive

Id.; see also Vance

United States District Court
For the Northern District of California

10

delegated legislative power and go more to what the administrative

11

officer thinks the statute or regulation means”) (internal

12

quotation marks and citations omitted).

13

an agency regulation is substantive, however, does not by itself

14

give it the ‘force and effect of law.’”

15

302.

16

vested in the Congress, . . . the exercise of quasi-legislative

17

authority by governmental departments and agencies must be rooted

18

in a grant of such power by Congress and subject to limitations

19

which that body imposes.”

20

that the requisite grant of legislative authority for the

21

regulations at issue in that case could be found in 5 U.S.C.

22

§ 301, which the Court labeled a “housekeeping statute.”

23

309-10.

24

to the agency to regulate its own affairs . . . authorizing what

25

the APA terms ‘rules of agency organization, procedure or

26

practice’ as opposed to ‘substantive rules.’”

27
28

The Court stated, “That

Chrysler, 441 U.S. at

Because the “legislative power of the United States is

Id.

The Court rejected the argument

Id. at

A “housekeeping statute” is “simply a grant of authority

Id.

Defendants concede that “AR 70-25 may appear to contain
substantive rules.”

Defs.’ Opp. and Cross-Mot., Docket No. 495,
23

1

16.

2

U.S.C. §§ 3013 and 4503, which they contend are housekeeping

3

statutes, AR 70-25 was not promulgated pursuant to a specific

4

statutory grant of authority sufficient to create enforceable

5

rights.

6

They argue however that, because it was issued under 10

Defendants are correct that AR 70-25 was promulgated under 10

7

U.S.C. §§ 3013 and 4503.

8

in Appendix G under section G-1, titled “Authority,”

9

The Secretary of the Army is authorized to conduct
research and development programs including the
procurement of services that are needed for these
programs (10 USC 4503). The Secretary has the authority
to “assign detail and prescribe the duties” of the
members of the Army and civilian personnel (10 USC
3013).

10
United States District Court
For the Northern District of California

The 1988, 1989 and 1990 versions state,

11
12
13

Patterson Decl., Ex. 2, Docket No. 491-2, 13 (1990 version);

14

Gardner Reply Decl., Ex. 88, Docket No. 513-14, 17 (1989 version);

15

Gardner Reply Decl., Ex. 87, Docket No. 513-13, 17 (1988 version).

16

Appendices to the 1962 and 1974 versions, which provided “opinions

17

of The Judge Advocate General” to “furnish specific guidance for

18

all participants in research using volunteers,” made similar

19

statements.

20

version); Gardner Decl., Ex. 48, Docket No. 496-56, 4 (1974

21

version).3

22

Gardner Decl., Ex. 47, Docket No. 496-55, 4 (1962

The former § 4503, which was originally enacted in 1950 as

23

section 104 of the Army and Air Force Authorization Act of 1949,

24

64 Stat. 322, 5 U.S.C. § 235a and eventually repealed in 1993,

25
26
27
28

3

The Judge Advocate General opined that the authority for the
regulation was 10 U.S.C. §§ 3012(a) and 4503. Gardner Decl., Ex.
47, Docket No. 496-55, 4 (1962 version); Gardner Decl., Ex. 48,
Docket No. 496-56, 4 (1974 version). In 1986, Public Law 99-433
redesignated 10 U.S.C. § 3012 as 10 U.S.C. § 3013.
24

1

provided in relevant part, “The Secretary of the Army may conduct

2

and participate in research and development programs relating to

3

the Army, and may procure or contract for the use of facilities,

4

supplies, and services that are needed for those programs.”

5

U.S.C. § 4503 (1992).

6

responsibilities and authority of the Secretary of the Army,

7

including to “assign, detail, and prescribe the duties of members

8

of the Army and civilian personnel,” and to “prescribe regulations

9

to carry out his functions, powers, and duties under this title.”

United States District Court
For the Northern District of California

10

10

Section 3013 sets forth the

10 U.S.C. § 3013(g).4

11

In their reply, Defendants represent that, in Schism v.

12

United States, 316 F.3d 1259 (Fed. Cir. 2002), the Federal Circuit

13

“expressly” found that 10 U.S.C. § 3013 cannot serve as the

14

“statutory basis authorizing DoD to provide ongoing medical care

15

for former service members because it would usurp Congress’

16

authority to control the purse strings for medical care.”

17

Reply, Docket No. 513-1, 5.

18

Defs.’

However, the Federal Circuit did not so hold in Schism.

In

19

that case, the court considered the enforceability of oral

20

promises of military recruiters, made under the direction of

21

supervisors, to new recruits that, if they served on active duty

22

for at least twenty years, they and their dependents would receive

23
24
25
26
27
28

4

A predecessor version of this statute, which was enacted as
section 101 of the Army Organization Act of 1950 and appeared at 5
U.S.C. § 181-4, provided in part that “the Secretary of the Army
may make such assignments and details of members of the Army and
civilian personnel as he thinks proper, and may prescribe the
duties of the members and civilian personnel so assigned; and such
members and civilian personnel shall be responsible for, and shall
have the authority necessary to perform, such duties as may be so
prescribed for them.”
25

1

free lifetime medical care.

2

before the court was whether the oral promises made to the

3

plaintiffs were within the authority of the Air Force Secretary

4

under 5 U.S.C. § 301.

5

to Chrysler, § 301 “merely authorize[d] housekeeping” and not “the

6

right to make promises of lifetime health care.”

7

The court also addressed the plaintiffs’ argument that “the

8

Commander-in-Chief’s inherent power in combination with 10 U.S.C.

9

§§ 3013, 5013, and 8013--which authorize the positions and

Id. at 1262.

Id. at 1263.

The principal question

The court held that, pursuant

Id. at 1279-81.

United States District Court
For the Northern District of California

10

enumerate the duties of the Secretaries of the Army, Navy, and Air

11

Force respectively--authorized the recruiters’ promises.”

12

1287-88.

13

Chief, did not have such inherent authority, because “[u]nder

14

Article I, § 8, only Congress has the power of the purse” and thus

15

such a conclusion would encroach Congress’s constitutional powers

16

to appropriate funding.

17

this reasoning to 10 U.S.C. § 3013, which was not applicable to

18

the plaintiffs in that case, who were Air Force retirees.

19

1289.

20

statute for the Secretary of the Air Force, did not authorize the

21

recruiters’ promises because the versions relevant to the

22

plaintiffs there did not include “‘recruiting’ in the enumerated

23

powers” and, even if they did, “the Secretary’s authority to

24

conduct recruiting does not carry with it the broad authority to

25

make promises that bind future Congresses to appropriate funding

26

for free lifetime care.”

27
28

Id. at

The court found that the President, as Commander-in-

Id. at 1288.

The court did not apply

Id. at

The court found that 10 U.S.C. § 8013, the corresponding

Id.

This case is distinguishable from Schism.

Here, at the time

that AR 70-25 was promulgated, there was a statutory provision, 10
26

1

U.S.C. § 4503, that expressly authorized the Secretary of the Army

2

to conduct research and development and to “procure or contract

3

for the use of facilities, supplies, and services that are needed

4

for those programs.”

5

gave the Secretary the power to prescribe regulations to carry out

6

his functions, powers and duties under that title, including

7

§ 4503.

8

authority to contract for services needed to carry out research

9

and to implement regulations to do so.

10 U.S.C. § 4503.

Title 10 U.S.C. § 3013(g)

Thus, Congress delegated to the Secretary of the Army the

There is no reason that

United States District Court
For the Northern District of California

10

this would exclude adopting a regulation promising to provide

11

volunteers with medical treatment associated with injuries or

12

illnesses that result from participation in testing.

13

because AR 70-25 is a substantive rule and was promulgated under

14

10 U.S.C. §§ 3013 and 4503, statutory grants of authority

15

sufficient to create enforceable rights, it created duties that

16

are enforceable against the Army under the APA.

17

Therefore,

The parties also dispute whether the Wilson Directive and CS:

18

385 can create duties that are enforceable under § 706(1) of the

19

APA.

20
21
22
23
24
25
26
27

The Ninth Circuit has created
a two-part test for determining when agency
pronouncements have the force and effect of law:
“To have the force and effect of law, enforceable
against an agency in federal court, the agency
pronouncement must (1) prescribe substantive rules--not
interpretive rules, general statements of policy or
rules of agency organization, procedure or practice--and
(2) conform to certain procedural requirements. To
satisfy the first requirement the rule must be
legislative in nature, affecting individual rights and
obligations; to satisfy the second, it must have been
promulgated pursuant to a specific statutory grant of
authority and in conformance with the procedural
requirements imposed by Congress.”

28
27

1

River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th

2

Cir. 2010) (quoting United States v. Fifty-Three (53) Eclectus

3

Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982)); see also Rank v.

4

Nimmo, 677 F.2d 692, 698 (9th Cir. 1982) (same).

5

Defendants argue that these documents do not meet either of

6

the requirements described in River Runners.

7

that there is nothing in these documents that sets forth

8

substantive rules that demonstrate a binding obligation and that

9

they were instead general statements of agency policy and

First, they contend

United States District Court
For the Northern District of California

10

procedure.

11

response, Plaintiffs point to the language in the memoranda that

12

they say “is indicative of a binding commitment (setting forth

13

what the agency ‘will’ or ‘shall’ do).”

14

Docket No. 502, 2-3.

15

Wilderness Alliance, 542 U.S. 55 (2004).

16

that, in Norton, the Supreme Court suggested that even an agency’s

17

“plan,” which is less formal than regulations, may “itself

18

create[] a commitment binding on the agency,” at least where there

19

is a “clear indication of binding commitment in the terms of the

20

plan.”

21

Court found that the statement in the plan that the agency “‘will’

22

take this, that, or the other action” was insufficient to create a

23

binding commitment, absent other supporting evidence.

24

Defs.’ Opp. and Cross-Mot., Docket No. 495, 14-16.

Id. at 69-70.

In

Pls.’ Reply and Opp.,

Both parties rely on Norton v. Southern Utah
Plaintiffs point out

Defendants respond that, in Norton, the

As Plaintiffs point out, there is clear language in both

25

memoranda that demonstrates that their dictates were intended to

26

be mandatory.

