United States District Court for the District of Columbia

Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ERIC OLSON, et al.,) ) Civil Action No. 12-1924 (JEB) Plaintiffs, ) )ECF v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______)

DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendant United States of America, by and through undersigned counsel, respectfully moves the Court to dismiss Plaintiffs’ complaint in its entirety for lack of jurisdiction, improper

venue, failure to state a claim or, in the alternative, to enter summary judgment in favor of

Defendant, pursuant to Rules 12(b)(1), 12(b)(3), 12(b)(6), and 56 of the Federal Rules of Civil

Procedure.1 On January 18, 2012, Plaintiffs Eric and Nils Olson filed a claim with the Central

Intelligence Agency (“CIA”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

1346(b)(1), 2671-2680, seeking $95,000,000 as compensatory damages for the agency’s alleged

“negligent supervision” of its employees in connection with the death of their father, Dr. Frank

Olson, in New York City in November 1953. On November 28, 2012, Plaintiffs filed the instant

complaint after the CIA denied the FTCA claim. See Compl. (ECF 1).

Plaintiffs, who do not reside in the District of Columbia, have failed to meet their burden of

demonstrating that venue is proper in this jurisdiction based on alleged tortious conduct that

1 By filing this motion to dismiss for lack of subject matter jurisdiction, Defendant does not waive its right to assert any additional statutory defenses available under the Federal Tort Claims Act, any legal defenses to the underlying tort claim, or any common law defenses, such as laches. Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 2 of 41

occurred here, see 28 U.S.C. § 1402(b). Moreover, Plaintiffs’ claim, while styled as a “negligent

supervision” claim, arises out of misrepresentation and deceit, and is therefore barred by 28 U.S.C.

§ 2680(h). In addition, the claim was submitted almost 60 years after Dr. Olson’s death and is

therefore barred by the FTCA’s two-year limitations period for submitting a claim. 28 U.S.C. §

2401(b). This action is also barred by Plaintiffs’ statutory settlement of the claim in 1976, which

may only be challenged in the United States Court of Federal Claims under the Tucker Act.

Specifically, upon consultation with counsel, Plaintiffs Eric and Nils Olson, as well as their mother

and sister, each accepted a $187,000 settlement payment approved by Congress pursuant to Private

Law No. 94-126 (1976). Compl. ¶ 64. The payments were made in full settlement of all claims by

the Olsons “of any nature whatsoever against the United States” arising out of the death of Doctor

Frank R. Olson. See id. Lastly, because payment of FECA benefits precludes later claims brought under the FTCA that arise out of the same facts, Plaintiffs are barred from now asserting an FTCA claim for Dr. Olson's death. 5 U.S.C. 8116(c); see also Lockheed Aircraft Corp. v. United States,

460 U.S. 190, 193-94 (1983).

The complaint should therefore be dismissed for lack of jurisdiction, improper venue, and

failure to state claim under Rule 12(b)(1), (b)(3), and (b)(6), respectively or, in the alternative,

summary judgment should be entered in favor of Defendant United States under Rule 56. A

proposed Order consistent with this motion is attached hereto.

2 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 3 of 41

Respectfully submitted,

RONALD C. MACHEN JR, DC Bar # 447889 United States Attorney for the District of Columbia

DANIEL F. VAN HORN, DC Bar # 924092 Chief, Civil Division

By: /s/ JOHN G. INTERRANTE PA Bar # 61373 Senior Litigation Counsel Civil Division 555 4th Street, NW, Room E-4808 Washington, DC 20530 Tel: 202.514.7220 Fax: 202.514.8780 Email: [email protected]

3 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 4 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ERIC OLSON, et al.,) ) Civil Action No. 12-1924 (JEB) Plaintiffs, ) )ECF v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______)

DEFENDANT’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to LCvR 7(h), Defendant United States of America hereby submits the following

Statement of Material Facts as to Which There Is No Genuine Dispute (“Statement of Facts”) in

Support of Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment in this

action.

1. Between 1950 and 1953, Dr. Frank R. Olson (“Dr. Olson”) was a “bioweapons

expert” with “a special unit of the Army Chemical Corps” based in Fort Detrick Maryland. See

Compl. (ECF 1) ¶ 16; Ex. A (S. REP. NO. 94-827, for the relief of Alice W. Olson, Lisa Olson

Hayward, Eric Olson, and Nils Olson, and to accompany S. 3035, at p. 1 (May 13, 1976) (citing

Letter from the Central Intelligence Agency (“CIA”) to the Senate Committee on the Judiciary dated

April 5, 1976, attached to report at pp. 4-5).1

2. Dr. Olson’s unit was in periodic contact with representatives of the CIA and, through

his work, Dr. Olson was made “privy to a wide range of extremely sensitive information concerning

the use of biological weapons and mind control techniques.” Compl. ¶ 17.

1 Defendant will file the referenced exhibits as part of a separate notice of filing within a reasonable time after filing its moving papers. Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 5 of 41

3. On November 18, 1953, Dr. Olson and his unit met with members of the CIA in Deep

Creek Lake Maryland. Compl. ¶ 22. The meeting extended into the early morning hours of

November 19, 1953. Id. While at Deep Creek Lake, Dr. Olson ingested lysergic acid diethylamide

(“LSD”) that had been placed into a bottle of Cointreau liqueur allegedly without his knowledge.

Id. ¶ 23.

4. On November 24, 1953, CIA employees accompanied Dr. Olson to New York City

for psychiatric treatment. Id. ¶ 27. During the early morning hours of Saturday, November 28,

1953, “Dr. Olson fell thirteen stories to his death from the window of room 1018 [of the Statler

Hotel in New York City].” Id. ¶¶ 31-32.

5. Shortly after Dr. Olson’s death, Mrs. Alice W. Olson, Plaintiffs’ mother, was

informed that her husband “had died in a terrible accident.” Compl. ¶ 37. The Olsons were not told

by the CIA at that time about Dr. Olson’s consumption of LSD.2 Id. ¶ 41.

6. Shortly after Dr. Olson’s death, Mrs. Olson applied to the Bureau of Employee’s

Compensation (“BEC”) of the Department of Labor to receive benefits for her and her three children under the Federal Employees Compensation Act (“FECA”). 5 U.S.C., Chapter 81. These benefits would be in lieu of civil service retirement benefits. See 5 U.S.C. § 8116; S. REP. NO. 94-827 at

p. 2 (1976). The General Counsel of the CIA submitted a statement to the BEC in support of Mrs.

Olson’s application, stating that Dr. Olson’s death resulted from “circumstances arising out of an

experiment undertaken in the course of his official duties for the U.S. Government.” Id; Compl. ¶

39.

2 The term “Olsons” refers to Mrs. Alice W. Olson, Dr. Olson’s wife and Plaintiffs’ mother, Plaintiffs Eric and Nils Olson, and Mrs. Lisa Olson Hayward, Plaintiffs’ sister. Mrs. Alice W. Olson and Mrs. Lisa Olson Hayward are deceased.

2 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 6 of 41

7. After reviewing “all of the records relating to Dr. Olson’s death,” including the CIA’s

letter, the BEC determined that the evidence was “sufficient to show that the condition responsible

for self-destruction was proximately due to the conditions of [Dr. Olson’s] employment,” and “from

a medical standard there was a very definite connection between the illness and the act of self-

destruction.” S. REP. NO. 94-827 at p. 2 (1976).

8. In or about 1954, Mrs. Olson began receiving FECA benefits. Compl. ¶ 41. Mrs.

Olson continued to receive FECA payments for over 20 years and, as of 1976, had “received

$147,573.22 under the FECA.” S. REP. NO. 94-827 at p. 2 (1976).

9. On June 10, 1975, President Ford’s Commission on CIA Activities within the United

States (“Rockefeller Commission”) published a report “which disclosed for the first time that in

1953 an Army scientist had fallen to his death from a hotel room in New York after the CIA had

given him LSD.” Compl. ¶ 51. On June 11, 1975, the Washington Post published a story discussing the circumstances of Dr. Olson’s death, but did not identify him by name. Id. ¶ 52; Ex. B. Although

neither the Rockefeller Commission, nor the Washington Post, identified Dr. Olson, the Olsons

allege that they quickly recognized the story as about Dr. Olson’s death. Id.

10. On July 10, 1975, at a press conference in their backyard, the Olsons publically

demanded “full disclosure of all relevant information concerning Dr. Olson’s death, assurances from

the government that this sort of experiment will never occur again, and a financial settlement.”

