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Vietnam Veterans of America; Swords To Plowshares: Veterans v. Central Intelligence Agency; David

September 30, 2012

VIETNAM VETERANS OF AMERICA; SWORDS TO PLOWSHARES: VETERANS RIGHTS ORGANIZATION; BRUCE PRICE; FRANKLIN D. ROCHELLE; LARRY MEIROW; ERIC P. MUTH; DAVID C. DUFRANE; TIM MICHAEL JOSEPHS; AND WILLIAM BLAZINSKI, INDIVIDUALLY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
CENTRAL INTELLIGENCE AGENCY; DAVID H. PETRAEUS, DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY; UNITED STATES DEPARTMENT OF DEFENSE; LEON E. PANETTA, SECRETARY OF DEFENSE; UNITED STATES DEPARTMENT OF THE ARMY; JOHN M. MCHUGH, UNITED STATES SECRETARY OF THE ARMY; UNITED STATES OF AMERICA; ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND ERIC K. SHINSEKI, UNITED STATES SECRETARY OF VETERANS AFFAIRS, DEFENDANTS.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING IN PART, AND DENYING IN PART, PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Docket No. 346), DENYING DEFENDANTS' MOTIONS FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION AND FOR RELIEF FROM A NONDISPOSITIVE ORDER OF MAGISTRATE JUDGE (Docket Nos. 431 and 471), AND GRANTING IN PART, AND DENYING IN PART, PLAINTIFFS' MOTION TO SUBSTITUTE (Docket No. 439)

Plaintiffs Vietnam Veterans of America, Swords to Plowshares: Veterans Rights Organization, Bruce Price, Franklin D. Rochelle, 22 Larry Meirow, Eric P. Muth, David C. Dufrane, Tim Michael Josephs 23 and William Blazinski move for class certification and to 24 substitute Kathryn McMillan-Forrest as a named Plaintiff in this 25 action in place of her late husband, former Plaintiff Wray C. 26 Forrest. Defendants United States of America; U.S. Attorney 27 General Eric Holder; the Central Intelligence Agency and its 28 Director David H. Petraeus (collectively, CIA); the U.S. 2 Department of Defense and its Secretary Leon Panetta 3 (collectively, DOD); the U.S. Department of the Army and its 4 Secretary John M. McHugh; and the U.S. Department of Veterans 5 Affairs and its Secretary Eric K. Shinseki (collectively, DVA) 6 oppose Plaintiffs' motions, and move for relief from a 7 nondispositive order of the Magistrate Judge. The DVA also seeks 8 leave to file a motion for reconsideration of the Court's November 9 15, 2010 Order, which allowed Plaintiffs to amend their complaint 10 to assert a claim against DVA. Plaintiffs oppose Defendants' 11 motions. Having considered the arguments made by the parties in 12 their papers and the hearing on the motion for class 13 certification, the Court GRANTS in part Plaintiffs' motions for 14 class certification and DENIES it in part and DENIES Defendants' 15 motions. The Court construes Plaintiffs' motion to substitute as 16 a motion to amend and GRANTS it in part and DENIES it in part.

BACKGROUND

"Military experiments using service member[s] as subjects 19 have been an integral part of U.S. chemical weapons program, 20 producing tens of thousands of 'soldier volunteers' experimentally 21 exposed to a wide range of chemical agents from World War I to 22 about 1975." Sprenkel Decl., Ex. 1 at VET001_015677.*fn1 See also 23 Herb Decl., Ex. 1, 1 (describing the establishment of the Army's 24 Medical Research Division in 1922 and related research 25 activities). "Formal authority to recruit and use volunteer 26 subjects in [chemical warfare] experiments was initiated in 1942." 2 Id.; see also Herb Decl., Ex. 2, VET002_001801 (describing World 3 War II (WWII) era testing of mustard agents and Lewisite involving 4 "over 60,000 U.S. servicemen"). "From 1955 to 1975, thousands of 5 U.S. service members were experimentally treated with a wide range 6 of agents, primarily at U.S. Army Laboratories at Edgewood 7 Arsenal, Maryland." Sprenkel Decl., Ex. 1 at VET001_015677. See 8 also Answer ¶ 5 (admitting "that the DOD used approximately 7,800 9 armed services personnel in the experimentation program at 10 Edgewood Arsenal" and that it "administered 250 to 400 chemical and biological agents during the course of its research at Edgewood Arsenal involving human subjects"). The experiments had 13 a variety of purposes, including increasing the country's 14 defensive and offensive capabilities for war and researching 15 behavior modification. Answer ¶ 3. 16

Plaintiffs contend that participants were administered

17 secrecy oaths*fn2 and told that they could not discuss the 18 experimentation program with anyone, under threat of a general 19 court martial. Defendants have been unable to locate written 20 secrecy oaths administered during WWII or the Cold War. 21

