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

Filing 558

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 553 MOTION TO STAY. (ndr, COURT STAFF) (Filed on 2/5/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VIETNAM VETERANS OF AMERICA, et
al.,

United States District Court
For the Northern District of California

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ORDER DENYING
DEFENDANTS’ MOTION
TO STAY
(Docket No. 553)

Plaintiffs,

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No. CV 09-0037-CW

v.
CENTRAL INTELLIGENCE AGENCY, et
al.,
Defendants.
________________________________/

Defendants United States Department of Defense and its
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Secretary Charles T. Hagel and the United States Department of the
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Army and its Secretary John M. McHugh have filed a motion to stay
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this Court’s judgment and injunction pending the resolution of
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Defendants’ cross-appeal.1

Plaintiffs Vietnam Veterans of

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America; Swords to Plowshares: Veterans Rights Organization; Bruce
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Price; Franklin D. Rochelle; Larry Meirow; Eric P. Muth; David C.
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Dufrane; Tim Michael Josephs; William Blazinski and Kathryn
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McMillan-Forrest oppose the motion.

Having considered the

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parties’ papers and the entire record in this case, the Court
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DENIES the motion.
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Defendants imply that the outcome of Plaintiffs’ appeal
could affect their need to comply with the injunction.
Plaintiffs’ appeal is quite separate. Only if Defendants’ crossappeal is granted would their compliance be unnecessary.

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BACKGROUND
On November 19, 2013, this Court entered an order granting in

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part and denying in part Plaintiffs’ motion for summary judgment

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and granting in part and denying in part Defendants’ cross-motion

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for summary judgment.

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granted Plaintiffs’ motion for summary judgment on their APA

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notice claim “to the extent that Plaintiffs seek to require the

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Army to warn class members of any information acquired after the

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last notice was provided, and in the future, that may affect their

Docket No. 544.

Specifically, the Court

United States District Court
For the Northern District of California

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well-being, when that information becomes available.”

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544 at 71.

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“Newly Acquired Information.”

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required Defendant Department of the Army to file, within ninety

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days of the date of entry, a report describing its efforts to

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locate Newly Acquired Information, describing any information

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located, outlining its plan for disseminating, within 120 days of

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the date of entry, that information to the class members entitled

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to notification, and outlining the plans and policies developed

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for periodically collecting and transmitting Newly Acquired

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Information that becomes available in the future.

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November 19, 2013 entry date, Defendant’s report is due on

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February 17, 2014.

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Docket. No.

The Court also entered an injunction regarding such
Docket No. 545.

The injunction

Based on the

On November 26, 2013, Plaintiffs filed a notice of appeal

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and, on January 21, 2014, Defendants filed a notice of cross-

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appeal.

On January 22, 2013 Defendants filed the instant motion

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to stay.

The Ninth Circuit has granted Plaintiffs’ motion for

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expedited briefing and the cross-appeals will be fully briefed by

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April 21, 2014.
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LEGAL STANDARD
“A stay is not a matter of right, even if irreparable injury

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might otherwise result.”

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(2009) (citation and internal quotation marks omitted).

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it is “an exercise of judicial discretion,” and “the propriety of

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its issue is dependent upon the circumstances of the particular

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case.”

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omitted).

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the exercise of that discretion.

United States District Court
For the Northern District of California

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Nken v. Holder, 129 S. Ct. 1749, 1760
Instead,

Id. (citation and internal quotation and alteration marks
The party seeking a stay bears the burden of justifying
Id.

The standard for determining whether to grant a stay pending

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appeal is similar to the standard for issuing a preliminary

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injunction.

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(9th Cir. 1988).

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likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of relief, that the balance of

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equities tips in his favor, and that a stay is in the public

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interest.

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Natural Resources Defense Council, 555 U.S. 7 (2008)).

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two factors of this standard "are the most critical.”

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these factors are satisfied, courts then assess “the harm to the

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opposing party” and weigh the public interest.

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Tribal Village of Akutan v. Hodel, 859 F.2d 662, 663
A party seeking a stay must establish that he is

Nken, 129 S. Ct. at 1761 (noting overlap with Winter v.
The first
Id.

Once

Id. at 1762.

An alternative to this standard is the “substantial

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questions” test.

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merits and a balance of hardships that tips sharply towards the

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plaintiff” can support the issuance of a stay, “so long as the

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plaintiff also shows that there is a likelihood of irreparable

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injury and that the injunction is in the public interest.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

Under this test, “serious questions going to the

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See

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(9th Cir. 2011) (holding that the substantial questions test, for

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purposes of a motion for preliminary injunction, survives Winter,

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555 U.S. at 7).

