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

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


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 oath to some extent. See 3

Dufrane Depo. 93:13-20. Further, as Plaintiffs point out, the 4 fact that these individuals have made some disclosures about the 5 testing, including to their spouses, counsel and other named 6

Plaintiffs, does not mean that they do not suffer ongoing effects 7 of the secrecy oaths, such as a continuing fear of prosecution. 8

Further, Defendants have not issued a complete release for

9 the proposed representatives and VVA members who participated in 10 testing after 1968, including Josephs, Blazinski and Doe. Herb 11

Decl., Exs. 19, 49; Doe Depo. 47:5-18. The 2011 memorandum only

allows test participants to speak about their involvement in 13 chemical and biological agent testing for the limited purposes of 14 addressing health concerns and seeking benefits from DVA. It is 15 not clear, for example, whether they are allowed to obtain 16 therapeutic counseling, participate in group therapy or discuss 17 their experiences with their spouses or other family members, 18 without fear of prosecution. 19 Further, Defendants have not established that they 20 communicated the release provided in the Perry memorandum to 21 Dufrane, who participated in testing prior to 1968. See Herb 22 Decl., Ex. 80. Dufrane received the notice letter from the DVA 23 quoted above, which allowed only disclosure of "details that 24 affect your health to your health care provider." See Dufrane 25 Depo. 92:17-23; Herb Decl., Ex. 82. Defendants cite no evidence 26 that they communicated an unconditional release to him. 27 Accordingly, Josephs, Blazinski, Doe and Dufrane could 28 benefit from equitable relief that would invalidate the secrecy oaths altogether and that would require Defendants to communicate 2 that release clearly to class members. 3 Defendants also assert that the proposed representatives lack 4 standing to prosecute the secrecy oath claim against the CIA, 5 because "Plaintiffs' 3AC contains not a single allegation that the 6 CIA was involved in the administration of secrecy oaths or that 7 any of the named Plaintiffs or VVA members believes he has a 8 secrecy oath with the CIA," because none of the Plaintiffs and 9 individual VVA members testified to personal knowledge of the 10 CIA's involvement and because the CIA itself has determined that

"no such agreements" with these individuals exist. Opp. at 21. 12 In denying the CIA's motion for judgment on the pleadings, the 13 Court has already held that 14 Plaintiffs plead facts about the CIA's pervasive involvement in planning, funding and executing the experimentation programs. Plaintiffs also plead that the CIA had an interest in concealing the programs from "enemy forces" and "the American public in general." 3AC ¶ 145 (citation and internal quotation marks omitted). These allegations, construed in Plaintiffs' favor, suggest that the challenged secrecy oath could be traced fairly to the CIA and that a court order directed at the CIA could redress Plaintiffs' alleged injuries. Based on their pleadings, Plaintiffs have standing to bring claims against the CIA regarding the secrecy oath.

Docket No. 281, 5-6. Thus, Defendants' argument has already been 21 rejected. The CIA's self-serving statement that it cannot locate 22 records of secrecy oaths that it directly administered, and thus 23 does not believe that such oaths were made, does not establish 24 this fact or that other secrecy oaths cannot be traced fairly to 25 the CIA. Similarly, the fact that Plaintiffs stated in a response 26 to an interrogatory prior to the completion of discovery that, at 27 the time, they did not have "facts identifying specific 28 circumstances where the Central Intelligence Agency directly 2 administered secrecy oaths to Plaintiffs" does not prove as a 3 matter of law that the CIA was not involved in the secrecy oaths 4 at all, especially because Plaintiffs also stated that they had 5 evidence that the CIA financially supported testing by other 6 entities with the knowledge that secrecy oaths were administered. 7

Herb Decl., Ex. 43. 8

Accordingly, the proposed representatives have standing to

9 bring claims against the CIA related to the secrecy oath. 10

4. Claims of a biased adjudication by the DVA

Defendants argue that the proposed representatives cannot

establish that they suffered an actual injury from the DVA's 13 allegedly biased adjudications of their claims. Defendants direct 14 their arguments to Blazinski and Josephs only, contending that 15 these individuals cannot show how the outcomes of their disability 16 claims was in error or would be altered if they win relief on this 17 claim.*fn10 Defendants argue that Josephs was granted forty percent 18 disability based on his exposure to Agent Orange while serving in 19

Vietnam and would not be granted a higher rating if the DVA were 20 to find that his illness was also connected to the testing to 21 which he was exposed at Edgewood Arsenal, although they admit that 22 the DVA never issued a decision regarding this issue. Defendants 23 also contend that the denial of Blazinski's claim for benefits 24 would not have been different if DVA were unbiased, because he did 25 not submit sufficient documentation of his illnesses to the DVA 26

and did not appeal the denial of his claim to the Board of 2

Veterans' Appeals. 3

Defendants misconstrue the nature of this claim. Plaintiffs

4 need not establish that they were denied benefits; instead, the 5 cause of action is based on the denial of a procedural due process 6 right to a neutral, unbiased adjudicator. See Raetzel v. 7

Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1356 (D. 8

Ariz. 1990) ("When a person is denied the procedural opportunity 9 to influence an administrative decision, standing is based on the 10 denial of that right, even if that decision would not have been

affected."). The Supreme Court has held that the denial of procedural due process is an injury in its own right, "does not 13 depend on the merits of the claimant's substantive assertions," 14 and is actionable even without proof of other injury. Carey v. 15 Piphus, 435 U.S. 247, 266 (1978). See also Clements v. Airport 16 Auth., 69 F.3d 321, 333 (9th Cir. 1995) ("the 'absolute' right to 17 adequate procedures stands independent from the ultimate outcome 18 of the hearing"); Kuck v. Danaher, 600 F.3d 159, 165 (2d Cir. 19 2010) ("The viability of [the plaintiff's] due process claim does 20 not turn on the merits of his initial challenge; rather, it 21 concerns whether he received the process he was due."). Because 22 both Blazinski and Josephs applied for benefits, they have 23 standing to pursue this claim, regardless of whether or not they 24 will ultimately receive more benefits as a result of this action. 25 Defendants also contend that, to assess whether Plaintiffs 26 were injured, the Court would be required to review DVA's 27 procedures, which it lacks jurisdiction to do under 38 U.S.C. 28 § 511. The Court has already addressed, and rejected, this contention. In granting Plaintiffs leave to assert this claim 2 against the DVA, the Court acknowledged that § 511 "precludes 3 federal district courts from reviewing challenges to individual 4 benefits determinations, even if they are framed as constitutional 5 challenges." Docket No. 177, 8. Nonetheless, the effect of § 511 6 on claims that "purport not to challenge individual benefits 7 decisions, but rather the manner in which such decisions are 8 made," has not been addressed by the Ninth Circuit. Id. The 9 Court then reviewed several decisions from other Circuit Courts of 10 Appeals that did address this issue. Id. at 9-11 (discussing in detail Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006); Beamon v. Brown, 125 F.3d 965, 972 (6th Cir. 1997)). Applying the standards 13 set forth in Broudy and Beamon, the Court held, 14 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 have moved for leave to file a 24 motion for reconsideration of the Court's conclusion, asserting 25 that the Ninth Circuit's recent decision in Veterans for Common 26 Sense v. Shinseki, 678 F.3d 1013 (2012), compels a different 27 result. Docket No. 431. Arguing that such reconsideration would preclude the sole claim against the DVA, Defendants also have 2 moved for relief from a nondispositive order of the magistrate 3 judge granting discovery from DVA that was related to this claim. 4 Docket No. 471. 5

Veterans for Common Sense does not require reconsideration of 6 the Court's prior conclusion. In that case, two nonprofit 7 organizations challenged delays in the provision of care and 8 adjudication of claims by the DVA and the lack of adequate 9 procedures during the claims process. The court found that the 10 challenges to delays were barred by § 511, because to adjudicate those claims, the district court would have to examine the circumstances surrounding the DVA's provisions of benefits to 13 individual veterans and adjudication of individual claims. Id. at 14

1027-30. However, after discussing the decisions reached by other 15 circuits in Broudy, Beamon and several other cases, the court 16 concluded that it did have jurisdiction over the claims seeking 17 review of the DVA's procedures for handling benefits claims at its 18 regional offices. Id. at 1033-35. In so holding, the court 19 stated that, unlike the other claims, this claim "does not require 20 us to review 'decisions' affecting the provision of benefits to 21 any individual claimants" and noted that the plaintiff "does not 22 challenge decisions at all." Id. at 1034. The court explained, 23

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.

Id. at 1034.*fn11 Thus, the Ninth Circuit considered some of the same 5 authority and applied a similar standard as this Court did in its 6 earlier order. This Court would have reached the same conclusion 7 if it had had the benefit of the decision in Veterans for Common 8

Sense at that time.*fn12 Accordingly, the Court DENIES Defendants' 9

10

18

motions for leave and for relief (Docket Nos. 431 and 471) and 2 reaffirms its conclusion that it does have jurisdiction to 3 adjudicate this claim. 4 D. Class Definition 5 While it is not an enumerated requirement of Rule 23, courts 6 have recognized that "in order to maintain a class action, the 7 class sought to be represented must be adequately defined and 8 clearly ascertainable." DeBremaeker v. Short, 433 F.2d 733, 734 9 (5th Cir. 1970) (citing Weisman v. MCA Inc., 45 F.R.D. 258 (D. 10 Del. 1968)). "A class is ascertainable if it identifies a group 11 of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to 13 identify himself or herself as having a right to recover based on 14 the description." Hanni v. Am. Airlines, Inc., 2010 U.S. Dist. 15 LEXIS 3410, at *24 (N.D. Cal. 2010) (quoting Moreno v. Autozone, 16 Inc., 251 F.R.D. 417, 421 (N.D. Cal. 2008)). "The identity of 17 class members must be ascertainable by reference to objective 18 criteria." 5 James W. Moore, Moore's Federal Practice, § 23.21[1] 19 (2001). Thus, a class definition is sufficient if the description 20 of the class is "definite enough so that it is administratively 21 feasible for the court to ascertain whether an individual is a 22 member." O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 23 (C.D. Cal. 1998). Where the class definition proposed is overly 24 broad or unascertainable, the court has the discretion to narrow 25 it. 26 27 veteran's claim for benefits and the review of their claim would 28 not necessitate such an inquiry.