Compl. ¶ 54; Ex. C (July 10, 1975 Olson Press Conference, which is also available at

http://www.frankolsonproject.org/Statements/FamilyStatement1975.html)). In the statement, the

Olsons made two sets of allegations against the CIA: “First, Frank Olson was experimented upon illegally and negligently, Second, the true nature of his death was concealed for twenty-two years.”

Ex. C (emphasis added).

3 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 7 of 41

11. A week later, by letter dated July 17, 1975, the Olsons, through their attorneys, filed a wrongful death claim with the CIA pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346(b)(1), 2671-2680. Ex. D; S. REP. NO. 94-827 at p. 3 (1976). Specifically, the letter, signed by each family member, was addressed to William Colby, then-CIA Director, and stated, in pertinent part:

We are the surviving family of Dr. Frank Olson, a biochemist who in 1953 was personally injured and killed as the direct and proximate result of the illegal, unlawful and wrongful acts of the Central Intelligence Agency (CIA). As you know, Dr. Olson’s personal injuries and wrongful death occurred in New York City following the secret and unknown administration to him of the drug lysergic acid dietylamide (LSD). We, the members of the Olson family, also suffered injuries as a result thereof.

We hereby, pursuant to this letter, file a claim for Dr. Olson’s wrongful death, and all other claims arising as a result thereof, pursuant to the Federal Tort Claims Act (28 U.S.C. §§ 2671, et seq.), and in accordance with Part 14 of the Code of Federal Regulations (Administrative Claims under Federal Tort Claims Act). This letter is in lieu of the executed Standard Form 95, and is specifically permitted pursuant to Section 14.2(a) of Part 14 of 28 C.F.R. If you believe this letter is not in compliance with Section 14.2(a) of C.F.R., please notify our counsel promptly. This letter also constitutes a power of attorney appointing counsel as required by Part 4 of C.F.R.

The relief which we claim is as follows:

*****

3. Monetary damages in the maximum amount of $10,000,000 (ten million dollars). As you know, Section 2675(b) of the Federal Tort Claims Act requires that the maximum amount of damages be set forth in any claim filed with the appropriate agency so as not to preclude any monetary recovery in United States District Court if legal action is required.)

*****

Please contact the family’s counsel – David Rudovsky, Esq., and David Kairys, Esq., Kairys & Rudovsky,1427 Walnut Street, Philadelphia, Pennsylvania 19102 [phone number omitted].

Id.

4 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 8 of 41

12. On July 21, 1975, the Olsons met with President Gerald Ford and CIA Director

Colby. Compl. ¶¶ 57-59. Thereafter, negotiations commenced between the Department of Justice

and the Olson family attorneys to settle the Olsons’s claims against the United States and its

employees. S. REP. NO. 94-827 at p. 3 (1976). As part of this process, the CIA provided the Olsons

and their attorneys with “all of the documents which the CIA were able to find concerning Dr.

Olson’s death” and “a signed affidavit testifying as to their completeness.” Id. After reviewing

these documents in 1975, the Olsons claimed to have lingering “questions regarding the quality of

[the CIA’s] investigation,” but nonetheless continued to pursue a settlement of the claim. Compl.

¶ 60.

13. “[T]he President, the Attorney General and the Director of the CIA, agreed that it

would be appropriate to proceed by way of a private bill for an amount which would adequately

compensate the Olson family for damages suffered.” S. REP. NO. 94-827 at p. 3 (1976).

14. In a New York Times Magazine interview published in 1976, the Olsons, through Mr.

David Kairys, their attorney, explained that once the CIA provided a sworn statement that all

relevant documents had been released there was “nothing more we can do.” See Joseph B.Treaser,

C.I.A.’s Files on LSD Death Found to be Contradictory, N. Y. TIMES MAGAZINE, Jan. 11, 1976

(attached as Ex. E).

15. In February 1976, Senator Charles Mathias introduced Senate Bill 3035, which

mandated the payment to the Olsons of an aggregate amount of $1.25 million “to compensate the

family for their suffering” and as an acknowledgement by the government of the “deception and

evasiveness perpetuated upon the Olsons.” Cong. Rec. 4332 (1976) (attached as Ex. F). The bill was

supported by then CIA Director George Bush and the Office of Management and Budget. See H.R.

REP. NO. 94-1494 at p. 4 (1976) (attached as Ex. G).

5 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 9 of 41

16. In April 1976, an external CIA investigation by the Church Committee became

available to the public. S. REP. NO. 94-755 (excerpt attached as Ex. H) (also available at

http://www.intelligence.senate.gov/churchcommittee.html). Plaintiffs allege that the investigation

“identified four categories in which the CIA had routinely failed to monitor and control its

employees’ activities.” Compl. ¶ 47.

17. On October 12, 1976, Congress passed Private Law 94-126 for the relief of Alice W.

Olson, Lisa Olson Hayward, Eric Olson, and Nils Olson. 90 Stat. 3006 (1976) (attached as Ex. I).

The law directed the United States Treasury to pay $187,500 to each member of the Olson family

“in full settlement of all of their claims against the United States arising out of the death of Doctor

Frank R. Olson in November 1953, if all of them waive any and all rights arising out of such death.”3

Id.; Compl. ¶ 64. The statute further provided, in pertinent part:

The payment of such sums shall be in full satisfaction of all claims of Alice W. Wilson, Eric Olson, Lisa Olson Hayward, and Nils Olson of any nature whatsoever against the United States, or against any past or present employee or agent of, or person associates with, the United States, his estate or personal representative, in connection with the circumstance surrounding [Dr. Olson’s] death and such payments shall be in lieu of further compensation otherwise due under chapter 81 of title 5, United States Code [FECA], or any award thereunder.

Id. (emphasis added). The Olsons accepted the $187,000 settlement payments and settled all claims of any nature whatsoever against the United States arising out of Dr. Olson’s death, as required by

Private Law 94-126. See Compl. ¶ 64.

18. In June 1994, after their mother passed away, Plaintiffs arranged for the father’s body to be exhumed. See Compl. ¶ 66. The resulting examination revealed a hematoma on Dr. Olson’s

3 As a private bill, a unanimous vote of both houses of Congress was required. To achieve unanimity, the aggregate settlement amount was reduced from the original $1.25 million proposal to $750,000.

6 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 10 of 41

temple and led Plaintiffs to believe “that their father may have been murdered.” Id. ¶ 67.

19. Between 1999 and 2002, Plaintiff Eric Olson regularly made public statements

accusing the CIA of intentionally killing Dr. Olson. See Michael Ignatieff, What Did the C.I.A. Do

to Eric Olson’s Father?, NEW YORK TIMES, Apr. 1, 2001 (attached as Ex. J) (also available at

http://www.nytimes.com/2001/04/01/magazine/01OLSON.html?pagewanted=all) (“Now, it seemed

to Eric Olson, that [the Presidential] apology had been a cynical lie. It enabled the C.I.A. to hide,

forever, a perfect murder.”); Eric Olson, Address at Loyola College, Mind Control Murder: The

CIA, LSD, and the Limits of Human Experimentation (Feb. 2000) (attached as Ex. K); Mary A.

Fischer, The Man Who Knew Too Much, GQ MAGAZINE, January 2000 (attached as Ex. L);

Investigative Reports: Mind Control Murder (A & E television broadcast Sep. 22, 1999) (attached

as Ex. M); Democracy Now!: Interview with Eric Olson (July 1, 1999) (attached as Ex. N) (also available at http://www.frankolsonproject.org/News/News1.html).

20. On August 8, 2002, Plaintiffs Eric and Nils Olson held a press conference and made

a public statement regarding their belief that the CIA had intentionally hidden information regarding

its involvement in their father’s death. See Family Statement on the Murder of Frank Olson, Aug.

8, 2002 (attached as Ex. O) (also available at http://www.frankolsonproject.org/

Statements/FamilyStatement2002.html).

21. On January 18, 2012, Plaintiffs filed a second FTCA claim with the CIA. Ex. P. In

the 2012 claim, Plaintiffs demanded “compensatory damages” in the amount of $95,000,000 for the

agency’s alleged negligence surrounding their father’s death. Id.

