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Bates v. Donley

United States District Court, District of Columbia

March 27, 2013

SONNIE G. BATES, Plaintiff,
v.
MICHAEL B. DONLEY, Secretary of the Air Force, Defendant

Page 15

For SONNIE G. BATES, Plaintiff: David Patrick Sheldon, LEAD ATTORNEY, LAW OFFICE OF DAVID P. SHELDON, Washington, DC.

For MICHAEL B. DONLEY, Secretary of the Air Force, Defendant: Peter Bryce, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, Washington, DC.

OPINION

Page 16

Royce C. Lamberth, Chief United States District Judge.

MEMORANDUM OPINION

Plaintiff Sonnie Bates sues Michael Donley, Secretary of the Air Force (" Secretary" or " defendant" ), seeking review of the Air Force Board for the Correction of Military Records' (" AFBCMR" or " Board" ) decision not to correct or remove disciplinary records from plaintiff's file. Plaintiff was an Air Force Major who in 1999 refused an order to take an anthrax vaccine because of concerns about its health effects. In 2000, facing continuing disciplinary proceedings, plaintiff resigned from the Air Force, receiving a general (under honorable conditions) discharge.

Beginning in 2003, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia heard a case, Doe v. Rumsfeld, regarding the legality of the military's anthrax vaccine program. Judge Sullivan prospectively enjoined the armed forces from administering the vaccine until the Food and Drug Administration (" FDA" ) completed proper rulemaking. Before the D.C. Circuit could rule on the merits of Judge Sullivan's order, the FDA enacted a valid final rule that dissolved Judge Sullivan's injunction. Plaintiff was not a party to this case, and Judge Sullivan did not order any retrospective or declaratory relief. Other courts have come to different conclusions as to the vaccine's legality.

In November 2008, plaintiff submitted an application to the AFBCMR, seeking correction of his records in light of Doe. After receiving seven advisory opinions and considering plaintiff's submissions, the AFBCMR denied plaintiff's request to change his disciplinary and personnel records. Thereafter, plaintiff brought suit in this Court, challenging the actions of the AFBCMR.

Page 17

Before the Court is defendant's Motion to Dismiss, Jan. 31, 2012, ECF No. 5. Upon consideration of the defendant's motion; the plaintiff's Opposition, Apr. 16, 2012, ECF No. 8; the defendant's Reply thereto, May 7, 2012, ECF No. 10; the applicable law; and the record herein, the Court shall convert defendant's motion into a motion for summary judgment under Federal Rule of Civil Procedure 12(d), and grant defendant summary judgment.

I. BACKGROUND

For the purposes of this Opinion, the Court takes as true the facts alleged in plaintiff's Complaint. See, e.g., Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276, 305 U.S. App. D.C. 60 (D.C. Cir. 1994). Furthermore, when faced with a motion to dismiss in the APA context, a court may consider the administrative record and public documents without converting the motion into a motion for summary judgment, Rempfer v. Sharfstein, 583 F.3d 860, 865, 388 U.S. App. D.C. 226 (D.C. Cir. 2009), or it may convert the motion into a motion for summary judgment under Rule 12(d), Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226, 300 U.S. App. D.C. 263 & n. 5 (D.C. Cir. 1993). Therefore, the Court draws the background facts from plaintiff's Complaint and the submitted administrative record. Pl.'s Compl., Sept. 2, 2011, ECF No. 1; Admin. Record of Proceedings Before AFBCMR (" AR" ), Nov. 8, 2011, ECF Nos. 5-1-6.

A. Factual Background to the Anthrax Vaccination Program

In December 1997, the Department of Defense (" DoD" ) initiated the Anthrax Vaccine Immunization Program (" AVIP" ). Compl. ¶ 11. The program went into effect in March 1998, and under the AVIP, members of the Armed Forces at risk of anthrax exposure were required to submit to mandatory vaccination. Id. ¶ ¶ 11, 13.