In their opposition, Defendants made three arguments that the 2 proposed class definition was unascertainable. Plaintiffs 3 subsequently revised their proposed definition to address two of 4 Defendants' contentions, that the definition did not require that 5 class members were service members when they were test subjects 6 and that it did not explain testing programs. At the hearing, 7 Defendants confirmed that Plaintiffs' modifications resolved their 8 concerns about these two issues. 9 In their third argument, Defendants contend that the class 10 definition is overly broad because it includes individuals who 11 have not applied for DVA benefits based on testing or whose applications were approved or otherwise not rejected. This 13 argument is essentially the same as Defendants' contention that 14

Blazinski and Josephs do not have standing to prosecute the claim 15 that the DVA is a biased adjudicator. As discussed above, the 16 cause of action seeks to remedy, not the denial of benefits, but 17 the denial of a neutral, unbiased adjudicator to review a claim 18 for benefits. Further, when a plaintiff pursues injunctive relief 19 to prevent future harm based on a policy or practice generally 20 applicable to the class, it is not required that all of the class 21 members have already been injured by the unlawful policy or 22 practice. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 23 1998) (explaining that, for a class to be certified under Rule 24 23(b)(2), "[i]t is sufficient if class members complain of a 25 pattern or practice that is generally applicable to the class as a 26 whole[,] [e]ven if some class members have not been injured by the 27 challenged practice"). Thus, test participants who have applied 28 or may apply for benefits in the future may all be class members for the purposes of the claim against the DVA. The proposed 2 definition is not overly broad. 3

E. Rule 23(a) Requirements 4

1. Numerosity

Plaintiffs contend that they have met the numerosity

6 requirement because "the Proposed Class has at least tens of 7 thousands of members." Mot. at 11. Plaintiffs also assert that 8 "Defendants admit that as many as 100,000 military personnel, at 9 numerous facilities over several decades, were subjected to the 10 testing programs." Id. Defendants do not dispute that Plaintiffs have satisfied the numerosity requirement, and the Court finds 12 that they have. 13

2. Adequacy

14

Rule 23(a)(4) of the Federal Rules of Civil Procedure

15 establishes as a prerequisite for class certification that "the 16 representative parties will fairly and adequately protect the 17 interests of the class." Plaintiffs argue that there are no 18 conflicts of interest between the proposed representatives and the 19 absent class members and that their counsel has extensive 20 experience prosecuting complex litigation involving veterans, as 21 well as sufficient resources available for the representation. 22

Mot. at 23. Defendants do not challenge the adequacy of the 23 proposed representatives or their counsel. Accordingly, the Court 24 finds that Plaintiffs have fulfilled their burden to establish 25 that this requirement is satisfied. 26

3. Commonality

Rule 23(a)(2) requires that there be "questions of law or

28 fact common to the class." Fed. R. Civ. P. 23(a)(2). It requires that such common questions exist; it does not require that they 2 predominate over individual questions, unlike Rule 23(b)(3), under 3 which Plaintiffs do not seek certification.

4

The Ninth Circuit has explained that Rule 23(a)(2) does not

5 preclude class certification if fewer than all questions of law or 6 fact are common to the class:

7

The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule

23(b)(3). Indeed, Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be

common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is

sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). 12

That "commonality only requires a single significant question of 13 law or fact" was recently recognized both by the Supreme Court and 14 the Ninth Circuit. See Dukes, 131 S. Ct. at 2556; Mazza v. Amer. 15

Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012). Thus, for 16 class certification, there must be at least one "common contention 17

. . . of such a nature that it is capable of classwide 18 resolution--which means that determination of its truth or falsity 19 will resolve an issue that is central to the validity of each one 20 of the claims in one stroke." Dukes, 131 S. Ct. at 2551.

a. APA claims for notice and medical care and

constitutional claim for due process violations based on failure to adhere to policies and regulations

22

Defendants contend that commonality cannot be found for these

23

24 claims. They assert that there is no common source of a legal 25 duty to provide health care or notice to test participants because 26 different regulations and memoranda were in effect throughout the 27 class period; each can only apply to individuals who were later 28 subjected to testing and none can retroactively provide benefits. 2

Defendants also argue that to ascertain whether the Army or DOD 3 has failed to provide medical care or notice will require an 4 examination of whether each individual class member knew about the 5 substances to which he or she was exposed or has suffered health 6 effects as a result of the test.*fn13

7

Plaintiffs reply that the regulations and directives upon

8 which they rely contain similar provisions, which are "forward-9 looking obligations to all test participants regardless of the 10 date of their testing." Reply at 20. 11

Plaintiffs are correct. The various regulations and

12 documents contain identical or similar provisions. Further, 13

Plaintiffs do not seek retroactive application of these 14 obligations. Plaintiffs do not contend that the regulations 15 created additional entitlements with respect to the medical care 16 test participants may have received prior to the creation of any 17 relevant regulations. For example, they do not ask that the Army 18 and DOD be held liable for failure to provide medical care based 19 on the regulations prior to such date. Instead, Plaintiffs' 20 contention is that the regulations create prospective obligations 21 to provide for future testing-related medical needs for all test 22 volunteers, and an ongoing duty to warn. There is nothing in any 23 version of the regulations or other documents that limits these 24

25

forward-looking provisions to those people who became test 2 volunteers after the regulation was created. 3

In the 1990 version of AR 70-25, the definition for human

4 subject or experimental subject included, with limited exceptions, 5

"a living individual about whom an investigator conducting 6 research obtains data through interaction with the individual, 7 including both physical procedures and manipulations of the 8 subject or the subject's environment." Herb Decl., Ex. 13, 16. 9