Various memoranda and regulations were intended to govern

22 these experiments. In February, 1953, the Secretary of Defense 23 issued the Wilson Directive to the Army, Navy and Air Force 24 governing "the use of human volunteers by the Department of 25 Defense in experimental research in the fields of atomic, 2 biological and/or chemical warfare." Sprenkel Decl., Ex. 26, 3 C001. The Wilson Directive stated, "The voluntary consent of the 4 human subject is absolutely essential," and provided that, before 5 such consent can be given, the participant must be informed of, 6 among other things, the nature of the experiment, "all 7 inconveniences and hazards reasonably to be expected; and the 8 effects upon his health and person which may possibly come from 9 his participation in the experiment." Id. at C001-02. It further 10 provided, "Proper preparation should be made and adequate 11 facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death." Id. 13 at C003. A June 1953 Department of the Army memorandum, CS:385, 14 repeated these requirements and further stated, "Medical treatment 15 and hospitalization will be provided for all casualties of the 16 experimentation as required." Sprenkel Decl., Ex. 27, 1-2, 7. 17

These requirements were codified in Army Regulation (AR) 70-25, 18 which was promulgated on March 26, 1962 and reissued in 1974. 19 Sprenkel Decl., Ex. 28; Herb Decl., Exs. 11, 12. 20 Plaintiffs contend that, despite the memoranda and 21 regulations discussed above, all volunteers participated without 22 giving informed consent because the full risks of the experiments 23 were not fully disclosed. See, e.g., Blazinski Depo. 97:8-11. 24 In 1990, the Army issued an updated version of AR 70-25. Herb Decl., Ex. 13. Among other changes, this version added a 26 provision stating, 27 Duty to warn. Commanders have an obligation to ensure that research volunteers are adequately informed concerning the risks involved with their participation 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. . . .

Id. at 5. It also required the Army to create and maintain a 4 "volunteer database" so that it would be able "to readily answer 5 questions concerning an individual's participation in research" 6 and "to ensure that the command can exercise its 'duty to warn.'" 7 Id. at 3, 13-14. It further provided, "Volunteers are authorized 8 all necessary medical care for injury or disease that is a 9 proximate result of their participation in research." Id. at 3. 10 In 1991, the DOD issued regulations addressing the protection of human test subjects. 56 Fed. Reg. 28003 (codified at 32 C.F.R. 12 §§ 29.101-124). These regulations adopted some of the basic 13 principles of informed consent set forth in the Wilson Directive. 14 See 32 C.F.R. § 219.116.

In 2002, Congress passed section 709 of the National Defense Authorization Act for Fiscal Year 2003 (NDAA), Pub. L. No. 107-17 314, Div. A, Title VII, Subtitle A, § 709(c), 116 Stat. 2586, 18 which required the Secretary of Defense to work to identify 19 projects or tests, other than Project 112,*fn3 "conducted by the 20 Department of Defense that may have exposed members of the Armed 21 Forces to chemical or biological agents." 22 or in full from secrecy oaths that they may have taken in 24 25 conjunction with testing. The first, issued by former Secretary 2 of Defense William Perry in March 1993, releases 3 any individuals who participated in testing, production, transportation or storage associated with any chemical weapons research conducted prior to 1968 from any non-disclosure 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.

Herb Decl. Ex. 44 (the Perry memorandum). 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 10 restriction and states, In the 1990s, several reviews of military human subject 11 research programs from the World War II and Cold War eras noted the common practice of research volunteers 12 signing "secrecy oaths" to preclude disclosure of research information. Such oaths or other non-disclosure 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 15 disabilities.

To assist veterans seeking care for health concerns related to their military service, chemical or biological agent research volunteers are hereby released 17 18 from non-disclosure restrictions, including secrecy oaths, which may have been placed on them. This release 19 pertains to addressing health concerns and to seeking benefits from the Department of Veterans Affairs. Veterans may discuss their involvement in chemical and biological agent research programs for these purposes.

This release does not affect the sharing of any technical reports or operational information concerning research results, which should appropriately remain classified.

This memorandum, which is effective immediately, does not affect classification or control of information, consistent with applicable authority, relating to other requirements pertaining to chemical or biological weapons. Herb Decl. Ex. 46 (the 2011 memorandum).

The DVA, which Plaintiffs contend participated in some 2 capacity in some of the other Defendants' testing programs, 3 processes service-connected death or disability compensation 4 (SCDDC) claims of class members. See Sprenkel Decl., Ex. 44 at 5 MKULTRA0000190090_0325; Sprenkel Decl., Ex. 45 VET001_009241. 6 Plaintiffs also contend that the DVA engaged in human testing of 7 similar substances, including LSD and Thorazine. Sprenkel Decl., 8 Ex. 46. To establish that a death or disability is connected to a 9 veteran's participation in the testing programs for the purposes 10 of SCDDC claims, individuals seeking survivor or disability benefits must establish that "it is at least as likely as not that such a relationship exists." Sprenkel Decl., Ex. 47, 13 VET001_015127-28; see also Sprenkel Decl., Ex. 23, 41:2-6. 14 Defendants have undertaken some efforts to provide notice to 15 participants in the testing program. In recent years, the DVA, 16 with the assistance of the DOD, sent notice letters to certain 17 individuals who participated in some WWII and Cold War era testing 18 programs. For the first round of letters related to WWII era 19 testing sent in 2005, DOD compiled a database of approximately 20 4,495 individuals who had been exposed to mustard gas or Lewisite 21 and sent letters to approximately 321 individuals or their 22 survivors for whom Defendants could locate contact information. 23 Sprenkel Decl., Ex. 56.*fn4 These letters stated in part, 24 25 You may be concerned about discussing your participation in mustard agent or Lewisite tests with VA or your health care provider.

