Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 1 of 60

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : : DONALD H. RUMSFELD, Secretary of Defense; : DR. JAMES G. ROCHE, Secretary of the Air Force; : GENERAL JOHN W. HANDY, Commander Air : th Mobility Command; COL. JOHN I. PRAY JR., 436 : Air Wing Commander, all in their official capacities, : : Defendants. : : SSGT. JASON A. ADKINS, USAF,

C.A.No. 04-1453-JJF

PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

THE RUTHERFORD INSTITUTE JOHN W. WHITEHEAD, ESQ. DOUGLAS MCKUSICK, ESQ. P.O. Box 7482 Charlottesville, VA 22906 (434) 978-3888 [email protected] [email protected] Of Counsel

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiff

Dated: March 21, 2005

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 2 of 60

TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDINGS.......................................................................1 SUMMARY OF THE ARGUMENT...............................................................................................1 STATEMENT OF FACTS...............................................................................................................1 A. B. C. D. Introduction............................................................................................................1 Plaintiff...................................................................................................................2 Defendants..............................................................................................................3 The Key Overarching Context in Which Plaintiff's Speech Occurred..................3 1. The Military Has Admittedly Conducted Secret Squalene Tests on Human Subjects Overseas....................................................................3 The Military Also Has Secretly Tested Squalene Tainted Anthrax Vaccines at Dover Air Force Base............................................................3 Plaintiff is Injected With the Tainted Vaccine..........................................5 Investigative News Reporting in October 2004 Reveals the Military's Experimentation on Servicemen and Women at DAFB, Angering Defendants....................................................................5 Members of Congress Demand Answers From the Military About the Tainted Anthrax Testing at DAFB......................................................6 The Overall Military Anthrax Vaccination Program is Declared Illegal.........................................................................................................6

2.

3. 4.

5.

6.

E. F.

The Form and Content of Plaintiff's Speech..........................................................7 Defendants Immediately Retaliate and Take Adverse Action Against Plaintiff...................................................................................................................9 Defendants' Further Involvement........................................................................11

G.

ARGUMENT.................................................................................................................................11 I. II. STANDARD OF REVIEW..................................................................................11 INTRODUCTION................................................................................................15 A. B. The Big Picture........................................................................................15 Plaintiff's Protected Speech....................................................................15 I

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 3 of 60

1. 2. III.

The Words Themselves..............................................................15 Plaintiff's Intent in Speaking Out..............................................16

PLAINTIFF HAS STATED A CLAIM OF FIRST AMENDMENT RETALIATION FOR EXERCISING HIS FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH...............................................................................16 A. Protected Activity....................................................................................16 1. Matter of Public Concern...........................................................17 a. b. Content..........................................................................18 Form and Context..........................................................19 i. ii. iii. News Coverage................................................19 Legislative Concern.........................................20 Motivation........................................................20 (a) Special Position and Obligation of Duties..............................................21

iv. 2.

Internal Nature of Speech.................................21

Balancing of Interests.................................................................22 a. b. c. Disruption......................................................................22 Causation.......................................................................24 Public Interest................................................................24

B.

Substantial or Motivating Factor.............................................................24 1. 2. 3. 4. 5. 6. Temporal Proximity...................................................................27 Intervening Pattern of Antagonism............................................27 Falsehoods and Other Pretextual Reasons.................................27 Violations of Procedures............................................................28 Disparate Treatment...................................................................28 The Big Picture..........................................................................29

C.

Same Decision Absent Protected Conduct..............................................29 ii

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 4 of 60

IV.

NO DEFERENCE TO MILITARY JUDGMENT IS APPROPRIATE IN THIS FIRST AMENDMENT CASE BECAUSE MEMBERS OF THE MILITARY DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AS A CONDITION OF WEARING THE UNIFORM.........................30 PLAINTIFF WAS NOT REQUIRED TO FIRST RESORT TO AND EXHAUST ADMINISTRATIVE REMEDIES BECAUSE HE HAS BROUGHT A CONSTITUTIONAL CLAIM, BASED SOLELY UPON A VIOLATION OF THE FIRST AMENDMENT...............................................32

V.

CONCLUSION..............................................................................................................................36

iii

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 5 of 60

TABLE OF AUTHORITIES Cases Page

Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002)....................................................................33 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)..............................................................29 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc).............................17,21-22 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001).....................................16-17,19,21-25,30 Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997)...................................................................28 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003).......................................................18,20-22,24,29 Bridges v. State of Cal., 314 U.S. 252 (1941)................................................................................17 Brown v. Armenti, 247 F.3d 69 (3d Cir. 2001) .............................................................................16 Brown v. Glines, 444 U.S. 348 (1980)......................................................................................31,34 Cal. Public Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126 (3d Cir. 2004)....................................................................................................................12 Carey v. Brown, 477 U.S. 455 (1980)............................................................................................17 Chambers v. Local Union No. 639, 578 F.2d 375 (D.C. Cir.1978)...............................................35 Chappell v. Wallace, 462 U.S. 296 (1983)................................................................................31,36 City of San Diego v. Roe, -- U.S. --, 125 S.Ct. 521 (2004) (per curiam).......................................19 Conley v. Gibson, 355 U.S. 41 (1957)...........................................................................................13 Connick v. Myers, 461 U.S. 138 (1983)....................................................................................17,21 Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983)........................................................................21 D.P. Enterprises, Inc. v. Bucks County Comty. College, 725 F.2d 943 (3d Cir. 1984).................12 Dibble v. Fenimore, 84 F.Supp. 2d 315 (N.D.N.Y. 2000).............................................................32 Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981) .............................................................................32 Dilley v. Alexander, 603 F.2d 914 (D.C. Cir. 1979).................................................................31-32 Doe v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003).................................................................7,15 Doe v. Rumsfeld, 341 F.Supp.2d 1 (D.D.C. 2004).......................................................................3,7 iv