27

stated that the participation of human volunteers in testing

28

“shall be subject” to the conditions that he set forth in the

In the Wilson Directive, the Secretary of Defense

28

1

memorandum, and authorized the Secretaries of the Army, Navy and

2

Air Force to conduct experiments using such subject only “within

3

the limits” that he had prescribed.

4

Docket No. 491-4, C-001-3.

5

the Army, Navy and Air Force that they would be required to

6

“insur[e] compliance” with these dictates within their agencies.

7

Id. at C-003.

8

“must be observed” and described obtaining of informed consent as

9

a “duty and responsibility.”

Patterson Decl., Ex. 4,

He also informed the Secretaries of

CS: 385 similarly stated that these requirements

Patterson Decl., Ex. 5, Docket No.

United States District Court
For the Northern District of California

10

491-5, VVA 024538.

11

policies and the conditions for the use of human subjects

12

contained therein were not waivable and could not be modified on a

13

case-by-case basis.

14

Further, the policies did not simply govern internal procedures.

15

Instead, they proscribed obligations on the part of Defendants

16

toward individuals whom they used to test chemical and biological

17

agents.

18

Chrysler, 441 U.S. at 302.

19

Unlike in River Runners, the dictates of these

Cf. River Runners, 593 F.3d at 1071-72.

As such, they manifestly “affect[] individual rights.”

Second, Defendants argue that these memoranda were not

20

promulgated pursuant to any specific grant of authority from

21

Congress.

22

that the Wilson Memorandum lacks the force of law because ‘[t]here

23

simply is no nexus between the [Wilson Memorandum] and a

24

corresponding delegation of legislative authority by the United

25

States Congress.”

26

re Cincinnati Radiation Litig., 874 F. Supp. 796, 827 (S.D. Ohio

27

1995)) (brackets in original).

28

cited two bases for the authority of the Wilson Directive: the

They state that “at least one court has expressly held

Defs.’ Reply, Docket No. 513-1, 4 (quoting In

In Cincinnati, the plaintiffs

29

1

inherent authority of the President; and 5 U.S.C. § 301.

2

Supp. at 826-27.

3

rejected the proffered arguments and found no nexus with a grant

4

of authority from Congress.

5

At the hearing on this motion, Defendants argued that, because

6

Plaintiffs had characterized CS: 385 as “a continuation” of the

7

Wilson Directive, it should fail on the same basis.

8

523, 34:25-35:4.

9

874 F.

The court, citing Chrysler, 441 U.S. at 304,

Cincinnati, 874 F. Supp. at 826-27.

Docket No.

Plaintiffs have not cited any statutory grant of power from

United States District Court
For the Northern District of California

10

Congress to the Secretary of Defense under which he promulgated

11

the Wilson Directive and none is apparent from the face of the

12

document itself.

13

show that the Wilson Directive has the procedural requisites to

14

have the force and effect of law.

15

Accordingly, they have not met their burden to

In contrast, CS: 385 clearly identifies its statutory

16

authorization on its face.

17

70-25, CS: 385 contains an opinion from the Judge Advocate General

18

pointing to 5 U.S.C. §§ 235a and 181-4, the predecessors to 10

19

U.S.C. §§ 3013(g) and 4503, as granting the Secretary of the Army

20

the authority to conduct research and to make such assignments to

21

Army and civilian personnel as he deems proper.

22

Ex. 5, Docket No. 491-5, VVA 024540.

23

shown that the requirements in River Runners are satisfied as to

24

CS: 385 and therefore it, as well as AR 70-25, can be enforced

25

through the APA.

26
27
28

Like the 1962 and 1974 versions of AR

Patterson Decl.,

Accordingly, Plaintiffs have

2. Content and nature of the duty to notify
Defendants contend that, even if they were binding, the
Wilson Directive, CS: 385 and all versions of AR 70-25 do not
30

1

compel them to issue the particular form of “notice” that

2

Plaintiffs seek.

3

regulations do not mandate disclosure of the particular pieces of

4

information that Plaintiffs identify.

5

such legal obligation is set forth clearly enough to be legally

6

binding upon them.

7

warn created by the most recent iterations of AR 70-25 is not owed

8

to class members who participated in experiments before these

9

versions were issued.

United States District Court
For the Northern District of California

10

They point out that the memoranda and

Thus, they argue that no

They also contend that any ongoing duty to

Each document, the Wilson Directive, CS: 385 and all versions

11

of AR 70-25, contains similar language providing that informed

12

consent must be obtained from test subjects and that such consent

13

includes being told the “nature, duration, and purpose” of the

14

testing, “the method and means by which it is to be conducted,”

15

“all inconveniences and hazards reasonably to be expected,” and

16

the effects upon health or person which may possibly come from

17

participation.

18

appear in the most recent versions of AR 70-25, it does appear in

19

Appendix E thereof.

20

513-13, 15; see also id. at 20 (setting forth definition of

21

informed consent, which “includes, when appropriate, those

22

elements listed in appendix E of this regulation”).

23

are correct that the wording of the regulations does not support

24

the exact definition of “notice” that Plaintiffs have put forth

25

here.

26

support the duty to provide some notice, specifically that listed

27

in the first sentence of this paragraph.

Although Defendants suggest that this does not

See Gardner Reply Decl., Ex. 87, Docket No.

Defendants

However, this does not mean that the regulations do not

28
31

1

The parties dispute whether Defendants have a “continuing

2

duty to provide updated information as it is acquired.”

3

Defendants argue that the regulations, except the most recent

4

versions of AR 70-25, address only the notice that researchers

5

were required to provide to subjects in order to provide informed

6

consent before participating in a test and do not create any

7

ongoing obligation to provide notice to test subjects after

8

testing was completed.

9

these documents are written does support that they are directed at

As Defendants contend, the manner in which

United States District Court
For the Northern District of California

10

the provision of informed consent prior to participation in the

11

experiments.

12

(“The 1962 version of AR 70-25 mandated the disclosure of

13

information so that volunteers could make informed decisions.”).

14

Further, Plaintiffs do not point to anything in the regulations

15

issued prior to 1988 that compels a contrary conclusion.

16

See First Order on Mot. to Dismiss, Docket No. 59

The most recent versions of AR 70-25 from 1988 through 1990

17

do contain a duty to warn that is manifestly and unambiguously

18

forward-looking in nature.

19

70-25 in the order on Plaintiffs’ motion for class certification,

20

the Court observed that, “by its terms, the section in the 1990

21

regulation regarding the duty to warn contemplates an ongoing duty

22

to volunteers who have already completed their participation in

23

research.”

24

Gardner Reply Decl., Ex. 87, Docket No. 513 13, 5 (1988 version of

25

AR 70-25, with the provision regarding the “duty to warn,” which

26

exists “even after the individual volunteer has completed his or

27

her participation in the research”).

In discussing the 1990 version of AR

Class Cert. Order, Docket No. 485, 40; see also

28
32

1

It is less clear whether this ongoing duty is owed to
individuals who participated in experiments before 1988 or whether

3

it is limited to only those who might have done so after AR 70-25

4

was revised in 1988.

5

and addresses the creation of a system that will allow the

6

“identification of volunteers who have participated in research”

7

so that they can be notified of newly acquired information, it

8

does not make clear whether it contemplates that the system would

9

include the volunteers who participated before it was created or

10
United States District Court
For the Northern District of California

2

if it would include only those who volunteered for research after

11

it was created, to allow them to be provided with additional

12

information in the future, after they had completed their

13

participation.

14

the Court previously noted, there is nothing in these documents

15

that “limits these forward-looking provisions to those people who

16

became test volunteers after the regulation was created.”

17

Cert. Order, Docket No. 485, 39-40.

18

nothing that clearly requires that these provisions apply to those

19

who became test volunteers before they were created.

20

as the Court also previously observed, “the definition for human

21

subject or experimental subject” contained in the 1988, 1989 and

22

1990 versions included, with limited exceptions, “a living

23

individual about whom an investigator conducting research obtains

24

data through interaction with the individual, including both

25

physical procedures and manipulations of the subject or the

26

subject’s environment,” and did not explicitly “exclude

27

individuals who were subjected to testing prior to the date of the

Although the provision uses the past tense

Gardner Decl., Ex. 49, Docket No. 496-57, 5.

28
33

As

Class

However, there is also

Although,

1

regulations,” id.

2

include these individuals.

3

at 40, this definition also did not clearly

Defendants argue that, in the face of ambiguous regulations,

4

the Court must defer to their reasonable interpretation of their

5

own regulations.

6

Defense and the Army testified that “this change in AR 70-25 has

7

an effective date of 1990, and it was not meant to retroactively

8

go back for all Army research conducted prior to that date

9

primarily because the system to effect duty to warn would have to

The Rule 30(b)(6) witness for the Department of

United States District Court
For the Northern District of California

10

be done at the time of research being conducted.”

11

Ex. 2, Docket No. 496-4, 151:6-11.5

12

order “[t]o be able to effect a duty to warn at the time a

13

research program is established,” the MACOM commander is required

14

“to establish a system to do that, to develop the roster and the

15

location of those individuals.”

16

testified that this “has to be part of the informed consent

17

process at the beginning of any research study” and “I do not see

18

how you can retrofit this requirement in completed studies.”

19

at 143:1-14.

20

don’t see how it’s possible for anyone to effect a duty to warn

21

for events that happened when such a system was not established.

22

In other words, prior to 1990.”

23

Gardner Decl.,

He also testified that, in

Id. at 139:19-140:1.

He further

Id.

He opined, “If there is no such system in place, I

Id. at 140: 8-12.

Generally, “agencies’ interpretations of their own

24

regulations are entitled to deference, even when their

25

interpretation of statutes is not.”

Price v. Stevedoring Servs.

26
27
28

5

As previously noted, neither Plaintiffs nor Defendants were
aware of the 1988 and 1989 versions of AR 70-25 until Defendants
filed the final brief on the instant cross-motions.
34

1

of Am., 697 F.3d 820, 828 (9th Cir. 2012); see also Christopher v.

