UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
January 18, 1988
Mrs. David Orlikow, et al., Plaintiffs
United States of America, Defendant
The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, United States District Judge
Plaintiffs filed this Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., suit against the United States for injuries they sustained from an alleged experimentation/research project funded by the Central Intelligence Agency (CIA). Defendant characterizes the actions of Dr. Ewen Cameron, the psychiatrist who utilized the CIA funds for his research, as psychiatric treatment which falls within the parameters of acceptable medical standards. The case is before the Court on defendant's motion for summary judgment. Defendant has propounded numerous arguments supported by a plethora of documents to which plaintiffs have parried with countervailing arguments and evidence.
Despite the copious paper filed in this motion, the issues can be narrowed to: (1) whether defendant's actions fall within the discretionary function exception to the FTCA, (2) whether the statute of limitations precludes suit by plaintiffs, (3) whether the actions fall within the foreign country exception and, (4) whether the CIA can be liable for the actions of an independent contractor. A thorough analysis of the case must begin with sorting through the admitted facts and those issues which remain in dispute. Against this framework the relevant law is applied.
The facts submitted in this case are labyrinthine and generally not disputed. The pivotal issue, however, pertaining to whether Dr. Cameron's research was medically sound therapy or experimentation, is plainly in dispute. In their Amended Complaint the plaintiffs allege, (1) negligent failure of supervision and control over CIA employees, (2) negligent and reckless funding of hazardous experiments, (3) liability for CIA funding of medical malpractice. Amended Complaint at 19-24. A brief overview of the case will provide the context in which this action arose.
In the 1950s, the CIA initiated an expansive covert research project, known as MKULTRA, which was designed to investigate chemical and biological warfare. The project was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. Various subprojects were contracted out to research institutions. Because the Agency funded the research indirectly, participating individuals often were unaware of the CIA involvement. C.I.A. v. Sims, 471 U.S. 159, 105 S. Ct. 1881, 1884, 85 L. Ed. 2d 173 (1985). An April 3, 1953 memorandum reads:
Aside from the offensive potential, the development of a comprehensive capability in this field of covert chemical and biological warfare gives us thorough knowledge of the enemy's theoretical potential thus enabling us to defend ourselves against a foe who might not be as restrained in the use of these techniques as we are.
Defendant's Motion Exhibit
Many of the early projects involved the use of Lysergic Acid Diethyamide (LSD) and other drugs and some involved experimentation on unwitting human subjects. Id. 105 S. Ct. at 1884, n. 2. A few tragic deaths occurred from these actions.
Defendant admits that as a result of one specific death, critical letters were given by Director Dulles to the Chief, TSS, Mr. Gibbons, the Chief of the Technical Operations Branch of TSS, Colonel Drum, and the Chief of the Chemical Division of TSS, Dr. Gottlieb. Defendant's Statement of Material Facts as to Which There Is No Genuine Issue, hereinafter "Defendant's Statement" par. 20. Additionally, after the Olson death, Director Dulles "made it clear that these projects should be handled under adequate medical supervision." Defendant's Statement par. 22.
In 1955, the CIA set up a secret front organization, known as the Society for the Investigation of Human Ecology (SIHE), to fund further studies. CIA employee, Dr. John Gittinger and Dr. Wolff from Cornell, assisted in the program formation. Approximately a year later, Dr. Gittinger read an article, published in the American Journal of Psychiatry, written by Dr. Ewen Cameron from the Allan Memorial Institute of Psychiatry, and entitled Psychic Driving. Defendant's Motion Exhibit 6. The article prompted him to invite Dr. Cameron to submit an application for SIHE research funds. Defendant's Statement pars. 31-32.
The article described a technique administered to individuals who suffered from varying forms of mental disorders. The technique involved the playback of a significant statement made by the patient though the use of a continuous loop tape recorder. Certain methods were utilized to reduce defense mechanisms and "depattern" behavior. These techniques were later detailed in an application for research funds submitted to the SIHE. They included the use of "particularly intensive" electroconvulsive shock, sensory isolation, and drug induced continuous sleep for many days. The application requested funds to improve the technique of heteropsychic driving and to investigate the range of physiological functions which can be changed by these procedures. Among the studies proposed was the use of chemical agents, including LSD, to depattern the individual. Defendant's Motion Exhibit 7. Dr. Cameron characterized his work as the "gateway through which he might pass to a new field of psychotherapeutic methods." Psychic Driving, 112 Am. J. Psy. 502 (January, 1956). Whether in fact the methods used in Dr. Cameron's therapy, particularly those related to "preparing" the patient for Psychic Driving, were therapeutic, ethical or within the standard of medical care, is a pivotal issue disputed in this case.