The definition does not exclude individuals who were subjected to 10 testing prior to the date of the regulations. Further, by its 11 terms, the section in the 1990 regulation regarding the duty to

warn contemplates an ongoing duty to volunteers who have already 13 completed their Id.

participation in research. at 5. Defendants

12

14 maintain that the human experimentation programs ended in 1975. 15

Whether the 1990 regulations created such duties toward any of the 16 class members is a common question, which is central to the 17 validity of these claims and can be accomplished on a class-wide 18 basis. 19

Defendants point to potential questions of fact that may

20 affect whether they ultimately will be found to have violated a 21 duty toward any particular class member. Defendants argue that 22 their liability will differ based on whether the class member was 23 provided some amount of notice, whether there are actually any 24 known health effects related to the testing of the particular 25 substances to which the class member was exposed or whether the 26 class member suffered adverse health effects that Defendants 27 failed to treat. Not all questions of law and fact must be 28 identical for this requirement to be met. Because there is a common question of law regarding whether Defendants had duties to 2 provide notice and health care to class members, the Court finds 3 that Plaintiffs have met their burden to establish commonality on 4 these claims. 5

b. Secrecy oath claims

6

Plaintiffs argue that their claim seeking a declaration that

7 the secrecy oaths taken by members of the proposed class are 8 invalid and that Defendants must notify test participants that 9 they are released from any secrecy oaths raises common questions 10

"whether [the] secrecy oaths are valid, and whether members of the Proposed Class should be unconditionally released from any such

oaths." Reply at 23. The Court finds that Plaintiffs have not 13 met their burden to establish these questions are common to the 14 class. 15

First, Plaintiffs have offered no evidence that class members

16 were required uniformly to take secrecy oaths or that the contents 17 of such oaths were similar. Without a showing of such a factual 18 predicate, the Court is unable to make a class-wide determination 19 whether the oaths are unenforceable. In support of their 20 contention that "Participants were required to swear to Secrecy 21

Oaths and told that they could never speak about their 22 participation, under threat of general court martial," Plaintiffs 23 cite several pieces of evidence. One of these documents is a 24

National Academy of Sciences study, entitled "Veterans at Risk," 25 and written in response to a request for research made by the DVA. 26

Sprenkel Decl., Ex. 13, VET123-002589. In discussing the mustard 27 and Lewisite testing during WWII, the report states, "All of the 28 men in the chamber and field tests, and some of the men in the patch tests, were told at the time that they should never reveal 2 the nature of the experiments." Herb Decl., Ex. 2, VET002-001801. 3

The authors also state, "It is clear that there may be many 4 exposed veterans and workers who took an oath of secrecy during 5

WWII and remain true to that oath even today." VET123-002593, 6

2606-2607; see also Sprenkel Decl., Ex. 1, VET001_015682 (quoting 7 the "Veterans at Risk" study). In their reply brief, Plaintiffs 8 also provided a National Academies report titled, "Health Effects 9 of Perceived Exposure to Biochemical Warfare Agents." Sprenkel 10

Reply Decl., Ex. 80. In summarizing findings of an earlier study about predictive factors for post-traumatic stress disorder in

veterans who participated in mustard gas and Lewisite testing 13 during World War II, this report stated, "Because the tests were 14 secret, some participants were compelled to take an oath of 15 secrecy and were subject to criminal prosecution if they disclosed 16 their participation." Id. at 13. See also Sprenkel Decl., Ex. 10 17

(Hamed Depo.), 158:5-10 (former DOD employee recounting that 18 veterans who participated in testing during WWII told her that 19 they had been administered secrecy oaths).*fn14 Nor have Plaintiffs 20

21

submitted evidence of a policy requiring that secrecy oaths be 2 given prior to participation in testing. The evidence they offer, 3 in addition to being hearsay, is insufficient to make a prima 4 facie showing that class members throughout the class period swore 5 similar secrecy oaths, the enforceability of which could be 6 adjudicated on a class-wide basis. Without such a showing, the 7

Court cannot consider whether a complete release from secrecy 8 oaths is appropriate on a class-wide basis, because the Court 9 would need to consider the terms of the oath which each individual 10 swore, if any. 11

Second, Plaintiffs' legal theory is that, "[b]ecause no test

12 participant was provided with information sufficient to enable 13 informed consent, the Secrecy oaths should be deemed valid ab 14 initio." Mot. at 15. Under this theory, a determination of the 15 validity of the secrecy oaths turns on what information was 16 provided to the class members when they swore them. The evidence 17

Plaintiffs cite in support of this argument is two pages of a 18 statement made by the former General Counsel of the Army during 19

Congressional hearings in 1975. This evidence does not establish 20 that it can be determined a class-wide basis. In the document, 21 the General Counsel discussed the testing of LSD on thirty-one 22 individuals at Edgewood between 1958 and 1960 and acknowledged 23 that certain information was withheld from participants. Sprenkel 24

Decl. Ex. 15 at 160-62. This included the exact properties of the material to be administered and in some cases the time, location 2 or method of administration. Id. The General Counsel also stated 3 that other information was supposed to be given to them, including 4 the general nature of the experiments and that the subject could 5 terminate the experiment at any time, but that available records 6 did not indicate what information was actually given in each case. 7

Id. This testimony only supports the conclusion that certain 8 information was withheld from these particular subjects and that, 9 even for them, there was variance in the information provided. 10

