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

Filing 562

ORDER REGARDING DEFENDANT DEPARTMENT OF ARMY'S MARCH 6, 2014 REPORT. Signed by Judge Claudia Wilken on 4/2/2014. (ndr, COURT STAFF) (Filed on 4/2/2014) Modified on 4/2/2014 (cp, COURT STAFF).

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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 REGARDING
DEFENDANT
DEPARTMENT OF
ARMY’S MARCH 6,
2014 REPORT

Plaintiffs,

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No. CV 09-0037-CW

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

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.

Docket No. 544.

Specifically, the Court

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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
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well-being, when that information becomes available.”

Docket No.

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544 at 71.

The Court also entered an injunction regarding such

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“Newly Acquired Information.”

Docket No. 545.

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Defendants filed a motion to stay enforcement of the
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injunction pending the resolution of their appeal to the Ninth
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Circuit.
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The Court denied the motion on February 5, 2014.

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Defendants also sought a stay from the Ninth Circuit, which the

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Ninth Circuit denied on February 20, 2014.

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The injunction required Defendant Department of the Army to
file, within ninety days of the date of entry, a report describing

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its efforts to locate Newly Acquired Information, describing any

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information located, outlining its plan for disseminating, within

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120 days of the date of entry, that information to the class

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members entitled to notification, and outlining the plans and

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policies developed for periodically collecting and transmitting

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United States District Court
For the Northern District of California

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Newly Acquired Information that becomes available in the future.

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The Army filed its report on March 6, 2014.

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Much of the report concerns the Army’s actions prior to this

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lawsuit and prior to the Court’s injunction.

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Docket No. 561.

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Army’s obligations under the injunction.

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to locate Newly Acquired Information and to disseminate it to the

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class members entitled to notification, the Army describes a

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“multi-step process.”

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includes four or five steps to locate Newly Acquired Information,

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each of which will take at least “several weeks.”

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See Army Report

This information does nothing to satisfy the

Id. at 9.

With respect to efforts

As described, this process

Id. at 9-11.

The Court finds that this plan is unduly time-consuming and

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vague.

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contemplated that ninety days would be a sufficient amount of time

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for the Army to search for and create a plan for disseminating

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information.

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Army has stated that it is “currently undertaking measures to

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determine the magnitude of the project” and estimates that this

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determination will take “several weeks.”

At the time it entered the injunction, the Court

Instead, at the end of the ninety-day period, the

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Id. at 9-11.

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Accordingly, the Court directs the Army to file a revised plan.

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The revised plan should have as its first step a method for

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determining whether the Army has in its possession any Newly

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Acquired Information that has not yet been disseminated.

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the Army states that it is unaware of any such information in its

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possession and goes to lengths to describe its past efforts to

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collect and disseminate information, it does not describe any

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effort to confirm the lack of information in its possession since

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the entry of the injunction.1

Although

Moreover, the plan must include an

United States District Court
For the Northern District of California

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actual timeline for completion of the search for Newly Acquired

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Information.

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With respect to the Army’s plans for “periodically collecting

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and transmitting Newly Acquired Information that becomes available

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to it,” Injunction ¶ 4(e), the Army states, “Key Army leaders

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within Army Medical Command will be tasked to inform the Army

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Surgeon General or his/her designee(s) of ‘Newly Acquired

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Information,’ within their commands and area of responsibility.”

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Army Report Docket No. 561 at 12.

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lacks specificity.

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“[k]ey Army leaders” and explain what it means to have Newly

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Acquired Information “within their commands and area of

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responsibility.”

The Court finds that this plan

The Army must identify the job titles of these

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As discussed below, the Army proposes that, going forward,
“[k]ey Army leaders” will be responsible for monitoring the
receipt of any Newly Acquired Information. Assuming that the Army
is able to identify these “[k]ey Army leaders,” it could survey
them to determine whether any of them currently possesses any
Newly Acquired Information that must be disseminated.
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The Court directs the Army to file a revised report

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addressing the issues discussed above within fourteen days of the

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date of this order.

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IT IS SO ORDERED.

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Dated:

4/2/2014

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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