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

Filing 540

***DISREGARD, SEE DOCKET NO. 541 *** NOTICE OF INTENDED AMENDED ORDER, INJUNCTION AND JUDGMENT. Signed by Judge Claudia Wilken on 10/11/2013. (Attachments: # 1 amended order, # 2 judgment, # 3 injunction)(ndr, COURT STAFF) (Filed on 10/11/2013) Modified on 10/11/2013 (ndr, COURT STAFF).

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 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 10 11 12 13 14 15 16 17 18 19 20 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. ________________________________/ 21 22 23 24 25 26 27 28 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 2 Administrative Procedures Act (APA) to provide notice and medical 3 care to test subjects. 4 any of their class or individual claims against the remaining 5 Defendants or on any of their other claims against the DOD and the 6 Army. 7 Eric Holder; the Central Intelligence Agency and its Director John 8 Brennan (collectively, CIA); the DOD; the Army; and the U.S. 9 Department of Veterans Affairs and its Secretary Eric K. Shinseki 10 United States District Court For the Northern District of California 1 (collectively, DVA) oppose Plaintiffs’ motion and move for summary 11 judgment on all of Plaintiffs’ individual and class claims against 12 them.1 13 their arguments at the hearing, the Court GRANTS in part and 14 DENIES in part Plaintiffs’ motion and GRANTS in part and DENIES in 15 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 16 BACKGROUND 17 “Military experiments using service member[s] as subjects 18 have been an integral part of U.S. chemical weapons program, 19 producing tens of thousands of ‘soldier volunteers’ experimentally 20 exposed to a wide range of chemical agents from World War I to 21 about 1975.” 22 VET001_015677. 23 establishment of the Chemical Warfare Service (CWS).” 24 Decl., Ex. 1, Docket No. 496-1, PLTF014154. 25 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 26 27 28 1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Director Brennan and Secretary Hagel in place of their predecessors. 2 1 July 1, 1920. 2 At the end of World War I, CWS was consolidated at the Edgewood 3 Arsenal in Maryland. 4 Medical Research Division to conduct research directed at 5 providing a defense against chemical agents.” 6 1, Docket No. 496-1, PLTF014154. 7 Medical Research Division continued to carry out experiments 8 regarding chemical warfare agents, including experiments that used 9 human subjects, mostly drawn from personnel working at Edgewood United States District Court For the Northern District of California 10 11 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 12 [chemical warfare] experiments was initiated in 1942.” 13 Decl., Ex. 1, Docket No. 496-1, PLTF014154. 14 War II, “over 60,000 U.S. servicemen had been used as human 15 subjects in this chemical defense research program.” 16 Decl., Ex. 16, Docket No. 496-22, 1. 17 subjects had participated in tests conducted with high 18 concentrations of mustard agents or Lewisite in gas chambers or in 19 field exercises over contaminated ground area.” 20 subjects were used in these tests to test the effectiveness of 21 protective clothing, among other things. 22 common tests were patch, or drop, tests, in which a drop of an 23 agent was put on the arm, to “to assess the efficacy of a 24 multitude of protective or decontamination ointments, treatments 25 for mustard agent and Lewisite burns, effects of multiple 26 exposures on sensitivity, and the effects of physical exercise on 27 the severity of chemical burns.” Id. 28 3 Gardner By the end of World Gardner “At least 4,000 of these Id. Id. at 31. Human The most 1 After the conclusion of World War II, the CWS’s research 2 programs were scaled down and little research was conducted 3 between 1946 and 1950. 4 service members were experimentally treated with a wide range of 5 agents, primarily at U.S. Army Laboratories at Edgewood Arsenal, 6 Maryland.” 7 VET001_015677; see also Answer to Fourth Am. Compl. ¶ 5 (admitting 8 “that the DOD used approximately 7,800 armed services personnel in 9 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 10 time period, the focus of the human testing was on newer chemical 11 agents that were “perceived to pose greater threats than sulfur 12 mustard or Lewisite,” including nerve gases and psychoactive 13 drugs. 14 Answer to Fourth Am. Compl. ¶ 5 (admitting that the “DOD 15 administered 250 to 400 chemical and biological agents during the 16 course of its research at Edgewood Arsenal involving human 17 subjects”). 18 entered military service as conscientious objectors and ninety 19 percent of whom were Seventh Day Adventists, were used as human 20 subjects in experiments to test biological agents at Fort Detrick 21 in Frederick, Maryland. 22 183. 23 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 24 human subjects. 25 Docket No. 496-6, 45:1-46:8. 26 at Edgewood Arsenal was suspended on July 28, 1976, although 27 “protective suit tests” continued to take place between 1976 and 28 1979. Gardner Decl., Ex. 4 (Depo. of Anthony Lee), Human testing of chemical compounds Gardner Decl., Ex. 7 (Decl. of Lloyd Roberts), ¶ 4. 4 1 Various memoranda and regulations were intended to govern 2 these experiments. 3 issued the Wilson Directive to the Secretaries of the Army, Navy 4 and Air Force. 5 In it, he informed them that “the policy set forth will govern the 6 use of human volunteers by the Department of Defense in 7 experimental research in the fields of atomic, biological and/or 8 chemical warfare.” 9 voluntary consent of the human subject is absolutely essential,” United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 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. 20 Id. at C-001-02. 21 made and adequate facilities provided to protect the experimental 22 subject against even remote possibilities of injury, disability, 23 or death.” 24 Secretaries of the Army, Navy and Air Force are authorized to 25 conduct experiments in connection with the development of defense 26 of all types against atomic, biological and/or chemical warfare 27 agents involving the use of human subjects within the limits 28 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 5 1 addressees “will be responsible for insuring compliance with the 2 provisions of this memorandum within their respective Services.” 3 Id. 4 A June 1953 Department of the Army memorandum, CS: 385, 5 repeated the requirements set forth in the Wilson Directive and 6 further stated, “Medical treatment and hospitalization will be 7 provided for all casualties of the experimentation as required.” 8 Patterson Decl., Ex. 5, Docket No. 491-5, VVA 024544. These requirements were codified in Army Regulation (AR) 70- 10 United States District Court For the Northern District of California 9 25, which was promulgated on March 26, 1962 and later reissued in 11 1974. 12 Both versions set forth “[c]ertain basic principles” that “must be 13 observed to satisfy moral, ethical, and legal concepts.” 