*fn13,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,MANUEL GUDIEL GARCIA, ET AL., PLAINTIFFS, v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS." />

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Manuel Gudiel Garcia, et al v. Kathleen Sebelius

June 13, 2012 *fn13

MANUEL GUDIEL GARCIA, ET AL., PLAINTIFFS,
v.
KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs bring this action under the Alien Tort Statute, 28 U.S.C. § 1350 (2006), and the United States Constitution seeking redress for "non-consensual human medical experimentation that took place in Guatemala from . . . 1946 to 1953, and any subsequent medical testing that lasted beyond 1953 at the hands of American and Guatemalan doctors and government officials . . . who were continuing the initial program." First Amended Class Action Complaint for Injunctive Relief and Damages ("1st Am. Compl.") ¶¶ 2, 14. Currently before the Court are the following motions: (1) the United States' Motion for Substitution on Counts 1 and 2, and Memorandum of Points and Authorities ("Gov't's Mot. to Sub."); (2) the United States' Motion to Dismiss and Memorandum of Points and Authorities ("Gov't's Mot. to Dismiss"); (3) the Individual Federal Defendants' Motion to Dismiss and Memorandum of Points and Authorities ("Fed. Defs.' Mot."); (4) Defendant Mirta Roses' Motion to Dismiss Plaintiffs' First Amended Complaint; and (5) the plaintiffs' Motion for Entry of Default Judgment as to Defendant PAHO Director Periago ("Pls.' Mot."). Upon careful consideration of the parties' submissions,*fn1 the Court concludes for the following reasons that the defendants' motions to dismiss must be granted, and the plaintiffs' motion for entry of default judgment must be denied.

I. BACKGROUND

The following facts are either undisputed or taken from the First Amended Complaint. From 1946 to 1953, officials from the United States Public Health Service and the Pan American Sanitary Bureau conducted medical studies in Guatemala that "involved deliberate infection of people with sexually transmitted diseases ("STDs") without their consent." (the "Guatemala Study"). Pls.' Consol. Opp'n, Exhibit ("Ex.") 1 (September 2011 Report by the Presidential Commission for the Study of Bioethical Issues ("Presidential Commission Report")) at 2, 6.*fn2 "Subjects were exposed to syphilis, gonorrhea, and chancroid, and included prisoners, soldiers from several parts of the [Guatemalan] army, patients in a state-run psychiatric hospital, and commercial sex workers." Id. at 2. None of the subjects of the Guatemala Study gave "their informed consent to participate," 1st Am. Compl. ¶ 68, as they were not provided with "information about the procedures or their risks" prior to participating in the study, id. ¶ 124. "Instead of consent from the subjects [housed in institutions], the medical team sought cooperation from the institution[s] in which their prospective subject pool resided" by providing those institutions with "essential supplies, such as epilepsy medication to the mental asylum, malaria medication to the orphanage, and refrigerators for medications." Id. ¶ 68.

One of the objectives of the Guatemala Study was "to determine whether penicillin, then a recently-discovered cure for syphilis, could also be used as a prophylaxis." Id. ¶ 71. "[A]nother goal was to find the most effective way to inoculate patients with [syphilis]." Id. ¶ 72. The study was conducted in Guatemala for several reasons, including that it was "a location where [the medical team could] carry out more invasive methods of inoculation with venereal diseases without ethical scrutiny." Id. ¶ 62. "In total, the medical team intentionally exposed nearly 700 people to syphilis, nearly 600 to gonorrhea, and over 100 to chancroid-all serious venereal diseases." Id. ¶ 70.

The Guatemala Study "finally came to light in the [F]all of 2010." Id. ¶ 5. On November 24, 2010, President Barack Obama issued a letter to the Chair of the Presidential Commission for the Study of Bioethical Issues, noting the recent revelation "that the U.S. Public Health Service conducted research on sexually transmitted diseases in Guatemala from 1946 to 1948 involving the intentional infection of vulnerable human populations." Pls.' Consol. Opp'n, Ex. 1 (Presidential Commission Report) at vi. Acknowledging that "[t]he research was clearly unethical," President Obama directed "the Presidential Commission for the Study of Bioethical Issues to . . . . oversee a thorough fact-finding investigation into the specifics of the U.S. Public Health Service Sexually Transmitted Diseases Inoculation Study." Id. He instructed "the Commission to complete its work within 9 months and provide [him] with a report of its findings and recommendations." Id.