On March 9, 1993 the Deputy Secretary of Defense released veterans who participated in the testing, production, transportation or storage of chemical weapons prior to 1968 from any non-disclosure restriction. Servicemembers who participated in such tests after 1968 are permitted to discuss the chemical agents, locations, and circumstances of exposure only, because this limited information has been declassified. Herb Decl., Ex. 30. 8

For the second round of letters, the DOD compiled a database 9 of approximately 10,000 individuals who participated in Cold War 10 era testing, sent letters to fewer than 4,000 people for whom they located contact information, and provided the database to the DVA. 12 Sprenkel Decl., Exs. 38-40. The DOD excluded from this database 13 individuals who fell into a number of categories, such as those 14 who participated in particular types of chemical and biological 15 tests. See, e.g., Sprenkel Decl., Ex. 36. Defendants did not 16 include in the letters the names of the chemical or biological 17 agents to which the participants were exposed. Sprenkel Decl., 18 Ex. 34. The letters sent by the DVA stated, 19 You may be concerned about releasing classified test information to your health care provider when discussing 20 your health concerns. To former service members who have participated in these tests, DoD has stated:

"You may provide details that affect your health to your health care provider. For example, you may discuss what you believe your exposure was at the time, reactions, treatment you sought or received, and the general 22 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.

Sprenkel Decl., Ex. 77. The letter also provided information about 2 obtaining a clinical examination from the DVA and contacting the 3 DVA to file a disability claim. Id. The DVA also included a fact 4 sheet from the DOD. The DVA's own expert in chemical agent 5 exposures recognized that this fact sheet "has some significant 6 inaccuracies." Sprenkel Decl., Ex. 52, DVA052 000113. The DOD 7 also placed some information on its public website, including the 8 contents of the Perry memorandum. 9 In the instant motion, Plaintiffs seek certification of a 10 class consisting of All current or former members of the armed forces, or in the case of deceased members, the personal representatives of their estates, who, while serving in the armed forces, were test subjects in any human Testing Program that was sponsored, overseen, directed, funded, and/or conducted by the Department of Defense or any branch thereof, including but not limited to the Department of the Army and the Department of the Navy, and/or the Central Intelligence Agency, between the inception of the Testing Programs in approximately 1922 and the present. For the purposes of this definition, "Testing Program" refers to a program in which any person was exposed to a chemical or biological substance for the purpose of studying or observing the effects of such exposure.

Reply, at 17. Plaintiffs exclude "persons who were exclusively test participants in Project 112/SHAD (Shipboard Hazard and Defense)." Id. at 17 n.15.

As stated in their motion for class certification and clarified at the hearing, Plaintiffs seek to prosecute various 24 claims arising under the United States Constitution and the 25 Administrative Procedures Act (APA), 5 U.S.C. §§ 701, et seq., on 26 behalf of the class against the DOD, the Army, the CIA and the DVA. Against the DOD, the Army and the CIA, Plaintiffs seek on behalf of the class a declaration that the secrecy oaths are invalid and an injunction requiring Defendants to notify class 2 members that they have been released from such oaths. Against the 3 DOD and the Army, Plaintiffs seek to prosecute claims on behalf of 4 the class asserting (1) under the APA, that these Defendants are 5 required to provide class members with notice*fn5 of their exposures 6 and known health effects, and medical care as set forth in the 7 agencies' own policies; (2) under the Fifth Amendment, that these 8 Defendants' failure to provide class members with notice, medical 9 care and a release from secrecy oaths violated their substantive 10 due process liberty rights, including their right to bodily 11 integrity; (3) under the Fifth Amendment, that these Defendants'

failure to provide class members with any procedures whatsoever to 13 challenge this deprivation violated their procedural due process 14 rights; (4) under the Fifth Amendment, that these Defendants' 15 failure to comply with their own regulations and procedures 16 regarding notice and medical care deprived class members of their 17 due process rights; and (5) under the First and Fifth Amendment, 18 that the failure to provide a release from secrecy oaths prevented 19 class members from filing claims for benefits with the DVA and 20 thereby violated their right of access to the courts. Against the 21 DVA, Plaintiffs seek to prosecute a claim on behalf of the class 22 under the Fifth Amendment's due process clause asserting the 23 agency is an inherently biased adjudicator of class members' 24 claims for benefits. They seek appointment of named Plaintiffs 2 Tim Josephs, William Blazinski and Vietnam Veterans of America 3 (VVA) as class representatives.