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 6 of 60

Downen v. Warner, 481 F.2d 642 (9th Cir. 1973)....................................................................33-34 Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002)................................................................11 Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1994)................................................19,21,23 Frontiero v. Richardson, 411 U.S. 677 (1973)...............................................................................31 Garrison v. Louisiana, 379 U.S. 64 (1964)....................................................................................17 Glines v. Ward, 586 F.2d 675 (9th Cir. 1978)............................................................................34-35 Goldman v. Weinberger, 475 U.S. 503 (1986).........................................................................30-31 Gould Electronics Inc. v. U.S., 220 F.3d 169 (3d Cir. 2000).........................................................12 Green v. Phila. Housing Auth., 105 F.3d 882 (3d Cir. 1997)........................................................16 Hickey v. Commandant of the Fourth Naval District, 461 F. Supp. 1085 (E.D.Pa. 1978)..................................................................................................................36 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993) ............................................17,20,22-23 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997).................................13-14 Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989)..........................................................................27 Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994)...........................12,25 Jorden v. National Guard Bureau, 799 F.2d 99 (3d Cir. 1986)............................................32,34-35 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)..................................................................25 Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992).....................................................................12 Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980)........................................................28 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)..........................................................................................................13 McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985).............................................28 Mele v. Federal Reserve Bank of New York, 359 F.3d 251 (3d Cir. 2004)..................................14 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995) (en banc).......................................................25 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).......................................25,29-30 Muti v. Schmidt, 96 Fed.Appx. 69 (3d Cir. 2004).........................................................................17

v

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 7 of 60

Muti v. Schmidt, 118 Fed.Appx. 646 (3d Cir. 2004).....................................................................17 NAACP v. Clairborn Hardware Co., 458 U.S. 886 (1982)............................................................17 Nelson v. Miller, 373 F.2d 474 (3d Cir. 1967).........................................................................35-36 Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000).........................................................24,29 O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989).................................................................20 Orloff v. Willoughby, 345 U.S. 83 (1953)................................................................................31-32 Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978)........................................................................31 Parker v. Levy, 417 U.S. 733 (1974)..............................................................................................31 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)...................................................................16,20-21 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)..............................................................................17 Rankin v. McPherson, 483 U.S. 378 (1987)...................................................................................24 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).............................................27 Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977)......................................................28 Rhoades v. U.S., 950 F.Supp. 623 (D.Del. 1996)..........................................................................12 Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997)......................................................25 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)................................................................20,24 Rostker v. Goldberg, 453 U.S. 57 (1981).......................................................................................31 Roth v. United States, 378 F.3d 1371 (Fed. Cir. 2004)..................................................................35 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)..........................................................28-29 Schlesinger v. Ballard, 419 U.S. 498 (1975)..................................................................................31 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc)..........27-28 Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976)......................................................................23 Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002)...............................................20,24 Stewart v. Rutgers, the State Univ., 120 F.3d 426 (3d Cir. 1997).................................................28 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000)..........................................................................25

vi

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 8 of 60

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)...............................................30 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002).....................................................................13 Swineford v. Snyder County Pa., 15 F.3d 1258 (3d Cir. 1994).....................................................23 Thorne v. U.S. Dept. of Defense, 916 F. Supp. 1358 (E.D.Va. 1996)...........................................34 Versarge v. Township of Clinton N.J., 984 F.2d 1359 (3d Cir. 1993)...........................................21 Village of Arlington Heights v. Metro. Hous. Develop. Corp., 429 U.S. 252 (1977)...................28 Von Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980).............................................................34 Waters v. Churchill, 511 U.S. 611 (1994) (plurality opinion).......................................................22 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995).....................................................18-20,22-24 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).......................................................27,29 Zamboni v. Stamler, 847 F.2d 73 (3d Cir. 1988)...........................................................................24 Zelinski v. Pa. State Police, 2004 WL 1799234 (3d Cir. Aug. 1, 2004)........................................27

Constitutions, Statutes, Rules and Other Authorities U.S. Constitution, Amendment I.............................................................................................passim 10 U.S.C. § 1552.......................................................................................................................33-34 Fed.R.Civ.P. 8(a)(2)..................................................................................................................13,26 Fed.R.Civ.P. 12(b).....................................................................................................................11,15 Fed.R.Civ.P. 12(b)(1).....................................................................................................................12 Fed.R.Civ.P. 12(b)(6)......................................................................................................11-12,14,25 Fed.R.Evid. 201(a).........................................................................................................................14 32 C.F.R. § 865.4(q).......................................................................................................................35 32 C.F.R. § 865.5............................................................................................................................35 Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 188 (1962)................36

vii

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 9 of 60

NATURE AND STAGE OF THE PROCEEDINGS This First Amendment free speech retaliation case was filed on November 18, 2004. In February 2005, defendants moved to dismiss. This is plaintiff's Answering Brief in opposition to defendants' motion. SUMMARY OF THE ARGUMENT As demonstrated by the overwhelming public and media interest in the subject of airmen at Dover Air Force Base being poisoned by a tainted anthrax vaccine, plaintiff's speech questioning whether he had been poisoned by this very vaccine is clearly of vital public concern and is entitled to First Amendment protection. In our system of government, the military is not above the law. Our citizens in uniform are not stripped of their basic Constitutional rights simply because they have doffed their civilian clothes. The defense claim that plaintiff is relegated to administrative remedies alone and is barred from seeking redress for a Constitutional violation in the federal courts is utterly without merit under settled law. STATEMENT OF FACTS A. Introduction. Since 1999 the Department of Defense has used military personnel at Dover Air Force Base ("DAFB") as guinea pigs for an experimental anthrax vaccine which has life threatening and debilitating side effects. When the adverse health effects of this vaccine were exposed by the Wing Commander, a cover-up began consisting of denials and threats of adverse action against uniformed military personnel. In October 2004 the media, though the News Journal papers, exposed this vital matter of public concern which threatened not only the health of uniformed airmen but also the safety of the missions they fly in C-5 aircraft. (D.I. 1; Compl. ¶ 1) (hereinafter "¶ 1"). Plaintiff is a respected and decorated airman with an unblemished military record who on the night of October 20th 2004, experienced a debilitating attack of side effects from the experimental anthrax vaccine, which if not treated would have endangered the safety of his crew on an impending wartime military mission in a 769,000 pound C-5 aircraft. Rather than cover-up

