CASE CLOSED … what really happened in the 2001 anthrax attacks?

* Full Stephen Little Deposition civil deposition is now available online due to DOJ Civil’s Highly Efficient One-Day Turnaround Of Request

Posted by Lew Weinstein on January 15, 2014

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4 Responses to “* Full Stephen Little Deposition civil deposition is now available online due to DOJ Civil’s Highly Efficient One-Day Turnaround Of Request”

  1. DXer said

    In a letter dated January 30, 2004, the FBI referred to its “omnibus approach” to the Amerithrax investigation. “The FBI has neither foreclosed nor dismissed the possibility of foreign government or international terrorist involvement in the anthrax attacks . . . . Similarly, no one individual has ever been the exclusive focus of the Amerithrax investigation. . . . Please know that the FBI is committed to this comprehensive investigative strategy . . . .” (Gilvar Decl. Ex. 3; Chamberlain Decl. Ex. 6).

    I don’t believe anyone has uploaded the January 30, 2004 letter to the victims. But it would be nice to have part of the public record.

    CLAIRE GILVAR and CASEY CHAMBERLAIN, Plaintiffs, -v- THE UNITED STATES OF AMERICA, Defendant.

    No. 09 Civ. 8941 (LTS)

    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

    2011 U.S. Dist. LEXIS 57640

    May 26, 2011, Decided

    SUBSEQUENT HISTORY: Affirmed by Gilvar v. United States, 2012 U.S. App. LEXIS 5333 (2d Cir. N.Y., Mar. 14, 2012)

    COUNSEL: [*1] For Claire Gilvar, Casey Chamberlain, Plaintiffs: Ira Harold Goldfarb, LEAD ATTORNEY, Friedman, Levy, Goldfarb & Green, P.C., New York, NY; Bart Jay Eagle, Law Offices of Bart J. Eagle, Pllc, New York, NY.

    For The United States of America, Defendant: Brian Marc Feldman, LEAD ATTORNEY, U.S. Attorney’s Office, SDNY, New York, NY.

    JUDGES: LAURA TAYLOR SWAIN, United States District Judge.

    OPINION BY: LAURA TAYLOR SWAIN

    OPINION

    Memorandum Order

    Plaintiffs Claire Gilvar and Casey Chamberlain (“Plaintiffs”) bring this action against Defendant United States of America (“Defendant”) under the Federal Tort Claims Act (“FTCA”), alleging that Defendant’s negligence in securing and monitoring its anthrax stores resulted in an anthrax mailing campaign that exposed Plaintiffs, and 20 other individuals, to the deadly bacteria. 1 Defendant moves to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the following reasons, the Court grants Defendant’s motion.

    – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
    1
    Plaintiffs also brought strict liability claims based on ultra-hazardous activities but now consent to dismissal of those claims. See Pl.’s Mem. in Opp. at 2 n2.

    – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
    Background

    In September and October 2001, [*2] at least five envelopes containing the bacteria Bacillus anthracis (“anthrax”) were mailed to locations in the District of Columbia, New York City, and Boca Raton, Florida. (Am. Compl. ¶ 19.) At the time of the attacks, Gilvar worked as an assistant to Dan Rather at the CBS offices in New York, and Chamberlain worked as an assistant to Tom Brokaw at the NBC offices in New York. (Id. ¶¶ 21-22). Gilvar was exposed to anthrax from one of the mailed envelopes between September 17 and 19, 2001; Chamberlain was exposed on September 18. (Id. ¶¶ 21-22). Twenty other people are known to have contracted anthrax from the mailings. (Id. ¶ 20.) Plaintiffs sustained serious injuries as a result of their exposure. (See Amended Complaint ¶¶ 25, 33, detailing claimed injuries.)