Although Plaintiffs seek to substitute Kathryn McMillan- Forrest as a named Plaintiff in this action in place of her late 6 husband, former Plaintiff Wray Forrest, they do not seek 7 appointment of Ms. McMillan-Forrest as a representative for the 8 class. 9

DISCUSSION

I. Motion for Class Certification 11

A. Legal Standard

Plaintiffs seeking to represent a class must satisfy the 13 threshold requirements of Rule 23(a) as well as the requirements 14 for certification under one of the subsections of Rule 23(b). 15 Rule 23(a) provides that a case is appropriate for certification 16 as a class action if: "(1) the class is so numerous that joinder 17 of all members is impracticable; (2) there are questions of law or 18 fact common to the class; (3) the claims or defenses of the 19 representative parties are typical of the claims or defenses of 20 the class; and (4) the representative parties will fairly and 21 adequately protect the interests of the class." Fed. R. Civ. P. 22 23(a). 23

Plaintiffs must also establish that one of the subsections of Rule 23(b) is met. In the instant case, Plaintiffs seek 25 certification under subsections (1)(A) and (2). A court may 26 certify a class pursuant to Rule 23(b)(1)(A) if the plaintiffs 27 establish that "prosecuting separate actions by or against 28 individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members 2 that would establish incompatible standards of conduct for the 3 party opposing the class." Fed. R. Civ. P. 23(b)(1)(A). Rule 4 23(b)(2) permits certification where "the party opposing the class 5 has acted or refused to act on grounds that apply generally to the 6 class, so that final injunctive relief or corresponding 7 declaratory relief is appropriate respecting the class as a 8 whole." Fed. R. Civ. P. 23(b)(2). 9 Plaintiffs bear the burden of demonstrating that each element 10 of Rule 23 is satisfied, and a district court may certify a class 11 only if it determines that the plaintiffs have borne their burden.

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); 13 Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 14 1977). The court must conduct a "'rigorous analysis,'" which may 15 require it "'to probe behind the pleadings before coming to rest 16 on the certification question.'" Wal-Mart Stores, Inc. v. Dukes, 17 131 S. Ct. 2541, 2551 (2011) (quoting Falcon, 457 U.S. at 160-61). 18

"Frequently that 'rigorous analysis' will entail some overlap with 19 the merits of the plaintiff's underlying claim. That cannot be 20 helped." Dukes, 131 S. Ct. at 2551. To satisfy itself that class 21 certification is proper, the court may consider material beyond 22 the pleadings and require supplemental evidentiary submissions by 23 the parties. Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 24 1975).

B. Claims at Issue 26

Defendants contend that Plaintiffs improperly seek certification to prosecute claims that are not asserted in their third amended complaint (3AC) or that have been abandoned or 2 dismissed, and to pursue relief not requested in the 3AC. 3 Defendants argue that, because in the 3AC Plaintiffs requested only declaratory relief regarding the validity of the 5 secrecy oaths and did not demand injunctive relief requiring 6 Defendants to notify test participants that they are released from 7 the oaths, Plaintiffs cannot now properly seek certification of a 8 class to pursue such a remedy. Opp. at 9. Defendants cite no 9 authority in support of this contention. Although Federal Rule of 10 Civil Procedure 8(a) requires that a "pleading that states a claim for relief must contain . . . a demand for the relief sought, which may include relief in the alternative or different types of 13 relief," a court is not limited to the relief sought in this 14 demand when entering a final judgment. See Fed. R. Civ. P. 54(c) 15 (final judgments other than default judgments "should grant the 16 relief to which each party is entitled, even if the party has not 17 demanded that relief in its pleadings"). The Ninth Circuit has 18 applied this rule to uphold a court's power to award declaratory 19 relief when that relief was not requested in the complaint. See 20 Arley v. United Pacific Ins. Co., 379 F.2d 183, 186-187 (9th Cir. 21 1967). Defendants make no showing that they would be prejudiced 22 by a request for injunctive relief. Accordingly, the Court 23 rejects their argument that a class, if certified, may not pursue 24 injunctive relief on this claim.

Defendants also contend that Plaintiffs seek certification of a class to pursue claims that were previously dismissed. 27

Specifically, Defendants point to Plaintiffs' request in their 28 proposed order that the class be certified to pursue declarations that, by "subjecting members of the Proposed Class to 2 participation in the human testing programs, DOD put members of 3 the Proposed Class at risk of adverse health effects," and that 4

"DOD violated the Official Directives by failing to implement 5 procedures to determine whether members of the Proposed Class have 6 particular diseases--mental or physical--as a result of the 7 testing programs." Opp. at 10 (citing Proposed Order ¶¶ 1.e, 8 1.f). Defendants argue that these requests challenge the 9 lawfulness of the testing program itself, claims which the Court 10 has already dismissed with prejudice. These requests, however, 11 can more properly be viewed as part of Plaintiffs' claims for notice and health care. A declaration that the DOD has not 13 implemented procedures that would allow it to recognize and 14 diagnose whether members have illnesses related to their 15 participation in the testing programs, for example, is part of a 16 claim that the DOD and the Army have systematically failed to 17 provide proper medical care to remedy such diseases. Similarly, 18 the request for a declaration that the DOD put Plaintiffs at risk 19 of adverse health effects is part of Plaintiffs' claim that the 20