22. The CIA denied Plaintiffs’ claim on July 12, 2012. Compl. ¶ 6; Ex. Q.

23. On November 28, 2012, Plaintiffs filed the complaint in this action. ECF 1.

7 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 11 of 41

Respectfully submitted,

RONALD C. MACHEN JR, DC Bar # 447889 United States Attorney for the District of Columbia

DANIEL F. VAN HORN, DC Bar # 924092 Chief, Civil Division

By: /s/ JOHN G. INTERRANTE PA Bar # 61373 Senior Litigation Counsel Civil Division 555 4th Street, NW, Room E-4808 Washington, DC 20530 Tel: 202.514.7220 Fax: 202.514.8780 Email: [email protected]

8 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 12 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ERIC OLSON, et al.,) ) Civil Action No. 12-1924 (JEB) Plaintiffs, ) )ECF v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendant United States of America, by and through undersigned counsel, hereby files this

memorandum in support of Defendant’s motion to dismiss for lack of subject matter jurisdiction,

improper venue, and failure to state a claim or, in the alternative, for summary judgment under

Rules 12(b)(1), 12(b)(3), 12(b)(6) and 56 of the Federal Rules of Civil Procedure. Defendant hereby

incorporates the Statement of Material Facts Not In Genuine Dispute (“Statement of Facts”), and

the accompanying exhibits, filed contemporaneously with this Memorandum.

INTRODUCTION

On November 28, 1953, Dr. Frank R. Olson (“Dr. Olson) died from injuries sustained during

a fall from the 13th floor of the Statler Hotel in New York City. Compl. (ECF 1) ¶ 32. On January

18, 2012, Plaintiffs Eric Olson and Nils Olson submitted a claim to the Central Intelligence Agency

(“CIA”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680, demanding payment of $95,000,000 in compensatory damages for the alleged “negligent supervision” by the CIA of its employees in connection with the death of Dr. Olson, their father.

Id. ¶¶ 1-3, 74-85; Ex. P. On November 28, 2012, Plaintiff filed this action after the CIA denied the Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 13 of 41

FTCA claim.

ARGUMENT

Plaintiffs’ complaint alleges a single claim of “negligent supervision” under the FTCA.

Compl., Count One, ¶¶ 74-85. Specifically, Plaintiffs allege that “[i]n 1953, negligently supervised

CIA employees administered LSD to one of the CIA’s own scientists, Dr. Frank Olson, without his knowledge or consent, and, a few days later, murdered Dr. Olson by pushing him from a thirteenth story window of a hotel in New York City.” Id. ¶ 2 (emphasis added). Plaintiffs further allege that

“CIA employees, again acting without proper supervision, then failed to disclose the truth to the

Olson family and instead provided disinformation about the circumstances of Dr. Olson’s death, claiming that he had committed suicide. Thus began a cover-up that continues to this day.” Id.

(emphasis added). Consequently, Plaintiffs’ “negligent supervision” tort claim consists of two

distinct components: (1) the alleged tortious acts leading up to and resulting in Dr. Olson’s death

in New York City in November 1953; and (2) the alleged concealment of the “true” circumstances of Dr. Olson’s death.

The complaint should be dismissed for improper venue because Plaintiffs do not live in the

District of Columbia and do not allege any tortious acts that occurred in this jurisdiction. See 28

U.S.C. § 1402(b). The complaint should also be dismissed for lack of subject matter jurisdiction because Plaintiffs’ “negligent supervision” claim is really a “misrepresentation” or “deceit” claim, and otherwise alleges assault and battery, all of which are intentional torts excepted from the limited waiver of sovereign immunity under the FTCA. See 28 U.S.C. § 2680(h); see also Orlikow v.

United States, 682 F. Supp. 77, 82 (D.D.C. 1988) and Marcus v. Geithner, 813 F. Supp. 2d 11, 16

(D.D.C. 2011). The Court should also dismiss the complaint for lack of subject matter jurisdiction because Plaintiffs’ “negligent supervision” claim is barred by the FTCA’s two-year limitations

2 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 14 of 41

period. 28 U.S.C. § 2401(b). Under the "discovery rule," Plaintiffs' claim accrued well outside the

two-year statutory period, as Plaintiffs were arguably aware of the basic facts of their claim in 1975

or at the latest, in 2002. See Sprint Communications Co. v. Federal Communications Comm'n, 76

F.3d 1221, 1228 (D.C. Cir. 1996).

Even if the Court were to find that the complaint is timely, Plaintiffs can no longer assert a

“negligent supervision” claim against the United States because, to the extent the claim falls within

the FTCA’s waiver of sovereign immunity, Plaintiffs settled the claim in exchange for the settlement

payments made to them pursuant to Private Law 94-126 (1976). 90 Stat. 3006 (1976) (attached as

Ex. I). Any challenge to the statutory settlement must be brought in the United States Court of

Federal Claims under the Tucker Act. In any event, the statute was passed for the especial benefit

of the Olsons and compensated them in exchange for a comprehensive release of all claims against

the United States arising from the death of Dr. Frank Olson in 1953.1 Lastly, because payment of

FECA benefits precludes later claims brought under the FTCA that arise out of the same facts,

Plaintiffs are barred from now asserting an FTCA claim for Dr. Olson's death. 5 U.S.C. 8116(c); see also Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983). The complaint should therefore be dismissed for failure to state a claim or, in the alternative, summary judgment should be entered in favor of the United States.

I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR IMPROPER VENUE.

Under the FTCA, a plaintiff may sue the United States only to those torts committed by government employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the [tortious] act or omission

1 The terms “Olsons” refers to Mrs. Alice W. Olson, Dr. Olson’s wife and Plaintiffs’ mother, Plaintiffs Eric and Nils Olson, and Mrs. Lisa Olson Hayward, Plaintiffs’ sister.

3 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 15 of 41

occurred.” 28 U.S.C. § 1346(b); see id. § 2674 (United States liable “in the same manner and to the

same extent as a private individual under like circumstances”). Pursuant to 28 U.S.C. § 1402(b),

“[a]ny civil action on a tort claim against the United States under subsection (b) of section 1346 of

the title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act

or omission complained of occurred.” Id.

Plaintiffs, who both live in Frederick, Maryland, allege that Dr. Olson’s death resulted from

events that took place in Maryland and New York in November 1953. Specifically, Plaintiffs allege

that, on November 18, 1953, Dr. Olson and his unit met with members of the CIA in Deep Creek

Lake Maryland. Compl. ¶ 22. The meeting extended into the early morning hours of November 19,

1953. Id. While at Deep Creek Lake, Dr. Olson ingested lysergic acid diethylamide (“LSD”) that

had been placed into a bottle of Cointreau liqueur allegedly without his knowledge. Id. ¶ 23. On

November 24, 1953, CIA employees accompanied Dr. Olson to New York City for psychiatric

treatment. Id. ¶ 27. During the early morning hours of Saturday, November 28, 1953, “Dr. Olson fell thirteen stories to his death from the window of room 1018 [of the Statler Hotel in New York

City].” Id. ¶¶ 31-32.

“Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit’s outset,

test whether the plaintiff ‘has brought the case in a venue that the law deems appropriate.’” See

Black v. City of Newark, 535 F. Supp. 2d 163, 166 (D.D.C. 2008) (citing Modaressi v. Vedadi, 441

F.Supp.2d 51, 53 (D.D.C. 2006). “[Rule] 12(b)(3) instructs the court to dismiss or transfer a case

if venue is improper or inconvenient in the plaintiff’s chosen forum.” See Hamilton v. Paulson, No.

07-1365, 2008 WL 4531781, at *2 (D.D.C. October 10, 2008) (quoting Pendleton v. Mukasey, 552

F. Supp. 2d 14, 17 (D.D.C. 2008)). In any event, “[b]ecause it is the plaintiff’s obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue

4 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 16 of 41

is proper.” See Black, 535 F. Supp. 2d at 166 (citing Freeman v. Fallin, 254 F. Supp. 2d 52, 56

(D.D.C. 2003) (additional citations omitted)).

Here, Plaintiffs cannot meet their burden of establishing that venue over their “negligent supervision” claim is in the District of Columbia. Indeed, although the complaint alleges that

“[v]enue is proper in this Court under 28 U.S.C. § 1402(b)” (Compl. ¶ 7), Plaintiffs fail to allege any specific tortious acts that occurred in this jurisdiction. See Complaint generally. When an action is filed in an improper venue, “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); Hamilton,

2008 WL 4531781, at *3 (citing Pendleton, 552 F.Supp.2d at 17 (quoting 28 U.S.C. § 1406(a)). The decision whether a transfer or a dismissal is in the interest of justice rests within the sound discretion of the district court. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Piper Aircraft v.

Reyno, 454 U.S. 235, 257 (1981); Naartex Consulting Corp. v. Wyatt, 722 F.2d 779, 789 (D.C. Cir.

1983), cert. denied, 467 U.S. 1210 (1984); Hamilton, 2008 WL 4531781, at *2 (citing Naartex).

Defendant submits that dismissal, rather than transfer, is appropriate in this case because Plaintiffs seek to sue the United States based on events that transpired almost 60 years ago.