    Soon after the attacks, media coverage identified the strain of anthrax used in the attacks as having been originally developed in a United States military lab, but early reports did not draw conclusions about the immediate source of the anthrax. ABC reported on October 16, 2001, that law enforcement sources had identified the Ames strain of anthrax, originally developed at the U.S. Army Medical Research Institute of Infectious [*3] Diseases (“USAMRIID”) at Fort Detrick, Maryland, as the source of the exposures in Florida. (Steinbock Decl. Ex. B.) The same report also explained that “One can find Ames ‘reference strains’ in laboratories around the world.” (Id.) In a December 2, 2001, article, the New York Times quoted a law enforcement official as saying “the most likely hypothesis” is that the anthrax was mailed by a government insider with access to government stores of anthrax. (Id. Ex. C.) The same article, however, quoted an anthrax expert from USAMRIID as saying that, although whoever made the anthrax “clearly knew what they were doing . . . [,] to make the leap that this came out of a government lab is somewhat large.” (Id.) The New York Times reported on December 3, 2001, that “[t]he dry powder used in the anthrax attacks is virtually indistinguishable in critical technical respects from that produced by the United States military . . . ,” and quoted one federal science adviser as stating, “It’s frightening to think that one of our own scientists could have done something like this . . . . But it’s definitely possible.” (Id. Ex. D.) The same article cautioned that “it is still possible that the anthrax [*4] could have a foreign source.” (Id.)

    Near the end of 2001 and into 2002, the media began to report with greater certainty that the anthrax had originated at USAMRIID. The Associated Press reported on November 21, 2001, that the Federation of American Scientists had determined that the anthrax used was “‘almost certainly’ derived from a U.S. government laboratory.” (Id. Ex. A.) The Washington Post reported on December 16 and December 23, 2001, that the anthrax used in the attacks was a perfect genetic match to the anthrax that had been originally held at USAMRIID. (Id. Exs. E & F.) Similar reports were published in 2002 by Salon.com on February 8, the New York Times on February 26, and the Washington Post on May 10. (Id. Exs. G, I, J.) The May 10, 2002, article from the Washington Post stated, “[I]t is now indisputable the mailed microbes are direct descendants of the germs developed at [USMARIID].” (Id. Ex. J.)

    Other victims of the anthrax attacks filed FTCA claims alleging government negligence between 2003 and 2005. The estate and survivors of Robert Stevens filed wrongful death claims on December 2, 2003, after Stevens died from anthrax exposure. (Steinbock Decl. Ex. O). In their complaint, [*5] the Stevens claimants stated they believed the anthrax came from Fort Detrick, Maryland. (Id. ¶ 12.) On August 29, 2003, David Hose filed an FTCA administrative claim for his injuries from the anthrax attacks. He filed suit in the District of Columbia on October 5, 2007. (Steinbock Decl. Ex. P). A third set of administrative claims was filed on October 7, 2004, by the estate of a postal worker who died from anthrax exposure from the attacks. (Bryant Decl. Ex. A). The estate alleged on its claim form that, based on information and belief, the anthrax used in the attacks came from a U.S. government laboratory at Fort Detrick. (Id.). The Army denied the claims on the grounds that they were untimely. (Id. Ex. B.) A fourth set of administrative claims was filed on July 13, 2005, by the representatives of a minor exposed to anthrax at the New York office of ABC World News Tonight. (Ferguson Decl. Ex. A.) The claims alleged that, based on information disclosed by the U.S. government about the attacks, the anthrax originated at USAMRIID at Fort Detrick. (Id.) On October 31, 2005, the government denied these claims in part on the grounds that they were untimely. (Id. Exs. A & B.)

    Meanwhile, [*6] between May 27, 2003, and August 21, 2008, Gilvar and Chamberlain received mail and e-mail communications from the FBI periodically updating them on the progress of the so-called “Amerithrax” investigation. (See Gilvar Decl. Exs. 1-5, 7; Chamberlain Decl. Exs. 1-11). In addition to briefings, letters and e-mails, Plaintiffs had access to a restricted FBI website created to update victims and their families on the status of the investigation. (Gilvar Decl. ¶ 8; Chamberlain Decl. ¶ 9). In a letter dated January 30, 2004, the FBI referred to its “omnibus approach” to the Amerithrax investigation. “The FBI has neither foreclosed nor dismissed the possibility of foreign government or international terrorist involvement in the anthrax attacks . . . . Similarly, no one individual has ever been the exclusive focus of the Amerithrax investigation. . . . Please know that the FBI is committed to this comprehensive investigative strategy . . . .” (Gilvar Decl. Ex. 3; Chamberlain Decl. Ex. 6). A letter dated October 25, 2004, explicitly identified the Ames strain of anthrax as the strain used in the attacks and stated that the omnibus approach focused on U.S. laboratories, foreign laboratories [*7] and Islamic extremist groups as potential immediate sources of the Ames strain of anthrax used in the attacks. (Gilvar Decl. Ex. 4; Chamberlain Decl. Ex. 7).