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

These requests for relief have not been dismissed. Defendants also contend that Plaintiffs' statement that

"factual issues underpinning" the due process claims include 24 whether Defendants "obtained the informed consent of test 25 participants, adopted reasonable testing protocols and procedures, 26 and complied with their obligations to adopt procedures for 27 continued medical care and treatment of casualties" improperly 28 re-asserts claims about the lawfulness of the testing program that were already dismissed with prejudice. Opp. at 11. If Plaintiffs 2 seek to litigate whether Defendants had "adopted reasonable 3 testing protocols and procedures" to challenge the lawfulness of 4 the testing itself, such a claim was previously dismissed and a 5 class will not be certified to pursue it. However, Plaintiffs' 6 argument that Defendants lacked reasonable testing protocols to 7 obtain informed consent, so that the secrecy oaths given by class 8 members were void from the beginning, relates to a claim that the 9

Court has not dismissed. Finally, Defendants argue that Plaintiffs are trying now to pursue constitutional claims for notice and health care that they previously abandoned or did not include in the 3AC and that they 13 should be limited to prosecuting claims under the APA. Defendants 14 contend that they previously moved to dismiss Plaintiffs' claims 15 in their entirety and suggest that, in response, Plaintiffs 16 disavowed any constitutional basis for their notice and health 17 care claims. However, in their opposition to that motion, 18

Plaintiffs clearly asserted the constitutional basis for these 19 claims. See, e.g., Docket No. 43, at 22-23 ("Defendants violated 20 due process and fundamental constitutional rights (and binding 21 regulations) by subjecting Plaintiffs to testing without informed 22 consent and by failing to provide follow-up information and health 23 care."). Further, the 3AC does allege constitutional claims 24 related to notice and health care against the DOD and the Army, 25 see, e.g., 3AC ¶¶ 184-86, which this Court has not previously 26 dismissed, unlike the corresponding claims previously asserted 27 against the CIA. The constitutional claims contained in these 28 paragraphs of the 3AC were not limited to substantive due process challenges and can be fairly read to encompass procedural due 2 process claims, particularly in conjunction with the extensive 3 allegations of procedural deficiencies alleged elsewhere in the 4

3AC. 5

C. Standing and Identification of Representatives 6

Defendants argue that Plaintiffs have not identified a proper

7 representative. They state that, because in the 3AC Plaintiffs 8 stated, "The proposed class representatives are Plaintiffs VVA and 9

Swords to Plowshares," 3AC ¶ 175, they cannot now seek to have 10

Josephs and Blazinski appointed as class representatives, in that this would be a "functional" amendment of their complaint. Opp. at 12. However, in a separate paragraph of the 3AC, Plaintiffs 13 did identify Blazinski and Josephs as proposed class 14 representatives. In that pleading, Plaintiffs added Blazinski and 15

Josephs for the first time, referring to them as the Additional 16

Plaintiffs, see 3AC at 62, and stated, "Together with one or more 17 of the original Plaintiffs, Plaintiffs may seek approval for the 18

Additional Plaintiffs to serve as class representatives," 3AC 19

¶ 222. 20

Defendants also argue that VVA does not have standing and

21 cannot serve as a class representative, because it itself is not a 22 class member and did not suffer the same injuries as class 23 members. Plaintiffs respond that VVA has associational standing. 24

Although Defendants admit that the Ninth Circuit has recognized 25 associational standing in such situations, they argue that the 26

Supreme Court has recently made a "pronouncement" that "a class 27 representative must be part of the class and possess the same 28 interest and suffer the same injury as the class members." Opp. at 12-13 (quoting Dukes, 131 S. Ct. at 2550). As Plaintiffs point 2 out, this was not a new requirement set forth by the Supreme Court 3 in Dukes, which did not deal with associational standing; instead, 4 this was a quote from several earlier cases. See Dukes, 131 S. 5 Ct. at 2550 (quoting East Tex. Motor Freight System, Inc. v. 6 Rodriguez, 431 U.S. 395, 403 (1977); Schlesinger v. Reservists 7 Comm. to Stop the War, 418 U.S. 208, 216 (1974)). Although it is 8 true that a class representative must fulfill this requirement, 9 "many courts have held that organizations with associational 10 standing may serve as class representatives, at least where the 11 underlying purpose of the organization is to represent the 12 interests of the class." Monaco v. Stone, 2002 U.S. Dist. LEXIS 13 28646, at *127 (E.D.N.Y.) (collecting cases); see also 14 International Union, United Auto., etc. v. LTV Aerospace & Defense 15 Co., 136 F.R.D. 113, 123-124 (N.D. Tex. 1991) (collecting cases). 16 Thus, the Ninth Circuit has rejected the argument that the unions 17 cannot serve as class representatives because they "are not 18 members of the class they seek to represent" as "without merit, 19 since, in their associational capacity, the unions are acting on 20 behalf of" the class members. California Rural Legal Assistance, 21 Inc. v. Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990). 22 See also Prado-Steiman v. Bush, 221 F.3d 1266, 1267 (11th Cir. 23 2000) (remanding to district court to ensure that "at least one of 24 the named class representatives possesses the requisite individual 25 or associational standing to bring each of the class's legal 26 claims"); In re Pharm. Indus. Average Wholesale Price Litig., 277 27 F.R.D. 52, 61-62 (D. Mass. 2011) (finding that organizations with 28 associational standing may serve as class representatives).

