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Vietnam Veterans of America v. McNamara

February 17, 2005


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The Vietnam Veterans of America, along with named and unnamed Vietnam-era veterans, sue former Secretary of Defense Robert McNamara and other named and unnamed officials of the Department of Defense ("DoD") for alleged violations of their rights of access to veterans' benefits. The complaint alleges that the Defendants have committed Bivens*fn1 violations of Plaintiffs' constitutional rights by intentionally concealing and covering up, for decades, the evidence of experiments conducted on Navy and Marine personnel in 1963 and 1964 as part of Project Shipboard Hazard and Defense ("SHAD"). The Defendants are sued in their individual and official capacities.

Pending before the Court are the Individual Defendants' Supplemental Brief on Qualified Immunity ("Defs.' Brief on Immunity") and Plaintiffs' Opposition thereto ("Plts.' Opp. Qualified Immunity"); Plaintiffs' Supplemental Memorandum Regarding Standards for Judicial Review of Government Classification Determinations ("Plts.' Brief on Classification"), the Defendants' Opposition ("Defs.' Opp. on Classification"), and Plaintiffs' Reply ("Pltfs' Reply on Classification"); Plaintiffs' Submission Pursuant to the Court's May 25, 2004 Order (concerning more specific allegations of misconduct by the named Defendants) ("Plts.' Submission re Alleged Misconduct"), the Defendants' Opposition (Defs.' Opp. re Alleged Misconduct), and Plaintiffs' Reply ("Plts.' Reply re Alleged Misconduct); and Plaintiffs' Motion to Alter or Amend Judgment or, in the Alternative, for Leave to File an Amended Complaint (Pltfs.' Motion to Alter Judgment"), Defendants' Response (Defs.' Opp. to Motion to Alter Judgment"), and Plaintiffs' Reply ("Pltfs.' Reply re Motion to Alter Judgment"). Upon consideration of the parties' arguments in briefing and at oral argument, the Court will grant the motion to dismiss the complaint against Defendants Robert McNamara, Dee Dodson Morris, Bernard Rostker, William Winkenwerder, Michael Kilpatrick and John Doesburg.


In 1963 and 1964, the United States military used active-duty servicemen aboard Navy ships in dispersal testing for biological and chemical weapons.*fn2 Project SHAD was designed to test the vulnerability of ships to biological or chemical attacks using biological and chemical simulants, tracers, and disinfectants that government and military officials believed were benign. Since at least 1962, the DoD has concealed the true nature of, and potential for, adverse health effects caused by this military testing. Am. Compl. ¶ 2.*fn3 According to Plaintiffs, the federal government collected and documented contemporaneous information regarding veterans' actual exposures but placed this information in classified medical records to which they have denied, and continue to deny, access. Id.*fn4

In August 2000, the Department of Veterans Affairs ("VA") asked DoD to provide information concerning Project SHAD tests to help VA adjudicate disability benefit claims filed by SHAD Veterans. DoD conducted an investigation and, by December 31, 2002, determined that 134 tests had been planned between 1962 and 1973 -- 46 tests were conducted and 62 were cancelled. See Statement of the Hon. William Winkenwerder, Assistant Secretary of Defense for Health Affairs, Before the Senate Armed Services Committee (October 10, 2002).*fn5

The DoD investigation led to declassification by the Department of the Army of certain medically-relevant information including, most importantly, identification of the agent or simulant used in each test. DoD used the declassified information to prepare fact sheets on the SHAD tests, which were provided to VA and posted on a DoD website.*fn6 At the end of 2002, DoD had published 46 fact sheets on 42 tests involving more than 5,000 members of the Armed Forces.

DoD separately provided VA with information from ship rosters to identify veterans who had been part of the Project SHAD testing.*fn7 DoD has not released individual medical records concerning test results, if any exist, nor any information concerning levels of exposure.

In their amended complaint, Plaintiffs allege that the Defendants violated their constitutional rights by intentionally concealing and covering up the evidence of Project SHAD experiments for decades, which has inhibited their ability to "meaningfully petition for servicerelated death and disability claims." Am. Compl. ¶ 4. Plaintiffs claim that the primary purpose of this alleged deception "was, and remains, to protect the government and Defendants from lawsuits and to avoid government liability for service-connected compensation." Id.


The Defendants filed a motion to dismiss arguing that the Court lacked jurisdiction over the claims and that Plaintiffs had failed to state a claim on which relief could be granted. On September 30, 2003, the Court issued an initial memorandum opinion, granting in part, and denying in part, the Defendants' motion to dismiss. See Vietnam Veterans of Am. Inc. v. McNamara, 2003 U.S. Dist. Lexis 25840 (" Vietnam Veterans I "). In its opinion, the Court examined the general right to bring a damages claim for violation of a constitutional right under Bivens and the recent exposition of the constitutional "right of access" claim provided in Christopher v. Harbury, 536 U.S. 403 (2002).*fn8

After examining the amended complaint, this Court dismissed claims against the VA Defendants because the complaint failed to allege sufficiently that those Defendants interfered with Plaintiffs' access to the VA benefits process. Vietnam Veterans I, at *28. By contrast, the allegations against the DoD Defendants, named or unnamed, were "sufficient to meet the requirements that a plaintiff allege an affirmative action by one or more government officials that misled him and interfered with his access to the VA benefits process." Id., at *27.*fn9

While Bivens actions enable a complainant to seek vindication of constitutional rights, the doctrine of qualified immunity ensures that monetary liability and harassing litigation will not unduly inhibit officials as they discharge their duties. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (claims frequently run against the innocent as well as the guilty at a cost to the government official and society as a whole). In Vietnam Veterans I, the Court noted that the parties argued qualified immunity as an "all-or-nothing" proposition. Vietnam Veterans I, at *33. Because the issue was not adequately briefed, the Court ordered the parties to provide supplemental briefing on the motion to dismiss, specifically addressing the scope of qualified immunity for DoD Defendants.