1

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 10 of 60

his symptoms, plaintiff instead immediately reported to the flight surgeon, spoke out about his condition and questioned whether he was suffering because of the experimental anthrax vaccine which the military had inflicted upon him. The flight surgeon immediately grounded plaintiff because his condition endangered his crew mates and the safety of their mission. (¶ 2). Mere hours later, plaintiff was ordered to attend a meeting the very next day where, in direct violation of written rules of progressive discipline, he was given a permanent written reprimand which ended his military career. He then was forced to undergo humiliating public punishment intended to make an example of him and silence all other aviators who spoke within the chain of command or otherwise about their life threatening and mission endangering symptoms caused by the experimental anthrax vaccine. Plaintiff now seeks injunctive and declaratory relief from this court for the violation of his First Amendment protected right to be free from retaliation for speaking out about hazards which would endanger the lives of military personnel and for questioning whether he and others are suffering dire medical effects from a secret military program in which they are the guinea pigs. (¶ 3). B. Plaintiff. SSgt. Jason A. Adkins, USAF, is a citizen of the United States and a resident of the State of Delaware. He is 32 years old, married with one infant child, and is a career Air Force enlisted man who currently serves as a flight engineer and technical sergeant on C-5 aircraft based at DAFB. He enlisted in October 1990. He is an outstanding airman. (¶¶ 6, 8). On May 13, 2003, he was on the first C-5 aircraft flown into the Baghdad, Iraq war zone during Operation Iraqi Freedom. On another mission on January 8, 2004, he and his crew successfully flew a crippled 454,000 pound C-5 aircraft out of Baghdad after one engine was shredded by a surface-to-air missile. For that successful mission he and his crew were recommended for the Distinguished Flying Cross for bravery. He has an unblemished service record spanning 14 years. Prior to the events at issue in this case, he had never been disciplined. As one of DAFB's best fliers, he has been selected for numerous classified special operations

2

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 11 of 60

missions. (¶¶ 7-8). C. Defendants. Defendant Pray is the Commander of the 436th Air Wing and commands the 4,000 airmen at DAFB. Defendant Handy is the Commander of the Air Mobility Command located at Scott Air Force Base in Illinois. DAFB is in his chain of command. Defendant Roche is currently Secretary of the Air Force. (¶ 11). Defendant Rumsfeld is the Secretary of Defense. All are sued solely in their official capacities. (¶¶ 10-13). D. The Key Overarching Context in Which Plaintiff's Speech Occurred. All U.S. armed forces personnel are forced to take a series of six or more anthrax vaccinations. These vaccinations are involuntary and are forced on these servicemen and women without their consent. (¶ 14). This vaccination program was recently held to be illegal. See Doe v. Rumsfeld, 341 F.Supp.2d 1, 19 (D.D.C. 2004). 1. The Military Has Admittedly Conducted Secret Squalene Tests on Human Subjects Oversees. Squalene is a substance that can be used to increase the potency of anthrax vaccines. Scientists around the world have demonstrated squalene's ability to stimulate the immune system - which then has the hazardous side effects of causing health problems such as arthritis, neurological problems, multiple sclerosis and lupus, which are associated with symptoms such as rashes, seizures, memory loses and incapacitating migraine headaches. (¶ 17). The military has secretly experimented with squalene tainted vaccines on unsuspecting human subjects to test its ability to boost the effectiveness of the vaccines. For example, the Department of Defense has admitted to secretly conducting tests on humans using squalene in vaccines in Thailand. In a March 1999 report, the General Accounting Office ("GAO") accused the Defense Department of a "pattern of deception" in its efforts to hide its testing of contaminated vaccines on unsuspecting human guinea pigs. (¶ 19). 2. The Military Also Has Secretly Tested Squalene Tainted Anthrax Vaccines at Dover Air Force Base. Starting in 1998 or 1999, airmen at DAFB received

3

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 12 of 60

numerous batches of anthrax vaccine that contained squalene. DAFB received more tainted batches of anthrax vaccine than any other military installation. Subsequent testing by the Food and Drug Administration ("FDA") in 2000 detected squalene in increasing concentrations in the batches of vaccine sent to DAFB. Scientists believe that the military may have been measuring airmens' responses to the steadily increasing doses. (¶¶ 17-18). In 1999, when the pilots at DAFB were forced to take the anthrax vaccine, 55 out of 120 pilots in the Air Force Reserve wing stationed there resigned rather than take the vaccine, leaving the base far below strength. Thereafter, in May 1999 many of the remaining airmen in their 20's and 30's who had been forced to take the tainted vaccine began suffering from severe headaches, severe dizziness and "gray-outs." Many also began developing illnesses normally associated with old age. (¶¶ 20-21). The wing commander of the DAFB at that time was Colonel Felix Grieder. As a result of significant health problems and other health issues raised by his airmen, and in response to a Pentagon spokesman who stated that "I don't know and I don't care" about the health problems your airmen are suffering from, Colonel Grieder halted the tainted vaccination program. In doing this, he effectively killed his military career. Colonel Grieder was immediately ordered to the Pentagon, where he was pressured by high ranking generals as a whitewash commenced. (¶¶ 2223). The military immediately began a program at DAFB designed to cover-up legitimate concerns by airmen for their health and safety as a result of the tainted vaccination program. The Pentagon convened a special briefing for the airmen at DAFB where many high-ranking officers promised that the inoculations were safe and that there were no dangerous side effects. The airmen were told to trust the military because the military purportedly would never do anything to harm them. But information about the occurrence of actual side effects was purposefully withheld from personnel at the base. Airmen were kept in the dark about health and safety issues. Airmen were actively discouraged from speaking about the topic. The topic of health