14 Decl., Ex. 47, Docket No. 496-55, 1; Gardner Decl., Ex. 48, Docket 15 no. 496-56, 1. 16 provided, “Voluntary consent is absolutely essential,” and stated, 17 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. 18 19 20 21 22 23 See Gardner Decl., Exs. 47, 48, Docket Nos. 496-55, 496-56. Gardner Like the earlier memoranda, the regulations 24 Gardner Decl., Ex. 47, Docket No. 496-55, 1; Gardner Decl., Ex. 25 48, Docket No. 496-56, 1. 26 “Required medical treatment and hospitalization will be provided 27 for all casualties.” 28 Gardner Decl., Ex. 48, Docket No. 496-56, 2. The regulations also mandated, Gardner Decl., Ex. 47, Docket No. 496-55, 2; 6 1 On August 8, 1979, Army General Counsel Jill Wine-Volner 2 issued a memorandum to various high-level Army officials, 3 entitled, “Notification of Participants in Drug or 4 Chemical/Biological Agent Research.” Patterson Decl., Ex. 6, 5 Docket No. 491-6, VET123-084994-95. In the memorandum, Wine- 6 Vollner asked for input regarding the creation of a program to 7 “notify those individuals who were not fully informed participants 8 and may have suffered injury or be subject to a possible injury.” 9 Id. at VET123-084994. She stated that “the legal necessity for a United States District Court For the Northern District of California 10 notification program is not open to dispute” and that the Army may 11 be held to have a legal obligation to notify those who are still 12 adversely affected by their prior involvement in its testing 13 programs. 14 1979, Wine-Volner advised the Director of the Army Staff, “If 15 there is reason to believe that any participants in such research 16 programs face the risk of continuing injury, those participants 17 should be notified of their participation and the information 18 known today concerning the substance they received.” 19 Decl., Ex. 7, Docket No. 491-7, VET017-000279. 20 place “regardless of whether the individuals were fully informed 21 volunteers at the time the research was undertaken.” 22 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 23 Staff, issued a memorandum to establish “Army Staff 24 responsibilities for review of past Army research involving 25 possible military applications of drug or chemical/biological 26 agents,” with the objective “to identity and notify those research 27 participants who may face the risk of continuing injury.” 28 Patterson Decl., Ex. 8, Docket No. 491-8, VET030-022686. 7 The 1 memorandum provided, “In the event that long-term hazards of a 2 substance are not known, The Surgeon General (TSG) should continue 3 to monitor research developments, and if at some future time more 4 information makes it necessary to take some action, TSG should 5 recommend appropriate action, including notification.” 6 VET030-022687. 7 this notification plan and the plan of the Surgeon General to ask 8 the National Academy of Sciences to assist in reviewing the 9 effects of the drugs and agents. United States District Court For the Northern District of California 10 Id. at On November 2, 1979, the Army informed Congress of Patterson Decl., Ex. 9, Docket No. 491-9, VET030-022692-93. 11 On December 11, 1981, the Army published in the Federal 12 Register a proposed amendment to a record keeping system. 13 Reg. 60,639. 14 11, 1982, was called the “Research and Experimental Case Files” 15 and maintained records for individuals who were “[v]olunteers 16 (military members, Federal civilian employees, state prisoners) 17 who participated in Army tests of potential chemical agents and/or 18 antidotes from the early 1950’s until the program ended in 1975.” 19 Id. 20 the Army: (1) to follow up on individuals who voluntarily 21 participated in Army chemical/biological agent research projects 22 for the purpose of assessing risks/hazards to them, and (2) for 23 retrospective medical/scientific evaluation and future scientific 24 and legal significance.” 25 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 26 record system entitled the “Medical Research Volunteer Registry.” 27 51 Fed. Reg. 23,576. 28 military members, civilian employees, and non-DOD civilian Included in the system were “[r]ecords of 8 1 volunteers participating in current and future research sponsored 2 by the U.S. Army Medical Research and Development Command.” 3 Among the purposes of the system were to “assure that the U.S. 4 Army Medical Research and Development Command (USAMRDC) can 5 contact individuals who participated in research 6 conducted/sponsored by the Command in order to provide them with 7 newly acquired information, which may have an impact on their 8 health,” and to “answer inquiries concerning an individual’s 9 participation in research sponsored/conducted by USAMRDC.” Id. Id. United States District Court For the Northern District of California 10 AR 70-25 was not listed among the authorities for the maintenance 11 of the system. 12 Both record systems were amended several times during the 13 1980s. 14 which changed the name of the “Medical Research Volunteer 15 Registry” to “Research Volunteer Registry” and expanded it to 16 encompass research conducted by the U.S. Army Chemical Research, 17 Development and Engineering Center (CRDEC). 18 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 19 70-25, which became effective on September 30, 1988.2 20 Reply Decl., Ex. 87, Docket No. 513-13, 1. 21 this version added a provision stating, 22 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 23 24 25 26 27 28 2 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. 9 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.) 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 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: E-3. Description of the study 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. 10 1 E-4. Risks 2 A description of any reasonably foreseeable risks or discomforts to the subject. 3 E-5. Benefits 4 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. 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 . . . E-9. Subject’s rights A statement that-a. Participation is voluntary. . . . 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.” 11 Id. 1 On September 24, 1991, the Army proposed changes to both the 2 “Research and Experimental Case Files” and the “Medical Research 3 Volunteer Registry” record systems. 4 48,187. 5 earlier versions. 6 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 7 of human test subjects. 56 Fed. Reg. 28,003 (codified at 32 8 C.F.R. §§ 29.101-124). These regulations adopted some of the 9 basic principles of informed consent set forth in the Wilson United States District Court For the Northern District of California 10 11 Directive. See 32 C.F.R. § 219.116. On December 1, 2000, the Army proposed the deletion of the 12 “Research Volunteer Registry,” stating that its records “have been 13 incorporated” into a new system of records, the “Medical 14 Scientific Research Data Files.” 15 records system was also given the system identifier of “A0070-25 16 DASG.” 17 maintenance of that records system. 