    On August 1, 2008, Chamberlain learned through friends and media reports that the FBI had concluded that government scientist Bruce E. Ivins carried out the anthrax attacks. (Chamberlain Decl. ¶ 3). Chamberlain told Gilvar the news that same day. (Gilvar Decl. ¶ 3). The FBI provided a briefing for victims and their families on August 6, 2008, where the FBI stated that Ivins had created, maintained and mailed the anthrax spores used in the attacks. (Gilvar Decl. ¶ 4; Chamberlain Decl. ¶ 5). Those spores came from USAMRIID. (Gilvar Decl. ¶ 4; Chamberlain Decl. ¶ 5).

    Plaintiffs filed administrative claims with the Department of Defense (“DOD”) on January 27, 2009. (Gilvar Decl. ¶ 7; Chamberlain Decl. ¶ 8). The DOD did not act on the claims for more than six months, and Plaintiffs filed this action on October 23, 2009. (Gilvar Decl. ¶ 7; Chamberlain Decl. ¶ 8.)

    Discussion

    Defendant argues that this Court lacks subject matter jurisdiction because Plaintiffs failed to present their claims within the FTCA’s two-year statute of limitations [*8] and because Plaintiffs’ claims are not otherwise actionable under the FTCA.

    “A case is properly dismissed for lack of subject matter jurisdiction under rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A district court may refer to evidence outside the pleadings in resolving a Rule 12(b)(1) motion. Id. The party asserting subject matter jurisdiction has the burden of showing by a preponderance of the evidence that jurisdiction exists. Id. The Court does not draw inferences in a light most favorable to that party in rendering its decision. Am. Postal Workers Union v. Potter, 343 F.3d 619, 623 (2d Cir. 2003).

    A plaintiff must file an FTCA claim within two years of accrual. 28 U.S.C. § 2401(b). When a plaintiff fails to comply with this requirement, “a district court lacks subject matter jurisdiction over a plaintiff’s FTCA claim.” Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). An FTCA claim generally accrues at the time of the injury. Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). Under the diligent discovery rule, however, accrual may be postponed [*9] until a plaintiff has discovered, or with reasonable diligence should have discovered, the “critical facts” of her injury and its cause. Id. “Discovery of the ‘critical facts’ of injury and causation is not an exacting requirement.” Id. It requires only that a plaintiff know or should know enough facts to seek legal advice. Id.

    In the instant matter, Plaintiffs have failed to show by a preponderance of the evidence that their claims accrued no earlier than January 29, 2007, two years before they filed their administrative claims. Plaintiffs were exposed to anthrax in September 2001 and, by October 2001, a media report identified the Ames strain of anthrax, originally cultivated at a United States Army laboratory, as the strain likely to have been used in the attacks. Similar reports were published by ABC, the New York Times, and the Washington Post, among other major media outlets, between October 2001 and May 2002. By May 10, 2002, the media reported with a high degree of certainty that the anthrax came from USAMRIID.

    Plaintiffs contend that their claims did not accrue before January 2007 because they did not know, and could not have known, all of the facts about the cause of their [*10] injury, such as the identity of the individual who sent the anthrax through the mail. Plaintiffs also contend that, although some news reports identified USAMRIID as the likely source of the anthrax, many news reports were inconclusive, so Plaintiffs could not have had confidence sufficient to rely on any one theory of the anthrax’s source before bringing a law suit. Indeed, the FBI told Plaintiffs repeatedly that it was engaged in an omnibus investigation and that it had not ruled out “U.S. laboratories, foreign laboratories, and Islamic extremist groups as potential immediate sources of the Ames strain of anthrax used in the attacks.” These arguments, however, are unavailing because the diligent discovery rule requires only that plaintiffs know or should know enough about the facts of their injury and its cause to seek legal advice. It does not require that Plaintiffs be certain of a defendant’s liability or of the identity of potential co-defendants. Even with conflicting news reports and letters from the FBI, Plaintiffs had sufficient information to seek legal advice, as evidenced by the multiple administrative claims filed in 2003 and 2005 by victims of the same series of attacks. [*11] In light of the extensive media coverage, Plaintiffs knew or should have known the critical facts of their injury and its cause prior to January 29, 2007. Their claims thus accrued well before January 2007 and their lawsuit here is untimely.