The Supreme Court has held that "an association has standing

2 to bring suit on behalf of its members when: (a) its members would 3 otherwise have standing to sue in their own right; (b) the 4 interests it seeks to protect are germane to the organization's 5 purpose; and (c) neither the claim asserted nor the relief 6 requested requires the participation of individual members in the 7 lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 8

343 (1977). See also Oklevueha Native Am. Church of Haw., Inc. v. 9

Holder, 676 F.3d 829, 839 (9th Cir. 2012) (applying the standard 10 for associational standing set forth in Hunt).

Defendants do not dispute that the VVA has met the last two requirements; instead, they argue that the VVA cannot meet a 13 purported additional requirement for associational standing, that 14 there must be a "compelling need" for VVA to serve as a class 15 representative to vindicate the rights of class members not 16 currently before the Court. Opp. at 13. In support of such an 17 additional requirement, Defendants cite Black Coalition v. 18

Portland School Dist., 484 F.2d 1040 (9th Cir. 1973), in which the 19

Ninth Circuit stated that "an association has standing to 20 represent its members in a class suit only if 'there is a 21 compelling need to grant [it] standing in order that the 22 constitutional rights of persons not immediately before the court 23 might be vindicated.'" Id. at 1043 (quoting Norwalk CORE v. 24

Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968)). 25

However, Black Coalition was decided before the Supreme Court 26 enunciated the three part test for associational standing in Hunt 27 and has not been cited for this proposition thereafter. In later 28 cases, the Ninth Circuit has relied on the Hunt test alone when assessing associational standing. See, e.g., Oklevueha Native Am. 2 Church, 676 F.3d at 839; Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 3 1109-1113 (9th Cir. 2003). Further, at least one other Court of 4 Appeals has since rejected the contention "that associations never 5 have representational standing without a showing of compelling 6 need" because any such requirement "was substantially undercut by 7 later associational standing cases," including Hunt. See 8 Associated General Contractors v. Otter Tail Power Co., 611 F.2d 9 684, 688-689 (8th Cir. 1979). Indeed, after Hunt, the Ninth 10 Circuit has allowed associations to represent classes along with 11 individual plaintiffs. California Rural Legal Assistance, 917 F.2d at 1175. Accordingly, the Court finds that the VVA has 13 associational standing to represent the class, as long as some of 14 its members would otherwise have standing to sue in their own 15 right.*fn6

Defendants argue that Plaintiffs have not met their burden to 17 show, on a claim-by-claim basis, that at least one of the proposed 18 class representatives has standing to pursue each claim. "In a 19 class action, standing is satisfied if at least one named 20 plaintiff meets the requirements." Bates v. UPS, 511 F.3d 974, 21

985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860 2 (9th Cir. 2001)). 3 "[T]o satisfy Article III's standing requirements, a 4 plaintiff must show (1) it has suffered an 'injury in fact' that 5 is (a) concrete and particularized and (b) actual or imminent, not 6 conjectural or hypothetical; (2) the injury is fairly traceable to 7 the challenged action of the defendant; and (3) it is likely, as 8 opposed to merely speculative, that the injury will be redressed 9 by a favorable decision." Maya v. Centex Corp., 658 F.3d 1060, 10 1067 (9th Cir. 2011) (quoting Friends of the Earth, Inc., v. 11 , 528 U.S. 167, 180-81 (2000)). This Laidlaw Ent'l Serv., Inc 12

Court has previously recognized, "In the context of declaratory 13 relief, a plaintiff demonstrates redressability if the court's 14 statement would require the defendant to 'act in any way' that 15 would redress past injuries or prevent future harm." Vietnam 16 Veterans of Am. v. CIA, 2010 U.S. Dist. LEXIS 3787, at *15 (N.D. 17 Cal.) (quoting Mayfield v. United States, 588 F.3d 1252, 2009 WL 18 4674172, at *6 (9th Cir. 2009), replaced by 599 F.3d 964 (2010)). 19 Where a "plaintiff seeks prospective injunctive relief, he must 20 demonstrate 'that he is realistically threatened by a repetition 21 of [the violation],'" which may be shown by demonstrating "that 22 the harm is part of a 'pattern of officially sanctioned . . . 23 behavior, violative of the plaintiffs' [federal] rights.'" 24 Armstrong, 275 F.3d at 860-61 (internal citations omitted). 25 Defendants contend primarily that Plaintiffs cannot establish 26 injury-in-fact or redressability for each claim. 27 28