2

SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (noting

3

that, under Auer v. Robbins, 519 U.S. 452 (1997), deference is

4

“ordinarily” given to “an agency’s interpretation of its own

5

ambiguous regulation”).

6

apply in all cases.”

7

is undoubtedly inappropriate, for example, when the agency’s

8

interpretation is ‘plainly erroneous or inconsistent with the

9

regulation,’” or “when there is reason to suspect that the

However, “this general rule does not

Christopher, 132 S. Ct. at 2166.

“Deference

United States District Court
For the Northern District of California

10

agency’s interpretation ‘does not reflect the agency’s fair and

11

considered judgment on the matter in question.’”

12

omitted).

13

conflicts with a prior interpretation, . . . or when it appears

14

that the interpretation is nothing more than a convenient

15

litigating position, . . . or a post hoc rationalization advanced

16

by an agency seeking to defend past agency action against attack.”

17

Id. (internal quotation marks, citations and formatting omitted).

Id. (citations

“This might occur when the agency’s interpretation

18

Where a court declines to give an interpretation Auer

19

deference, it accords the agency’s “interpretation a measure of

20

deference proportional to the ‘thoroughness evident in its

21

consideration, the validity of its reasoning, its consistency with

22

earlier and later pronouncements, and all those factors which give

23

it power to persuade.’”

24

United States v. Mead Corp., 533 U.S. 218, 228 (2001)).

25

amount of consideration will “vary with circumstances” and may be

26

“near indifference,” such as has been given in some cases when

27

considering an “interpretation advanced for the first time in a

Christopher, 132 S. Ct. at 2169 (quoting

28
35

This

1

litigation brief.”

2

at 212-13).

3

Mead, 533 U.S. at 228 (citing Bowen, 488 U.S.

Plaintiffs argue that the Court should not credit Defendants’

4

explanation and testimony because it is a “post-hoc

5

rationalization” and a “litigation argument.”

6

Opp. to Defs.’ Cross-Mot., Docket No. 502, 16.

7

that the reason they have advanced this explanation for the first

8

time here is that no one has attempted previously to interpret the

9

regulation in the way that Plaintiffs do.

Pls.’ Reply and
Defendants respond

Defendants also argue

United States District Court
For the Northern District of California

10

that the creation of the separate Medical Research Volunteer

11

Registry and Research and Experimental Case Files systems supports

12

their interpretation.

13

Defendants’ arguments are not persuasive.

As to their first

14

point, that they have not previously interpreted the regulation

15

does not mean that whatever interpretation they put forward now

16

must be adopted.

17

prior interpretation against which their current understanding can

18

be compared to determine whether they have maintained a consistent

19

position or not.

20

that Defendants’ current interpretation of AR 70-25 does not

21

reflect the Army’s fair and considered judgment on the matter.

22

According to their own briefs and admissions, they have developed

23

this interpretation only in the context of this litigation.

24

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988)

25

(“Deference to what appears to be nothing more than an agency’s

26

convenient litigating position would be entirely inappropriate.”);

27

see also Fed. Labor Relations Auth. v. United States Dep’t of

28

Treasury, 884 F.2d 1446, 1455 (D.C. Cir. 1989) (explaining reasons

Instead, this simply means that there is no

Further, there is substantial reason to suspect

36

See

1

for reluctance to defer to agency counsel’s litigating positions,

2

including that “a position established only in litigation may have

3

been developed hastily, or under special pressure, or without an

4

adequate opportunity for presentation of conflicting views”).

5

They did so in a context that suggests that they were under

6

special pressure to take this position to further the defense of

7

this action.

8

position was developed quickly and without a careful consideration

9

of AR 70-25 (1988) and the context in which it was issued and

Further, the record also suggests that Defendants’

United States District Court
For the Northern District of California

10

developed.

11

interpretation Defendants rely was mistaken about the date on

12

which the operative parts of the regulation were amended,

13

suggesting that he did not have a clear understanding of the

14

context in which these changes were made.

15

Notably, the agency representative upon whose

Further, the explanation put forward by the DOD and Army’s

16

Rule 30(b)(6) witness is simply not accurate.

17

commander must develop the database containing the test subjects

18

information at the beginning of the research study in order to

19

have the necessary information to carry out the duty to notify in

20

the future, if new information is uncovered later about the

21

possible effects of a test.

22

make such a database at the outset, it is also possible to create

23

one after the fact, using whatever information is available, as

24

the DOD in fact attempted to do when it created the database for

25

the DVA’s notice letters.

26

He reasons that the

However, although it may be easier to

Finally, Defendants’ argument regarding the file systems is

27

flawed.

28

Research Volunteer Registry supports that their proffered view is

Their explanation of the development of the Medical

37

1

a post-hoc rationalization of the development of AR 70-25 and its

2

meaning.

3

the Medical Research Volunteer Registry required by AR 70-25

4

(1990) to contain information about volunteers participating only

5

in current or future research, not tests completed decades ago.”

6

Defs.’ Opp. and Cross-Mot., Docket No. 495, 21.

7

that, in contrast, “in a separate notice published the same day,

8

the Army described” the Research and Experimental Case Files

9

database as including the past volunteers; Defendants suggest that

Defendants contend that “the Army intentionally created

They also argue

United States District Court
For the Northern District of California

10

this separate database was not created pursuant to AR 70-25.

11

at 20-21; Defs.’ Reply, Docket No. 513-1, 8-9.

12

Medical Research Volunteer Registry predated even the 1988

13

revision to AR 70-25 and thus was not created solely to fulfill

14

the requirement of that regulation.

15

as among the authorities for that Registry until it was replaced

16

in 2000 by the Medical Scientific Research Data Files system.

17

description for the new database created in 2000 removed the

18

language that referred to “current and future research” that had

19

appeared in the description for the Medical Research Volunteer

20

Registry.

21

some stated purposes of the new Medical Scientific Research Data

22

Files system created in 2000 included “[t]o answer inquiries and

23

provide data on health issues of individuals who participated in

24

research conducted or sponsored by” the Army and to “provide

25

individual participants with newly acquired information that may

26

impact their health.”

27

in the Medical Scientific Research Data Files to those who would

28

be test subjects in the future; instead, the use of the past tense

Id.

However, the

AR 70-25 also was not cited

Compare 58 F.R. 10,002, with 65 F.R. 75,250.

The

Further,

This language does not limit those included

38

1

suggests that it could encompass individuals who participated in

2

research in the past.

3

mandates that only one record system be created.

4

of the Research and Experimental Case Files database was “to

5

follow up on individuals who voluntarily participated in Army

6

chemical/biological agent research projects for the purpose of

7

assessing risks/hazards to them,” which is consistent with an

8

ongoing duty to notify them of such risks and hazards.

9

In addition, nothing about AR 70-25
A stated purpose

Accordingly, under the circumstances described above, the

United States District Court
For the Northern District of California

10

Court finds that deference to Defendants’ position on this issue

11

is not warranted.

12

Having considered the plain language of AR 70-25, the Court

13

concludes that Plaintiffs’ argument--that the duty to warn is

14

properly interpreted as applying on an on-going basis, not just as

15

part of the pre-experiment consent process, and is owed to service

16

members who became test subjects before 1988--is more persuasive.

17

This is consistent with the text itself, including the statement

18

that this duty is owed to individuals who have “participated” in

19

research, not just to those who will participate in such research.

20

This is also supported by the addition to the 1990 version of AR

21

70-25, which made clear that the regulation applied to research

22

involving “deliberate exposure of human subjects to nuclear

23

weapons effect, to chemical warfare agents, or to biological

24

warfare agents.”

25

does not “still conduct human experimentation with chemical and

26

biological warfare agents” and that its research programs

27

“involving human subjects do not involve the exposure of these

28

subjects to chemical or biological warfare agents” any longer.

The DOD, including the Army, represents that it

39

1

Gardner Reply Decl., Ex. 86, Docket No. 513-12, 2; see also Defs.’

2

Opp. and Cross-Mot., Docket No. 495, 2 (representing that the

3

“Army suspended testing of chemical compounds on human volunteers

4

on July 28, 1976” and that the program involving testing of

5

biological agents on humans ended in 1973).

6

not--and does not--engage in such ongoing testing, there would

7

have been no reason to add this language to AR 70-25 in 1990 if

8

the regulation did not encompass those who had already become such

9

test subjects.

United States District Court
For the Northern District of California

10

Because the Army did

Accordingly, the Court concludes that Defendants’ duty to

11

warn test subjects of possible health effects is not limited to

12

the time that these individuals provide consent to participate in

13

the experiments.

14

about newly acquired information that may affect the well-being of

15

test subjects after they completed their participation in

16

research.

17

test subjects prior to the time that the 1988 revision was issued.

18
19

Instead, Defendants have an ongoing duty to warn

This ongoing duty is owed to individuals who became

3. Sufficiency of action versus failure to act
Defendants contend, because “it is undisputed that DoD has

20

engaged in substantial outreach efforts to test participants over

21

the years,” both alone and in collaboration with the DVA, it is

22

“clear that Plaintiffs’ true complaint is with the sufficiency of

23

action DoD has already taken,” which is not cognizable under

24

§ 706(1) of the APA.

25

12; Defs.’ Reply, Docket No. 513-1, 2.

Defs.’ Opp. and Cross-Mot., Docket No. 495,

26

Plaintiffs respond that the Court should not “reverse its

27

ruling that Plaintiffs have stated a cognizable notice claim under

28

APA section 706(1).”

Id. at 16 (citing Order on First Mot. to
40

Dismiss, Docket No. 59, 14-16).

2

no dispute that the outreach actions were not taken “pursuant to

3

the applicable regulations,” citing testimony by Defendants’

4

witnesses that the outreach efforts were not conducted in order to

5

comply with AR 70-25.

6

No. 502, 15 n.13.

7

showing that DVA’s efforts can be substituted for those of the

8

Army or DOD, which have their own duty to provide notice.

9

Finally, Plaintiffs contend that they are challenging Defendants’

10
United States District Court
For the Northern District of California

1

failure to act and not the sufficiency of their outreach efforts.