II. THE COURT LACKS JURISDICTION OVER PLAINTIFFS’ FTCA CLAIM.

Plaintiffs’ complaint should be dismissed for lack of subject matter jurisdiction because

Plaintiffs’ “negligent supervision” claim is really a “misrepresentation” or “deceit” claim excepted from the limited waiver of sovereign immunity under the FTCA, 28 U.S.C. § 2680(h), and is also barred by the FTCA’s two-year limitations period for submitting a claim. 28 U.S.C. § 2401(b).

5 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 17 of 41

A. Legal Standards.

1. Lack of Subject Matter Jurisdiction.

As the party claiming subject matter jurisdiction, the plaintiff has the burden to demonstrate

that it exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); Abu Ali v. Gonzales,

387 F. Supp. 2d 16.17 (D.D.C. 2005) (noting that a court has an affirmative obligation to ensure that

it is acting within the scope of its jurisdictional authority); Grand Lodge of Fraternal Order of

Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (same). In deciding a motion to dismiss for

lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, this

Court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts, plus the Court’s resolution of disputed facts. See

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197-98 (D.C. Cir. 1992); see also Johnson v.

Holder, 598 F. Supp. 2d 50, 54 (D.D.C. 2009) (noting that, in resolving a motion to dismiss under

Rule 12(b)(1), the court is not limited to the allegations contained in the complaint and may consider material outside the complaint); Smith v. United States, 518 F. Supp. 2d 139, 154-155 (D.D.C. 2007)

(recognizing that the court can resolve disputed facts in adjudicating motions to dismiss under Rule

12(b)(1).

2. Failure to State a Claim.

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of her ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

The Supreme Court recently clarified that the new pleading standard applies in all federal court

cases, and that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me

6 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 18 of 41

accusation[.] Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

Thus, to survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

a complaint must contain enough facts to state a facially plausible claim. Id. At a minimum the

complaint must allege enough facts that, if true, would “plausibly give rise to an entitlement to

relief” on the merits of his or her claims. Id at 679.

The determination of whether a claim is plausible is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense,” and although legal

conclusions – which need not be accepted as true, unlike factual allegations – “can provide the

framework of a complaint, they must be supported by factual allegations.” Id.; see also Kowal v.

MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (“However, the court need not

accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in the form of factual allegations.”).

The Court need not convert a Rule 12(b)(6) motion to dismiss to a motion for summary judgment

under Rule 12(d) if it “confine[s] its analysis ‘to facts stated on the face of the complaint, in documents appended to the complaint or incorporated into the complaint by reference ... and to matters of which judicial notice may be taken.’” See Rattigan v. Gonzales, 503 F. Supp. 2d 56, 67 n.5 (D.D.C 2007) (citation omitted).

3. Summary Judgment.

If the Court were to convert this motion, summary judgment is required under Rule 56(a)

of the Federal Rules of Civil Procedure where there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986) (interpreting Rule 56(c), the prior version of Rule 56(a)); Gaujacq v. EDF,

7 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 19 of 41

Inc., 601 F.3d 565, 575 (D.C. Cir. 2010). A genuine issue of material fact is one that would change the outcome of the litigation. Anderson, 477 U.S. at 248. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-248 (emphasis in original).

To defeat a proper motion for summary judgment, the party who bears the burden of proof on an issue at trial must “make a sufficient showing on an essential element of his case” to establish a genuine dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see also Moore v. Hartman, 571 F3d 62, 66 (D.C. Cir. 2009) (“The nonmoving party cannot defeat summary judgment by ‘simply show[ing] that there is some metaphysical doubt as to material facts’”); Burke v. Gould, 286 F.3d 513, 517-20 (D.C. Cir. 2002) (requiring a showing of specific, material facts); Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving party is “required to provide evidence that would permit a reasonable jury to find” in its favor). The

“[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex, 477 U.S. at 327 (quoting Fed. R.

Civ. P. 1). 20, 24 (D.C. Cir. 2000).

B. While Styled as a “Negligent Supervision” Claim, Plaintiffs Allege “Concealment” or a “Cover-Up” That is Barred by the FTCA’s Misrepresentation and Deceit Exception.

Plaintiffs, as stated, allege that the CIA “failed to monitor and control its employees in their testing of chemical and biological agents” and negligently supervised “employees who have

8 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 20 of 41

egregiously and continuously failed to disclose the truth” regarding Dr. Olson’s death. Compl. ¶¶

84-85. Plaintiffs do not therefore limit their allegations to alleged negligence by supervisory

officials at the CIA in November 1953. Rather, Plaintiffs allege that the CIA negligently concealed

the true circumstances of Dr. Olson’s death, and continue to do so. See id. As a preliminary matter,

Plaintiffs point to no legal duty by the CIA to disclose information about the circumstances of Dr.

Olson’s death after the submission of an affidavit as part of the negotiations commenced in 1975

and concluded with the passage of Private Law 94-126. As stated, on July 21, 1975, the Olsons met

with President Gerald Ford and CIA Director Colby. Compl. ¶¶ 57-59; Statement of Fact No. 12.

Thereafter, negotiations commenced between the Department of Justice and the Olson family

attorneys to settle the Olsons’s claims against the United States and its employees. Id.; S. REP. NO.

94-827 at p. 3 (1976). As part of this process, the CIA provided the Olsons and their attorneys with

“all of the documents which the CIA were able to find concerning Dr. Olson’s death” and “a signed affidavit testifying as to their completeness.” Id.

After reviewing these documents in 1975, the Olsons claimed to have lingering “questions regarding the quality of [the CIA’s] investigation,” but nonetheless continued to pursue a settlement of the claim. Compl. ¶ 60. Indeed, in a New York Times Magazine interview published in 1976, the

Olsons, through Mr. David Kairys, their attorney, explained that once the CIA provided a sworn statement that all relevant documents had been released there was “nothing more we can do.” See

Statement of Fact No. 14; Joseph B.Treaser, C.I.A.’s Files on LSD Death Found to be

Contradictory, N. Y. TIMES MAGAZINE, Jan. 11, 1976 (attached as Ex. E). Thus, Plaintiffs’

negligent supervision claim based on alleged concealment after 1975 fails to state a facially

plausible claim, and should be dismissed under the new pleading standard set forth in Iqbal and

Twombly.

9 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 21 of 41

In any event, to the extent Plaintiffs seek compensation from the United States for the CIA’s alleged direct involvement in the death of Dr. Olson and the alleged “concealment” or “cover-up” of the true circumstances of his death, Plaintiffs allege intentional torts that are not compensable under the FTCA. See 28 U.S.C. § 2680(h). Indeed, the gravamen of Plaintiffs’ claim based on alleged tortious conduct by the CIA after 1953 is negligent misrepresentation, and not negligent supervision. See Smalls v. Emanuel, 840 F. Supp. 2d 23, 34 (D.D.C. 2012) (“a plaintiff cannot circumvent the exclusions in the FTCA bar ‘simple expedient drafting’ where in reality the United

States is immunized against the claim”) (citation omitted). The FTCA’s waiver of sovereign immunity is limited, and it expressly bars suits against the United States “arising out of assault battery, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h) (emphasis added). Accordingly, district courts uniformly dismiss misrepresentation claims against the United States. See Marcus v. Geithner, 813 F. Supp. 2d 11, 16 (D.D.C. 2011) (concluding that the FTCA bars “claims that arise from alleged misrepresentations, whether negligent or intentional”) (citing Block v. Neal, 460 U.S.

289, 296 (1983) (internal citations and quotations omitted). In addition, while the alleged

“concealment” may trigger the discovery rule for purpose of the claim accrual date, see Section II.D, infra, it does not also independently give rise to a tort claim for which Plaintiffs are entitled to recover damages under the FTCA.

“Where a claim alleges negligence by a government official in failing to properly control or supervise another government employee, who in turn commits an intentional tort, the negligence claim is barred because it arises out of the intentional tort.” Orlikow v. United States, 682 F. Supp.

77, 82 (D.D.C. 1988). Thus, Plaintiffs may only assert a claim based on alleged negligent supervisory conduct by agency officials, and their claim must fail to the extent it is based on

10 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 22 of 41

allegations that the CIA “murdered” Dr. Olson or that the CIA intentionally “misrepresented” or

engaged in a “cover-up” of the circumstances of his death. See Sheridan v. United States, 487 U.S.

392 (1988). However, the Court need not sort through the two components of Plaintiffs’ claim to

decide whether or not it is based on actionable negligence or intentional tortious conduct barred

under the FTCA.