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DISCUSSION
Defendants contend that they are entitled to a stay under the

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substantial question test based on questions regarding “whether

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Section 706(1) of the APA provides a basis for judicial review and

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enforcement of the ‘duty to warn’ that the Court held is contained

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in the 1988, 1989 and 1990 versions of Army Regulation 70-25.”

United States District Court
For the Northern District of California

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Motion to Stay at 3.

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exist, Defendants have failed to establish a likelihood of

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irreparable injury if the stay is denied or that the stay is in

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the public interest.

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complying with the injunction are substantial.

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the declaration of Dee Moris, the Chief of Staff for the Joint

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Requirements Office for Chemical, Biological, Radiological and

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Nuclear Defense.

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compliance with the Court’s injunction will impose substantial

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monetary and manpower burdens on the Army.”

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Even assuming that substantial questions

Defendants assert that the time and cost of
Defendants submit

Morris declares that “even a minimum level of

Morris Dec. ¶ 5.

Defendants provide two “informal” estimates for the cost of

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compliance.

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conduct literature searches with respect to the relevant test

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substances and compare those searches to previously conducted

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reviews to determine whether there have been any material

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developments, Defendants assert that the cost over five years will

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be approximately $8.8 million.

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provide another option of having the government “conduct

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scientific and medical literature searches pertaining to the

If they contract with the Institute of Medicine to

Morris Dec. ¶ 12.

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Defendants

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hundreds of substances at issue.”

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declares that this option presents unspecified “substantial

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burdens and costs to the government.”

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Defendants, the “costs associated with reviewing and evaluating

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the medical and scientific literature associated with just the

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approximately twelve biological substances and vaccines used

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during the test program” is $860,000.

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further declares that these costs “would be substantially greater

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if these literature reviews included all of the hundreds of test

Morris Dec. ¶ 15.

Id.

Morris

According to

Morris Dec. ¶ 15.

Morris

United States District Court
For the Northern District of California

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substances used during the test programs, and had to be

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continuously updated, as may be required by the Court’s

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injunction.”

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costs are for continuing and complete compliance.

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the $8.8 million estimate to contract with the Institute of

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Medicine is the amount expected to be spent over five years.

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Defendants themselves point out, the Ninth Circuit has agreed to

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decide the parties’ cross-appeals on an expedited basis.

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within the next few months, Defendants win their appeal, they will

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be able to stop their efforts to comply with the injunction and

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they will not have incurred all of the costs quoted.

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Morris Dec. ¶ 18.

The Court notes that the quoted
For example,

As

If,

While Defendants provide these “informal estimates”

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indicating that compliance with the injunction may be expensive,

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Defendants present no evidence that incurring such costs will

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cause irreparable harm.2

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Morris is the risk of “unnecessarily alarming past test

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participants with additional notifications of minimal value to

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them.”

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seeking the injunction is not sufficient to warrant a stay.

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County of Sonoma v. Federal Housing Finance Agency, 2011 U.S.

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Dist. LEXIS 112945, *5 (N.D. Cal.) (finding no irreparable harm or

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burden where the defendants claimed that a preliminary injunction

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would impose a burden on its “limited financial and personnel

Morris Dec. ¶ 5.

In fact, the only harm identified by

Such speculative harm to the individuals

United States District Court
For the Northern District of California

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resources” but failed to “identify any agency activity that

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will be undermined through the diversion of funds or staff

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See

time.”).

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Moreover, an analysis of the balance of hardships tips in

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Plaintiffs’ favor.

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will be incurred by Defendants and, on the other, there is the

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very real possibility that the aging and adversely affected test

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subjects will not learn about health effects that could be

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mitigated if known.

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research and providing information to adversely affected test

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subjects, even if Defendants should not have been required to

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incur those expenses, would not be wasted.

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the adversely affected test subjects could lead to irreversible

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health consequences.

On the one hand, there are the expenses that

Any expense incurred by Defendants doing

However, lost time for

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Defendants state, “The Army’s efforts to meet its other
obligations will be irreparably harmed by having to divert
resources to complying with an injunction that could ultimately be
changed by the ongoing litigation.” Motion to Stay at 8.
However, Defendants do not support this contention with any
evidence.
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CONCLUSION
Accordingly, the Court DENIES Defendants’ motion for a stay

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pending appeal.

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extension of the deadlines in the injunction.

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their best to plan and begin compliance with the injunction and

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provide a report of their efforts and their plans to the Court by

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February 17, 2014.

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The Court also denies Defendants’ request for an
Defendants shall do

IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated:

2/5/2014

CLAUDIA WILKEN
United States District Judge

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