11

They also contend that there is

Pls.’ Reply and Opp. to Defs.’ Mot., Docket

They further argue that Defendants have made no

Although the Court found when ruling on a motion to dismiss

12

that Plaintiffs stated a cognizable claim, Defendants have now

13

made a summary judgment motion on this issue and Plaintiffs must

14

raise a material dispute of fact in support of their claim, not

15

merely state a cognizable claim.

16

Plaintiffs, the Court did not address the challenge raised by

17

Defendants here.

18

did not identify AR 70-25 as the legal impetus for past outreach

19

efforts is unavailing.

20

taken all of the outreach steps that Plaintiffs maintain that they

21

should have, they could nonetheless be found to have failed to act

22

and be compelled to make redundant efforts.

23

Further, in the order cited by

Plaintiffs’ argument that Defendants themselves

Under this logic, even if Defendants had

Plaintiffs are correct that the notice letters were sent by

24

the DVA to veterans for whom addresses could be located, not by

25

the DOD or the Army.

26

for class certification, the DOD and the Army acknowledged that

27

the letters were from the DVA and that they could advise the DVA

28

on the content but could not require the DVA to make particular

As the Court noted in resolving the motion

41

1

changes to them.

2

Court concluded that, as a result, the class representatives’

3

receipt of these letters did not undermine their standing to

4

challenge the DOD’s and the Army’s failure to notify.

5

The Court found that this did not make certification under Rule

6

23(b)(2) inappropriate.

7

ruled on the current issue, whether Plaintiffs’ challenge is to

8

the sufficiency of agency action rather than to a lack of agency

9

action.

Class Cert. Order, Docket No. 485, 23, 51.

Id. at 51.

The

Id. at 23.

However, the Court has not

United States District Court
For the Northern District of California

10

The APA limits judicial review to “[a]gency action made

11

reviewable by statute and final agency action for which there is

12

no other adequate remedy in a court.”

13

action to be “final” under the APA, it “must mark the consummation

14

of an agency’s decision-making process” and “must be one by which

15

rights or obligations have been determined, or from which legal

16

conclusions will flow.”

17

(1997) (internal quotation marks and citations omitted).

18

of an agency’s failure to act may be considered an exception to

19

the final agency action requirement.

20

(allowing a reviewing court to “compel agency action unlawfully

21

withheld or unreasonably delayed”).

22

maintained “only where there has been a genuine failure to act.”

23

Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922,

24

926 (9th Cir. 1999).

25

plaintiffs to evade the finality requirement with complaints about

26

the sufficiency of an agency action ‘dressed up as an agency’s

27

failure to act.’”

28

714 n.11 (9th Cir. 1991)).

5 U.S.C. § 704.

For an

Bennett v. Spear, 520 U.S. 154, 177
Review

See 5 U.S.C. § 706(1)

A claim under § 706(1) can be

The Ninth Circuit “has refused to allow

Id. (quoting Nevada v. Watkins, 939 F.2d 710,

42

1

Here, Plaintiffs challenge the decision of the DOD and Army

2

to have the DVA send the notice letters to former servicemen with

3

information about their testing, in addition to arguing that the

4

notice letters themselves were insufficient for a variety of

5

reasons.

6

the preparation of the DVA’s letters and accompanying information,

7

although they did not have final say over the content of the

8

letters.

9

out their duty, not whether they did so at all.

It is undisputed that the DOD and Army participated in

Thus, the challenge here is to how Defendants carried
Accordingly, to

United States District Court
For the Northern District of California

10

the extent that Plaintiffs seek to require the DOD and Army to

11

provide notice to each class member which discloses on an

12

individual basis the substances to which he or she was exposed,

13

the doses to which he or she was exposed, the route of exposure

14

and the known effects of the testing, this claim is not brought

15

properly under § 706(1).

16

However, Plaintiffs also challenge the refusal of the Army to

17

carry out its ongoing duty to warn, that is, after the original

18

notice, and in the future, to provide test subjects with

19

information that is learned subsequently that may affect their

20

well-being.

21

not doing this on an ongoing basis.

22

their claim, here Plaintiffs do not challenge the sufficiency of

23

agency action and properly attack the Army’s failure to act.

24

Defendants have not provided evidence that they have sent any

25

updated information to test subjects since the DVA sent the notice

26

letters and do not acknowledge any intent or duty to do so.

There is no material dispute of fact that the Army is

27
28
43

Unlike the other aspects of

1
2

4. Conclusion
For the reasons set forth above, the Court grants in part

3

both Plaintiffs’ motion for summary judgment and Defendants’

4

cross-motion in part and denies them in part.

5

dismissed the claim based on the Wilson Directive and found no

6

basis for enforcing CS: 385 and AR 90-75 against the DOD, the

7

Court grants judgment in favor of the DOD on this claim in its

8

entirety.

9

Army to the extent that Plaintiffs seek to challenge its original

Because the Court

The Court also grants summary judgment in favor of the

United States District Court
For the Northern District of California

10

notice efforts.

11

of Plaintiffs that the Army has an ongoing duty to warn and orders

12

the Army, through the DVA or otherwise, to provide test subjects

13

with newly acquired information that may affect their well-being

14

that it has learned since its original notification, now and in

15

the future as it becomes available.

16

B. Claim for medical care

17
18

However, the Court summarily adjudicates in favor

1. Monetary damages
Defendants argue that they are entitled to summary judgment

19

on Plaintiffs’ claim for medical care because it is in fact a

20

claim for money damages, not for equitable relief, and thus the

21

APA’s waiver of sovereign immunity is inapplicable.

22

acknowledge that the Court considered this argument previously and

23

rejected it, but argue that the prior decision should be

24

reconsidered.

25

contend held that “claims similar to the medical care claim

26

against DOD are essentially claims for money damages and therefore

27

not cognizable under the APA.”

28

28-29 (citing Schism v. United States, 316 F.3d 1259, 1273 (Fed.

Defendants

They rely on two out-of-circuit cases which they

See Defs.’ Opp. and Cross-Mot. at

44

1

Cir. 2002); Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.

2

1979)).

3

related to their second motion to dismiss and Plaintiffs’ motion

4

for class certification and cited the same cases therein.

Defendants raised the same argument in the briefing

As noted above, in Schism, the Federal Circuit held that

6

compensation of members of the military, including claims for

7

benefits that were compensation for services rendered, was

8

governed by statute and not contract.

9

the plaintiffs were seeking comprehensive free lifetime health

10
United States District Court
For the Northern District of California

5

care coverage premised on an implied-in-fact contract based on

11

oral promises for such coverage made at the time that they were

12

recruited.

13

medical care is merely a form of pension, a benefit received as

14

deferred compensation upon retirement in lieu of additional cash,”

15

and thus there was “no meaningful difference between the

16

retirement benefits that the Supreme Court has identified as

17

beyond the reach of contracts and the full free medical care at

18

issue” in that case.

19

concluded that there were no valid contracts.

20

present case, however, is not about a benefit as a form of

21

deferred compensation for past military service.

22

about whether the government has a duty to pay for medical care to

23

address ongoing suffering caused by military testing.

24

316 F.3d at 1273.

There,

The Federal Circuit stated that “full free lifetime

Id. at 1273.

On that basis, the court
Id. at 1274.

The

Instead, it is

Defendants also renew their argument that this case is

25

“strikingly similar” to the claim brought in Jaffee.

26

case, the plaintiff alleged that, while he was serving in the Army

27

in 1953, he was ordered to stand in a field near the site of an

28

explosion of a nuclear device, without any protection against the
45

In that

1

radiation, and without his knowledge of or consent to the risks.

2

Jaffee, 592 F.2d at 714.

3

class of all soldiers who were ordered to be present at the

4

explosion, he sought an order requiring the United States to warn

5

class members of the medical risks that they faced and to provide

6

or subsidize medical care for them.

7

that “the request for prompt medical examinations and all medical

8

care and necessary treatment, in fact, is a claim for money

9

damages.”

Id. at 715.

On behalf of himself and a putative

Id.

The Third Circuit found

It noted that the plaintiff “requests a

United States District Court
For the Northern District of California

10

traditional form of damages in tort compensation for medical

11

expenses to be incurred in the future.”

12

complaint seeks an injunction ordering either the provision of

13

medical services by the Government or payment for the medical

14

services,” and that thus “payment of money would fully satisfy

15

Jaffee’s ‘equitable’ claim for medical care.”

16

found that the payment of money could not satisfy the claim

17

regarding warning of medical risks.

18

States v. Price, 688 F.2d 204 (3d Cir. 1982), the Third Circuit

19

found appropriate the funding of a diagnostic study to assess the

20

public health threat posed by contamination and abatement because,

21

“though it would require monetary payments,” it “would be

22

preventative rather than compensatory” and was intended as “the

23

first step in the remedial process of abating an existing but

24

growing toxic hazard which, if left unchecked, will result in even

25

graver future injury.”

26

subsequently explained the principle derived from Jaffee and Price

27

to be “that an important factor in identifying a proceeding as one

28

to enforce a money judgment is whether the remedy would compensate

Id. at 212.

46

Id.

Id.

It stated that “his

Id.

The court also

In another case, United

The Third Circuit

1

for past wrongful acts resulting in injuries already suffered, or

2

protect against potential future harm.”

3

of Environmental Resources, 733 F.2d 267, 276-277 (3d Cir. 1984).

4

Here, Plaintiffs have not conceded, as the plaintiff in Jaffe did,

5

that their claim for medical care could be fully remedied by money

6

damages, and Defendants have not shown that it could be.

7

they seek to end purported ongoing rights violations and harm, not

8

compensation for harms that took place completely in the past.

9

Future medical treatment for ills suffered as a result of

Penn Terra, Ltd. v. Dep’t

Further,

United States District Court
For the Northern District of California

10

participation in human experimentation can be seen as preventing

11

future potential harm and suffering.

12
13

Accordingly, the Court denies Defendants’ motion for summary
judgment on this basis.

14

2. DVA medical care as an adequate alternate remedy

15

Under the APA, “only ‘agency action made reviewable by

16

statute and final agency action for which there is no other

17

adequate remedy in a court’ are subject to judicial review.”