Prior to the release of the Presidential Commission Report, the plaintiffs instituted this action on March 14, 2011. See Class Action Complaint for Injunctive Relief and Damages at i. The Court stayed the proceedings in this case pending release of the Presidential Commission Report, and, following its release in September 2011, the plaintiffs amended their Complaint on November 10, 2011, to reflect the Report's findings. See 1st Am. Compl. ¶¶ 6-12.*fn3

The named plaintiffs in this case "are either the victims of or the legal heirs to victims of the non-consensual human medical experimentation that [the d]efendants conducted in Guatemala," id. ¶ 18, who "bring this action individually" and as a class action on behalf of similarly situated individuals, id. ¶ 28. Their First Amended Complaint asserts claims under the Alien Tort Statute for violations of the prohibition against medical experimentation on non-consenting human subjects, id. ¶¶ 133-40 (First Claim for Relief), and for cruel, inhuman, or degrading treatment, id. ¶¶ 141-47 (Second Claim for Relief). The plaintiffs also assert a substantive due process claim under the Fifth Amendment of the United States Constitution, id. ¶¶ 148-56 (Third Claim for Relief), and a claim under the Eight Amendment for cruel and unusual punishment, id. ¶¶ 157-65 (Fourth Claim for Relief).

Eight of the nine defendants are current office-holders with the federal government (the "federal defendants"); they are (1) Kathleen Sebelius, Secretary of the United States Department of Health & Human Services ("HHS"); (2) Howard Koh, Assistant Secretary for Health at HHS; (3) Vice Admiral Regina Benjamin, Surgeon General of the United States Public Health Service; (4) Thomas Frieden, Director of the United States Center for Disease Control and Prevention ("CDC"); (5) Rima Khabbaz, Director of the Office of Infectious Diseases at the CDC; (6) Kevin Fenton, Director of the National Center for HIV/AIDS, Viral Hepatitis, STDs and Tuberculosis Prevention at the CDC; (7) Gail Bolan, Director of the Division of STD Prevention at the CDC; and (8) Harold Varmus, Director of the National Cancer Institute at HHS. Id. ¶¶ 36-43. The ninth defendant is Mirta Roses Periago ("Roses"),*fn4 Director of the Pan-American Health Organization, formerly the Pan-American Sanitary Bureau. Id. ¶ 44. While implicitly acknowledging that none of the nine defendants had any involvement in the Guatemala Study, which ended in the 1950s, the plaintiffs maintain that the defendants "are liable under the principles of successor liability for the acts of their predecessor office-holders." Id. ¶ 45.

Currently before the Court are a number of motions filed by the defendants asserting various types of immunity in response to the plaintiffs' claims. First, the United States has moved to substitute itself in place of the federal defendants as to the plaintiffs' Alien Tort Statute claims pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1) (2006). Gov't's Mot. to Sub. at 1, 3. Second, assuming that it will be substituted in place of the federal defendants with respect to the plaintiffs' Alien Tort Statute claims, the United States has moved for dismissal of those claims pursuant to Federal Rule of Civil Procedure 12(b)(1) based on sovereign immunity. Gov't's Mot. to Dismiss at 6. Third, the federal defendants have moved for dismissal of the claims against them under Rules 12(b)(1) and 12(b)(6), invoking both statutory and qualified immunity. Fed. Defs.' Mot. at i, 7. Fourth, defendant Roses has moved for dismissal of the claims against her pursuant to Rule 12(b)(1), also asserting statutory immunity. Roses's Mem. at 1-2. In addition to the defendants' motions, the plaintiffs have moved for entry of default judgment against defendant Roses based on her failure to timely respond to the plaintiffs' complaint. Pls.' Mot. at 1, 2-4.

II. STANDARDS OF REVIEW

When a defendant moves for dismissal under Rule 12(b)(1), "the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, "the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).

A Rule 12(b)(6) motion tests whether the complaint "state[s] a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). While the Court must "assume [the] veracity" of any "well-pleaded factual allegations" in the complaint, conclusory allegations "are not entitled to the assumption of truth." Id. at 679.

III. ANALYSIS

The Court will first address the United States's motion to substitute, after which it will turn to the United States's and the federal defendants' motions to dismiss. It will then consider the plaintiffs' motion for entry of default judgment against defendant Roses, followed by defendant Roses's motion to dismiss.

A. The United States's Motion to Substitute

1. The Westfall Act

"The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)). "The Westfall Act's 'core purpose,' as the Supreme Court has explained, 'is to relieve covered employees from the cost and effort of defending the lawsuit, and to place those burdens on the Government's shoulders.'" Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009) (quoting Osborn, 549 U.S. at 252). This purpose is achieved through the Westfall Act's substitution provision, which provides that:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his [or her] office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title ...


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