1. Notice

Plaintiffs seek an order requiring that Defendants provide

3 notice to class members regarding the substances to which they 4 were exposed, the dosage of the substances, the route of exposure 5 and potential health effects of exposure or participation in the 6 experiments, and a declaration that Defendants have a continuing 7 duty to provide updated notice to all class members as more 8 information about exposures and medical effects is learned or 9 acquired. 10

Defendants argue that the proposed representatives cannot demonstrate that they have a redressable injury regarding notice,

12

because "they have already received all the information that they 13 could receive through this suit." Opp. at 15. Defendants rely on 14 the fact that Blazinski, Josephs, Dufrane and Doe requested and 15 received what Defendants refer to as their "service member test 16 files" from the DOD, which Defendants contend included information 17 regarding the substances to which they were exposed, dosage and 18 routes of exposure. Defendants further contend that Blazinski and 19

Josephs received a notice letter from the DVA with similar 20 information. 21

Defendants conflate standing with the ultimate merits of Plaintiffs' claims. See, e.g., Equity Lifestyle Props., Inc. v. 23 Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) 24

("The jurisdictional question of standing precedes, and does not 25 require, analysis of the merits."). Further, the documents to 26 which Defendants point are not so clear as to establish as a 27 matter of law that these individuals received the notice that 28 Plaintiffs demand in this case.*fn7 Many of the test files are 2 partially illegible and list substances by internally-used codes 3 or agent numbers, which were indecipherable to the recipients. 4

See, e.g., Dufrane Depo. 81:15-82:10. Defendants argued at the 5 hearing that the test files also "oftentimes"--but not 6 always--contained information about the chemical compounds to 7 which service members were exposed; however, the documents 8 themselves do not make clear which codes corresponded with 9 compounds listed elsewhere in the test files, and which were 10 undefined. Further, Defendants' contention at the hearing that the proposed representatives could have called the DOD to ask what the codes meant does not establish that the DOD and the Army 13 affirmatively provided notice of this information to Blazinski, 14

Josephs, Dufrane and Doe. Plaintiffs also contend that the test 15 files were largely unintelligible to the class members who did 16 receive them and that this has interfered with their ability to 17 access medical care. See, e.g., Dufrane Depo. Tr. 141:1-142:13. 18 Defendants have not challenged this contention. The test files 19 also contain little or no information about potential health 20 effects. 21 Defendants rely on the letters from the DVA to assert that 22 each of the proposed representatives has received notice of the 23 known potential health effects associated with substances to which 2 he was exposed or with participation in studies. Defendants 3 contend that the DOD "is unaware of any general long-term health 4 effects associated with the chemical and biological testing 5 programs," and that the DVA notices were accompanied by a fact 6 sheet from the DOD which stated that a study "did not detect any 7 significant long-term health effects in Edgewood Arsenal 8 volunteers" from "exposure to the chemicals tested." Opp. at 17; 9

Herb Decl. Ex. 53. Defendants argue that the DOD has thus 10 fulfilled any obligation to provide notice of known potential health effects. These letters do not establish that, as a matter

of law, the proposed representatives lack standing. First, the 13 letters from the DVA were not sent by the DOD and the Army, which 14

Plaintiffs claim have a duty to provide such notice.*fn8 Further, 15 the letters only provided general information regarding the 16 testing programs, without any individualized information about 17 substances to which the particular recipient was exposed, doses or 18 possible health effects. See Herb Decl., Exs. 33, 34.*fn9 Finally, 19 the conclusion expressed in the letters, that there are no long 20 term health effects from the testing, is contradicted by 2 Defendants' own documents. Specifically, an internal DVA 3 memorandum to its clinicians stated that "long-term psychological 4 consequences . . . are possible from the trauma associated with 5 being a human test subject," Sprenkel Decl., Ex. 49, 3, and long-6 term psychological health effects were not included in the DVA 7 notice letter. Further, Mark Brown, the DVA's own expert in 8 chemical agent exposures, stated that the representations about 9 health effects in the letter were "clearly incorrect." Sprenkel 10

Decl., Ex. 52, DVA052 000113. Specifically, he rejected the letter's statement that a particular study "did not detect any

significant long-term health effects in Edgewood Arsenal 13 volunteers" because the study did find some such effects, and he 14 suggested that the letter be rephrased to state that the study 15 found "few significant long-term health effects." Id. This 16 change was not made in the fact sheet sent to the proposed 17 representatives. See Herb Decl., Exs. 33, 34. Accordingly, these 18 letters do not establish that the proposed class representatives 19 have received notice of the potential health effects associated 20 with participating in the testing. Thus, they could benefit 21 individually from receiving the notice that they seek on behalf of 22 the class. Accordingly, the Court concludes that Blazinski, 23

Josephs, and the VVA, through Josephs, Dufrane and Doe, have 24 standing to prosecute the claims for notice. 25

2. Health care

Plaintiffs seek declaratory and injunctive relief requiring

27 the DOD and the Army to provide medical care to all participants 28 for conditions arising from the testing program.