4

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 13 of 60

and safety was frowned upon. (¶¶ 24-26). Notably, one of the Pentagon officials who spoke at the special DAFB briefing was Air Force Surgeon General Charles H. Roadman II. He told the airmen that, "You've got to take my word as an officer, my word as a physician at face value . . . if you have anti-squalene antibodies in your body . . . it didn't come from the anthrax immunization." After Surgeon General Roadman gave his personal assurances that the vaccine was safe and effective, the tainted anthrax vaccination program was restarted. Colonel Grieder then was transferred out of his wing commander position and parked in a dead-end desk job at the Pentagon without command responsibilities. He was replaced by a commander who was more amenable to the Pentagon's wishes. (¶¶ 27-28). Shortly thereafter, FDA testing discovered squalene in steadily increasing doses in multiple vaccine lots that had been forced upon the airmen at DAFB. The FDA discovered that the Pentagon and its military representatives had lied to the airmen at DAFB. (¶ 29). 3. Plaintiff is Injected with the Tainted Vaccine. In September 1998, plaintiff was transferred to DAFB. In September, October and November of 1998, he received three anthrax inoculations. He received two more in 1999, another in 2000, one in 2003 and another in 2004, for a total of eight. Six of his inoculations were tainted with squalene. (¶¶ 15-16). 4. Investigative News Reporting in October 2004 Reveals the Military's Experimentation On Servicemen and Women at DAFB, Angering Defendants. Beginning on October 10th and continuing through the present, the News Journal paper - the newspaper of general circulation in Delaware - and its investigative reporters Lee Williams and Hiran Ratnayake, ran a hard hitting, well researched and exhaustive series of major news articles exposing the military experimentation on the airmen stationed at DAFB. (¶ 30). Those news articles and the attendant negative publicity were brought immediately to the attention of each of the defendants. They rose quickly to the top of the chain of command which then took control of the situation from Washington, D.C. and directed all subsequent actions in

5

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 14 of 60

response to the media expose and in how to limit and control the facts which were being revealed to the general public. Each of the defendants were angered and displeased by this unwelcome media scrutiny and sought to do whatever they could to squelch or kill the news story and to control the flow of information from the military personnel at DAFB. Numerous attempts were made by the defendants in writing and through the media to discredit the story. For example, after the first news story of October 10th, spokespersons for defendants Rumsfeld and Roche as well as other members of their staffs issued numerous public statements in an attempt to discredit this major news story. Immense pressure was brought to bear on senior officers at DAFB by the Pentagon, the defendants, and the chain of command to stifle all speech contrary to the approved military version and speech about health issues raised by the contaminated anthrax vaccine. (¶¶ 31-37). 5. Members of Congress Demand Answers from the Military About the Tainted Anthrax Testing at DAFB. On October 13, 2004, United States Senators Joseph R. Biden, Jr. and Thomas R. Carper, together with Representative Michael N. Castle, delivered a two page letter to defendant Rumsfeld about the recent press reports about the anthrax vaccination program at DAFB. They demanded a "thorough investigation" because "[a]t a maximum, intentional actions or unintentional incompetence may have created a health hazard for our personnel." For them the issues of servicemen being used as guinea pigs for a tainted vaccine were "critical." (¶ 38). They added The importance of clearing the air on this issue cannot be overstated. It is in the best interest of everyone for there to be well-documented and readily available information regarding the necessity of the anthrax vaccine, the presence or absence of squalene, and the possible health effects associated with the vaccine and given amounts of squalene. It is critical to the credibility of the U.S. Air Force that the concerns raised by a former wing commander be reviewed in an open and transparent fashion. The controversy surrounding the history of the anthrax vaccine at Dover AFB creates a drag on morale and concerns among personnel at a time when all of their energy should be devoted to their vital missions. (¶ 39). 6. The Overall Military Anthrax Vaccination Program is Declared Illegal. In March 2003 the defendant Secretary was sued in federal court in Washington, D.C. over the

6

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 15 of 60

mandatory involuntary anthrax vaccination program. See Doe v. Rumsfeld, Civ.A. No.03-707-EGS (D.D.C.). Subsequently, on October 27, 2004 U.S. District Court Judge Emmet G. Sullivan issued a permanent injunction against the Secretary preventing his use of the anthrax vaccine "on the basis that the vaccine is either a drug unapproved for its intended use or an investigational new drug within the meaning of 10 U.S.C. § 1107. Accordingly, the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a Presidential wavier." Doe v. Rumsfeld, 341 F.Supp.2d 1, 19 (D.D.C. 2004) (emphasis added). The court had previously issued a preliminary injunction to the same effect. See Doe v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003). (¶¶ 40-41). E. The Form and Content of Plaintiff's Speech. Since being injected with the tainted vaccine, plaintiff has experienced medical symptoms that included memory loss, severe headaches, weight loss, constant body aches, and an irregular heart beat. However, plaintiff was afraid to discuss his symptoms with anyone. Discussion of the effects of the anthrax vaccine had been discouraged at DAFB after Col. Grieder's career ended when he tried to protect his airmen from the side effects of the tainted vaccination program. (¶¶ 44-45). Since his first day in the Air Force, plaintiff has been trained in one basic sacred safety principle established for all military fliers - flight officers with unsafe medical conditions are not to fly. This is because the aircraft, the crew and the mission are endangered if aircrews cannot perform their duties to the fullest of their abilities. Even during a flight, if crew members become ill or overly tired, they are encouraged to declare "safety of flight," at which point they are relieved of their duties - no questions asked - and always without any fear of discipline or repercussions. (¶ 47). During the night of October 20, 2004 and the early morning of the 21st, plaintiff received very little rest as a result of a severe and incapacitating headache. At approximately noon on the 21st, he left his home in Smyrna, DE and traveled to the Base to visit the Flight Surgeon since his headache had not subsided. Plaintiff is the flight engineer on the C-5 aircraft. He sits directly