Plaintiffs introduce no evidence that there was a general policy or practice not to provide such information to test subjects

12

before requiring them to sign a secrecy oath. Without such 13 evidence, the Court cannot make a class-wide determination of 14 whether such oaths are invalid ab initio. 15

Accordingly, the Court finds that Plaintiffs have not met the

16 commonality requirement for their claims based on the secrecy 17 oaths. 18

c. Claims of a biased adjudication by the DVA

19

Plaintiffs contend that there are many common questions of

20 law or fact on this claim, including whether the DVA was involved 21 in testing programs, and whether it had an interest in determining 22 there were no long-term health effects from such testing. 23

Defendants have not challenged Plaintiffs' showing of commonality 24 on this claim. Accordingly, the Court finds that Plaintiffs have 25 fulfilled their burden to establish that the requirement is 26 satisfied for this claim.

4. Typicality

2

Rule 23(a)(3)'s typicality requirement provides that a "class

3 representative must be part of the class and possess the same 4 interest and suffer the same injury as the class members." 5

Falcon, 457 U.S. at 156 (quoting E. Tex. Motor Freight Sys., Inc. 6

v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks 7 omitted). The purpose of the requirement is "to assure that the 8 interest of the named representative aligns with the interests of 9 the class." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th 10 Cir. 1992). "[T]he typicality requirement is 'permissive' and

requires only that the representative's claims are 'reasonably co-

extensive with those of absent class members; they need not be 13 substantially identical.'" Rodriguez v. Hayes, 591 F.3d 1105, 14

1124 (9th Cir. 2010) (internal citations omitted). Rule 23(a)(3) 15 is satisfied where the named plaintiffs have the same or similar 16 injury as the unnamed class members, the action is based on 17 conduct which is not unique to the named plaintiffs, and other 18 class members have been injured by the same course of conduct. 19

Id. Class certification is inappropriate, however, "where a 20 putative class representative is subject to unique defenses which 21 threaten to become the focus of the litigation." Id. (quoting 22

Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & 23

Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990). 24

Defendants argue that the claims of Blazinski, Josephs and

12

25 the VVA members related to notice and medical care are not typical 26 of claims of putative class members who participated in testing 27 prior to the issuance of the Wilson Directive in 1952. Opp. at 28

28, n.37. Having found that the claims regarding the obligations derived from the 1990 regulations are as applicable to those who 2 participated in testing prior to their issuance as after that 3 date, the Court rejects Defendants' contention. 4

In a footnote, Defendants state, without elaboration, that

"Plaintiffs have not identified a single individual whose claims 6 are typical of widows," Opp. at 28, n.37, apparently referring to 7

5

Plaintiffs' request to include in their class definition, "in the 8 case of deceased members, the personal representatives of their 9 estates," Mot. at 1-2; Reply, at 17. In reply, Plaintiffs 10 acknowledge that none of the proposed class representatives are survivors of veterans but assert that the proposed representatives

12

are typical of deceased veterans' survivors because "the claims 13 that deceased veterans' representatives assert are the claims of 14 those deceased veterans." Reply at 25, n.25 (emphasis in 15 original); see also Mot. to Substitute 2-3 (arguing that Ms. 16

McMillan-Forrest "stands in her late husband's shoes for purposes 17 of filing a [dependency and indemnification compensation] claim"). 18

Pursuant to 38 U.S.C. § 5121(a) and 38 C.F.R. § 3.5(a), a

19 deceased veteran's spouse, children or dependent parents are 20 entitled to receive benefits accrued by the veteran at the time of 21 his death, such as disability benefits. Thus, claims asserting 22 that the DVA is a biased adjudicator of such benefits are the 23 same, whether asserted by the veterans themselves or the personal 24 representatives of deceased veterans' estates. 25

However, the survivors' own entitlement to dependency and

26 indemnity compensation is separate from the claims of the deceased 27 veterans themselves; such entitlements arise only upon the 28 service-connected deaths of veterans and accrue to the survivors, not the estates of deceased veterans. See 38 C.F.R. § 3.5(a)(1). 2

Plaintiffs have not proposed a class representative with an 3 entitlement to dependency and indemnity compensation. Thus, the 4 proposed class representatives' claims are not typical of claims 5 that the DVA is a biased adjudicator of dependency and indemnity 6 compensation claims. 7

Further, the claims by the veterans themselves for notice are

8 not reasonably coextensive with the claims of deceased veterans' 9 personal representatives. Plaintiffs contend that the veterans 10 are entitled to notice under the APA and the Constitution based on

11

the DOD and the Army's own regulations.*fn15 In their briefing on

their motion to substitute Ms. McMillan-Forrest, to which 13

Plaintiffs refer in support of this argument in their reply on 14 their class certification motion, Plaintiffs contend that 15

Defendants' duty toward the test participants applies "whether 16 they are alive or deceased," and that, as "a practical matter, to 17 discharge this duty to deceased test participants, Defendants must 18 give Notice to the personal representative of the test 19 participant's estate . . ." Reply in Supp. of Mot. to Substitute 20 at 2. The Wilson Directive and versions of AR 70-25 mandate that 21

Defendants provide information to the test participants regarding 22 the possible effects upon their own health or person. Plaintiffs 23