18 data system included, “To answer inquiries and provide data on 19 health issues of individuals who participated in research 20 conducted or sponsored by U.S. Army Medical Research Institute of 21 Infectious Diseases, U.S. Army Medical Research and Development 22 Command, and U.S. Army Chemical Research, Development, and 23 Engineering Center,” and to “provide individual participants with 24 newly acquired information that may impact their health.” 25 Among the categories of people whose records were included in the 26 new system were “individuals who participate in research sponsored 27 by the U.S. Army Medical Research and Development Command and the 28 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 12 Id. The purposes of the new Id. 1 and individuals at Fort Detrick who have been immunized with a 2 biological product or who fall under the Occupational Health and 3 Safety Act or Radiologic Safety Program.” 4 database “may specifically be disclosed . . . [t]o the Department 5 of Veteran Affairs to assist in making determinations relative to 6 claims for service connected disabilities; and other such 7 benefits.” 8 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 10 314, Div. A, Title VII, Subtitle A, § 709(c), 116 Stat. 2458 (the 11 “Bob Stump Act”), which required the Secretary of Defense to work 12 to identify projects or tests “conducted by the Department of 13 Defense that may have exposed members of the Armed Forces to 14 chemical or biological agents.” 15 The DOD has issued two memoranda releasing veterans in part 16 or in full from secrecy oaths that they may have taken in 17 conjunction with testing. 18 of Defense William Perry in March 1993, releases 19 20 21 22 23 24 25 26 27 28 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. The second, issued by the Office of the Deputy Secretary of Defense on January 11, 2011, after the instant litigation began, does not have a date restriction and states, In the 1990s, several reviews of military human subject research programs from the World War II and Cold War 13 1 2 3 4 5 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. . . . 6 13 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. 14 . . . 15 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. 7 8 9 United States District Court For the Northern District of California 10 11 12 16 17 18 19 Gardner Decl., Ex. 53, Docket No. 496-61, VET021-000001-02. The DVA processes service-connected death or disability 20 compensation (SCDDC) claims of class members. 21 death or disability is connected to a veteran’s participation in 22 the testing programs for the purposes of SCDDC claims, individuals 23 seeking survivor or disability benefits must establish that “it is 24 at least as likely as not that such a relationship exists.” 25 To establish that a Plaintiffs contend that the DVA participated in some capacity 26 in some of the other Defendants’ testing programs. 27 also argue that the DVA engaged in human testing of similar 28 substances, including LSD and Thorazine. 14 Plaintiffs 1 Defendants have undertaken some efforts to contact and 2 provide notice to participants in the testing programs. 3 the DVA contacted 128 veterans who participated in World War II 4 mustard gas testing; Defendants do not provide evidence of what 5 information these individuals were provided then. 6 Ex. 15, DVA014 001257. 7 compiled by DOD and its contractor, Batelle Memorial Institute, 8 sent notice letters to certain individuals who participated in 9 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 (800) 497-6261, 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. 26 Defs.’ Opp. and Cross-Mot., Docket No. 495, 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. United States District Court For the Northern District of California 10 Class Cert. Order, Docket No. 485, 23, 51. Id. at 51. The Id. at 23. However, the Court has not 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 15 2. DVA medical care available to veterans Plaintiffs seek a declaration that the DOD and the Army have 16 a duty to provide them with medical care and an injunction 17 requiring these agencies to provide examinations, medical care and 18 treatment and to establish policies and procedures governing 19 these. 20 claims and found that AR 70-25 entitles them to medical care for 21 disabilities, injuries or illnesses caused by their participation 22 in government experiments. 23 Plaintiffs are entitled to choose which government agency ought to 24 provide care. 25 This Court has provided judicial review of Plaintiffs’ The only remaining question is whether The Court will not enjoin one government agency to provide 26 health care when another agency has been congressionally mandated 27 to do so. 28 charged with providing “a complete medical and hospital service The DVA, through its Veterans Health Administration, is 47 1 for the medical care and treatment of veterans.” 2 § 7301(b). 3 and medical services “to any veteran for a service-connected 4 disability.” 5 service-connected disability will receive VA care provided for in 6 the ‘medical benefits package’ . . . for that service-connected 7 disability,” even if that veteran is “not enrolled in the VA 8 healthcare system.” 9 for service-connected disabilities, veterans are not subject to 38 U.S.C. Congress has mandated that it provide hospital care 38 U.S.C. § 1710.6 Thus, a “veteran who has a 38 C.F.R. § 17.37(b). When receiving care United States District Court For the Northern District of California 10 any copayment or income eligibility requirements. 11 §§ 17.108(d)(1),(e)(1), 17.111(f)(1),(3). 12 If a veteran disagrees with a decision made by the DVA about 13 benefits or service-connection, the veteran may appeal the 14 decision to the Board of Veterans’ Appeals. 15 Thereafter, decisions of the Board of Veterans’ Appeals can be 16 appealed to the Court of Appeals for Veterans Claims. 17 § 7252. 18 38 C.F.R. 38 U.S.C. § 7105. 38 U.S.C. Plaintiffs have not provided any evidence of a material 19 dispute of fact that class members cannot access the DVA health 20 care system or that they are denied compensation for their 21 service-connected injuries. 22 that the Court has previously noted that Plaintiffs’ ability to 23 seek health care from the DVA “does not necessarily relieve the 24 DOD and the Army from being required independently to provide 25 medical care, particularly because Plaintiffs may be able to 26 establish that the scope of their duty may be different than that Plaintiffs assert in their response 27 6 28 “Disability” is defined as “a disease, injury, or other physical or mental defect.” 38 U.S.C. § 1701(1). 48 1 of the DVA.” 2 Order, Docket No. 485, 25). 3 any evidence to support that the duty of DOD and the Army is in 4 fact any broader than that of the DVA. 5 even if class members are eligible for medical care from the DVA, 6 “they are not receiving this medical care from the DVA.” 7 Post-Hearing Resp., Docket No. 519, 1. 8 undermine the fact that class members can challenge the DVA’s 9 failure to provide medical care through the statutorily-created Pls.’ Reply, Docket No. 502, 18 (citing Class Cert. However, Plaintiffs have not offered Plaintiffs contend that, Pls.’ This, however, does not United States District Court For the Northern District of California 10 appeals scheme. 11 quality of medical care provided by the DVA is inferior to that of 12 the DOD and the Army, they have not shown any systematic exclusion 13 or inadequate care of their class, or that the class is unable to 14 address any inadequacies through the DVA system. In addition, although Plaintiffs suggest that the 15 To the extent that Plaintiffs argue that the DVA medical care 16 is a “rationing system,” apparently referring to the fact that not 17 all veterans may enroll in the DVA’s comprehensive medical care 18 program, no such rationing is imposed on the duty of the DVA to 19 provide no-cost care to veterans for service-connected 20 disabilities.7 Plaintiffs also speculate, “It is possible that 21 22 23 24 25 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 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 49 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, this argument is unavailing. 7 shown that either of these organizations has its own right to 8 medical care. 9 Plaintiffs are asserting the rights of the members of their Plaintiffs have not Further, to the extent that the organizational United States District Court For the Northern District of California 10 organizations, those members can seek care through the DVA for any 11 disabilities, injuries or illnesses suffered as a result of 12 participation in the experimentation program. 13 Plaintiffs may not prevail on claims here that their members 14 cannot prevail upon directly. 15 The organizational The Court has found that AR 70-25 entitles Plaintiffs to 16 medical care for any disabilities, injuries or illnesses suffered 17 as a result of participation in the experimentation program. 18 However, this Court will not enjoin the DOD or the Army to provide 19 health care, because the DVA is required to do so. 20 have not shown that the DVA systematically fails to offer them 21 care. Plaintiffs Although there may be general dissatisfaction and 22 23 24 25 26 27 28 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). 50 1 individual erroneous results, Plaintiffs and the class members can 2 seek medical care through the DVA and challenge denial of care 3 through the statutory scheme prescribed by Congress. 4 II. 5 Constitutional claims In their cross-motion, Defendants also seek judgment on 6 Plaintiffs’ constitutional claims against the DOD and the Army 7 related to notice and health care. 8 summary judgment on these claims. Plaintiffs have not moved for Defendants argue that there is no constitutional right for 10 United States District Court For the Northern District of California 9 access to government information, so Plaintiffs’ constitutional 11 claim for notice fails, and that there is no constitutional right 12 to free health care, so Plaintiffs’ claim for health care fails. 13 Defendants further contend that no court has ever granted a 14 request for continuing health care based on a violation of a 15 substantive due process right to bodily integrity. 16 they also state, “Because Plaintiffs cannot identify any 17 substantive entitlement to Notice or health care under the APA or 18 Constitution, their procedural due process claims regarding the 19 alleged absence of any procedures to challenge the deprivation of 20 Notice and health care should be dismissed.” 21 Cross-Mot. at 43. 22 In a footnote, Defs.’ Opp. and Plaintiffs argue that Defendants did not move on their actual 23 Constitutional claims and so the burden of production never 24 shifted to Plaintiffs. 25 be granted summary judgment on those claims. 26 Thus, they contend Defendants should not As summarized in the class certification order, Plaintiffs 27 asserted the following constitutional claims against the DOD and 28 the Army in this case: 51 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 (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. Docket No. 485, 10 (numbering in original). Of these claims, the 12 Court certified only one claim, that brought under the Fifth 13 Amendment for Defendants’ failure to comply with their own 14 regulations, to proceed on a class-wide basis. The Court denied 15 certification as to the other constitutional claims. 16 In their motion, Defendants clearly address Plaintiffs’ 17 second claim for deprivation of substantive due process rights, 18 including the right to bodily integrity, the third claim for 19 violation of their procedural due process rights by depriving them 20 of their protected interest without providing them with procedures 21 by which to challenge the deprivation, and the fifth claim 22 regarding access to the courts. Defs.’ Opp. and Cross-Mot., 23 Docket No. 495, 41-43 & n.42, 49-50. Plaintiffs do not respond 24 substantively to Defendants’ challenges to these claims, asserting 25 incorrectly that Defendants ignore these claims. See, e.g., Pls.’ 26 Reply and Opp., Docket No. 502, 21, 23 n.22. 27 28 52 Accordingly, the 1 Court grants Defendants’ motion for summary judgment on the 2 second, third and fifth claims against the Army and DOD. 3 Plaintiffs also dispute that Defendants properly moved on the 4 fourth claim. 5 that they moved “on all claims raised and remaining in Plaintiffs’ 6 Fourth Amended Complaint.” 7 495; see also id. at 1 (arguing that “Plaintiffs’ constitutional 8 claims,” without any limitation, “are similarly baseless and 9 should be dismissed”). Defendants made clear in the notice of their motion Defs.’ Opp. and Cross-Mot., Docket No. Defendants also argued that “Plaintiffs United States District Court For the Northern District of California 10 cannot identify any substantive entitlement to Notice or health 11 care under the APA or the Constitution” and thus “their procedural 12 due process claim regarding the alleged absence of any procedures 13 to challenge the deprivation of Notice and health care should be 14 dismissed.” 15 In their reply, they further explained that not “every violation 16 of a regulation amount[s] to a violation of an individual’s due 17 process rights,” that Plaintiffs cannot show the agency 18 regulations at issue here have themselves created a constitutional 19 right to those procedures and thus that there is no constitutional 20 claim for violation of those regulations. 21 No. 513-1, 15. 22 Defs.’ Opp. and Cross-Mot., Docket No. 495, 43 n.42. Defs.’ Reply, Docket In response, Plaintiffs rely on cases in which courts have 23 held that agencies are bound to follow their own regulations and 24 that failure to do so may violate the due process clause. 25 However, Defendants are correct that such a failure does not 26 always amount to a constitutional violation. 27 Caceres, 440 U.S. 741, 752-753 (1979) (finding no constitutional 28 violation where the IRS “admittedly” failed to follow its own 53 See United States v. 1 regulations, on the basis that it was not “a case in which the Due 2 Process Clause is implicated because an individual has reasonably 3 relied on agency regulations promulgated for his guidance or 4 benefit and has suffered substantially because of their violation 5 by the agency”). 