Defendants challenge on several grounds the standing of the

2 proposed representatives to assert this claim. First, Defendants 3 argue that Josephs, Blazinski and Doe have not sought medical care 4 from the DOD and the Army since they left the service. Rather, 5 they have only sought such care from the DVA and therefore cannot 6 establish that they were injured by the failure of the DOD and the 7

Army to provide health care. Defendants do not dispute that 8

Dufrane did attempt to seek medical care from the DOD and the 9

Army, by sending them a letter about his health issues, and that 10

"[n]othing ever happened" as a result. See Sprenkel Decl., Ex. 79

11

at 77:2-12, 77:25-79:9. Further, as Defendants acknowledge, the

12

DOD and the Army did not have any mechanism for individuals to 13 make a claim for medical treatment. See Opp. at 18. The fact 14 that the proposed representatives had no way to make such a 15 request is itself an injury that could be remedied by their claim. 16

Second, Defendants contend that the proposed class

17 representatives were able to seek care from the DVA and thus 18 cannot establish that they suffered any injury from their 19 inability to seek medical care from the DOD and the Army. 20

However, this does not necessarily relieve the DOD and the Army 21 from being required independently to provide medical care, 22 particularly because Plaintiffs may be able to establish that the 23 scope of their duty may be different than that of the DVA. 24

Finally, Defendants argue that Plaintiffs' claim for medical

25 care is in fact for money damages, not for equitable relief, and 26 thus that the APA's waiver of sovereign immunity does not apply to 27 this claim. Defendants claim that, because the Court would thus 28 not have jurisdiction to afford relief, Plaintiffs' injuries cannot be redressed. Defendants raised the same argument in their 2 second motion to dismiss the health care claims, see Docket No. 3

218, 12-13, which the Court denied, see Docket No. 233, 8-10. 4

Further, the cases upon which Defendants rely do not counsel

5 the result that they urge. In Schism v. United States, 316 F.3d 6

1259 (Fed. Cir. 2002), the Federal Circuit held that compensation 7 of members of the military, including claims for benefits that are 8 compensation for services rendered, is governed by statute and not 9 contract. 316 F.3d at 1273. There, the plaintiffs were seeking 10 full, free lifetime health care coverage as a form of deferred

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

contract for such coverage. Here, Plaintiffs are not seeking 13 medical care as a form of deferred compensation for their military 14 service. 15

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

12

16 plaintiff sought "either the provision of medical services by the 17

Government or payment for the medical services," which the Third 18

Circuit characterized as "a traditional form of damages in tort 19 compensation for medical expenses to be incurred in the future." 20

Id. at 715. Because the "payment of money would fully satisfy" 21 the plaintiff's claim, the court concluded that it was actually a 22 claim for money damages. Id. The Third Circuit subsequently 23 explained that the principle derived from Jaffee is "that an 24 important factor in identifying a proceeding as one to enforce a 25 money judgment is whether the remedy would compensate for past 26 wrongful acts resulting in injuries already suffered, or protect 27 against potential future harm." Penn Terra, Ltd. v. Dept. of 28

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

Plaintiffs' injury could not be fully remedied by money damages. 2

Further, they seek to end purported ongoing rights violations, not 3 compensation for harms that took place completely in the past. 4

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

1180 (9th Cir. 2001), the Ninth Circuit did not "rule[] that a 6 claim seeking service connection for an ailment or entitlement to 7 ongoing medical care is essentially one for damages," as 8

5

Defendants represent. Opp. at 40. In that products liability 9 case, which did not involve military service, the Ninth Circuit 10 found, in determining whether the relevant claim was equitable or 11 for money damages, the "salient facts" were that the operative

complaint sought the creation of a "medical monitoring fund" and 13 requested an award of compensatory and punitive damages. Zinser, 14

253 F.3d at 1194 (emphasis in original). Such requests are not at 15 issue here. 16

Accordingly, the Court concludes that Josephs, Blazinski, and

12

17 the VVA, through Josephs, Dufrane and Doe, have standing to 18 prosecute the claims for medical care. 19

3. Secrecy Oaths

20

Defendants argue that, because Blazinski, Josephs, Dufrane

21 and Doe no longer feel constrained by any secrecy oath and 22

Defendants have already released all putative class members from 23 any secrecy oath through the 1993 and 2011 memoranda, Plaintiffs 24 cannot establish any injury that could be redressed through the 25 relief sought here. 26

Plaintiffs reply that Defendants' argument would mean that

27 anyone who feels unconstrained enough by the secrecy oath to come 28 forward to represent the class would thereby lose standing.

Plaintiffs also offer evidence that Dufrane testified that he 2 continued to feel bound by the secrecy ...


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