On May 25, 2004, the Court heard oral argument on the issue of qualified immunity*fn10 and issued an order that Plaintiffs file more specific allegations of misconduct by the named DoD Defendants that interfered with Plaintiffs' rights of access to veterans' benefits.*fn11 Pursuant to that order, Plaintiffs submitted eighty-three supplemental allegations. The Defendants submitted a response. The issue of qualified immunity for the individual defendants is now ripe for determination.*fn12


On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 42, 45-46 (1957). A Rule 12(b)(6) motion tests whether the plaintiff has properly stated a claim, not whether the plaintiff will prevail on the merits. See Glymph v. District of Columbia, 180 F. Supp. 2d 111, 113 (D.D.C. 2001); FED. R. CIV. P. 12(b)(6). The court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the court does not need to accept as true the plaintiff's legal conclusions. See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7 (D.D.C. 1995).


Under Bivens, a plaintiff may bring a damages suit against an official for deprivation of a constitutional right. In such cases, the plaintiff bears the burden of pleading that a constitutional right is at issue, as well as the elements of his claim. Siegert v. Gilley, 500 U.S. 226, 227 (1991) ("claim failed at an analytically earlier stage of the inquiry into qualified immunity" because the complaint failed to "state a claim for violation of any rights secured to him under the United States Constitution").

While permitting Bivens suits furthers important values by compensating individuals for constitutional violations, Harlow, 457 U.S. at 814, and helping to deter public officials from illegal conduct, Smith v. Wade, 461 U.S. 30, 36 n.5 (1983), it is an allowance with significant social costs. "[T]here is a strong public interest in protecting public officials from the costs associated with the defense of damages actions." Crawford-El v. Britton, 523 U.S. 574, 590 (1998). "[T]here is the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.'" Harlow, 457 U.S. at 814 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). Accordingly, the doctrine of qualified immunity has been employed to accommodate the natural tension between preserving the right of citizens to bring damages suits against officials and protecting those officials and society from the costs of litigating insubstantial claims. See Anderson v. Creighton, 483 U.S. 635, 639 (1987) (qualified immunity strikes a balance between vindication of constitutional rights and the need to preserve an official's ability to perform duties effectively).*fn13

The balance of societal interests is achieved by shielding public officials from liability for civil damages so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. "[A]s long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated," federal employees are protected from suit. Anderson, 483 U.S. at 638.

A determination of qualified immunity involves a threshold question:"Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 202 (2001) (citing Siegert, 500 U.S. at 232); see Wilson v. Layne, 526 U.S. 603, 609 (1999) (a court considering a defense of qualified immunity to a Bivens claim must determine if the plaintiff has alleged the deprivation of a constitutional right). "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201; see Brosseau v. Haugen, 125 S.Ct. 596, 589 (2004) (reciting the two-step inquiry).

1. Was There a Violation of a Constitutional Right?

A court making this threshold determination should consider the contours of the alleged constitutional right in a deliberate and principled manner.

In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.

Saucier, 533 U.S. at 281.

In the qualified-immunity context, the right that is claimed must be defined with specificity. See Int'l Action Ctr. v. Atcheson, 365 F.3d 20, 25 (D.C. Cir. 2004) (quoting Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001)) (courts should not define the relevant constitutional right in general terms because doing so could strip the defense of meaning). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right" and that the unlawfulness would be "apparent." Anderson, 483 U.S. at 640; see Hope v. Pelzer, 536 U.S. 730, 739 (2002) (the very action in question does not have to have been held unlawful); Moore v. Hartman, 388 F.3d 871, 876 (D.C. Cir. 2004) (noting the unfairness of holding officials responsible on grounds that they could not anticipate).

While confronting a right-of-access claim involving an alleged cover-up in Christopher v. Harbury, the Supreme Court "express[ed] no opinion" on the existence of a constitutional cause of action under Bivens for the claim. 536 U.S. at 412, n.6. Despite this hesitation, the Court suggested that the right of access has a constitutional grounding. See Christopher, 536 U.S. at 415 ("[h]owever unsettled the basis of the constitutional right of access to courts," decisions of the Supreme Court have grounded this right in various constitutional provisions). In fact, a number of jurisdictions have acknowledged a constitutional right of access in cases involving an attempted "cover-up" by officials. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984) (planting evidence and contriving a false story "rendered hollow" a right to seek redress); Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995) (permitting claim where officials impeded access to courts); Crowder v. Sinyard, 884 F.2d 804, 812 (5th Cir. 1989) (concealing information crucial to a person's ability to obtain redress for the purpose of frustrating that right ...

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