18

Tucson Airport Auth. v. General Dynamics Corp., 136 F.3d 641, 645

19

(9th Cir. 1998) (quoting 5 U.S.C. § 704).

20

The DVA, through its Veterans Health Administration, is

21

charged with providing “a complete medical and hospital service

22

for the medical care and treatment of veterans.”

23

§ 7301(b).

24

and medical services “to any veteran for a service-connected

25

disability.”

26

service-connected disability will receive VA care provided for in

38 U.S.C.

Congress has mandated that it provide hospital care

38 U.S.C. § 1710.6

Thus, a “veteran who has a

27
6

28

“Disability” is defined as “a disease, injury, or other physical
or mental defect.” 38 U.S.C. § 1701(1).
47

1

the ‘medical benefits package’ . . . for that service-connected

2

disability,” even if that veteran is “not enrolled in the VA

3

healthcare system.”

4

for service-connected disabilities, veterans are not subject to

5

any copayment or income eligibility requirements.

6

§§ 17.108(d)(1),(e)(1), 17.111(f)(1),(3).

7

38 C.F.R. § 17.37(b).

When receiving care

38 C.F.R.

If a veteran disagrees with a decision made by the DVA about

8

benefits or service-connection, the veteran may appeal the

9

decision to the Board of Veterans’ Appeals.

38 U.S.C. § 7105.

United States District Court
For the Northern District of California

10

Thereafter, decisions of the Board of Veterans’ Appeals can be

11

appealed to the Court of Appeals for Veterans Claims.

12

§ 7252.

38 U.S.C.

13

Defendants argue that there is no waiver of sovereign

14

immunity under the APA for the health care claim against the DOD

15

and the Army because there is an adequate remedy for Plaintiffs

16

through the DVA’s health care system and the statutory scheme for

17

review of denial of claims made therein.

18

Mot., Docket No. 495, 31-32.

19

will not be able to establish that they lack an adequate remedy

20

for their health care claims elsewhere.

Defs.’ Opp. and Cross-

They also assert that Plaintiffs

Id. at 32.

21

Plaintiffs respond that DVA medical care does not adequately

22

redress their claim because “the DVA system is powerless to grant

23

the equitable relief Plaintiffs seek.”

24

Docket No. 502, 25.

25

declaration that the DOD and the Army have a duty to provide them

26

with medical care and an injunction requiring these agencies to

27

provide examinations, medical care and treatment and to establish

28

policies and procedures governing these.

Pls.’ Reply and Opp.,

In the instant case, Plaintiffs seek a

48

1

Defendants reply that Plaintiffs’ “alleged injuries can be

2

redressed through” another available and adequate remedy, even if

3

that remedy is not the precise one that they demand.

4

Reply, Docket No. 513-1, 13.

5

Defs.’

Plaintiffs have not provided evidence of a material dispute
of fact that they do not have an adequate remedy to redress their

7

injuries through the DVA health care system.

8

of Veterans’ Appeals and Court of Appeals for Veterans Claims

9

cannot direct the DOD and the Army to provide medical care to

10
United States District Court
For the Northern District of California

6

Plaintiffs, they can provide a remedy to redress the injuries

11

complained of here, by requiring that the DVA provide medical care

12

to Plaintiffs for their service-connected injuries.

13

Sullivan, 902 F.2d 84, 90 (D.C. Cir. 1990) (noting that federal

14

courts have “interpreted the APA to bar suits where a plaintiff’s

15

injury may be remedied in another action, even if that remedy

16

would have no effect upon the challenged agency action”) (internal

17

quotation marks omitted).

18

Although the Board

See Coker v.

The cases cited by Plaintiffs, Bowen v. Massachusetts, 487

19

U.S. 879 (1988), and Tucson Airport Auth. v. General Dynamics

20

Corp., 136 F.3d 641 (9th Cir. 1998), do not counsel otherwise.

21

those cases, the courts considered whether an adequate remedy for

22

the parties’ claims was available in the Court of Federal Claims

23

and concluded that there was not, because the parties sought

24

equitable relief that could not satisfied by a monetary judgment

25

and the Court of Federal Claims could not hear equitable claims.

26

Here, an alternate remedy, the provision of medical care by a

27

different government agency, can be ordered by the Board of

28

Veterans’ Appeals and Court of Appeals for Veterans Claims.
49

In

1

Plaintiffs assert in their response that the Court has

2

previously noted that Plaintiffs’ ability to seek health care from

3

the DVA “does not necessarily relieve the DOD and the Army from

4

being required independently to provide medical care, particularly

5

because Plaintiffs may be able to establish that the scope of

6

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

7

Docket No. 502, 18 (citing Class Cert. Order, Docket No. 485, 25).

8

However, Plaintiffs have not offered any evidence to support that

9

the duty of DOD and the Army is in fact any broader than that of

Pls.’ Reply,

United States District Court
For the Northern District of California

10

the DVA.

11

eligible for medical care from the DVA, “they are not receiving

12

this medical care from the DVA.”

13

No. 519, 1.

14

members can challenge the DVA’s failure to provide medical care

15

through the statutorily-created appeals scheme.

16

although Plaintiffs suggest that the quality of medical care

17

provided by the DVA is inferior to that of the DOD and the Army,

18

they have not shown that the care is inadequate or that they are

19

unable to address any inadequacies through the DVA system.

20

extent that Plaintiffs argue that the DVA medical care is a

21

“rationing system,” apparently referring to the fact that not all

22

veterans may enroll in the DVA’s comprehensive medical care

23

program, no such rationing is imposed on the duty of the DVA to

24

provide no-cost care to veterans for service-connected

25

disabilities.7

Plaintiffs contend that, even if class members are

Pls.’ Post-Hearing Resp., Docket

This, however, does not undermine the fact that class

In addition,

To the

Plaintiffs also speculate, “It is possible that

26
27
28

7

In addition to providing veterans with medical care for serviceconnected disabilities, the DVA offers eligible veterans a
“medical benefits package” of basic and preventive care that
50

1

many class members are not even eligible for DVA medical care,”

2

id. (citing 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12), but provide no

3

evidence that there are any such class members.

4

To the extent that Plaintiffs argue that the organizational

5

Plaintiffs are unable to bring their medical care claims through

6

the DVA system and thus have no adequate alternative remedy, this

7

argument is unavailing.

8

these organizations has its own right to medical care.

9

to the extent that the organizational Plaintiffs are asserting the

Plaintiffs have not shown that either of
Further,

United States District Court
For the Northern District of California

10

rights of the members of their organizations, those members can

11

seek care through the DVA for any disabilities, injuries or

12

illnesses suffered as a result of participation in the

13

experimentation program.

14

prevail on claims here that their members cannot prevail upon

15

directly.

The organizational Plaintiffs may not

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

includes outpatient and inpatient medical, surgical, and mental
health care, prescription drugs coverage, emergency care,
comprehensive rehabilitative care and other services. 38 C.F.R.
§ 1738(a). To receive the medical benefits package, a veteran
must generally be enrolled in the DVA health-care system. 38
C.F.R. §§ 17.36(a), 17.37. Veterans who qualify for enrollment
are placed into one of eight priority groups. 38 C.F.R.
§ 17.36(b). Assignment to a priority group involves a
consideration of factors including income and a percent rating
that attempts to quantify the decrease in veterans’ earning
capacity based on their service-connected disability. 38 C.F.R.
§§ 4.1, 17.36(b).
The Secretary determines, based on the
“relevant internal and external factors, e.g., economic changes,
changes in medical practices, and waiting times to obtain an
appointment for care,” which priority groups will actually be
eligible for enrollment. 38 C.F.R. § 17.36(b),(c). Presently,
the DVA enrolls veterans in all priority categories, except those
in subcategories (v) and (vi) of priority category eight, which
consists of “Noncompensable zero percent service-connected
veterans” and “Nonservice-connected veterans” who do not meet
certain income guidelines or moved from a higher priority
category. 38 C.F.R. § 17.26(b)(8), (c)(2).
51

1

Accordingly, the Court concludes that Defendants are entitled

2

to summary adjudication that sovereign immunity has not been

3

waived with regard to this claim because Plaintiffs and the class

4

members can seek medical care through the DVA and challenge any

5

denial of care through the statutory scheme prescribed by

6

Congress.

7

II.

8
9

Constitutional claims
In their cross-motion, Defendants also seek judgment on

Plaintiffs’ constitutional claims against the DOD and the Army

United States District Court
For the Northern District of California

10

related to notice and health care.

11

summary judgment on these claims.

Plaintiffs have not moved for

12

Defendants argue that there is no constitutional right for

13

access to government information, so Plaintiffs’ constitutional

14

claim for notice fails, and that there is no constitutional right

15

to free health care, so Plaintiffs’ claim for health care fails.

16

Defendants further contend that no court has ever granted a

17

request for continuing health care based on a violation of a

18

substantive due process right to bodily integrity.

19

they also state, “Because Plaintiffs cannot identify any

20

substantive entitlement to Notice or health care under the APA or

21

Constitution, their procedural due process claims regarding the

22

alleged absence of any procedures to challenge the deprivation of

23

Notice and health care should be dismissed.”

24

Cross-Mot. at 43.

25

In a footnote,

Defs.’ Opp. and

Plaintiffs argue that Defendants did not move on their actual

26

Constitutional claims and so the burden of production never

27

shifted to Plaintiffs.

28

be granted summary judgment on those claims.

Thus, they contend Defendants should not

52

1

As summarized in the class certification order, Plaintiffs

2

asserted the following constitutional claims against the DOD and

3

the Army in this case:

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14

(2) under the Fifth Amendment, that these Defendants’
failure to provide class members with notice, medical
care and a release from secrecy oaths violated their
substantive due process liberty rights, including their
right to bodily integrity;
(3) under the Fifth Amendment, that these Defendants’
failure to provide class members with any procedures
whatsoever to challenge this deprivation violated their
procedural due process rights;
(4) under the Fifth Amendment, that these Defendants’
failure to comply with their own regulations and
procedures regarding notice and medical care deprived
class members of their due process rights; and
(5) under the First and Fifth Amendment, that the
failure to provide a release from secrecy oaths
prevented class members from filing claims for benefits
with the DVA and thereby violated their right of access
to the courts.