7

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 16 of 60

behind the co-pilot and is responsible for all the electronic and mechanical systems on this aircraft that is longer than a football field. If there are any problems on this massive plane, plaintiff is responsible for fixing them. Plaintiff was going to the Flight Surgeon to determine if he was fit to fly. Plaintiff felt that his health would endanger the lives of his crew, the mission and his aircraft and thus, that his duties required that he report his health condition. Plaintiff believed that it was more preferable to seek qualified medical attention than to take the risk of being tasked to fly a mission when not medically able to do so and thus endanger the safety of his crew and the success of the mission. (¶¶ 46,48-50). Plaintiff's freedom to speak out and seek medical help is essential to operational safety and to the success of the mission. If aviators are not free to seek medical attention whenever it is needed out of fear of being subjected to an unwarranted reprimand, a dangerous chilling effect would result. This chilling effect would cause squadron members to hesitate or otherwise fail to seek out medical attention when they are not fit for flying duty. As a result, the lives of the crew and the success of their missions would be endangered as C-5's are manned by medically incapacitated airmen. This is why the Air Force trains its fliers that if they are suffering from unsafe conditions, medical or otherwise, they are not to fly. (¶¶ 51,47). While on route to DAFB, TSgt Terry Miller called plaintiff's home at 12:45 p.m. to inform him that he was required to participate in a flight to take place on Friday October 22nd , some 22 hours later. Plaintiff's wife Amy called him on his cell phone at the Base and relayed the message. Plaintiff returned the call to Miller at 12:50 p.m. and told him of his intention to see the Flight Surgeon with regard to his medical condition. Plaintiff told Miller that he was unsure if he would be available for the launch the next day and that there was a possibility of his being placed on DNIF (Duties Not to Include Flying) status by the Air Force physician but that he would notify Miller as soon as he knew something. (¶¶ 52-53). Plaintiff signed in at the Flight Surgeon's office at 12:55 p.m. He spoke at length with the Air Force doctor and was examined for 30-45 minutes. During his medical examination,

8

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 17 of 60

plaintiff described his debilitating symptoms truthfully and in great detail. Among other things, he explained to the physician that he had been having severe headaches for a long time and that they might be migraines.1 Migraines also are a known side effect of the squalene tainted anthrax vaccine. Consequently plaintiff next discussed with and told the Flight Surgeon that he associated his headaches and current medical condition with the tainted anthrax vaccine he had been injected with by the military. (¶¶ 54-55,57). The Flight Surgeon then immediately downplayed the connection between his headaches and the anthrax vaccine. Plaintiff was told that the military would not have exposed him to anything dangerous. Nonetheless, when the examination was finished, the Flight Surgeon immediately grounded plaintiff, prescribed a narcotic medication and DNIF'd him. Plaintiff immediately notified Miller that he had been DNIF'd because of his medical condition. (¶¶ 5860). F. Defendants Immediately Retaliate and Take Adverse Action Against Plaintiff. Within 3 ½ hours of being DNIF'd, plaintiff was ordered to report to the Base the very next morning in full uniform. He arrived at 7:45 a.m. on October 22nd and saw his squadron commander Lt. Col. Cristos Vasilas and Chief Flight Engineer SMSgt. Ronald J. Mahoney in a closed door session. Mahoney then met with plaintiff and Miller. They accused plaintiff of dereliction of duty, of faking his medical condition and other false accusations. Then in violation of military regulations, plaintiff was given the written letter of reprimand (LOR). (¶¶ 61-64). The LOR falsely accused plaintiff of having faked his migraine headaches and other medical conditions. It accused him of consciously deciding to go off sick for a non-emergency reason. He then was threatened with further "more serious actions." The LOR has effectively killed plaintiff's Air Force career. It will bar plaintiff from further promotion, access to

In the Air Force, the word "migraine" is a red flag for every aviator. If a flier is diagnosed as having a migraine, he is immediately grounded from ever flying again - it is a permanently disqualifying medical condition. (¶ 56).

1

9

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 18 of 60

speciality schools, choice assignments and even possibly re-enlistment. In the words of one Air Force attorney who has seen hundreds of LORs, the LOR issued to plaintiff is a "pretty bad one." He added, "It's very unusual and strange he was given an LOR for going on sick call." Both letters of counseling and letters of admonishment are lesser forms of correction than LORs. The Air Force's progressive discipline system required that for someone with plaintiff's unblemished record a lesser form of discipline should have been invoked. However, it was not invoked. (¶¶ 65-68). Plaintiff also was given additional punishment. Again, contrary to the progressive discipline policy, plaintiff received 76 hours of additional duty. He then was placed on public display in the Base's control room as a warning to other airmen who otherwise would have reported their deteriorating medical conditions to the Flight Surgeon. Plaintiff was made a public example at DAFB and publically humiliated so that other uniformed personnel would not (1) speak out about safety issues arising from the symptoms they are experiencing from the tainted anthrax vaccine, and (2) question whether their medical condition may be caused by the tainted vaccine. (¶¶ 69-71).2 Plaintiff's speech on the issues raised in this case has resulted in negative feedback by his chain of command. For the first time in his stellar career, plaintiff's professionalism, loyalty, leadership, and character have been called into question. This is in stark contrast to all previous characterizations and endorsements that rated him with the highest level as to all of these qualities. This negative feedback was received as a direct and proximate result of his protected speech. (¶ 72).