24

do not explain how such a duty to the test participants may 2 continue after they are deceased, when effects upon health and 3 person can no longer occur. Instead, they contend that the 4 survivors are entitled to notice regarding the veteran's exposure, 5 doses and potential health effects because such information may be 6 relevant or necessary for survivors to submit claims for accrued 7 benefits or dependency and indemnity compensation, not because 8 such notice is required by the APA, the Constitution and the 9 regulations, the basis of the claimed duty toward the test 10 participants. See Mot. to Substitute, 2-3. Further, Plaintiffs 11

have conceded that the medical care claims do not survive a 12 veteran's death and cannot be asserted by a veteran's personal 13 representative on behalf of his or her estate. Id. at 1. Thus, 14 the proposed class representatives' notice and health care claims 15 are not typical of deceased veterans' personal representatives' 16 claims. 17

Defendants also make several arguments that the proposed

18 class representatives' secrecy oath claims are atypical of those 19 of the class. Because the Court has already found that Plaintiffs 20 have not met the commonality requirement for these claims, the 21

Court does not reach these arguments. 22

F. Rule 23(b) requirements 23

Plaintiffs seek certification under either Rule 23(b)(1)(A)

24 or 23(b)(2). Although common issues must predominate for class 25 certification under Rule 23(b)(3), no such requirement exists for 26 either subsection under which Plaintiffs seek certification. See 27

Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). 28

Accordingly, Defendants' various arguments that individual issues predominate and preclude certification are not on point. See Opp. 2 at 36, 38. 3

Rule 23(b)(2) permits certification where "the party opposing

4 the class has acted or refused to act on grounds that apply 5 generally to the class, so that final injunctive relief or 6 corresponding declaratory relief is appropriate respecting the 7 class as a whole." Fed. R. Civ. P. 23(b). Plaintiffs argue that 8

Defendants have uniformly failed to fulfill their legal 9 obligations to the class, "as all class members were participants 10 in human testing programs, were denied Notice and medical care, 11 and had their constitutional rights violated by the Secrecy

oaths." Mot. at 24. Plaintiffs also argue that the DVA uniformly 13 failed to act as a neutral adjudicator of class members' claims. 14

For certification under this provision, "[i]t is sufficient

12

15 if class members complain of a pattern or practice that is 16 generally applicable to the class as a whole. Even if some class 17 members have not been injured by the challenged practice, a class 18 may nevertheless be appropriate." Walters, 145 F.3d at 1047; see 19

7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal 20

Practice & Procedure § 1775 (2d ed. 1986) ("All the class members 21 need not be aggrieved by or desire to challenge the defendant's 22 conduct in order for some of them to seek relief under Rule 23

23(b)(2)."). Rule 23(b)(2) does not require a court "to examine 24 the viability or bases of class members' claims for declaratory 25 and injunctive relief, but only to look at whether class members 26 seek uniform relief from a practice applicable to all of them." 27

Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). "Class 28 certification under Rule 23(b)(2) is appropriate only where the

primary relief sought is declaratory or injunctive." Zinser v. 2

Accufix Research Institute, Inc., 253 F.3d 1180, 1195 (9th Cir. 3

2001). 4

Defendants contend that Plaintiffs cannot meet the Rule

23(b)(2) requirement for several reasons. First, Defendants 6 contend that "at least three different sets of regulations and 7 directives . . . have governed DOD's alleged notice duty for the 8 members of the putative class" from 1953 and later, which would 9 require this "Court to have to adjudicate and provide relief 10 dependent on the applicable legal framework." Opp. at 38. In 11

Rodriguez, the Ninth Circuit has rejected similar arguments in the

context of the certification of a class to prosecute claims based 13 on the denial of bond hearings in immigration proceedings. In so 14 ruling, the court noted, "The particular statutes controlling 15 class members' detention may impact the viability of their 16 individual claims for relief, but do not alter the fact that 17 relief from a single practice is requested by all class members. 18

Similarly, although the current regulations control what sort of 19 process individual class members receive at this time, all class 20 members[] seek the exact same relief as a matter of statutory or, 21 in the alternative, constitutional right." Rodriguez, 591 F.3d at 22

1126. See also Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.

23

1988) (emphasizing that, although "the claims of individual class 24 members may differ factually," certification under Rule 23(b)(2) 25 is a proper vehicle for challenging "a common policy"). Here, 26

Plaintiffs also "seek uniform relief from a practice applicable to 27 all of them." Rodriguez, 591 F.3d at at 1125. 28

Defendants also argue that this requirement cannot be met

2 because "at least 4,000 individuals have received some form of 3 notice," referring to the DVA's form letters to veterans. Mot. at 4

39. As the Court explained above, these were sent by the DVA and 5 do not negate Plaintiffs' contention that the DOD and the Army 6 refused to send notice. Further, these letters by themselves are 7 facially insufficient to satisfy the basic components of the 8 notice that Plaintiffs allege Defendants have the duty to provide 9 because they omit any information specific to the class members 10 themselves.