6 Plaintiffs have not shown that here. Accordingly, Defendants’ motion for summary judgment on 7 Plaintiffs’ constitutional claims is granted. 8 III. Secrecy oath claims 9 Defendants move for summary judgment on Plaintiffs’ United States District Court For the Northern District of California 10 individual claims against the DOD, the Army and the CIA based on 11 secrecy oaths. 12 A. Claims against the CIA 13 Defendants argue that the CIA is entitled to summary judgment 14 on Plaintiffs’ individual secrecy oath claims against that agency 15 for a number of reasons. 16 produce no evidence that the CIA ever administered secrecy oaths 17 to any individual Plaintiff or VVA member. 18 that the claims are moot because the CIA provided a sworn 19 declaration in June 2011 attesting that the individual Plaintiffs 20 and identified VVA members did not give secrecy oaths to the CIA 21 and releasing them from any secrecy oath that they believed that 22 they might have with the CIA. 23 cannot release individuals from a secrecy oath administered by the 24 DOD or the Army. 25 First, they contend that Plaintiffs can Second, they assert Finally, they argue that the CIA Plaintiffs do not dispute that they cannot provide any 26 evidence that the CIA administered secrecy oaths or that 27 declaratory relief against the CIA that addressed the validity of 28 DOD or Army secrecy oaths would be ineffective. 54 They also concede 1 that they have received all relief that they desired on this claim 2 in relation to the individuals released by the CIA through the 3 June 2011 declaration. 4 entire claim against the CIA, “[i]n light of the CIA’s statement 5 that the secrecy oath release encompasses all VVA members,” and 6 that they “submit that claim to the Court.” 7 Docket No. 502, 36. 8 9 They state that this extends to their Pls.’ Reply and Opp., Defendants reply that Plaintiffs mischaracterized their response. They state that the 2011 declaration encompassed only United States District Court For the Northern District of California 10 the VVA members who were identified by name therein and did not 11 encompass an additional twenty-seven VVA members whom Plaintiffs 12 identified as having been test participants for the first time six 13 months after the close of discovery. 14 Irrespective of whether those additional twenty-seven VVA 15 members were released from any possible secrecy oaths through the 16 2011 declaration, the Court grants Defendants’ motion for summary 17 judgment on the secrecy oath claim against the CIA. 18 have not produced any evidence that any secrecy oaths were 19 administered by the CIA, or are fairly traceable to the CIA, 20 involving any Plaintiff or VVA member, including those twenty- 21 seven individuals who were identified later. Plaintiffs 22 B. Claims against the DOD and the Army 23 Defendants also move for summary judgment on the secrecy oath 24 claims against the DOD and Army. 25 have not presented any evidence that they or the VVA members 26 currently feel restrained by any such oath and that Defendants 27 have issued two memoranda releasing them already. 28 that, as a result, Plaintiffs lack standing to pursue this claim. Defendants argue that Plaintiffs 55 They contend 1 Plaintiffs respond that the Court already has rejected this 2 argument when it refused to hold that certain Plaintiffs and VVA 3 members lacked standing at the class certification stage. 4 However, as Defendants point out, Plaintiffs presently have the 5 burden to establish that there is at least a genuine issue of 6 material fact as to standing of each Plaintiff. 7 Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 8 (1999) (“To prevail on a Federal Rule of Civil Procedure 56 motion 9 for summary judgment . . ., mere allegations of injury are See Dep’t of United States District Court For the Northern District of California 10 insufficient. 11 exists no genuine issue of material fact as to justiciability or 12 the merits.”). 13 Rather, a plaintiff must establish that there Plaintiffs assert that “it is clear that” they “‘could 14 benefit from equitable relief that would invalidate the secrecy 15 oaths altogether.” 16 in the instant motion, they have not cited any evidence to support 17 that they or the VVA members still suffer ongoing effects of the 18 oaths, such as fear of prosecution. 19 cited the evidence regarding Dufrane relied upon by the Court in 20 the class certification order, but do not address the arguments 21 raised by Defendants regarding the other individuals. 22 Pls.’ Reply and Opp., Docket No. 36. However, At the hearing, Plaintiffs In the class certification order, the Court noted that 23 Plaintiffs had offered “evidence that Dufrane testified that he 24 continued to feel bound by the secrecy oath to some extent” and 25 that there was no evidence cited that showed that Defendants had 26 communicated an unconditional release to him. 27 Docekt No. 485, 28-29. 28 Dufrane’s deposition, in which he stated he did not think that he Class Cert. Order, Defendants again offer testimony from 56 1 was allowed to talk about his experiences at Edgewood Arsenal 2 “completely” because he had been told not to talk about some 3 aspects of what happened and that he still felt constrained by the 4 secrecy. 5 however, that there was nothing in his memory that he could 6 identify that he wants to talk about but is unable to. 7 94:17-23. 8 Dufrane had seen the 1993 Perry memorandum prior to his 9 deposition. See Docket No. 496-64, 92:1-94:16. He went on to state, Id. at In addition, Defendants have now offered evidence that As quoted above, that memorandum provided a full and United States District Court For the Northern District of California 10 unconditional release from any secrecy oath that had been given. 11 In light of the facts that a full release was communicated to 12 Dufrane, and that there is nothing in particular that he presently 13 feels that he is prevented from speaking about, although he feels 14 generally constrained, he will not receive a benefit from a 15 further declaration “that Plaintiffs are released from any 16 obligations or penalties under their secrecy oaths.” 17 Compl. ¶ 183. 18 Defendants’ argument that there can be no showing of future threat 19 of prosecution because there have not been any such enforcement 20 actions in the past. Fourth Am. Finally, Plaintiffs do not offer any response to 21 Accordingly, the Court grants Defendants’ motion for summary 22 judgment on the secrecy oath claims against the DOD and the Army. 23 IV. Claim that DVA is a biased adjudicator of benefits claims 24 Defendants seek summary judgment on Plaintiffs’ claims 25 against the DVA for biased adjudication of their benefits claims. 