15

Docket No. 485, 10 (numbering in original).

16

Court certified only one claim, that brought under the Fifth

17

Amendment for Defendants’ failure to comply with their own

18

regulations, to proceed on a class-wide basis.

19

certification as to the other constitutional claims.

20

Of these claims, the

The Court denied

In their motion, Defendants clearly address Plaintiffs’

21

second claim for deprivation of substantive due process rights,

22

including the right to bodily integrity, the third claim for

23

violation of their procedural due process rights by depriving them

24

of their protected interest without providing them with procedures

25

by which to challenge the deprivation, and the fifth claim

26

regarding access to the courts.

27

Docket No. 495, 41-43 & n.42, 49-50.

28

substantively to Defendants’ challenges to these claims, asserting

Defs.’ Opp. and Cross-Mot.,

53

Plaintiffs do not respond

1

incorrectly that Defendants ignore these claims.

2

Reply and Opp., Docket No. 502, 21, 23 n.22.

3

Court grants Defendants’ motion for summary judgment on the

4

second, third and fifth claims against the Army and DOD.

5

See, e.g., Pls.’

Accordingly, the

Plaintiffs also dispute that Defendants properly moved on the

6

fourth claim.

7

that they moved “on all claims raised and remaining in Plaintiffs’

8

Fourth Amended Complaint.”

9

495; see also id. at 1 (arguing that “Plaintiffs’ constitutional

Defendants made clear in the notice of their motion

Defs.’ Opp. and Cross-Mot., Docket No.

United States District Court
For the Northern District of California

10

claims,” without any limitation, “are similarly baseless and

11

should be dismissed”).

12

cannot identify any substantive entitlement to Notice or health

13

care under the APA or the Constitution” and thus “their procedural

14

due process claim regarding the alleged absence of any procedures

15

to challenge the deprivation of Notice and health care should be

16

dismissed.”

17

In their reply, they further explained that not “every violation

18

of a regulation amount[s] to a violation of an individual’s due

19

process rights,” that Plaintiffs cannot show the agency

20

regulations at issue here have themselves created a constitutional

21

right to those procedures and thus that there is no constitutional

22

claim for violation of those regulations.

23

No. 513-1, 15.

24

Defendants also argued that “Plaintiffs

Defs.’ Opp. and Cross-Mot., Docket No. 495, 43 n.42.

Defs.’ Reply, Docket

In response, Plaintiffs rely on cases in which courts have

25

held that agencies are bound to follow their own regulations and

26

that failure to do so may violate the due process clause.

27

However, Defendants are correct that such a failure does not

28

always amount to a constitutional violation.
54

See United States v.

1

Caceres, 440 U.S. 741, 752-753 (1979) (finding no constitutional

2

violation where the IRS “admittedly” failed to follow its own

3

regulations, on the basis that it was not “a case in which the Due

4

Process Clause is implicated because an individual has reasonably

5

relied on agency regulations promulgated for his guidance or

6

benefit and has suffered substantially because of their violation

7

by the agency”).

8
9

United States District Court
For the Northern District of California

10
11

Plaintiffs have not shown that here.

Accordingly, Defendants’ motion for summary judgment on
Plaintiffs’ constitutional claims is granted.
III. Secrecy oath claims
Defendants move for summary judgment on Plaintiffs’

12

individual claims against the DOD, the Army and the CIA based on

13

secrecy oaths.

14

A. Claims against the CIA

15

Defendants argue that the CIA is entitled to summary judgment

16

on Plaintiffs’ individual secrecy oath claims against that agency

17

for a number of reasons.

18

produce no evidence that the CIA ever administered secrecy oaths

19

to any individual Plaintiff or VVA member.

20

that the claims are moot because the CIA provided a sworn

21

declaration in June 2011 attesting that the individual Plaintiffs

22

and identified VVA members did not give secrecy oaths to the CIA

23

and releasing them from any secrecy oath that they believed that

24

they might have with the CIA.

25

cannot release individuals from a secrecy oath administered by the

26

DOD or the Army.

27
28

First, they contend that Plaintiffs can

Second, they assert

Finally, they argue that the CIA

Plaintiffs do not dispute that they cannot provide any
evidence that the CIA administered secrecy oaths or that
55

1

declaratory relief against the CIA that addressed the validity of

2

DOD or Army secrecy oaths would be ineffective.

3

that they have received all relief that they desired on this claim

4

in relation to the individuals released by the CIA through the

5

June 2011 declaration.

6

entire claim against the CIA, “[i]n light of the CIA’s statement

7

that the secrecy oath release encompasses all VVA members,” and

8

that they “submit that claim to the Court.”

9

Docket No. 502, 36.

United States District Court
For the Northern District of California

10

They also concede

They state that this extends to their

Pls.’ Reply and Opp.,

Defendants reply that Plaintiffs mischaracterized their

11

response.

12

the VVA members who were identified by name therein and did not

13

encompass an additional twenty-seven VVA members whom Plaintiffs

14

identified as having been test participants for the first time six

15

months after the close of discovery.

16

They state that the 2011 declaration encompassed only

Irrespective of whether those additional twenty-seven VVA

17

members were released from any possible secrecy oaths through the

18

2011 declaration, the Court grants Defendants’ motion for summary

19

judgment on the secrecy oath claim against the CIA.

20

have not produced any evidence that any secrecy oaths were

21

administered by the CIA, or are fairly traceable to the CIA,

22

involving any Plaintiff or VVA member, including those twenty-

23

seven individuals who were identified later.

Plaintiffs

24

B. Claims against the DOD and the Army

25

Defendants also move for summary judgment on the secrecy oath

26

claims against the DOD and Army.

27

have not presented any evidence that they or the VVA members

28

currently feel restrained by any such oath and that Defendants

Defendants argue that Plaintiffs

56

1

have issued two memoranda releasing them already.

2

that, as a result, Plaintiffs lack standing to pursue this claim.

They contend

3

Plaintiffs respond that the Court already has rejected this

4

argument when it refused to hold that certain Plaintiffs and VVA

5

members lacked standing at the class certification stage.

6

However, as Defendants point out, Plaintiffs presently have the

7

burden to establish that there is at least a genuine issue of

8

material fact as to standing of each Plaintiff.

9

Commerce v. U.S. House of Representatives, 525 U.S. 316, 329

See Dep’t of

United States District Court
For the Northern District of California

10

(1999) (“To prevail on a Federal Rule of Civil Procedure 56 motion

11

for summary judgment . . ., mere allegations of injury are

12

insufficient.

13

exists no genuine issue of material fact as to justiciability or

14

the merits.”).

Rather, a plaintiff must establish that there

15

Plaintiffs assert that “it is clear that” they “‘could

16

benefit from equitable relief that would invalidate the secrecy

17

oaths altogether.”

18

in the instant motion, they have not cited any evidence to support

19

that they or the VVA members still suffer ongoing effects of the

20

oaths, such as fear of prosecution.

21

cited the evidence regarding Dufrane relied upon by the Court in

22

the class certification order, but do not address the arguments

23

raised by Defendants regarding the other individuals.

Pls.’ Reply and Opp., Docket No. 36.

However,

At the hearing, Plaintiffs

24

In the class certification order, the Court noted that

25

Plaintiffs had offered “evidence that Dufrane testified that he

26

continued to feel bound by the secrecy oath to some extent” and

27

that there was no evidence cited that showed that Defendants had

28

communicated an unconditional release to him.
57

Class Cert. Order,

1

Docekt No. 485, 28-29.

2

Dufrane’s deposition, in which he stated he did not think that he

3

was allowed to talk about his experiences at Edgewood Arsenal

4

“completely” because he had been told not to talk about some

5

aspects of what happened and that he still felt constrained by the

6

secrecy.

7

however, that there was nothing in his memory that he could

8

identify that he wants to talk about but is unable to.

9

94:17-23.

Defendants again offer testimony from

See Docket No. 496-64, 92:1-94:16.

He went on to state,

Id. at

In addition, Defendants have now offered evidence that

United States District Court
For the Northern District of California

10

Dufrane had seen the 1993 Perry memorandum prior to his

11

deposition.

12

unconditional release from any secrecy oath that had been given.

13

In light of the facts that a full release was communicated to

14

Dufrane, and that there is nothing in particular that he presently

15

feels that he is prevented from speaking about, although he feels

16

generally constrained, he will not receive a benefit from a

17

further declaration “that Plaintiffs are released from any

18

obligations or penalties under their secrecy oaths.”

19

Compl. ¶ 183.

20

Defendants’ argument that there can be no showing of future threat

21

of prosecution because there have not been any such enforcement

22

actions in the past.

As quoted above, that memorandum provided a full and

Fourth Am.

Finally, Plaintiffs do not offer any response to

23

Accordingly, the Court grants Defendants’ motion for summary

24

judgment on the secrecy oath claims against the DOD and the Army.

25

IV.

Claim that DVA is a biased adjudicator of benefits claims

26

Defendants seek summary judgment on Plaintiffs’ claims

27

against the DVA for biased adjudication of their benefits claims.

28

Defendants argue that 38 U.S.C. § 511 deprives this Court of
58

1

jurisdiction over this claim because it bars consideration of the

2

relief that Plaintiffs seek.

3

cannot establish a genuine issue of material fact as to whether

4

DVA was involved in the testing programs at issue here.

5

they contend that Plaintiffs cannot make a sufficient showing that

6

the DVA was an inherently biased adjudicator of their benefits

7

claims.

They also argue that Plaintiffs

Finally,

8

A. Section 511

9

Defendants have previously argued on two occasions that § 511

United States District Court
For the Northern District of California

10

deprives this Court of jurisdiction to hear this claim, and on

11

both occasions, the Court has rejected the argument.

12

No. 177, 8-11; Docket No. 485, 31-34.

13

they are now making a new argument, which the Court has not

14

addressed: that the relief sought by Plaintiffs cannot be granted

15

under § 511.

16

decisions were correct and do not address Defendants’ purportedly

17

new argument.