This retaliation for his speech is in accord with the military's past policies and practices. As discussed earlier, beginning in 1999, the military "actively discouraged" airmen from speaking about the side effects of the tainted vaccine. (¶ 26,45). Then in October 2004, following the bright light of the News Journal's investigation, the Pentagon decided "to limit and control the facts ... being revealed to the general public" (¶ 31) as "[i]mmense pressure" was brought to bear through the chain of command "to stifle all speech contrary to the approved military version" and all "speech about health issues raised by the contaminated anthrax vaccine." (¶ 34).

2

10

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 19 of 60

The Air Force's actions as discussed above also violate other policies. For example, as defendant General Handy's spokesman recently stated on his behalf, "[i]t is not policy at any level to punish people for reporting to sick call." (emphasis added). (¶ 3). The totality of retaliatory adverse action taken by defendants against plaintiff is sufficient to deter a person of ordinary firmness from exercising their First Amendment right to freedom of speech. A reasonable person of ordinary firmness would be deterred from exercising their First Amendment right to freedom of speech when threatened with an LOR which can end their career, humiliating public punishment and attacks on their professionalism, loyalty, leadership, and character. (¶¶ 74-75). G. Defendants' Further Involvement. Immediately after plaintiff was retaliated against, through their public affairs staffs, defendants Pray, Handy, Roche and Rumsfeld ordered that all uniformed personnel at DAFB be forbidden to speak about the anthrax vaccination program and that they would be held accountable if this order was violated. (¶ 76).3 The media by e-mail and telephone calls brought the retaliation against plaintiff to defendants' attention but they refused to void the adverse actions taken against plaintiff. Defendants ratified, sanctioned and approved the retaliation against plaintiff. (¶ 76-81). ARGUMENT I. STANDARD OF REVIEW. Defendants clearly have a substantial burden to carry in seeking dismissal of the Complaint under Fed.R.Civ.P. 12(b). "A complaint will withstand an attack under Federal Rule of Civil Procedure 12(b)(6) if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery." Emerson v. Thiel College, 296 F.3d 184, 188 (3d Cir. 2002). "[I]n deciding a Rule 12(b)(6) motion, factual allegations of the complaint are to

This order also reveals defendants' illicit intent. Speech about the program was at the forefront of their minds. They explicitly ordered that all service personnel were forbidden to speak about the very program plaintiff dared to question.

3

11

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 20 of 60

be accepted as true and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Reasonable factual inferences will be drawn to aid the pleader." D.P. Enterprises, Inc. v. Bucks County Comty. College, 725 F.2d 943, 944 (3d Cir. 1984). Stated another way, the trial court is "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); see also California Public Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (motion to dismiss "may be granted only if, accepting all well pleaded allegations in the complaint as true, and drawing all reasonable factual inferences in favor of the plaintiff, it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would warrant relief"); Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992) ("the plaintiff must be given the benefit of every favorable inference to be drawn"). In the 12(b)(6) context, "a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record. Moreover, a case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Jordan, 20 F.3d at 1261 (emphasis added). The Standard of Review for their 12(b)(1) motion is the same. As the defense brief recognizes (OB at 5-6), defendants have made a facial attack on the sufficiency of this Court's subject matter jurisdiction. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). As such, "the court must accept as true all factual allegations and draw all reasonable inferences in favor of the non-moving party." Rhoades v. U.S., 950 F.Supp. 623, 628 (D.Del. 1996). The United States Supreme Court has repeatedly and explicitly rejected the heightened

12

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 21 of 60

pleadings standards defendants seek to foist upon the Court and instead has unanimously reaffirmed its long time holding that Fed.R.Civ.P. 8(a)(2) indeed means what it clearly says and that the required "short and plain statement of the claim" must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002); accord Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); Conley v. Gibson, 355 U.S. 41 (1957). "The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim." Swierkiewicz, 534 U.S. at 514. Notice pleading "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. at 512. Given this simplified notice pleading standard, "a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. at 514 (internal punctuation omitted). Recognizing the enormity of its burden on this motion, defendants seek to have this Court consider matters appended to its motion to dismiss hoping that this will convince the Court that the plaintiff is not entitled to relief. But it is well-established that "a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Defendants seek to avoid this rule by citing an exception allowing consideration of materials de hors the pleadings if the material is integral to or specifically relied upon by the plaintiff. Id. at 1426. But the extraneous materials relied upon by defendants, a DAFB order and plaintiff's written response to the LOR, are not mentioned nor are they relied upon anywhere in plaintiff's Complaint. Thus, consideration of the materials at this stage is not warranted under the idea that plaintiff specifically relied upon the order or his LOR response. See id. at 1424-25 ("since the district court was ruling on a motion to dismiss, it was not permitted to go beyond the facts alleged in the Complaint and the documents on which the claims made therein were based").