Any additional information “discovered” by Plaintiffs after 1953 is relevant at best to

Plaintiffs’ allegation, first enunciated in 1975, that the CIA “murdered” Dr. Olson and that the CIA

engaged in a “cover-up” with regard to the circumstances of his death. See Compl. ¶ 2. This belief

appears to have motivated Plaintiffs to take “the extraordinary step” of exhuming their father’s body

in June 1994. Compl. ¶ 66. The subsequent examination “revealed a previously undisclosed

hemotoma on Dr. Olson’s temple,” and Plaintiff allege that they “now had to grapple with the

horrifying news that their father may have been murdered and that those responsible might never

face justice.” Id. 67. As stated, these allegations allege intentional torts for which Congress has not

waived sovereign immunity under the FTCA. 28 U.S.C. § 2680(h). See also Orlikow, 682 F. Supp. at 82 (“Where a claim alleges negligence by a government official in failing to properly control or supervise another government employee, who in turn commits an intentional tort, the negligence claim is barred because it arises out of the intentional tort.”)

Thus, to the extent Plaintiffs’ claim is based on any information obtained in 1994, it is barred by the FTCA’s two-year limitations period, 28 U.S.C. § 2401(b), because Plaintiffs did not file their

FTCA claim until 2012. See Sections II.C and II.D, infra. Moreover, even if the Court invoked the discovery rule, Plaintiffs would have had to bring that claim within two years of the autopsy results, which they failed to do. See id.

11 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 23 of 41

C. The FTCA’s Two-Year Statute of Limitations.

The FTCA permits a plaintiff to maintain a tort action against the federal government “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C.

§ 2674. See also GAF Corp. v. United States, 818 F.2d 901, 904 & n.4 (D.C. Cir. 1987) (citing

United States v. Orleans, 425 U.S. 807, 813 (1976)). Thus, “[t]he FTCA grants federal district

courts jurisdiction over claims arising from certain torts committed by federal employees in the

scope of their employment, and waives the government's sovereign immunity from such claims.”

Sloan v. U.S. Dep't of Hous. & Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001) (citing 28 U.S.C.

§§ 1346(b), 2674). “But the United States may define the terms upon which it may be sued and

absent full compliance with the conditions the Government has placed upon its waiver, courts lack

jurisdiction to entertain tort claims against it.” GAF Corp., 818 F.2d at 904 (citing, e.g., Honda v.

Clark, 386 U.S. 484, 501 (1967); United States v. Sherwood, 312 U.S. 584, 591 (1941)) (remaining footnotes and citations omitted).

Section 2675(a) of Title 28 imposes one such condition, an administrative-filing requirement,

satisfaction of which is a jurisdictional prerequisite to the maintenance of a tort suit against the

United States. 28 U.S.C. § 2675(a). This Section requires that a claim be “presented” to the

appropriate federal agency prior to commencement of a lawsuit. GAF Corp., 818 F.2d at 904. The

Standard Form 95 (“SF–95”) is a form used by a party seeking redress for tort claims against the

United States. Id. at 906 n. 16. In GAF Corp., the Court of Appeals explained that the presentment

requirement was an important precondition to suit that was intended by Congress to facilitate

settlement of claims:

Congress added this requirement to the Act in 1966 as part of a package of amendments designed to facilitate out-of-court settlement of claims. Prior to 1966, claimants seeking damages in excess of $2,500 were statutorily required to file suit;

12 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 24 of 41

the 1966 amendments were intended to remove statutory impediments to claims settlement and provide a framework in which settlement negotiations with the agencies would proceed. The presentment requirement of Section 2675(a) was a key element in the new procedure for claims resolution. Only after a proper presentment has been made may a claimant commence a lawsuit in federal court. Claimants are entitled to file suit at the point at which the claim presented is finally denied, or six months after it is presented if the agency fails to make final disposition of the claim within that period.

Id. at 904-5 (footnotes omitted).

“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim the agency to which it was presented.” 28 U.S.C. § 2401(b). The purpose of the

FTCA’s two-year statute of limitations “is to require the reasonably diligent presentation of tort claims against the Government.” Hardin v. Jackson, 625 F.3d 739, 744 (D.C. Cir. 2010) (quoting

United States v. Kubrick, 444 U.S. 111, 123 (1979)). Statutes of limitations “protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” United States v. Kubrick, 444 U.S. 111, 113 (1979).

When “the United States has not waived its sovereign immunity, the district court should dismiss the complaint for want of subject matter jurisdiction rather than dismissing by granting a motion for summary judgment.” Id. (quoting Broussard v. United States, 989 F.2d 171, 177 (5th

Cir. 1993)). Courts are not free to “extend [or restrict this] waiver beyond that which Congress intended.” Sexton v. United States, 832 F.2d 629, 632-33 (D.C. Cir. 1987) (citing United States v.

Kubrick, 444 U.S. 111, 117-18 (1979)). Although courts have held that “a statute of limitations defense ... is not ‘jurisdictional’ in nature,” Smith v. United States, 518 F.Supp.2d 139, 147 (D.D.C.

13 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 25 of 41

2007) (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)), this proposition has been called into question by the recent decision of the Supreme Court in John R. Sand v. United States, 552 U.S. 130,

134 (2008). In Sand, the Supreme Court interpreted the statute of limitations language in 28 U.S.C.

§ 2501 and held that the limitation was a “jurisdictional,” “more absolute, kind of limitations

period.” Id.

While the D.C. Circuit has not yet applied John R. Sand to the FTCA, Circuits who have

addressed the issue have acknowledged “an emerging trend” toward a jurisdictional interpretation

of the FTCA’s statute of limitations. See Bazzo v. United States, No. 11-1914, 2012 WL 3326308

at *1 (6th Cir. Aug. 15, 2012); see also L.C.H. ex rel. Hagan v. United States, No. 12-cv-916, 2012

WL 6570685 at *4 (D.D.C. Dec. 14, 2012) (holding that “the FTCA’s statute of limitations is a

jurisdictional bar to a claim”).2 Indeed, the “shall be forever barred” language of the FTCA is

stronger than the “jurisdictional” language interpreted by the Supreme Court in John R. Sand. See

Hagan, id. (comparing the “shall be barred” language in 28 U.S.C. § 2501, with the FTCA’s “shall be forever barred”). Thus, Defendant submits that the Court should treat the two-year limitations period as jurisdictional and subject to disposition by a Rule 12(b)(1) motion. Alternatively, the

Court may treat the motion as a motion to dismiss for failure to state a claim under Rule 12(b)(6).

In either case, the Court should dismiss the complaint as untimely.

D. Plaintiffs’ “Negligent Supervision” Claim is Untimely.

Under the FTCA, the federal government's waiver of sovereign immunity extends only to those torts committed by government employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the

2 Undersigned counsel notes that Judge Wilkins designated the Hagan opinion as “not intended for publication.”

14 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 26 of 41

[tortious] act or omission occurred.” 28 U.S.C. § 1346(b); see id. § 2674 (United States liable “in the same manner and to the same extent as a private individual under like circumstances”). Thus, tort liability under the FTCA is determined according to the law of the state where the alleged acts or omissions occurred. Kugel v. United States, 947 F.2d 1504, 1508 (D.C.Cir.1991) (citing 28 U.S.C.

§ 1346(b)); Red Lake Band of Chippewa Indians v. United States, 936 F.2d 1320, 1325

(D.C.Cir.1991). Accordingly, for liability to arise under the FTCA, a plaintiff’s “allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action.” Chen v.

United States, 854 F.2d 622, 625-26 (2d Cir. 1988) (citations omitted).

If the Court were to find venue in this jurisdiction based on alleged tortious conduct that occurred here, the District of Columbia recognizes that liability for the tort of negligent supervision extends to: “A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders or in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others; (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.”

Tarpeh-Doe v. United States, 28 F.3d 120, 123 (D.C. Cir. 1994) (citing Restatement (Second) of

Agency § 213). Thus, Plaintiffs’ negligent supervision claim could arguably be applied to the circumstances leading to and including the death of Dr. Olson, i.e., his alleged involuntary ingestion of LSD several days before he fell to his death from a hotel window.

As stated, to establish jurisdiction over their negligent supervision tort claim, Plaintiffs must have presented a claim to the CIA that that falls within the FTCA’s two-year statute of limitations.

U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Plaintiffs, however,

15 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 27 of 41

filed their administrative claim with the CIA on January 18, 2012, based on damages arising from

the death of their father in November 1953. See Compl. ¶ 6. Plaintiffs’ claim must fail because the

cannot establish that the claim accrued within the two-year limitations period commencing on

January 18, 2010, pursuant to 28 U.S.C. § 2401(b), or almost 60 years after Dr. Olson’s death.

Plaintiffs cannot not therefore meet their burden to show that they filed a timely claim.

