SAN FRANCISCO — A class of more than 100,000 veterans can pursue nonmonetary claims against the Veterans Administration, the Department of Defense, the CIA and other government agencies for failing to warn them of exposure to toxic biological weapons during the Vietnam War, a federal judge in Oakland ruled late Sunday.
The veterans, and deceased veterans’ survivors, allege that the government violated its “duty to warn” when it refused to contact and notify soldiers who had participated in secret studies of biological weapons, chemicals and drugs, including LSD, that the toxic agents could have harmful side effects. The plaintiffs also claim that the government has failed to provide medical treatment to veterans suffering ill effects.
Lead plaintiffs counsel Gordon Erspamer, a senior counsel at Morrison & Foerster who is handling the case pro bono, said U.S. District Judge Claudia Wilken’s decision to certify the class was a resounding victory for his clients, which include two veterans’ rights organizations. Though his clients didn’t prevail on 100 percent of the arguments in their motion to certify the class, he said “the case is quite intact.”
Lead counsel for the CIA, Joshua Gardner of the Department of Justice, referred questions to a DOJ spokesman who declined to comment.
The government had previously argued that they had provided copies of files relating to the weapons-testing to those members of the testing group it could find; therefore the plaintiffs had all the information about the side effects the government could provide. In her order, Wilken dismissed that argument.
“Many of the test files are partially illegible and list substances by internally used codes or agent numbers, which were indecipherable to the recipients,” she wrote.
It’s a satisfying win for Erspamer, who last spring lost Veterans for Common Sense v. Shinseki when an en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled that veterans couldn’t pursue litigation against the Department of Veterans Affairs for delaying processing disability claims because the courts lack jurisdiction. At the time, Erspamer called the decision “horrific.” In an interview Tuesday, he said he had petitioned the U.S. Supreme Court for review.
Gardner and other defense counsel had argued that the Ninth Circuit’s ruling on jurisdiction in Veterans for Common Sense precluded the plaintiffs’ claims in this newer case, but Wilken disagreed. In her ruling, she said the statute that prevents the courts from ruling on challenges to individual disability benefits determinations didn’t apply in this case, because the plaintiffs aren’t challenging a review process.
“This ruling represents a setback for the VA’s attempt to construe the Ninth’s ruling extremely broadly,” Erspamer said.
Erspamer also noted that after the conclusion of the trial in the weapons-testing case, his clients intend to appeal an earlier ruling that prevented the plaintiffs from pursuing damages from the government.
“Vets are the most underserved population group in America with respect to legal services,” he said. “They just get second-class treatment all the way.”
The case is Vietnam Veterans of America v. Central Intelligence Agency, 09-00037.