Through this program, the DoD administered a vaccine known as Anthrax Vaccine Absorbed (" AVA" ). Id. ¶ 13. In 1970, the National Institutes of Health (" NIH" )--the agency responsible for licensing biologic products at the time--licensed AVA for use against anthrax. In 1972, Congress transferred responsibility for licensing biologics to the Food and Drug Administration (" FDA" ). See AR 99 ( Anthrax Vaccine Safety and Efficacy Issues: Hearing Before the H. Comm. on Gov't Reform, 106th Cong. 1 (1999) (statement of Kwai-Cheung Chan, Dir., Special Studies & Evaluations, Nat'l Sec. & Int'l Affairs Div., GAO)). After notice and comment rulemaking, the FDA issued a final order explicitly finding AVA efficacious against inhalation anthrax in December 2005. See Compl. ¶ 50.

In 1998, Congress passed 10 U.S.C. § 1107, restricting the administration of investigational or unapproved drugs to military personnel. Under the law, the DoD may not require a member of the armed services to receive an " investigational new drug or a drug unapproved for its applied use," 10 U.S.C. § 1107(a)(1), without the informed consent of the service member or a presidential wavier, 10 U.S.C. § 1107(f)(1). Pursuant to this law, in September 1999 the President signed Executive Order 13139, stating that " [b]efore administering an investigational drug to members of the Armed Forces, the...[DoD] must obtain informed consent from each individual unless the Secretary can justify to the President a need for a waiver of informed consent[.]" 64 Fed. Reg. 54,175 (Sept. 30, 1999). According to the plaintiff, the DoD did not secure informed consent of service members or seek a Presidential wavier before administering AVA. See, e.g., Compl. ¶ 53.

B. Plaintiff's Refusal to Take the Anthrax Vaccine and Related Discipline

Plaintiff Sonnie Bates entered the active duty Air Force in September 1986 as a

Page 18

Second Lieutenant; by April 1998, plaintiff achieved the rank of Major. Compl. ¶ 8. Plaintiff states that he had " amassed an exemplary military record as both an aviator and officer," Pl.'s Opp'n 5. He cites an impressive record of accomplishments, commendations, and awards. Compl. ¶ ¶ 9-10.

In October 1999, the plaintiff told his squadron commander at the Dover Air Force Base, Lt. Col. David Smith, that he was considering not taking the anthrax vaccine. His opposition was based on his observations of sick squadron personnel. At that time, the Air Force required all personnel training to become a C-5 pilot, including the plaintiff, to take the anthrax vaccine. Lt. Col. Smith advised the plaintiff to share his concerns with the Wing Flight Surgeon and Area Defense Counsel. AR 163; Compl. ¶ 22.

On November 8, 1999, Lt. Col. Smith told plaintiff that he would be expected to take the vaccination before his first operational mission. On November 16 and 17, plaintiff advised the squadron Readiness Flight Commander and the Squadron Director of Operations that he decided not to take AVA. On November 18, plaintiff submitted a request for resignation under Air Force Instruction (" AFI" ) 36-3207, Separating Commissioned Officers. On the same date, the plaintiff gave his Squadron Director of Operations a letter stating that he had completed all training requirements except the anthrax vaccination, and explained his lingering concerns over the product quality and safety of the AVA. AR 163; Compl. ¶ ¶ 24-26.

On November 19, 1999, the plaintiff was removed from his next operational mission because of his failure to take the anthrax immunization. On November 22, Lt. Col. Smith counseled plaintiff on his failure to be " mission ready," removed him from all squadron duties, assigned plaintiff to the Operations Group, and ordered the plaintiff to meet with the Flight Surgeon, chaplain, and his military defense attorney. AR 163; Compl. ¶ ¶ 27-28. The next day, Lt. Col. Smith met with plaintiff and plaintiff's spouse; during that meeting, Lt. Col. Smith asked plaintiff to put his objections to the AVIP in writing, and told plaintiff that he would try to educate him further regarding his concerns. On November 24, plaintiff submitted a two-page letter detailing his objections to the AVIP. On November 30, plaintiff met with Col. Harvey R. Crowder, Chief, Preventative Division, Air Force Medical Operations Agency, to discuss his concerns. AR 164; Compl. ¶ ¶ 29-31.