26 Defendants argue that 38 U.S.C. § 511 deprives this Court of 27 jurisdiction over this claim because it bars consideration of the 28 relief that Plaintiffs seek. They also argue that Plaintiffs 57 1 cannot establish a genuine issue of material fact as to whether 2 DVA was involved in the testing programs at issue here. 3 they contend that Plaintiffs cannot make a sufficient showing that 4 the DVA was an inherently biased adjudicator of their benefits 5 claims. Finally, 6 A. Section 511 7 Defendants have previously argued on two occasions that § 511 8 deprives this Court of jurisdiction to hear this claim, and on 9 both occasions, the Court has rejected the argument. See Docket United States District Court For the Northern District of California 10 No. 177, 8-11; Docket No. 485, 31-34. 11 they are now making a new argument, which the Court has not 12 addressed: that the relief sought by Plaintiffs cannot be granted 13 under § 511. 14 decisions were correct and do not address Defendants’ purportedly 15 new argument. Defendants contend that Plaintiffs respond simply that the Court’s prior 16 Section 511 provides, 17 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. 18 19 20 21 22 23 38 U.S.C. § 511(a). In granting Plaintiffs leave to amend assert this claim 24 against the DVA, the Court acknowledged that § 511 “precludes 25 federal district courts from reviewing challenges to individual 26 benefits determinations, even if they are framed as constitutional 27 challenges.” 28 § 511 on claims that “purport not to challenge individual benefits Docket No. 177, 8. At that time, the effect of 58 1 decisions, but rather the manner in which such decisions are 2 made,” had not been addressed by the Ninth Circuit. 3 the Court reviewed several decisions from other circuit courts of 4 appeals that did address this issue. 5 detail Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006); Beamon v. 6 Brown, 125 F.3d 965, 972 (6th Cir. 1997)). 7 set forth in Broudy and Beamon, the Court held, 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 Id. Thus, 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. Docket This Court explained, 25 26 27 28 In that case, two nonprofit organizations challenged delays in the provision of care and adjudication of 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 59 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 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. 18 678 F.3d at 1034. 19 Ninth Circuit considered some of the same authority and applied a 20 similar standard as this Court did in its earlier order,” and thus 21 concluded that it “would have reached the same conclusion if it 22 had had the benefit of the decision in Veterans for Common Sense 23 at that time.” 24 In its prior order, this Court found that “the Docket No. 485, 34. Defendants now argue that the Court’s assessment of the 25 “manner in which the VA determines benefits eligibility . . . 26 plainly implicates ‘decisions that relate to benefits 27 determination.’” 28 the claim for which the Ninth Circuit found jurisdiction in Defs.’ Opp. and Cross-Mot. at 52. 60 However, like 1 Veterans for Common Sense, evaluating whether the risk of actual 2 bias is too high to be constitutionally tolerable is “sufficiently 3 independent of any VA decision as to an individual veteran’s claim 4 for benefits that § 511 does not bar” this Court’s jurisdiction. 5 See 678 F.3d at 1034. 6 To the extent that Defendants now contend that Veterans for Common Sense does not allow the Court to issue the relief that 8 Plaintiffs seek, the Court rejects this argument. 9 in addressing the plaintiff’s claim that delays in the provision 10 United States District Court For the Northern District of California 7 of mental health care violated the APA and the Constitution, the 11 Ninth Circuit noted that 12 13 14 15 16 17 18 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 19 regarding entitlement to SCDDC and medical care are “null and 20 void” and an “injunction forbidding defendants from continuing to 21 use biased decision makers to decide their eligibility” for 22 benefits. 23 plan to remedy denials of affected claims for SCDDC and/or 24 eligibility for medical care based upon service connection”). 25 the extent that Plaintiffs request that the Court reverse the past 26 benefits determinations made by the DVA--or at least the denials-- 27 their claims are not “sufficiently independent” of any VA decision 28 on an individual veteran’s claim for benefits. Fourth Am. Compl. ¶¶ 233-34; see also id. (seeking “a 61 To Accordingly, to 1 the extent that Plaintiffs seek an order vacating all past 2 benefits determinations and requiring that they be re-adjudicated, 3 the Court finds that it lacks jurisdiction to do so. 4 However, Plaintiffs also ask that the Court issue “an order 5 directing the DVA . . . to devise procedures for resolving such 6 claims that comply with the due process clause, which involve, at 7 a minimum, an independent decision maker, all to be submitted to 8 the Court for advance approval.” 9 compliance with such a plan as to adjudications of future claims Id. at ¶ 234. Monitoring United States District Court For the Northern District of California 10 would not require the Court to look at individual benefits 11 determinations, but rather to consider who will adjudicate the 12 claims. 13 Ninth Circuit in Veterans for Common Sense because it involves the 14 “consideration of the constitutionality of the procedures in 15 place, which frame the system by which a veteran presents his 16 claims to the VA,” and not the “consideration of the decisions 17 that emanate through the course of the presentation of those 18 claims.” 19 consider Plaintiffs’ claim for prospective injunctive and 20 declaratory relief. Plaintiffs’ request is similar to that permitted by the 678 F.3d at 1034. Thus, the Court has jurisdiction to 21 22 23 24 25 26 27 28 62 1 B. DVA’s purported bias 2 “The crux of Plaintiffs’ claim” against the DVA is that, 3 “‘because the DVA allegedly was involved in the testing programs 4 at issue, the agency is incapable of making neutral, unbiased 5 benefits determinations for veterans who were test participants,’” 6 which “‘renders the benefits determination process 7 constitutionally defective.’” 8 502, 23 (quoting Class Cert. Order, Docket No. 485, 32). 9 Pls.’ Reply and Opp., Docket No. “There are two ways in which a plaintiff may establish that United States District Court For the Northern District of California 10 he has been denied his constitutional right to a fair hearing 11 before an impartial tribunal.” 12 741 (9th Cir. 1995). 13 surrounding circumstances may demonstrate actual bias on the part 14 of the adjudicator.” 15 pecuniary or personal interest in the outcome of the proceedings 16 may create an appearance of partiality that violates due process, 17 even without any showing of actual bias.” 18 (citations omitted); see also United States v. Oregon, 44 F.3d 19 758, 772 (9th Cir. 1994) (stating that the plaintiffs “must show 20 an unacceptable probability of actual bias on the part of those 21 who have actual decisionmaking power over their claims”); Exxon 22 Corp. v. Heinze, 32 F.3d 1399, 1403 (9th Cir. 1994) (“the 23 Constitution is concerned not only with actual bias but also with 24 ‘the appearance of justice’”). 