The statute of limitations provision of the FTCA is interpreted by reference to federal law.

See Sexton, 832 F.2d at 633 n.4; Loughlin v. United States, 230 F. Supp. 2d 26, 39 (D.D.C. 2002).

“It is well-established that for purposes of the FTCA, a claim usually accrues at the time of the

plaintiff’s injury.” Smith, 518 F. Supp. 2d at 149. The “injury” in a wrongful death action is the

death itself and “not the pain and suffering arising as a consequence of that death.” Id. at 150; see

also Sexton, 832 F.2d at 633. In Kubrick, the Supreme Court held that under the FTCA, “[a] claim

accrues within the meaning of § 2401(b) when the plaintiff knows both the existence and the cause

of his injury.” 444 U.S. at 120. Thus, although a cause of action generally accrues at the time of

injury or death, a court may “appl[y] a discovery rule … where the relationship between the injury

and the alleged tortious conduct is obscure.” Bradley v. National Ass’n of Securities Dealers Dispute

Resolution, Inc., 433 F.3d 846, 849 (D.C. Cir. 2005).

“Under the discovery rule, a claim does not accrue until a plaintiff knows, or by the exercise

of reasonable diligence should know, of (1) an injury, (2) its cause, and (3) some evidence of

wrongdoing.” Id. The “discovery rule” provides that a “cause of action accrues when the injured

party discovers—or in the exercise of due diligence should have discovered—that it has been

injured.” Sprint Communications Co. v. Federal Communications Comm’n, 76 F.3d 1221, 1228

(D.C. Cir. 1996). Thus, under the discovery rule, Plaintiffs’ claim accrued when they had the requisite knowledge required to bring a tort claim. Here, Plaintiffs’ claim accrued, at the latest,

16 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 28 of 41

when they discovered that their father’s death was caused, in whole or part, by acts or omissions of

the CIA. Plaintiffs clearly had this knowledge more than two years before they submitted their

FTCA claim on January 18, 2012. On July 10, 1975, at a press conference, Plaintiffs made two sets

of allegations against the CIA: “First, Frank Olson was experimented upon illegally and negligently,

Second, the true nature of his death was concealed for twenty-two years.” Statement of Fact No. 10;

Ex. C. These allegations contain the same two distinct components as Plaintiffs’ negligent supervision claim. As stated, Plaintiffs’ FTCA claim submitted to the CIA on January 18, 2012 alleged (1) tortious acts leading up to and resulting in Dr. Olson’s death in November 1953; and

(2) the concealment of the “true” circumstances of Dr. Olson’s death. See Compl. ¶ 2.

Indeed, any allegation by Plaintiffs that they lacked sufficient knowledge to assert a

“negligent supervision” claim prior to January 18, 2010, is belied by the “wrongful death” claim the

Olsons submitted to the CIA under the FTCA on July 17, 1975, through their attorneys:

Statement of Fact No. 11; Ex. D. Consequently, even assuming Plaintiffs can properly allege a

negligent supervision tort, which we do not concede, the accrual period cannot be extended beyond

July 1975, when Plaintiffs possessed all information required to submit a negligent supervision

17 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 29 of 41

claim, and Plaintiffs’ FTCA claim filed on January 18, 2012 is therefore untimely. See Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998) (affirming dismissal of untimely FTCA claim against the United States arising out of the CIA’s alleged administration of LSD to the plaintiff in the 1950s). See also Nader v. Democratic Nat. Committee, 567 F.3d 692, 699-702 (D.C. Cir. 2009)

(alleged fraudulent concealment of conspiracy did not toll three-year limitations period for defeated presidential candidate's abuse of process claim).3

In Kronisch, the Second Circuit affirmed the dismissal of a similar FTCA claim that was brought in December 1981, three decades before Plaintiffs’ filed the negligent supervision claim at issue in this case. See 150 F.3d at 120. The Second Circuit’s reasoning is instructive:

We agree with the district court that Glickman was aware of the basic facts of his FTCA claim before December 22, 1979. Glickman first came to believe that he had been drugged by the CIA in 1977, when he was told by his sister about the Kennedy Committee hearings and began to watch the hearings on television. As Glickman testified at his deposition, after watching the Kennedy Committee hearings in 1977 and learning of the CIA's drug tests on unsuspecting persons in the 1950s, he reached “the logical conclusion after remembering the events of my life in 1952 that I was one of those victims.”

3 For the same reasons, Plaintiffs cannot establish the extraordinary circumstances necessary for the Court to find that the limitations period was equitably tolled. See Auburn Regional Medical Center v. Sebelius, 642 F.3d 1145, 1148 (D.C. Cir. 2011); see also Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 93-96 (1990) (“the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States”). To avoid summary judgment, Plaintiffs must offer “evidence sufficient to permit a reasonable conclusion that the statute of limitations should have been equitably tolled.” Smith- Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998). However, the “court’s equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances,” such as where “despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the existence of [their] claim.” Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir.1998) (quoting Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)); Dyson v. District of Columbia, No. 11-7146 , 2013 WL 425336 at *3 (D.C. Cir. Feb. 5, 2013), citing Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). In this case, Plaintiffs cannot convincingly argue any extraordinary circumstances to warrant tolling the statute of limitations, as they have filed the very same FTCA claim they filed 37 years ago.

18 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 30 of 41

Id. at 121. Thus, the plaintiff in Kronisch, like Plaintiffs here, concluded that he was injured by

alleged tortious activity in the 1950s, based on information discovered in the 1970s, but the plaintiff

did not submit an FTCA claim until more than two years after gaining this knowledge, and the claim

was properly dismissed as untimely. Id. Indeed, the Second Circuit rejected the plaintiff’s argument

in Kronisch that his claim did not accrue until he was “reasonably certain that the government

caused his injury:”

However, if plaintiff needed to be reasonably certain that the government caused his injury in order for his FTCA claim to accrue, Glickman's claim would not have accrued to this day, and might never accrue. A plaintiff need not have compelling proof of the validity of his claim in order for his claim to accrue-indeed, in cases where plaintiff's claim is ultimately misconceived, such proof will not exist-but must simply have formed a firm belief in his claim based on his awareness of the basic facts of injury and causation.

Id. at 122 n. 6. Plaintiffs’ claim here must also fail because they had a “firm belief” in 1975 in their claim based on their awareness of the basic facts of injury and causation.

Moreover, in the years since the 1975 FTCA claim, Plaintiffs have made numerous public

statements accusing the CIA of intentionally killing their father and concealing the facts surrounding

his death - the very same facts that form the basis for their current claim. These statements, which

are reproduced on Plaintiff Eric Olson's website, "The Frank Olson Project," (available at

http://www.frankolsonproject.org/News) include the following:

(1) In 1995, Plaintiffs Eric Olson and Nils Olson, via counsel, submitted a memorandum

to the New York District Attorney's office seeking a criminal investigation into Dr. Olson's death.

The twenty page memorandum sets forth Plaintiffs' detailed theory of the CIA's motives and actions

leading up to Dr. Olson's death, and their conclusion that "there is, as this Memorandum and

supporting documents make clear, reasonable cause to begin a criminal investigation into a possible

murder." Memorandum to Robert M. Morgenthau, Esq., New York District Attorney (May 12,

19 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 31 of 41

1995) (attached as Ex. R) (also available at http://www.frankolsonproject.org/

Statements/Morgenthau-memo.html).

(2) In 1999, Plaintiff Eric Olson appeared on Pacifica Radio's "Democracy Now!" and

discussed his father's "assassination." Democracy Now!: Interview with Eric Olson (July 1, 1999)

(attached as Ex. N).

(3) In 2000, in a GQ Magazine article, Plaintiff Eric Olson is quoted as saying that his

father "was not an LSD suicide but rather a CIA assassination, murdered because he had become

a security risk." Mary A. Fischer, The Man Who Knew Too Much, GQ Magazine, January 2000

(attached as Ex. L).