On March 4, 1957, the CIA approved the Cameron grant as MKULTRA Subproject 68 for the period of time from March 18, 1957 to June 30, 1960. Defendant's Statement par. 40. The nine plaintiffs
in this action were patients of Dr. Cameron during the grant period. Each was subjected to at least one aspect of the procedure outlined in the application grant. It is undisputed that the plaintiff did not have knowledge of the alleged experimental nature of Dr. Cameron's techniques, however, various forms of consent were given for treatment. On April 12, 1960, after receiving the final grant payment, Dr. Cameron sent a letter to the SIHE, thanking the organization for its assistance and stating that "the help which we have received from your Society during the last several years has been invaluable, and all of us who are engaged in this investigation have a considerable sense of indebtedness to your organization." Defendant's Motion Exhibit 17. The CIA funding period had ended although Dr. Cameron continued his work.
II. DISCRETIONARY FUNCTION
Defendant asserts, inter alia, that this case must be dismissed because each of the actions alleged are protected by the discretionary function exception under the FTCA. 28 U.S.C. § 2680 (a). The issue is jurisdictional. The applicable two pronged clause provides that the Act shall not apply to:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (emphasis added).
The discretionary function exception, referred to in the second clause of section 2680(a) "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines)), 467 U.S. 797, 808, 104 S. Ct 2755, 2762, 81 L. Ed. 2d 660 (1984). Congress failed to define "discretionary function". The Courts are thereby saddled with the task of giving form to this enigmatic term. The seminal cases that have evolved on the issue assist in the process. Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1956) and Varig Airlines, supra, are the two leading Supreme Court cases construing the discretionary function.
Plaintiffs' complaint states three counts: (1) negligent supervision and control of employees who chose to fund Dr. Cameron, (2) negligent funding of an inherently dangerous activity, ie, human experimentation, and (3) which can be read into the second count, asserts liability for CIA funding of medical malpractice. The second and third count allege extraordinary and malevolent acts which by their very nature are beyond any reasonable discretion that Congress might have envisioned when creating the discretionary exception. See Glickman v. United States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985).
When a decision is made to conduct intelligence operations by methods which are unconstitutional or egregious, it is lacking in statutory or regulatory authority. Socialist Workers Party v. Attorney General of the United States, 642 F. Supp. 1357, 1417 (S.D.N.Y. 1986). The Court is mindful that an allegation that the employee has ignored any agency practice does not automatically take an activity outside of the discretionary function. Red Lake Band of Chippewa Indians v. United States, 255 U.S. App. D.C. 162, 800 F.2d 1187, 1197, n.3 (D.C.Cir. 1986). Yet, from another perspective, defendant admits that after the Olson tragedy future projects were to be handled with proper medical guidance. Where the "government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the exception to the Tort Claims Act. Conversely, if there is a standard by which his action is measured, it is not within the exception." Barton v. United States, 609 F.2d 977, 979 (10th Cir. 1979).
The CIA was created to correlate and evaluate intelligence relating to the national security. If the disputed facts were resolved in favor of plaintiffs, the defendant would have acted so far beyond its authority that in any proper construction the action could not be termed discretionary. As one court stated: "Discretion may be as elastic as a rubber-band, but it, too, has a breaking point." Birnbaum v. United States, 588 F.2d 319 329 (2d Cir. 1978).
Count one involves negligent supervision of the employees who chose to fund Dr. Cameron's research. Plaintiffs allege action which falls outside the discretionary function exception. To fall outside the exception, the plaintiffs must allege conduct that is sufficiently separable from a decision-making function. Payton v. United States, 679 F.2d 475, 482 (5th Cir. 1982). The CIA had authority to choose certain employees as part of the plan or policy of an authorized governmental function. Whether the CIA officials exercised proper control over the MKULTRA program employees is a question distinguishable from any policy decision in implementing the plan. Where a claim alleges negligence by a government official in failing to properly control or supervise another government employee, who in turn commits an intentional tort, the negligence claim is barred because it arises out of the intentional tort. Here plaintiffs are suing for negligence in supervision and failure to exercise due care in the selection of employees who would carry out a brainwashing research funding. Selecting incompetent contractors or employees and supervising them in a careless manner are acts of negligence pure and simple. See Liuzzo v. United States, 508 F. Supp. 923, 932 (E.D.Mich. 1981); DeLong v. United States, 600 F. Supp. 331 (D.Alaska 1984); Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972); Melton v. United States, 488 F. Supp. 1066, 1072 (D.C.C. 1980).