13

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 22 of 60

Nor are these materials "integral" to the Plaintiff's claim that he was retaliated against because he spoke out on a matter of significant public interest. This is not a case where a plaintiff is relying upon a document to support a claim and the defendant merely is seeking consideration of omitted portions of that document. See Mele v. Federal Reserve Bank of New York, 359 F.3d 251, 256 n. 5 (3d Cir. 2004) (where provisions of guidebook were relied upon as basis for plaintiff's claim that an employment contract existed, court could look to all provisions of guidebook in determining existence of such a contract). "What the rule seeks to prevent is the situation in which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a document and placing it in the complaint, even though if the statement were examined in the full context of the document, it would be clear that the statement was not fraudulent." Burlington Coat Factory, 114 F.3d at 1426. And that has not occurred in this case. Additionally, and contrary to defendants' contention, it is not simply a matter of whether a plaintiff has notice of a particular document; the plaintiff also must have relied upon the document at issue in framing his complaint in order for that document to be considered on a Rule 12(b)(6) motion. Id. The documents at issue here are not integral to the plaintiff's claim, were not relied on and are not required in order to fairly evaluate the sufficiency of the Complaint, so they should not be considered in deciding the defendants' motion to dismiss. Defendants also base their argument upon the idea that this Court can take judicial notice of the order. However, they do not cite any precedent holding that this kind of order can be judicially noticed. Under Fed.R.Evid. 201(a), judicial notice may be taken of facts that are not subject to reasonable dispute and are either generally known in the territorial jurisdiction of the court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. First, it cannot be said that there is no reasonable dispute concerning the order in question because the order may have been amended, changed, or countermanded. Moreover, the order clearly is not one that is generally known in this jurisdiction and defendants have referred to no unimpeachable source where this order can be found. Thus the order is not

14

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 23 of 60

capable of being judicially noticed and cannot be considered in connection with defendants' motion to dismiss.4 II. INTRODUCTION. A. The Big Picture. "The women and men of our armed forces put their lives on the line every day to preserve and safeguard the freedoms that all Americans cherish and enjoy ... [T]he United States cannot demand that members of the armed forces also serve as guinea pigs for experimental drugs." Doe v. Rumsfeld, 297 F.Supp.2d 119, 135 (D.D.C. 2003). But this is exactly what has occurred. In accord with sacred Air Force safety principles, rather than risk the lives of his fellow airmen and jeopardize the safety and success of a military mission, Sgt. Adkins spoke out and questioned whether he had been used as a guinea pig and whether his unexplained health problems were the result of illegal medical experimentation. As the Complaint makes clear, the military has admittedly tested squalene tainted vaccines on unsuspecting human subjects overseas. After they tried to hide all evidence of their wrongdoing, the GAO investigated and ultimately accused it of a pattern of deception for its efforts to conceal its actions. Now, for the last 6-7 years, the military has shifted its focus to testing squalene tainted anthrax vaccine on unsuspecting U.S. military subjects like Sgt. Adkins. The Pentagon repeatedly denied that there was ever any squalene in the vaccines. The FDA subsequently proved that again the Pentagon was being deceptive and dishonest. B. Plaintiff's Protected Speech. This tainted vaccine has had innumerable negative side effects on servicemen around the country. Sgt. Adkins is one of those injured airmen. When the pain and illness was too much to bear, rather than risk the lives of his crew and jeopardize the safety of his mission, in accord with longstanding Air Force safety principles, he immediately reported to the Flight Surgeon. 1. The Words Themselves. There, he spoke out in great detail and questioned

As a result, because plaintiff did not reference or rely upon these documents in his Complaint, plaintiff relies upon the long established 12(b) rules and will not address the documents in his brief.

4

15

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 24 of 60

whether his debilitating symptoms were caused by the tainted vaccine. He then told the Flight Surgeon that he believed his debilitating medical condition had been caused by the tainted anthrax vaccine the military had inflicted upon him. (¶¶ 54-57). 2. Plaintiff's Intent in Speaking Out. In speaking out, plaintiff sought to express two distinct ideas. First, that his debilitating health condition presented serious risks to the lives of his fellow aviators and to the safety of a military mission during time of war. And second, he questioned whether and also stated his belief that he and other aviators were experiencing medical side effects of a secret experimental anthrax vaccine which the military has been illegally testing on them. (¶¶ 49-51,2). Within hours of so speaking out, the roof caved in as his superiors stumbled over themselves to retaliate against and silence him. III. PLAINTIFF HAS STATED A CLAIM OF FIRST AMENDMENT RETALIATION FOR EXERCISING HIS FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH. "Employees of federal and state government do not relinquish their First Amendment rights to comment on matters of public interest as a condition of their government employment." Brown v. Armenti, 247 F.3d 69, 74 (3d Cir. 2001) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). "Public employers cannot silence their employees simply because they disapprove of the content of their speech." Baldassare v. State of N.J., 250 F.3d 188, 194 (3d Cir. 2001). Public employee claims of retaliation for engaging in protected speech are analyzed using a three-step process. Green v. Phila. Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997). First, the plaintiff must demonstrate that he engaged in protected activity. Id. Second, plaintiff must demonstrate that the protected activity was a substantial or motivating factor in the alleged retaliatory action. Id. Lastly, the burden shifts to the defense to demonstrate that the same action would have been taken in the absence of the protected conduct. If this can be established, the defendant defeats the plaintiff's claim. Id. A. Protected Activity. The protected status of speech is a question of law. Baldassare,

16

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 25 of 60

250 F.3d at 195. The protected speech examination requires a two part analysis for the trial court. First, the court must determine that the speech addressed a matter of "public concern." Second, the court must balance the relevant interests to determine if the government's interests as an employer in promoting the effective and efficient fulfillment of its public responsibilities outweigh the public employee's interest as a citizen in speaking out on matters of public concern and the value to the community at large of being free to hear such speech. Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997) (en banc) (internal punctuation omitted) (citing Connick v. Myers, 461 U.S. 138, 147, 150 (1983)).5 1. Matter of Public Concern. Unfortunately for defendants, "[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. State of Cal., 314 U.S. 252, 269 (1941). "[S]peech concerning public affairs is more than selfexpression, it is the essence of self-government." Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). "[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." Connick, 461 U.S. 138, 145 (1983) (quoting NAACP v. Clairborn Hardware Co., 458 U.S. 886, 913 (1982) and Carey v. Brown, 477 U.S. 455, 467 (1980)). "An employee's speech addresses a matter of public concern when it can be `fairly considered as relating to any matter of political, social, or other concern to the community.'" Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996). This is determined by reference to the "content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. Importantly, and the key to this case, is that all three factors must be considered, the content, form and overall context in which the speech is occurring.