    Plaintiffs contend that, even if their claims accrued more than two years prior to their filing of claims, the doctrine of equitable tolling applies. “Equitable tolling is an extraordinary measure that applies only when [a] plaintiff is prevented from filing [a claim] despite exercising that level of diligence which could reasonably be expected in the circumstances.” Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004). A plaintiff seeking equitable tolling must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). The Defendant asserts that the Supreme Court’s decision in John R. Sand & Gravel Co. v. United States precludes the application of the doctrine of equitable tolling to claims, such as Plaintiffs’, brought pursuant to the FTCA. See 552 U.S. 130, 133, 128 S. Ct. 750, 169 L. Ed. 2d 591 (2008); compare Valdez v. United States, 518 F.3d 173 (2d Cir. 2008) [*12] and Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008) with Marley v. United States, 567 F.3d 1030 (9th Cir. 2009). The Court need not reach the purely legal question of whether equitable tolling may apply to FTCA claims because, here, even if it could apply, the factual predicate has not been established to warrant its application, as Plaintiffs have not pleaded facts sufficient to support a plausible inference that some extraordinary circumstance stood in the way of their pursuing their claims. The Plaintiffs’ claims are therefore untimely, and this Court lacks jurisdiction to hear them. Johnson, 189 F.3d at 189.

    In light of the Court’s conclusion regarding the timeliness of Plaintiff’s claims, it is unnecessary to address Defendant’s remaining arguments.

    Conclusion

    For the foregoing reasons, Defendant’s motion to dismiss the Amended Complaint for lack of subject matter jurisdiction is granted. This Memorandum Order resolves docket entry number 8. The Clerk of the Court is respectfully requested to enter judgment accordingly and close this case.

    SO ORDERED.

    Dated: New York, New York

    May 26, 2011

    /s/ Laura Taylor Swain

    LAURA TAYLOR SWAIN

    United States District Judge

  2. Anonymous said

    Little directly addresses Ivins checking on rabbit experiments.
    “And I can specifically recall one time that he did that in late September of ’01 and into early October, that he did an experiment – I can’t remember the number of rabbits – that he was probably coming in at night to double-check the results of the challenge, like he did with my experiments”.

    So this guy Little is an FBI Witness – he was questioned by the FBI. So we have direct proof that the FBI lied and totally fabricated their spin that Ivins had no reason to be in the lab in the evenings.

  3. DXer said

    The link is here:

    https://www.dropbox.com/s/7s6uzlzwca6htcs/LittleDeposition.pdf

    It is 65 MB. You can download it or you can add it to your dropbox and share thereby share it with others.

    Or you can just email the link.

    I am also hoping for it to be added to cryptome later today.

    I am still hoping to have the depositions uploaded to the USMRMC Electronics Reading Room but that will depend on the kindness of strangers who maintain that website.

    I see the next 8 – 9 full civil depositions as the best way to get people “on the same page.” There has never been more than the brief excerpts provided in the appendix to filed briefs in the Stevens v. US matter.

    If you don’t want to wait for me, you can ask for the depos of your special interest directly from Attorney Kovakas.

    I’ve yet to see more expert service so efficiently provided the public at no charge. (A fee waiver is warranted given the public policy interest in getting people on the same page in connection with the Fall 2001 anthrax letter incidents).

    There is no charge in any event for a modest request — and thus no need to argue that the public interest favors a fee waiver if you request the one or two of the US v. Stevens civil depositions of your special interest. Of course, any media requestor in any event has a favored status for that purpose.

    James in the private sector would command several hundred dollars an hour. So jump at that this chance to watch the Government in the Sunshine Act — in its finest hour — work.

    It is critical that the GAO have the benefit of these depositions for its report.

    The FBI resisted in providing GAO documents. But DOJ Civil is a separate operation.

    http://www.amerithrax.wordpress.com

    • DXer said

      To be practical, the email you write is:

      Civil.Routing.FOIA@USDOJ.gov

      You need to specifically identify the deposition or document. The matter is Stevens v. U.S. I would specifically address it to the attention to James M. Kovakis because he has consulted with trial counsel and is knowledgeable about the matter, including the protective order that I believe applies, for example, to the Fellows and Linscott deposition. He would also be familiar with a key protective order that was withdrawn. Note that the underlying exhibits can also be requested.

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