(4) In 2002, Plaintiffs Eric Olson and Nils Olson also held a press conference in which

they stated: "The gist of what we want to say can be compressed into three headlines: (1) The death

of Frank Olson on November 28, 1953 was a murder, not a suicide... (3) The truth concerning the

death of Frank Olson was concealed from the Olson family as well as from the public in 1953. In

1975, a cover story regarding Frank Olson's death was disseminated. At the same time, a renewed

coverup of the truth concerning this story was being carried out at the highest levels of government,

including the White House. The new coverup involved the participation of persons serving in the

current Administration." Family Statement on the Murder of Frank Olson, Aug. 8, 2002 (attached

as Ex. O) (also available at http://www.frankolsonproject.org/

Statements/FamilyStatement2002.html)

In sum, Plaintiffs have not pointed to any new facts discovered within the two-year statutory period prior to submitting their most recent FTCA claim. On the contrary, they continue to make the very same arguments they raised over thirty-seven years ago and have repeated in the decades since. The Court of Appeals has specifically rejected the “continuing tort” doctrine as a basis to

20 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 32 of 41

extend the accrual period. See DeBerry v. First Gov. Mortg. And Investors Corp., 179 F.3d 1105,

1110 n.9 (D.C. Cir. 1999) (“the policy disfavoring stale claims makes application of the ‘continuous tort’ doctrine inappropriate”) (quoting Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d

873, 883 (D.C. 1998)). To the contrary, “once the plaintiff has been placed on notice of an injury and of the role of the defendants’ wrongful conduct in causing it, the policy disfavoring stale claims makes application of the ‘continuous tort’ doctrine inappropriate.” Wallace, 715 A.2d at 883

(discussing National R.R. Passenger Corp. v. Krouse, 627 A.2d 489, 497-98 (D.C. 1993)).

III. THE COURT SHOULD DISMISS THE COMPLAINT BECAUSE PLAINTIFFS SETTLED THEIR NEGLIGENT SUPERVISION CLAIM BY ACCEPTING THE PAYMENTS AUTHORIZED BY PRIVATE LAW 94-126.

By letter dated July 17, 1975, at stated, the Olsons submitted an FTCA claim to the CIA, stating as follows:

Statement of Fact No. 11; Ex. D. On October 12, 1976, Congress passed Private Law 94-126 for the relief of Alice W. Olson, Lisa Olson Hayward, Eric Olson, and Nils Olson. 90 Stat. 3006 (1976)

(attached as Ex. I). The law directed the United States Treasury to pay $187,500 to each of the

Olsons “in full settlement of all of their claims against the United States arising out of the death of

Doctor Frank R. Olson in November 1953, if all of them waive any and all rights arising out of such death.” Id.; see also Statement of Fact No. 17; Compl. ¶ 64.

Indeed, the statutory language could not have more clearly evinced a Congressional intent that the Olsons broadly release all claims against the United States and its employees arising from

21 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 33 of 41

the death of Dr. Olson:

Id. (emphasis added) The statute imposed a single obligation on the United States, i.e., to pay the a fixed sum of money to each of the Olsons in exchange for a broad release of all claims “of any nature whatsoever against the United States ... in connection with the circumstance surrounding [Dr.

Olson’s death] ... and in lieu of further compensation otherwise due under [FECA].” Id. Upon

consultation with counsel concerning their legal rights and the litigation risk posed by a lawsuit on

their 1975 FTCA claim, the Olsons accepted the settlement payments approved by Congress in

1976, pursuant to Private Law No. 94-126, and released all claims against the United States,

including the claim in this action. Id.

A. Plaintiffs May Only Challenge the Statutory Settlement in the Court of Federal Claims under the Tucker Act.

Courts must construe any legislative waiver of sovereign immunity strictly in favor of the

sovereign. See United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992). See also Smalls, 840

F. Supp. 2d at 30. Pursuant to the Tucker Act, Congress conferred jurisdiction in the United States

Court of Federal Claims to “render judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress or any regulation of an executive department,

or upon any express or implied contract with the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.” 28 U.S.C. § 1491(a). This jurisdiction, however, is not

22 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 34 of 41

exclusive because the district courts “shall have jurisdiction, concurrent with the United States Court

of Federal Claims,” any such claims “not exceeding $10,000.” 28 U.S.C. § 1346(a)(2).

As Judge Howell noted in Smalls, it is well-established in this Circuit that disputes regarding

settlement agreements with federal agencies are governed by the Tucker Act. See 840 F. Supp. 2d

at 31 (citing Greenhill v. Spellings, 482 F.3d 569, 576 (D.C. Cir. 2007); Hansson v. Norton, 411

F.3d 231, 232 (D.C. Cir. 2005) (holding that “this court generally treats settlement agreement as

contracts such to the exclusive jurisdiction of the Court of Federal Claims”); Brown v. United States,

389 F.3d 1296, 1297 (D.C. Cir. 2004) (concluding that the breach of settlement agreement claim

should have been brought in the Court of Federal Claims pursuant to the Tucker Act)). See also

Franklin-Mason v. Penn, 616 F. Supp. 2d 97, 100 n. 4 (D.D.C. 2009) (because “[s]ettlement agreement are in the nature of contracts . . . [t]he District of Columbia Court of Appeals treats settlement agreement as contracts”) (citing Makins v. Dist. of Columbia, 277 F.3d 544, 546, 548

(D.C. Cir. 2002)).

Regardless of the language of the settlement agreement, the court cannot retain jurisdiction over claims in excess of $10,000 because “[t]he Court of Federal Claims’ jurisdiction is exclusive when such a claim ‘explicitly or in essence seeks money damages in excess of $10,000.’” Greenhill,

482 F.3d at 572 (citing 28 U.S.C. § 1346(a)); Sharp v. Weinberger, 798 F.2d 1521, 1523 (D.C. Cir.

1986)) (determining that because plaintiff sought $210,000 in damages from the federal government in her attempt to enforce an agreement that settled complaints of age and race discrimination, the

Court of Federal Claims had exclusive jurisdiction). Thus, “[a] claim for breach of a Title VII settlement agreement is a contract claim within the Tucker Act and belongs in the Court of Federal

Claims unless this court, pursuant to the parties’ agreement, retains jurisdiction to enforce the settlement agreement that resolved the Title VII action.” Franklin-Mason, 616 F. Supp. 2d at 99

23 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 35 of 41

(citing, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381-82 (1994)).

Here, Plaintiffs demand compensatory damages in the amount of $95,000,000, far in excess

of the statutory maximum for this Court’s jurisdiction. Thus, this Court would lack jurisdiction

over a claim by Plaintiffs challenging the statutory settlement in which Plaintiffs released all claims

of any nature whatsoever against the United States arising from the circumstance surrounding the

death of Dr. Olson. See Shaffer v. Veneman, 325 F.3d 370, 372 (D.C. Cir. 2003) (“There appears

to be no doubt that the Court of Federal Claims could entertain this case under the Tucker Act, for

the purpose of which a settlement agreement is considered a contract.”) (citing, e.g., United States

v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975)).

Furthermore, Plaintiffs’ complaint recognizes that Plaintiffs must first challenge the statutory settlement before they may proceed on their negligent supervision claim. Accordingly, Plaintiffs allege that “the [Olson] family’s acceptance of [the statutory settlement] funds was induced by the

CIA’s false representation that it had disclosed all relevant information regarding the circumstances of Dr. Olson’s death.” Compl. ¶ 64. The Tucker Act, however, grants the United States Court of

Federal Claims with jurisdiction to adjudicate Plaintiffs’ misrepresentation in the inducement claim.

Keeney Orthopedic, LLC v. United States, 107 Fed. Cl. 85, 90-91 (2012). As Judge Braden explained in Keeney, the Tucker Act is a “jurisdictional statue; it does not create any substantive rights enforceable against the United States for money damages.” Id. at 90 (citing United States v.

Testan, 424 U.S. 392, 398 (1976)). Thus, “a plaintiff must identify and plead an independent

contractual relationship, constitutional provision, federal statutory, or executive agency regulation

that provides a substantive right to money damages” Id. (citing Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005) (en banc)).

In addition, although the jurisdiction of the Court of Federal Claims does not extend to cases

24 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 36 of 41

not sounding in tort, “this limitation does not exclude all claims of misrepresentation in the

inducement.” Id. at 91. Indeed, Tucker Act jurisdiction has been frequently invoked to “allow[]

recovery to claimants alleging that they entered into a contract in reliance on government

misrepresentation” in the inducement (before the contract is formally signed). Id. (citing Fla. Keys

Aqueduct Auth. v. United States, 231 Ct. Cl. 911 (Ct. Cl. 1982)). Nor would it be appropriate for this Court to exercise ancillary jurisdiction over Plaintiffs’ claim, which is barred by a clearly- worded statutory settlement, and the resolution of any dispute arising under the settlement does not affect this Court’s ability “to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees” See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

379-81 (1994).4

B. Plaintiffs Have Released All Claims Against the United States Arising from Dr. Olson’s Death by Accepting the Settlement Payments Authorized by Private Law 94-126.