On December 1, 1999, plaintiff was given a written order to be inoculated with the anthrax vaccine by December 3rd. In response, plaintiff submitted a letter from Dr. J.B. Classen advising plaintiff not to take the vaccine. Dr. Classen based his advice on a review of plaintiff's family history and his research on autoimmunity. Plaintiff went to Andrews Air Force Base on December 3 to meet with Col. Bernardo Villacis, Senior Consultant, Allergy Clinic, and discussed the assertions Dr. Classen made in his letter. After plaintiff returned from Andrews AFB without taking the vaccine, Lt. Col. Smith told plaintiff that an on-call medic would be available throughout the weekend if plaintiff changed his mind. AR 164; Compl. ¶ ¶ 32-33.

Plaintiff did not take the vaccination, and on December 8, 1999, Brigadier General F. Randall Starbuck, Air Force Vice Commander, offered plaintiff a Uniform Code of Military Justice (" UCMJ" ) Article 15 (nonjudicial punishment) for willfully disobeying a lawful order to take the AVA. Plaintiff initially elected trial by court-martial, but later waived his right to a UCMJ Article 32 hearing and submitted a

Page 19

request to change his election and accept the offer of nonjudicial punishment. Plaintiff also requested, and was granted, a personal hearing with Brigadier General Starbuck. AR 164; Compl. ¶ ¶ 34-36.

On February 21, 2000, plaintiff submitted a response to the Article 15 proceedings. Plaintiff stated that he believed that the anthrax vaccine was unsafe and linked to illness. On November 28, Brigadier General Starbuck determined that plaintiff had committed the offense, and imposed punishment consisting of forfeiture of $3200 in pay and the placement of a Letter of Reprimand in plaintiff's official file. Plaintiff did not appeal this decision. On March 9, 2000, a legal review found the nonjudicial punishment legally sufficient, and an additional supervisory review concurred. AR 164; Compl. ¶ ¶ 37-38.

On March 8, 2000, the Air Force notified plaintiff of an action initiated under AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, for commission of a serious offense under UCMJ Article 90, specifically for willfully disobeying the lawful command of a superior officer. On March 10, plaintiff submitted AF Form 780, Officer Separation Actions, tending his resignation per AFI 32-3207 because he could not support the AVIP. On March 30, plaintiff was discharged per AFI 36-3206 with a general (under honorable conditions) discharge and a separation code of BKQ (indicating " misconduct--commission of a serious offense" ). Plaintiff did not appeal his discharge characterization or separation code. See AR 164; Compl. ¶ ¶ 39-42.

C. Later Proceedings and Challenges

A few years after plaintiff left the Air Force, Judge Emmet Sullivan of the United States District Court for the District of Columbia heard a legal challenge to the AVIP. In Doe v. Rumsfeld (" Doe I " ), 297 F.Supp.2d 119, 135 (D.D.C. 2003), Judge Sullivan ruled that, with regard to immunization from inhalation anthrax, AVA was an investigational drug being used for an unapproved purpose in violation of 10 U.S.C. § 1107. Judge Sullivan found that the FDA had not properly licensed the AVA for use against inhalation anthrax. He then granted the Doe plaintiffs' request for a preliminary injunction and enjoined the AVIP. Id.

Shortly after the Doe I injunction, the FDA issued a final rule and order finding that AVA was safe and effective " independent of the route of exposure." 69 Fed. Reg. 255, 260 (Jan. 5, 2004). Judge Sullivan, nonetheless, vacated the FDA's rule and order because the FDA failed to follow the required notice and comment procedures. Doe v. Rumsfeld (" Doe II " ), 341 F.Supp.2d 1, 16 (D.D.C. 2004). Finding a clear statutory prohibition on inoculation with investigational drugs, Judge Sullivan issued a permanent injunction on AVIP until the FDA certified AVA through the proper procedures. Id. at 16. In December 2005, the FDA issued a new final order explicitly finding AVA efficacious against inhalation anthrax, causing the D.C. Circuit to conclude that the injunction against the vaccination program had dissolved on its own terms. Doe v. Rumsfeld (" Doe IV " ), 172 Fed.Appx. 327, 327 (D.C. Cir. 2006).

After the Doe litigation put the legality of the AVIP in doubt, plaintiff sought relief from the Air Force Board for the Correction of Military Records. On November 8, 2008, plaintiff submitted an application to the AFBCMR requesting several changes be made to his Air Force file, in order to correct for the perceived injustice of being disciplined for refusing to take the AVA. Compl. ¶ ¶ ...


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