Finally, Defendants contend that certification under Rule

23(b)(2) is inappropriate because "Plaintiffs' claim for medical 13 care" is "essentially a claim for monetary damages." Opp. at 39. 14

The Court has rejected above Defendants' characterization of this 15 claim. 16

Accordingly, the Court finds that Plaintiffs have established

12

17 that certification under Rule 23(b)(2) is appropriate. The Court 18 does not reach Plaintiffs' alternative argument that certification 19 can be granted under Rule 23(b)(1)(A). 20

II. Motion to Substitute 21

Plaintiffs move to substitute Kathryn McMillan-Forrest as a

22 named Plaintiff in this action, in place of her late husband, 23

Plaintiff Wray Forrest, who passed away on August 31, 2010. 24

On April 11, 2012, Defendants filed a statement noting "the

25 death during the pendency of this action of Wray Forrest, a 26

Plaintiff in this action." Docket No. 411. 27

Less than ninety days later, on June 5, 2012, Plaintiffs

28 filed the instant motion to substitute pursuant to Federal Rule of Civil Procedure 25(a)(1). Rule 25(a)(1) provides in part, "If a 2 party dies and the claim is not extinguished, the court may order 3 substitution of the proper party." Plaintiffs seek to substitute 4

Ms. McMillan-Forrest to prosecute Mr. Forrest's APA and 5 constitutional claims regarding notice and his claim that the DVA 6 is a biased adjudicator of SCDDC claims. Plaintiffs do not seek 7 to substitute Ms. McMillan-Forrest to prosecute his secrecy oath 8 claim and claims for medical care, which they acknowledge do not 9 survive his death. Plaintiffs also seek to add to the complaint 10 the following sentence: "Plaintiff Kathryn McMillan-Forrest is the surviving spouse of Wray Forrest, has filed a claim for accrued

disability benefits and dependency and indemnity compensation, and 13 is substituted in Wray Forrest's place as named Plaintiff." Mot. 14 at 4. 15

In opposition, Defendants primarily contend that Plaintiffs'

12

16 motion is properly considered as a motion to amend because Mr. 17

Forrest was no longer a party at the time the motion was made. On 18

November 15, 2010, the Court granted Plaintiffs leave to file 19 their 3AC within three days of that date, and directed them to 20

"make any correction necessitated by the passing of Plaintiff Wray 21

Forrest." See Docket No. 177, at 18. When Plaintiffs timely 22 filed their 3AC, which is the operative complaint in this action, 23 they removed Mr. Forrest from the list of Plaintiffs in the 24 caption, and referred to him as a "former" Plaintiff throughout 25 the body of the 3AC. Subsequently, they consistently omitted Mr. 26

Forrest's name when they listed the Plaintiffs in this action, 27 until they filed their motion for class certification and, shortly 28 thereafter, their administrative motion to substitute Ms. McMillan-Forrest. See, e.g., Pls.' Opp. to Defs.' Mot. to Dismiss 2 the 3AC, Docket No. 188; Pls.' Mot. to Strike Admin. Record, 3

Docket No. 211. Because Plaintiffs amended their complaint to 4 remove Mr. Forrest on November 15, 2010, he was no longer a party 5 to this action when Plaintiffs first sought to substitute Ms. 6

McMillan-Forrest in his place on March 6, 2012. Accordingly, as 7

Defendants urge, the Court construes Plaintiffs' motion as a 8 motion for leave to amend. 9

Federal Rule of Civil Procedure 15(a) provides that leave of

10 the court allowing a party to amend its pleading "shall be freely

given when justice so requires." Because "Rule 15 favors a 12 liberal policy towards amendment, the nonmoving party bears the 13 burden of demonstrating why leave to amend should not be granted." 14

Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-531 15

(N.D. Cal. 1989). Courts consider five factors when assessing the 16 propriety of a motion for leave to amend: undue delay, bad faith, 17 futility of amendment, prejudice to the opposing party and whether 18 the plaintiff has previously amended the complaint. Ahlmeyer v. 19

Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 n.3 (9th Cir. 20 2009). However, these factors are not of equal weight; 21 specifically, "delay alone no matter how lengthy is an 22 insufficient ground for denial of leave to amend." United States 23 v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). Futility of 24 amendment, by contrast, can alone justify the denial of a motion 25 for leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 26 1995); Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 27 Cal. 1988). 28

Defendants contend that amendment would be futile for a

2 variety of reasons. As to the biased adjudicator claim against 3 the DVA, Defendants reassert the same arguments regarding the 4

Court's lack of jurisdiction that the Court has already rejected 5 in this and previous Orders. Thus, the Court concludes that 6

Defendants have not established that this claim is futile. As to 7 the notice claims, Defendants also repeat arguments rejected in 8 this and prior Orders. To the extent that they further contend 9 that Ms. Wray-Forrest will not ultimately be able to prove these 10 claims, "a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller, 845 13

F.2d at 214. Such evidence-based arguments are more properly 14 asserted in a motion for summary judgment. 15

Defendants also contend that any claim asserted by Ms. Wray-

16

Forrest for notice under the APA would be futile, because the 17 regulations and other documents could only support an obligation 18 to warn or provide notice to the test participant himself or 19 herself and not to that person's next-of-kin. As addressed above, 20

Plaintiffs fail to explain how a duty to warn test participants of 21 the effects of testing upon their health and person may continue 22 after the participants have passed away and such effects can no 23 longer continue. Instead, they contend that the survivors of 24 these participants require this information to obtain access to 25 their own entitlements. Although this may support other claims, 26 it does not support a non-discretionary duty to warn survivors 27 under the APA based on the regulations and related documents. Accordingly, Defendants have established that Ms. Wray-Forrest's 2

APA claim for notice would be futile. 3

Defendants also contend that Plaintiffs unduly delayed in

4 seeking amendment. Plaintiffs respond that they mistakenly 5 believed that the Court had already granted leave to substitute 6