See Docket

Defendants contend that

Plaintiffs respond simply that the Court’s prior

18

Section 511 provides,

19

The Secretary shall decide all questions of law and fact
necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary
to veterans or the dependents or survivors of veterans.
Subject to subsection (b), the decision of the Secretary
as to any such question shall be final and conclusive
and may not be reviewed by any other official or by any
court, whether by an action in the nature of mandamus or
otherwise.

20
21
22
23
24
25

38 U.S.C. § 511(a).
In granting Plaintiffs leave to amend assert this claim

26

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

27

federal district courts from reviewing challenges to individual

28

benefits determinations, even if they are framed as constitutional
59

1

challenges.”

2

§ 511 on claims that “purport not to challenge individual benefits

3

decisions, but rather the manner in which such decisions are

4

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

5

the Court reviewed several decisions from other circuit courts of

6

appeals that did address this issue.

7

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

8

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

9

set forth in Broudy and Beamon, the Court held,

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Docket No. 177, 8.

At that time, the effect of

Id.

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).
Docket No. 177, 11.
Defendants later moved for leave to file a motion for
reconsideration of this order, asserting that the Ninth Circuit’s
recent decision in Veterans for Common Sense v. Shinseki, 678 F.3d
1013 (2012), compelled a different result.

The Court rejected

this argument, finding that “Veterans for Common Sense does not
require reconsideration of the Court’s prior conclusion.”
No. 485, 33.

This Court explained,

27
28

Thus,

In that case, two nonprofit organizations challenged
delays in the provision of care and adjudication of
60

Docket

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
18
19

claims by the DVA and the lack of adequate procedures
during the claims process. The court found that the
challenges to delays were barred by § 511, because to
adjudicate those claims, the district court would have
to examine the circumstances surrounding the DVA’s
provisions of benefits to individual veterans and
adjudication of individual claims. Id. at 1027-30.
However, after discussing the decisions reached by other
circuits in Broudy, Beamon and several other cases, the
court concluded that it did have jurisdiction over the
claims seeking review of the DVA’s procedures for
handling benefits claims at its regional offices. Id.
at 1033-35. In so holding, the court stated that,
unlike the other claims, this claim “does not require us
to review ‘decisions’ affecting the provision of
benefits to any individual claimants” and noted that the
plaintiff “does not challenge decisions at all.” Id. at
1034.
In Veterans for Common Sense, the Ninth Circuit 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
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.

20

678 F.3d at 1034.

21

Ninth Circuit considered some of the same authority and applied a

22

similar standard as this Court did in its earlier order,” and thus

23

concluded that it “would have reached the same conclusion if it

24

had had the benefit of the decision in Veterans for Common Sense

25

at that time.”

26

In its prior order, this Court found that “the

Docket No. 485, 34.

Defendants now argue that the Court’s assessment of the

27

“manner in which the VA determines benefits eligibility . . .

28

plainly implicates ‘decisions that relate to benefits
61

1

determination.’”

2

the claim for which the Ninth Circuit found jurisdiction in

3

Veterans for Common Sense, evaluating whether the risk of actual

4

bias is too high to be constitutionally tolerable is “sufficiently

5

independent of any VA decision as to an individual veteran’s claim

6

for benefits that § 511 does not bar” this Court’s jurisdiction.

7

See 678 F.3d at 1034.

8
9

Defs.’ Opp. and Cross-Mot. at 52.

However, like

To the extent that Defendants now contend that Veterans for
Common Sense does not allow the Court to issue the relief that

United States District Court
For the Northern District of California

10

Plaintiffs seek, the Court rejects this argument.

11

in addressing the plaintiff’s claim that delays in the provision

12

of mental health care violated the APA and the Constitution, the

13

Ninth Circuit noted that

14
15
16
17
18
19
20

In that case,

in order to provide the relief that VCS seeks, the
district court would have to prescribe the procedures
for processing mental health claims and supervise the
enforcement of its order. To determine whether its
order has been followed, the district court would have
to look at individual processing times. . . . [I]t would
embroil the district court in the day-to-day operation
of the VA and, of necessity, require the district court
to monitor individual benefits determinations.
Id. at 1028.
Here, Plaintiffs seek a declaration that the DVA’s decisions

21

regarding entitlement to SCDDC and medical care are “null and

22

void” and an “injunction forbidding defendants from continuing to

23

use biased decision makers to decide their eligibility” for

24

benefits.

25

plan to remedy denials of affected claims for SCDDC and/or

26

eligibility for medical care based upon service connection”).

27

the extent that Plaintiffs request that the Court reverse the past

28

benefits determinations made by the DVA--or at least the denials--

Fourth Am. Compl. ¶¶ 233-34; see also id. (seeking “a

62

To

1

their claims are not “sufficiently independent” of any VA decision

2

on an individual veteran’s claim for benefits.

3

the extent that Plaintiffs seek an order vacating all past

4

benefits determinations and requiring that they be re-adjudicated,

5

the Court finds that it lacks jurisdiction to do so.

6

Accordingly, to

However, Plaintiffs also ask that the Court issue “an order

7

directing the DVA . . . to devise procedures for resolving such

8

claims that comply with the due process clause, which involve, at

9

a minimum, an independent decision maker, all to be submitted to

United States District Court
For the Northern District of California

10

the Court for advance approval.”

11

compliance with such a plan as to adjudications of future claims

12

would not require the Court to look at individual benefits

13

determinations, but rather to consider who will adjudicate the

14

claims.

15

Ninth Circuit in Veterans for Common Sense because it involves the

16

“consideration of the constitutionality of the procedures in

17

place, which frame the system by which a veteran presents his

18

claims to the VA,” and not the “consideration of the decisions

19

that emanate through the course of the presentation of those

20

claims.”

21

consider Plaintiffs’ claim for prospective injunctive and

22

declaratory relief.

Id. at ¶ 234.

Monitoring

Plaintiffs’ request is similar to that permitted by the

678 F.3d at 1034.

Thus, the Court has jurisdiction to

23

B. DVA’s purported bias

24

“The crux of Plaintiffs’ claim” against the DVA is that,

25

“‘because the DVA allegedly was involved in the testing programs

26

at issue, the agency is incapable of making neutral, unbiased

27

benefits determinations for veterans who were test participants,’”

28

which “‘renders the benefits determination process
63

1

constitutionally defective.’”

2

502, 23 (quoting Class Cert. Order, Docket No. 485, 32).

3

Pls.’ Reply and Opp., Docket No.

“There are two ways in which a plaintiff may establish that
he has been denied his constitutional right to a fair hearing

5

before an impartial tribunal.”

6

741 (9th Cir. 1995).

7

surrounding circumstances may demonstrate actual bias on the part

8

of the adjudicator.”

9

pecuniary or personal interest in the outcome of the proceedings

10
United States District Court
For the Northern District of California

4

may create an appearance of partiality that violates due process,

11

even without any showing of actual bias.”

12

(citations omitted); see also United States v. Oregon, 44 F.3d

13

758, 772 (9th Cir. 1994) (stating that the plaintiffs “must show

14

an unacceptable probability of actual bias on the part of those

15

who have actual decisionmaking power over their claims”); Exxon

16

Corp. v. Heinze, 32 F.3d 1399, 1403 (9th Cir. 1994) (“the

17

Constitution is concerned not only with actual bias but also with

18

‘the appearance of justice’”).

19

of unconstitutional bias, a plaintiff must ‘overcome a presumption

20

of honesty and integrity’ on the part of decisionmakers.”

21

Stivers, 71 F.3d at 741.

22

prejudged, or reasonably appears to have prejudged, an issue.’”

23

Id.; see also Caperton v. A. T. Massey Coal Co., 556 U.S. 868,

24

883-884 (2009) (“In defining these standards the Court has asked

25

whether, ‘under a realistic appraisal of psychological tendencies

26

and human weakness,’ the interest ‘poses such a risk of actual

27

bias or prejudgment that the practice must be forbidden if the

Stivers v. Pierce, 71 F.3d 732,

“In some cases, the proceedings and

Id.

“In other cases, the adjudicator’s

Stivers, 71 F.3d at 741

“In attempting to make out a claim

“He must show that the adjudicator ‘has

28
64

1

guarantee of due process is to be adequately implemented.’”)

2

(citation omitted).

3

Plaintiffs argue that the DVA as an agency appears to be

4

biased because it was involved in the testing at issue here.

5

Plaintiffs have offered evidence that a CIA memorandum identified

6

the DVA as among the suppliers of chemicals used for tests, which,

7

when conducted on humans, were carried out jointly with the Army

8

and Edgewood Arsenal.

9

Defendants do not dispute, that the DVA separately carried out

Plaintiffs also offer evidence, which

United States District Court
For the Northern District of California

10

human testing using some of the same substances that were used in

11

the testing programs at issue here, including LSD, mescaline,

12

thorazine, atropine and scopolamine.

13

Plaintiffs’ evidence as true, this is not sufficient to support a

14

conclusion that the probability of bias or prejudgment on the part

15

of all of the DVA adjudicators was “intolerably high,” so as to

16

result in a constitutional violation.

17

35, 57 (1975).

18

the substances that the DVA provided to Defendants were actually

19

used at all, much less that they were used on humans who were

20

service members.

21

necessarily mean that its adjudicators would have an interest in

22

deciding claims in an inherently biased fashion.

23

point out, Plaintiffs’ evidence shows that, after the DVA began

24

receiving claims for benefits related to LSD testing, it

25

proactively sought to learn more about the long-term effects of

26

the drug in order to adjudicate the claims.

27

Decl., Ex. 22, Docket No. 503-9, DVA135 000062.

28

that the DVA sought to resolve such claims properly, not that it

However, accepting all of

Withrow v. Larkin, 421 U.S.

Plaintiffs have not offered evidence to show that

In addition, the DVA’s involvement did not

65

As Defendants

See Patterson Reply
This suggests

1

sought to avoid responsibility for providing care.

2

Plaintiffs have not demonstrated that there is any connection

3

between the DVA’s participation in the testing and the

4

adjudicators at the agency who actually resolve their disability

5

claims.

6

the Veterans Benefits Administration, an arm of the DVA separate

7

from the Veterans Health Administration, the arm of the agency

8

which conducted research into the same substances as used in the

9

testing programs at issue.