Importantly, as the Third Circuit has noted, "it is generally inappropriate to conduct the [ ] balancing analysis at the pleading stage, mostly because the analysis is very fact intensive, and often requires delicate line drawing." Muti v. Schmidt, 96 Fed.Appx. 69, 73-74 (3d Cir. 2004) (internal punctuation and citations omitted) (superseded by Muti v. Schmidt, 118 Fed.Appx. 646 (3d Cir. 2004)).

5

17

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 26 of 60

a. Content. The Third Circuit has had several occasions to deal with speech addressing the health of government employees and on each occasion, has found such speech to be of public concern. For example, in Brennan v. Norton, 350 F.3d 399, 415 (3d Cir. 2003), the Third Circuit was decidedly unimpressed by and flatly rejected the same argument that defendants now make - that speech addressing health risks in the work place do not touch on a matter of public concern because only public employees are affected. [W]e are not impressed by the "limitation" that "only" firefighters may be harmed by the presence of asbestos in the firestation . . . Residents of the Township clearly had an interest in knowing that their tax dollars were being spent on an asbestos contaminated firestation that endangered the health and lives of its firefighters. This is such a basic proposition that we need not belabor the point. Quite simply, the statements regarding exposure of public employees to hazards such as asbestos can be fairly considered as relating to a matter of concern to the community. Id. at 415 (internal punctuation omitted) (emphasis added). Similarly, our present case deals with speech about illegal experimentation on members of our armed forces and the exposure of servicemen and women to a tainted anthrax vaccine with severe and debilitating side effects. And both the taxpayers and the citizenry at large have an interest in learning that airmen are being used as guinea pigs by the Pentagon. "[S]tatements regarding exposure of public employees to [health] hazards ... can be fairly considered as relating to a matter of concern to the community." Id. (internal punctuation omitted). Then in Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995), a Philadelphia police department employee was terminated from his employment for his speech critical of the lack of formal policies in place for the program that addressed the health problems of police officers. The Third Circuit held that Watters' speech was on a matter of public concern as the "public had a significant interest in learning about problems which may have impaired the effective functioning of the [the program] and which, in turn, could have affected the delivery of police services." Id. at 895. It was observed that Watters' speech addressed "fundamental problems going to the heart" of the government service and thus addressed issues of "political, social, or other concern to the community." Id. at 894 (internal punctuation omitted). Similarly, the public

18

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 27 of 60

has a significant interest in learning about problems which have impaired the effective functioning of the U.S. military in time of war. The poisoning of our servicemen and women by the government is a fundamental problem that goes to the heart of an effective national defense. Moreover, the content of plaintiff's speech is protected because "[d]isclosing corruption, fraud and illegality in a government agency is a matter of significant public concern." Baldassare, 250 F.3d at 196; accord Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994). As discussed above, Sgt. Adkins' speech questioned illegality and "attempted to expose specific wrongs and abuses within the [federal] government." Baldassare, 250 F.3d at 196 (internal punctuation omitted). He questioned whether he had been the guinea pig for illegal medical experiments and if those illegal actions were the cause of his debilitating health problems that jeopardized the safety of his crew and mission. As demonstrated by the pervasive national news coverage surrounding the issues of both the regular and the tainted anthrax vaccine, the public would certainly be interested in hearing such speech because "allegations of corrupt practices by government officials are of the utmost public concern." Id. at 197. b. Form and Context. Not surprisingly, defendants have completely ignored and refused to address the overarching context in which plaintiff's speech occurred. As a result, defendants have failed to address the facts as pled. i. News Coverage. Whether a particular issue receives news coverage is relevant in determining the public import of speech. In the Supreme Court's recent words, "public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." City of San Diego v. Roe, -- U.S. --, 125 S.Ct. 521, 525-26 (2004) (per curiam). In the same way, the Third Circuit has found that news coverage is relevant to determining whether speech addresses a matter of public concern. Watters, 55 F.3d at 895.6 The District of Delaware has done the same.

The Third Circuit in Watters gave consideration to the newspaper articles which formed the basis of the employee discharge. 55 F.3d at 895. In doing so, the court observed that the articles put the

6

19

Case 1:04-cv-01453-JJF

Document 12

Filed 03/21/2005

Page 28 of 60

Springer v. Henry, 2002 WL 389136, *5 (D.Del. March 11, 2002) (finding that news coverage and the involvement of the federal government "strongly indicates that the public was interested" in the subject matter of plaintiff's speech). Courts have long held that speech covered by newspapers and television stations may be protected.7 As discussed above, the exact topics that plaintiff spoke out about - the tainted anthrax vaccine at DAFB and the poisoning of servicemen have been the subject of pervasive media coverage. ii. Legislative Concern. Moreover, legislative concern also may be used to demonstrate the public value of speech. In analyzing the public importance of a claim by a civilian employee of the Pennsylvania State Police to a newspaper that she was the victim of racial animus, the court in Rode found hearings conducted by the state legislature into racial discrimination in the department attested to the public's concern in the matter. Rode, 845 F.2d at 1201-02. Similarly, the Delaware Congressional delegation has demanded answers to the "critical" concerns raised by the press about "health hazard[s] for our personnel" caused by the tainted vaccine at DAFB. In their words, the "importance of clearing the air on this issue cannot be overstated." (¶¶ 38-39). iii. Motivation. As the Third Circuit has held, "motivations will rarely, by themselves, justify silencing speech that otherwise addresses matters concerning the public." Brennan, 350 F.3d at 413. "[W]hile often a relevant part of the context of the speech, [it] is not dispositive." Id. Indeed, Common sense suggests that public employees, no less than other employees, will be more l