C.A.:Vets/Title 5 Rights

Lynn Weed 001

“Sovereign Immunity Cannot be used to hide agency wrongs”

Vietnam Veterans of America v. CIA, 09-37, U.S. District Court, Northern District of California (San Francisco).

From Judge Wilken’s “Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss and Denying Defendants’ Alternative Motion for Summary Judgment”, January 19, 2010.

. . .

Defendants’ arguments that Plaintiffs’ claims lack merit and that relief is unavailable are considered below with respect to dismissal under Rule 12(b)(6).

6

allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint. Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

B. Analysis

Defendants assert that the Court lacks subject matter

jurisdiction because the United States has not waived sovereign immunity for Plaintiffs’ claims, because the claims are time-barred and because Plaintiffs lack standing to bring their claims  concerning the lawfulness of the testing, consent forms and secrecy oaths.2

1. Sovereign Immunity

To bring a claim against an agency of the United States, a

plaintiff must establish a waiver of sovereign immunity.

Rattlesnake Coalition v. U.S. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007). Under 5 U.S.C. § 702, the judicial review provision of the Administrative Procedure Act (APA), sovereign immunity is waived “in all actions seeking relief from official misconduct except for money damages.” The Presbyterian Church v. United States, 870 F.2d 518, 525 (9th Cir. 1989); see also Rosemere Neighborhood Ass’n v. U.S. EPA, 581 F.3d 1169, 1172 n.2 (9th Cir. 2009) (“Section 702 waives the government’s sovereign immunity for actions, such as this one, that seek injunctive relief.”). Section 702 “permits a citizen suit against an agency when an individual has suffered ‘a legal wrong because of agency action’ . . . .” Rattlesnake, 509 F.3d at 1103 (quoting 5 U.S.C. § 702).

An agency’s failure to act constitutes “agency action” for the purposes of section 702. See 5 U.S.C. § 551(13).

Defendants argue that the United States’ sovereign immunity

bars Plaintiffs’ claims for (1) medical care; (2) notice and the production of documents on the known health effects of Defendants’ human experimentation program; and (3) a declaration that the Supreme Court’s Feres doctrine is unconstitutional.

Because Plaintiffs’ claims for medical care and notice arise

under section 702, sovereign immunity does not bar the Court’s jurisdiction over these claims. Plaintiffs allege that Defendants’ failure to provide medical care and to disclose information concerning the experiments is unlawful. With regard to medical care, Plaintiffs assert that Defendants’ legal duties arise from previously confidential Army documents and the 1962 version of AR 70-25. As mentioned above, the documents and the regulation require that medical care will be provided for “all casualties” of the experiments. To demonstrate Defendants’ legal obligation to disclose information, Plaintiffs cite various documents, including a 1978 DOJ opinion letter, which states that the CIA may well be held to have a legal duty to notify

3 Section 2401(a) provides:

Except as provided by the Contract Disputes Act

(continued…)

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those MKULTRA drug-testing subjects whose health the CIA

has reason to believe may still be adversely affected by

their prior involvement in the MKULTRA drug-testing

program; that an effort should thus be made to notify

these subjects; . . . and, while the CIA might lawfully

ask another agency to undertake the notification effort

in this instance, the CIA also has lawful authority to

carry out this task on its own.

SAC ¶ 14; SAC, Ex. A at A-006. The DOJ opined that the CIA,

“having created the harm or risk” to test participants’ health, has a common-law duty “to notify individuals as an effort directed at rendering assistance and preventing further harm.”

SAC, Ex. A. at A-002. By citing these documents, regulation and letter,

Plaintiffs sufficiently allege they have suffered a legal wrong based on agency inaction. They therefore state a section 702 claim, for which sovereign immunity is waived.

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