Ms. Wray-Forrest as a "correction" contemplated by the Court's 7

November 15, 2010 Order and that the three day period referred to 8 in that Order was to file an amended pleading, not to substitute 9

Ms. Wray-Forrest as well. See Reply to Admin. Mot. to Substitute, 10

Docket No. 374, 1-2; April 5, 2012 Hrg. Tr., Docket No. 414,

11

10:9-11-1. For this reason, the Court does not find the time

12

between Mr. Forrest's death and the filing of the initial motion 13 to substitute constitutes undue delay. 14

Finally, Defendants argue that they were prejudiced by the

15 delay in the filing of this motion, arguing that Plaintiffs seek 16 amendment "in order to have an individual plaintiff with standing 17 to seek dependency and indemnity compensation from VA for the 18 purposes of their class certification motion." Opp. to Mot. to 19

Substitute, 4. However, Plaintiffs have not asked the Court to 20 appoint Ms. Wray-Forrest as a class representative, and thus her 21 inclusion in the action as an individual Plaintiff is not relevant 22 to the resolution of the motion for class certification. 23

Defendants also contend that they were deprived of a fair 24 opportunity to address the potential inclusion in the class of 25 personal representatives of the estates of deceased test 26 participants in their opposition to Plaintiffs' motion for class 27 certification, contending that this was an "abstract" notion until 28

Plaintiffs moved to substitute shortly before their opposition was due. However, in their motion, Plaintiffs defined their proposed 2 class to include such individuals, giving Defendants sufficient 3 notice that this was at issue in the motion so that Defendants 4 could present their arguments in opposition to the inclusion of 5 these individuals. Further, the Court notes that it granted 6

Defendants' sole request for an extension of time and additional 7 pages to oppose the motion for class certification, see Docket 8

Nos. 353, 360, and that they did not seek any additional time to 9 file their opposition after Plaintiffs moved to substitute Ms. 10

Wray-Forrest or seek leave to file a supplemental brief.

Accordingly, the Court GRANTS in part and DENIES in part

12

Plaintiffs' motion to amend. Plaintiffs are granted leave to file 13 a fourth amended complaint, within four days of the date of this 14

Order, adding Ms. Wray-Forrest to the caption of the action and 15 adding the following language to the body of the complaint: 16

"Plaintiff Kathryn McMillan-Forrest is the surviving spouse of 17

Wray Forrest, has filed a claim for accrued disability benefits 18 and dependency and indemnity compensation, and is substituted in 19

Wray Forrest's place as named Plaintiff, except as to the APA 20 claim for notice, the secrecy oath claims and claims for medical 21 care." 22

III. Appointment of Class Counsel 23

Rule 23(g)(1) of the Federal Rules of Civil Procedure

24 provides in part: 25

Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class

counsel, the court:

(A) must consider:

(i) the work counsel has done in identifying or

investigating potential claims in the action;

(ii) counsel's experience in handling class

actions, other complex litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law;

and

(iv) the resources that counsel will commit to

representing the class;

(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests

of the class;

(C) may order potential class counsel to provide

information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable

costs;

(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the

appointment.

Fed. R. Civ. P. 23(g)(1). 13

Plaintiffs represent that their counsel, the law firm of

Morrison & Foerster LLP, has sufficient resources to pursue the 15 instant case vigorously, expertise in prosecuting class actions of 16 this nature, and knowledge of the applicable law. In particular, 17

Gordon Erspamer, who will serve as lead counsel, has prosecuted 18 several notable cases on behalf of veterans, including Veterans 19 for Common Sense, discussed above. The Court notes that counsel 20 has devoted considerable time and resources working on behalf of 21 the putative class thus far. Accordingly, the Court APPOINTS 22

Morrison and Foerster LLP as class counsel. 23

CONCLUSION

For the reasons set forth above, the Court GRANTS in part

Plaintiffs' motion for class certification and DENIES it in part 26

(Docket No. 346). To prosecute the biased adjudicator claim 27 against the DVA, except as to claims for dependency and indemnity 28 compensation, the Court certifies a class defined as 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.

To prosecute the APA and constitutional claims against the DOD and 9 the Army premised on the violation of their own regulations, the 10

Court certifies a class defined as 11

All current or former members of the armed forces, 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.

The Court further GRANTS Plaintiffs' request to appoint VVA, Tim 19

Josephs and William Blazinski as class representatives and 20

Morrison & Foerster LLP as class counsel. 21

The Court DENIES Defendants' motions for leave to file a

22 motion for reconsideration and for relief from a nondispositive 23 order of the Magistrate Judge (Docket Nos. 431 and 471). 24

Finally, the Court GRANTS in part and DENIES in part

Plaintiffs' motion to substitute, which the Court construed as a 26 motion to amend (Docket No. 439). Plaintiffs are granted leave to 27 file a fourth amended complaint, within four days of the date of this Order, adding Ms. Wray-Forrest to the caption of the action 2 and adding the following language to the body of the complaint: 3

"Plaintiff Kathryn McMillan-Forrest is the surviving spouse of 4

Wray Forrest, has filed a claim for accrued disability benefits 5 and dependency and indemnity compensation, and is substituted in 6

Wray Forrest's place as named Plaintiff, except as to the APA 7 claim for notice, the secrecy oath claims and claims for medical 8 care." 9

IT IS SO ORDERED.


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