25 of unconstitutional bias, a plaintiff must ‘overcome a presumption 26 of honesty and integrity’ on the part of decisionmakers.” 27 Stivers, 71 F.3d at 741. 28 prejudged, or reasonably appears to have prejudged, an issue.’” 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 63 1 Id.; see also Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 2 883-884 (2009) (“In defining these standards the Court has asked 3 whether, ‘under a realistic appraisal of psychological tendencies 4 and human weakness,’ the interest ‘poses such a risk of actual 5 bias or prejudgment that the practice must be forbidden if the 6 guarantee of due process is to be adequately implemented.’”) 7 (citation omitted). 8 9 Plaintiffs argue that the DVA as an agency appears to be biased because it was involved in the testing at issue here. United States District Court For the Northern District of California 10 Plaintiffs have offered evidence that a CIA memorandum identified 11 the DVA as among the suppliers of chemicals used for tests, which, 12 when conducted on humans, were carried out jointly with the Army 13 and Edgewood Arsenal. 14 Defendants do not dispute, that the DVA separately carried out 15 human testing using some of the same substances that were used in 16 the testing programs at issue here, including LSD, mescaline, 17 thorazine, atropine and scopolamine. 18 Plaintiffs’ evidence as true, this is not sufficient to support a 19 conclusion that the probability of bias or prejudgment on the part 20 of all of the DVA adjudicators was “intolerably high,” so as to 21 result in a constitutional violation. 22 35, 57 (1975). 23 the substances that the DVA provided to Defendants were actually 24 used at all, much less that they were used on humans who were 25 service members. 26 necessarily mean that its adjudicators would have an interest in 27 deciding claims in an inherently biased fashion. 28 point out, Plaintiffs’ evidence shows that, after the DVA began Plaintiffs also offer evidence, which 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 64 As Defendants 1 receiving claims for benefits related to LSD testing, it 2 proactively sought to learn more about the long-term effects of 3 the drug in order to adjudicate the claims. 4 Decl., Ex. 22, Docket No. 503-9, DVA135 000062. 5 that the DVA sought to resolve such claims properly, not that it 6 sought to avoid responsibility for providing care. 7 Plaintiffs have not demonstrated that there is any connection 8 between the DVA’s participation in the testing and the 9 adjudicators at the agency who actually resolve their disability See Patterson Reply This suggests Further, United States District Court For the Northern District of California 10 claims. 11 the Veterans Benefits Administration, an arm of the DVA separate 12 from the Veterans Health Administration, the arm of the agency 13 which conducted research into the same substances as used in the 14 testing programs at issue. 15 at 772 (characterizing plaintiff’s proffered evidence of bias by 16 the Oregon Department of Justice as “fairly weak” where, among 17 other things, plaintiff had not shown that any officials involved 18 in the prior actions it contended showed bias would be involved in 19 the challenged adjudication). 20 is too meager to support the existence of an appearance of bias 21 that permeates the entire agency. 22 As Defendants point out, these claims are adjudicated by See United States v. Oregon, 44 F.3d The evidence Plaintiffs offer here This conclusion is consistent with Ninth Circuit precedent, 23 in which the court rejected claims of institutional bias where 24 there was insufficient evidence to support that the adjudicative 25 body itself, as opposed to an affiliated person or agency, was 26 biased. 27 the state of Oregon’s administrative procedures for determining 28 water rights. In United States v. Oregon, the Klamath Tribe challenged 44 F.3d at 771. The Tribe argued that the Oregon 65 1 Department of Justice, which provided legal advice to the Oregon 2 Water Resources Department (OWRD), the agency charged with 3 adjudicating their claims, had previously taken litigating 4 positions against the Tribe’s water rights. 5 Circuit rejected the claim, finding that the Tribe had not shown 6 that the ODOJ would have “any significant role to play in the 7 adjudication or any impact on its outcome” and thus had failed to 8 show “an unacceptable probability of actual bias by the actual 9 decisionmakers.” Id. at 772. Id. The Ninth Similarly, in a recent case, the United States District Court For the Northern District of California 10 court considered a claim by a landowner who asserted that the 11 hearing procedures employed by the Assessment Appeals Board for 12 Orange County, when considering his challenge to the County 13 Assessor’s valuation of his property and assessment of property 14 taxes, violated his due process rights. 15 v. Bd. of Assessment & Appeals No. 3 for Orange Cnty., 695 F.3d 16 960, 961-62 (9th Cir. 2012). 17 procedures created the appearance of unfairness” because the Board 18 was advised by an attorney who worked in the same office as the 19 attorney representing the Assessor. Id. at 963-65. 20 noted that, even if there were evidence that the Board’s attorney 21 advisor “was biased in favor of the Assessor, which there is not,” 22 such evidence was not necessarily sufficient by itself to 23 “conclude that the adjudicating body--the Board itself--was 24 biased.” 25 evidence of bias by some departments or individuals at the DVA, 26 there is no evidence of bias by the DVA adjudicators of the claims 27 at issue here. Id. at 965. William Jefferson & Co. He argued that “the Board’s The court As in these cases, even if there were some 28 66 1 Plaintiffs also argue that the DVA “manifested its inherent 2 bias.” 3 contend that the DVA has disseminated misinformation about the 4 testing, which evidences its inherent bias. 5 various documents, including the letter and fact sheet that the 6 DVA sent to veterans about the substances and health effects, a 7 training letter sent to DVA regional offices specifying rules for 8 adjudicating benefits claims and a letter sent to clinicians 9 examining veterans, all included inaccuracies and Pls.’ Reply and Opp., Docket No. 502, 27. Plaintiffs They argue that United States District Court For the Northern District of California 10 misrepresentations, including that a particular study “found no 11 significant long term health effects in Edgewood Arsenal test 12 subjects.” 13 deviated from its own normal claim adjudication procedures in 14 deciding these claims, and from the operative regulations, by 15 giving the DOD the sole authority to validate whether an 16 individual participated in any chemical or biological testing, 17 instead of making a decision based on the entirety of the evidence 18 in the record. 19 that, because the DOD did not provide this verification for many 20 people, many claims for service connection were denied. 