Further,

As Defendants point out, these claims are adjudicated by

See United States v. Oregon, 44 F.3d

United States District Court
For the Northern District of California

10

at 772 (characterizing plaintiff’s proffered evidence of bias by

11

the Oregon Department of Justice as “fairly weak” where, among

12

other things, plaintiff had not shown that any officials involved

13

in the prior actions it contended showed bias would be involved in

14

the challenged adjudication).

15

is too meager to support the existence of an appearance of bias

16

that permeates the entire agency.

17

The evidence Plaintiffs offer here

This conclusion is consistent with Ninth Circuit precedent,

18

in which the court rejected claims of institutional bias where

19

there was insufficient evidence to support that the adjudicative

20

body itself, as opposed to an affiliated person or agency, was

21

biased.

22

the state of Oregon’s administrative procedures for determining

23

water rights.

24

Department of Justice, which provided legal advice to the Oregon

25

Water Resources Department (OWRD), the agency charged with

26

adjudicating their claims, had previously taken litigating

27

positions against the Tribe’s water rights.

28

Circuit rejected the claim, finding that the Tribe had not shown

In United States v. Oregon, the Klamath Tribe challenged

44 F.3d at 771.

The Tribe argued that the Oregon

66

Id.

The Ninth

1

that the ODOJ would have “any significant role to play in the

2

adjudication or any impact on its outcome” and thus had failed to

3

show “an unacceptable probability of actual bias by the actual

4

decisionmakers.”

5

court considered a claim by a landowner who asserted that the

6

hearing procedures employed by the Assessment Appeals Board for

7

Orange County, when considering his challenge to the County

8

Assessor’s valuation of his property and assessment of property

9

taxes, violated his due process rights.

Id. at 772.

Similarly, in a recent case, the

William Jefferson & Co.

United States District Court
For the Northern District of California

10

v. Bd. of Assessment & Appeals No. 3 for Orange Cnty., 695 F.3d

11

960, 961-62 (9th Cir. 2012).

12

procedures created the appearance of unfairness” because the Board

13

was advised by an attorney who worked in the same office as the

14

attorney representing the Assessor. Id. at 963-65.

15

noted that, even if there were evidence that the Board’s attorney

16

advisor “was biased in favor of the Assessor, which there is not,”

17

such evidence was not necessarily sufficient by itself to

18

“conclude that the adjudicating body--the Board itself--was

19

biased.”

20

evidence of bias by some departments or individuals at the DVA,

21

there is no evidence of bias by the DVA adjudicators of the claims

22

at issue here.

23

Id. at 965.

He argued that “the Board’s

The court

As in these cases, even if there were some

Plaintiffs also argue that the DVA “manifested its inherent

24

bias.”

25

contend that the DVA has disseminated misinformation about the

26

testing, which evidences its inherent bias.

27

various documents, including the letter and fact sheet that the

28

DVA sent to veterans about the substances and health effects, a

Pls.’ Reply and Opp., Docket No. 502, 27.

67

Plaintiffs

They argue that

1

training letter sent to DVA regional offices specifying rules for

2

adjudicating benefits claims and a letter sent to clinicians

3

examining veterans, all included inaccuracies and

4

misrepresentations, including that a particular study “found no

5

significant long term health effects in Edgewood Arsenal test

6

subjects.”

7

deviated from its own normal claim adjudication procedures in

8

deciding these claims, and from the operative regulations, by

9

giving the DOD the sole authority to validate whether an

They also argue that there is evidence that the DVA

United States District Court
For the Northern District of California

10

individual participated in any chemical or biological testing,

11

instead of making a decision based on the entirety of the evidence

12

in the record.

13

that, because the DOD did not provide this verification for many

14

people, many claims for service connection were denied.

15

They contend that this evidences bias.

They state

Defendants respond that Plaintiffs’ purported evidence of

16

bias in the DVA’s adjudicatory system is irrelevant because the

17

Court allowed Plaintiffs to bring a claim alleging that the DVA

18

was an inherently biased adjudicator, not a claim of actual bias.

19

They also argue that the evidence Plaintiffs submit cannot be

20

reviewed by the Court under § 511.

21

Plaintiffs reply that § 511 is not an evidentiary

22

exclusionary rule.

23

court did look at the type of inquiry that the district court

24

would have to carry out in resolving the claims, when deciding if

25

the cause of action itself was barred under that section.

26

example, in resolving the cause of action regarding delayed

27

processing of mental health claims, the court said that “the

28

district court would have no basis for evaluating [the argument

However, in Veterans for Common Sense, the

68

For

that the average processing time was too long] without inquiring

2

into the circumstances of at least a representative sample of the

3

veterans whom VCS represents; then the district court would have

4

to decide whether the processing time was reasonable or not as to

5

each individual case.”

6

Plaintiffs invite the Court to examine the reasons that individual

7

service members’ claims were denied or the evidence that was

8

submitted to show that an injury was service-connected in

9

particular cases, see e.g., Pls.’ Reply and Opp., Docket No. 502,

10
United States District Court
For the Northern District of California

1

30, such evidence does fall into the category of which the Ninth

11

Circuit disapproved.

12

678 F.3d at 1027.

To the extent that

Further, even if the Court could properly consider all of the

13

evidence submitted by Plaintiffs, they have not made a sufficient

14

showing that these materials reveal that there is actual bias or a

15

substantial appearance of bias on the part of the DVA

16

adjudicators.

17

accompanied the DVA notice letter showed bias because it included

18

what a DVA representative believed to be an inaccuracy and because

19

the letter itself purportedly discouraged veterans from seeking

20

care.

21

been mistaken, it was the result of a reasonable difference of

22

scientific opinion and does not manifestly reveal a bias on behalf

23

of the DVA, which was not its author, or of the DVA’s

24

adjudicators.

25

veterans from coming to the DVA for care; instead, it directly

26

encouraged them to do so.

27

training letters to clinicians show bias because they stated that

28

studies showed no “significant” long-term health or physical

Plaintiffs argue that the DOD fact sheet that

However, although the statement in the fact sheet may have

Further, the DVA’s letter did not discourage

Plaintiffs also argue that certain DVA

69

1

effects from participation in testing.

2

fact sheet, these statements reflect a difference of scientific

3

opinion as to what constitutes “significant” effects, a debate

4

that is consistent with the evidence that has been presented to

5

the Court.

6

the DVA diverged from its normal procedures by depending on the

7

DOD to “to validate whether an individual participated in any

8

chemical or biological test,” this argument is also unpersuasive.

9

Defendants have offered evidence that, in other contexts, the DVA

However, as with the DOD

Finally, to the extent that Plaintiffs contend that

United States District Court
For the Northern District of California

10

does depend on the DOD to provide it with details of veterans’

11

service to be used in adjudicating claims, such as when and in

12

what manner the individual served, and this is sometimes specified

13

in written DVA regulations.

14

the DOD’s service records as reliable indicators of whether a

15

person making a claim actually served in the military and in what

16

context.

17

DVA’s obligation to consider “all pertinent medical and lay

18

evidence” and to base its determination on “review of the entire

19

evidence of record” when resolving a claim of service-connection.

20

38 C.F.R. § 3.303(a).

It is rational for the DVA to accept

This is not inconsistent with, or an abdication of, the

21

Accordingly, because Plaintiffs have failed to raise a

22

material dispute of fact that there was an appearance of bias or

23

an unconstitutionally high probability of actual bias on the part

24

of the DVA adjudicators, Defendants’ motion for summary judgment

25

on this claim is granted.

26
27
28

CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for
partial summary judgment is GRANTED in part and DENIED in part,
70

1

and Defendants’ cross-motion for summary judgment is GRANTED in

2

part and DENIED in part.

3
4

The Court rules as follows:
(1)

The DOD and the Army are granted summary judgment on:

(a) all APA claims for notice, except to the extent that

6

Plaintiffs seek to require the Army to warn class members of any

7

information acquired after the last notice that may affect their

8

well-being when that information has become available and in the

9

future; (b) all APA claims for medical care; (c) the claim that,

10
United States District Court
For the Northern District of California

5

under the Fifth Amendment, these Defendants’ failure to provide

11

Plaintiffs with notice, medical care and a release from secrecy

12

oaths violated their substantive due process liberty rights,

13

including their right to bodily integrity; (d) the claim that,

14

under the Fifth Amendment, these Defendants’ failure to provide

15

Plaintiffs with any procedures whatsoever to challenge this

16

deprivation violated their procedural due process rights; (e) the

17

claim that, under the Fifth Amendment, these Defendants’ failure

18

to comply with their own regulations and procedures regarding

19

notice and medical care deprived Plaintiffs of their due process

20

rights; and (f) the claim that, under the First and Fifth

21

Amendment, the failure to provide a release from secrecy oaths

22

prevented Plaintiffs from filing claims for benefits with the DVA

23

and thereby violated their right of access to the courts.

24

(2)

The DOD, the Army and the CIA are granted summary

25

judgment on Plaintiffs’ claims seeking a declaration that the

26

secrecy oaths are invalid and an injunction requiring Defendants

27

to notify Plaintiffs that they have been released from such oaths.

28
71

1
2
3

(3)

Defendants’ motion for summary judgment on Plaintiffs’

claim against the DVA is granted.
(4)

Plaintiffs’ motion for summary judgment on the APA

4

notice claim is granted to the extent that Plaintiffs seek to

5

require the Army to warn class members of any information acquired

6

after the last notice was provided, and in the future, that may

7

affect their well-being, when that information becomes available.

8
9

The Court VACATES the final pretrial conference and trial
dates.

Within fourteen days of the date of this Order, the

United States District Court
For the Northern District of California

10

parties shall submit a joint proposed injunction and judgment that

11

comply with the terms of this Order.

12

agree to the terms of the injunction and the judgment, they shall

13

file a single form of each that shows the terms to which they were

14

able to agree and their separate proposals for the remaining

15

terms.

16

If the parties are unable to

Thereafter, an injunction and judgment shall enter.

IT IS SO ORDERED.

17
18
19

Dated: 7/24/2013

CLAUDIA WILKEN
United States District Judge

20
21
22
23
24
25
26
27
28
72