To hold that these discretionary decisions involve a measure of policy judgment would extend the protection of the exception beyond what Congress intended to protect from judicial second guessing. Every decision involves some measure of discretion, but stretched to an extreme, section 2680 could swallow any waiver of sovereign immunity intended by the Act. Morici Corporation v. United States, 500 F. Supp. 714, 721 (D.Cal. 1980) rev'd on other grounds, 681 F.2d 645 (9th Cir. 1982). Negligent selection or supervision is unquestionably an area for the judiciary. The government is liable only where "the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency." Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 766-767 (D.C.Cir. 1979). The government is held responsible for "any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors." Id. at 766. The issue of whether defendant delegated funding authority to persons unreasonably unfit to exercise it is one that must be left for trial.
III. STATUTE OF LIMITATIONS
If an action is presented more than two years after the claim accrues it is barred by the statute of limitations applicable to the FTCA. 28 U.S.C. § 2401(b). Courts which have considered the question are unanimous that mental and legal disabilities do not toll the statute of limitations under the FTCA because the statute is jurisdictional. However, in Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220, 228 (D.C.Cir. 1977), the court stated (citation omitted):
Read into every federal statute of limitations . . . is the equitable doctrine that in the case of defendant's fraud or deliberate concealment of material facts relating to his wrongdoing, time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit.
The diligence-discovery rule applies not only to concealment cases but also "where a plaintiff demonstrates that his injury was inherently unknowable at the time he was injured." Barrett v. United States, 689 F.2d 324, 327 (2nd Cir. 1982), cert. denied Cattell v. Barrett, 462 U.S. 1131, 103 S. Ct. 3111, 77 L. Ed. 2d 1366 (1983).
The focus of the statute of limitations arguments in this case must be discussed with careful consideration of what is being alleged. This is not a medical malpractice case although there are aspects which may implicate treating the case for limitations purposes as negligence in promoting medical malpractice. This case involves the alleged negligence by the CIA in secretly funding a doctor who allegedly carried out experiments on unwitting human subjects. This Court cannot agree with defendant that knowledge of injury by Dr. Cameron constitutes the accrual date of plaintiffs claims. The CIA backing of Dr. Cameron is the focus of this case. Although the case may turn on whether Dr. Cameron's actions, as reflected in his research application were medically unsafe, unethical or purely experimental; plaintiffs do not seek damages from the government on a vicarious liability theory. Instead the gravamen of the claim is that the reason the plaintiffs were injured was because the CIA funded a research experiment on human guinea pigs. The pivotal question is when plaintiffs' claim accrued against the CIA not Dr. Cameron.
There are factual issues in dispute as to the extent of concealment surrounding this case. Concealment can toll the limitations but only as long as the plaintiff could not unearth the critical facts by exercising due diligence. Defendant admits that the MKULTRA programs were covert and that the identity of the CIA as the funding source was to be kept secret. This is not material, however, to the significant difficult question of notice that is raised in this case.
Although the CIA funding was undisclosed for many years, defendant argues that it came to light when a book by John Marks, The Search for the Manchurian Candidate, was published in 1979 and various other articles were subsequently published in newspapers and journals. For clarity in analyzing the significance of this in relation to each plaintiff a list of each plaintiff's filing date follows:
Name Date of actual notice Date of filing
Mr. Page February 9, 1979 March 14, 1980
Mr. Logie February 12, 1979 March 14, 1980
Mrs. Huard March, 1980 Nov. 25, 1980
Mrs. Stadler March 11, 1980 Nov. 25, 1980
Mrs. Zimmerman June 10, 1982 Feb. 4, 1983
Mrs. Langleben June 10, 1982 Feb. 4, 1983
Mr. Weinstein August, 1980 Feb. 4, 1983
Dr. Morrow Summer 1977 March 25, 1981
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