21 They also argue that there is evidence that the DVA They contend that this evidences bias. They state Defendants respond that Plaintiffs’ purported evidence of 22 bias in the DVA’s adjudicatory system is irrelevant because the 23 Court allowed Plaintiffs to bring a claim alleging that the DVA 24 was an inherently biased adjudicator, not a claim of actual bias. 25 They also argue that the evidence Plaintiffs submit cannot be 26 reviewed by the Court under § 511. 27 28 Plaintiffs reply that § 511 is not an evidentiary exclusionary rule. However, in Veterans for Common Sense, the 67 court did look at the type of inquiry that the district court 2 would have to carry out in resolving the claims, when deciding if 3 the cause of action itself was barred under that section. 4 example, in resolving the cause of action regarding delayed 5 processing of mental health claims, the court said that “the 6 district court would have no basis for evaluating [the argument 7 that the average processing time was too long] without inquiring 8 into the circumstances of at least a representative sample of the 9 veterans whom VCS represents; then the district court would have 10 United States District Court For the Northern District of California 1 to decide whether the processing time was reasonable or not as to 11 each individual case.” 12 Plaintiffs invite the Court to examine the reasons that individual 13 service members’ claims were denied or the evidence that was 14 submitted to show that an injury was service-connected in 15 particular cases, see e.g., Pls.’ Reply and Opp., Docket No. 502, 16 30, such evidence does fall into the category of which the Ninth 17 Circuit disapproved. 18 678 F.3d at 1027. For To the extent that Further, even if the Court could properly consider all of the 19 evidence submitted by Plaintiffs, they have not made a sufficient 20 showing that these materials reveal that there is actual bias or a 21 substantial appearance of bias on the part of the DVA 22 adjudicators. 23 accompanied the DVA notice letter showed bias because it included 24 what a DVA representative believed to be an inaccuracy and because 25 the letter itself purportedly discouraged veterans from seeking 26 care. 27 been mistaken, it was the result of a reasonable difference of 28 scientific opinion and does not manifestly reveal a bias on behalf Plaintiffs argue that the DOD fact sheet that However, although the statement in the fact sheet may have 68 of the DVA, which was not its author, or of the DVA’s 2 adjudicators. 3 veterans from coming to the DVA for care; instead, it directly 4 encouraged them to do so. 5 training letters to clinicians show bias because they stated that 6 studies showed no “significant” long-term health or physical 7 effects from participation in testing. 8 fact sheet, these statements reflect a difference of scientific 9 opinion as to what constitutes “significant” effects, a debate 10 United States District Court For the Northern District of California 1 that is consistent with the evidence that has been presented to 11 the Court. 12 the DVA diverged from its normal procedures by depending on the 13 DOD to “to validate whether an individual participated in any 14 chemical or biological test,” this argument is also unpersuasive. 15 Defendants have offered evidence that, in other contexts, the DVA 16 does depend on the DOD to provide it with details of veterans’ 17 service to be used in adjudicating claims, such as when and in 18 what manner the individual served, and this is sometimes specified 19 in written DVA regulations. 20 the DOD’s service records as reliable indicators of whether a 21 person making a claim actually served in the military and in what 22 context. 23 DVA’s obligation to consider “all pertinent medical and lay 24 evidence” and to base its determination on “review of the entire 25 evidence of record” when resolving a claim of service-connection. 26 38 C.F.R. § 3.303(a). Further, the DVA’s letter did not discourage Plaintiffs also argue that certain DVA However, as with the DOD Finally, to the extent that Plaintiffs contend that It is rational for the DVA to accept This is not inconsistent with, or an abdication of, the 27 Accordingly, because Plaintiffs have failed to raise a 28 material dispute of fact that there was an appearance of bias or 69 1 an unconstitutionally high probability of actual bias on the part 2 of the DVA adjudicators, Defendants’ motion for summary judgment 3 on this claim is granted. 4 5 CONCLUSION For the reasons set forth above, Plaintiffs’ motion for 6 partial summary judgment is GRANTED in part and DENIED in part, 7 and Defendants’ cross-motion for summary judgment is GRANTED in 8 part and DENIED in part. 9 United States District Court For the Northern District of California 10 The Court rules as follows: (1) The DOD and the Army are granted summary judgment on: 11 (a) all APA claims for notice, except to the extent that 12 Plaintiffs seek to require the Army to warn class members of any 13 information acquired after the last notice that may affect their 14 well-being when that information has become available and in the 15 future; (b) all APA claims for medical care; (c) the claim that, 16 under the Fifth Amendment, these Defendants’ failure to provide 17 Plaintiffs with notice, medical care and a release from secrecy 18 oaths violated their substantive due process liberty rights, 19 including their right to bodily integrity; (d) the claim that, 20 under the Fifth Amendment, these Defendants’ failure to provide 21 Plaintiffs with any procedures whatsoever to challenge this 22 deprivation violated their procedural due process rights; (e) the 23 claim that, under the Fifth Amendment, these Defendants’ failure 24 to comply with their own regulations and procedures regarding 25 notice and medical care deprived Plaintiffs of their due process 26 rights; and (f) the claim that, under the First and Fifth 27 Amendment, the failure to provide a release from secrecy oaths 28 70 1 prevented Plaintiffs from filing claims for benefits with the DVA 2 and thereby violated their right of access to the courts. 3 (2) The DOD, the Army and the CIA are granted summary 4 judgment on Plaintiffs’ claims seeking a declaration that the 5 secrecy oaths are invalid and an injunction requiring Defendants 6 to notify Plaintiffs that they have been released from such oaths. 7 8 9 (3) Defendants’ motion for summary judgment on Plaintiffs’ claim against the DVA is granted. (4) Plaintiffs’ motion for summary judgment on the APA United States District Court For the Northern District of California 10 notice claim is granted to the extent that Plaintiffs seek to 11 require the Army to warn class members of any information acquired 12 after the last notice was provided, and in the future, that may 13 affect their well-being, when that information becomes available. 14 15 16 The Court VACATES the final pretrial conference and trial dates. An injunction and judgment shall enter. IT IS SO ORDERED. 17 18 19 Dated: CLAUDIA WILKEN United States District Judge 20 21 22 23 24 25 26 27 28 71

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