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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.
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