Even if the Court were to find it has jurisdiction over Plaintiffs’ complaint, the statutory settlement necessarily included the July 17, 1975 FTCA claim, which alleged that the Olsons suffered injuries as a result of alleged tortious conduct by the CIA in connection with the death of

Dr. Olson. As stated, a week before the claim was lodged, the Olson held a press conference in which they made two sets of allegations against the CIA: “First, Frank Olson was experimented upon illegally and negligently, Second, the true nature of his death was concealed for twenty-two years.” Statement of Fact No. 10; Ex. C (emphasis added). The claim elaborated on this statement

4 The Court should also decline to exercise ancillary jurisdiction over Plaintiffs’ claim for the other purpose cited in Kokkonen, that is, “to permit disposition by a single court of claims that are, in varying degrees, factually interdependent.” 511 U.S. at 379. As discussed in Section III.C., infra, Plaintiffs lack standing to litigate all of the liability compromised by the settlement, including the FECA award to Mrs. Alice W. Olson.

25 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 37 of 41

by alleging that, “in 1953[,] [Dr. Olson] was personally injured and killed as the direct and proximate result of the illegal, unlawful and wrongful acts of the Central Intelligence Agency (CIA).

As you know, Dr. Olson’s personal injuries and wrongful death occurred in New York City following the secret and unknown administration to him of the drug lysergic acid dietylamide

(LSD).” Statement of Fact No. 11; Ex. D. Notably, Plaintiffs did not allege a negligent or intentional concealment claim, but merely alleged that they had only recently discovered that Dr.

Olson had ingested LSD before his death.

Thus, in July 1975, at a press conference followed by the submission of a formal FTCA claim, Plaintiffs lodged the same allegations as they now assert to support their negligent supervision claim. These allegations were therefore known by Plaintiffs at the they accepted the

$187,000 settlement payments authorized by Private Law 94-126. See Compl. ¶ 64. By accepting the settlement proceeds and executing the statutory releases, Plaintiffs entered into a settlement agreement with the United States which resolved all claims “of any nature whatsoever against the

United States ... in connection with the circumstance surrounding [Dr. Olson’s] death.” See 90 Stat.

3006 (1976). Moreover, by accepting its benefits, Plaintiffs ratified the settlement. Wright v.

Foreign Service Grievance Bd., 2008 WL 4068606 (D.C. Cir. 2008) (per curiam) (citations omitted).

Consequently, Plaintiffs are barred from litigating the underlying tort claim under the doctrine of res judicata. See Chandler v. Bernanke, 531 F.Supp.2d 193, 197-98 (D.D.C. 2008). In Chandler,

Judge Sullivan dismissed the complaint because it attempted to relitigate settled claims. Id. (“The doctrine of res judicata precludes a party from relitigating a claim on which final judgment was previously reached. An agreement between the parties dismissing all claims is the equivalent of a decision on the merits and thus claims settled by agreement are barred by res judicata.”) (citation omitted).

26 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 38 of 41

C. Plaintiffs Lack Standing to Challenge the FECA Award Compromised by Mrs. Olson.

The Federal Employees’ Compensation Act provides the exclusive liability scheme to

remedy an employee’s alleged workplace injuries. 5 U.S.C. § 8116(c) (“The liability of the United

States ... with respect to the death of an employee is exclusive and instead of all other liability of the

United States ... to the employee, his legal representative, spouse, dependents ... because of the

injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an

administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute.”) (emphasis added). See also Lockheed Aircraft Corp. v. United States, 460

U.S. 190, 193-94 (1983). “Administrative review [of an OWCP final claim determination] is the claimant's only avenue for review of a claim under FECA because Congress precluded judicial review of claims disputes.” See Gallucci v.Chao, 374 F.Supp.2d 121 (D.D.C. 2005) (citing 5 U.S.C.

§ 8128(b) (2000)).

Shortly after Dr. Olson’s death, as the widow of a federal employee, Mrs. Olson properly sought relief under FECA as her only available remedy for Dr. Olson’s injuries, and, having obtained such relief, any FTCA claim arising from Dr. Olson’s death should be dismissed. Indeed, even if the Court were to agree that Plaintiffs were fraudulently induced into entering into the settlement, the Court cannot enter a favorable decision that will not redress Plaintiffs’ alleged injuries for the alleged negligent supervision by the CIA. On the contrary, Plaintiffs lack standing to ask this Court to revisit the initial award determination by the Bureau of Employee’s

Compensation (“BEC”) of the Department of Labor or to void Mrs. Olson’s waiver of her entitlement to a FECA award in exchange for the settlement payment. Even if the Court voided

Mrs. Olson’s waiver, that would merely reinstate her entitlement to receive FECA benefits, and the

27 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 39 of 41

BEC award determination would remain intact. In that case, the exclusivity of the FECA award to

Mrs. Olson would bar Plaintiffs’ FTCA claim arising from Dr. Olson’s death.

1. BEC award determination.

As stated, shortly after her husband’s death, Mrs. Olson applied to the BEC to received benefits for her and her three children under the FECA. 5 U.S.C., Chapter 81. Those benefits would be in lieu of civil service retirement benefits. See 5 U.S.C. § 8116; Statement of Fact No. 6; S. REP.

NO. 94-827 at p. 2 (1976) (attached as Ex. A). The General Counsel of the CIA submitted a

statement to the BEC in support of Mrs. Olson’s application, stating that Dr. Olson’s death resulted

from “circumstances arising out of an experiment undertaken in the course of his official duties for

the U.S. Government.” Id; Compl. ¶ 39. After reviewing “all of the records relating to Dr. Olson’s

death,” including the CIA’s letter, the BEC determined that the evidence was “sufficient to show

that the condition responsible for self-destruction was proximately due to the conditions of [Dr.

Olson’s] employment,” and “from a medical standard there was a very definite connection between

the illness and the act of self-destruction.” Statement of Fact No. 7; S. REP. NO. 94-827 at p. 2

(1976). In or about 1954, Mrs. Olson began receiving FECA benefits. Compl. ¶ 41. Mrs. Olson

continued to receive FECA payments for over 20 years and, as of 1976, had “received $147,573.22 under the FECA.” Statement of Fact No. 8; S. REP. NO. 94-827 at p.2 (1976).

2. Suspension and Compromise of FECA Award by Settlement.

Private Law 94-126 authorized payment of the settlement proceeds to each of the Olsons “in

full settlement of all of their claims against the United States arising out of the death of Doctor

Frank R. Olson in November 1953, if all of them waive any and all rights arising out of such death.”

90 Stat. 3006 (1976) (emphasis added). In addition, the statutory payments were conditioned on

a release of all claims of “any nature whatsoever,” and “such payments shall be in lieu of further

28 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 40 of 41

compensation otherwise due under chapter 81 of title 5, United States Code [FECA], or any award

thereunder.” Id. (emphasis added). Because FECA benefits were paid only to Mrs. Alice W. Olson,

she was the only signator party who could release the United States from any further FECA liability.

Thus, even if this Court were to find jurisdiction to hear Plaintiffs’ challenge to the statutory

settlement, Plaintiffs lack standing to assert the rights of Mrs. Alice W. Olson, who is not party to

this action. The United States Supreme Court has held that “the question of standing is whether the

litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth

v. Seldin, 422 U.S, 490 (1975). The party invoking jurisdiction bears the burden of establishing

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To meet this burden,

Plaintiffs must show that they have “suffered an ‘injury in fact’ that is ... concrete and particularized

and ... actual or imminent, not conjectural or hypothetical; ... the injury is fairly traceable to the

challenged action of the defendant; and ... it is likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Envt’l Serv.,

Inc., 528 U.S. 167, 180-81 (2000) (citations omitted).

In sum, Mrs. Alice W. Olson was the only signator party with standing to challenge the

release of the United States from any post-settlement obligation to pay FECA benefits to her as the

widow of a federal employee. Neither Eric nor Nils Olson have standing to challenge Mrs. Olson’s

waiver of future FECA payments, and also lack standing to challenge the initial BEC determination

on any basis, including fraud. That the BEC award determination must stand presents yet another

bar to Plaintiffs’ negligent supervision claim in this action.

CONCLUSION

Based upon the foregoing, Defendants respectfully requests that the Court dismiss the

Complaint or, in the alternative, enter summary judgment in Defendant’s favor.

29 Case 1:12-cv-01924-JEB Document 13 Filed 03/21/13 Page 41 of 41

Respectfully submitted,

RONALD C. MACHEN JR, DC Bar # 447889 United States Attorney for the District of Columbia

DANIEL F. VAN HORN, DC Bar # 924092 Chief, Civil Division

By: /s/ JOHN G. INTERRANTE PA Bar # 61373 Senior Litigation Counsel Civil Division 555 4th Street, NW, Room E-4808 Washington, DC 20530 Tel: 202.514.7220 Fax: 202.514.8780 Email: [email protected]