Monday, June 23, 2008
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Ninth Circuit Upholds Rejection of Suit Over ‘Operation Tailwind’ Story
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday affirmed a U.S. district judge’s rejection of a suit against Cable News Network and Time Warner, Inc. over a story accusing the U.S. military of using nerve gas on Vietnam War-era defectors.
The panel, comprised of Judges M. Margaret McKeown and Ronald Gould and U.S. District Judge George Schiavelli of the Central District of California, sitting by designation, said Michael Hagen’s appeal was untimely.
Hagen, an Army sergeant at the time of “Operation Tailwind” in 1970, sought damages for the mental distress he allegedly suffered after CNN and Time magazine reported in 1998 that the U.S. military used the deadly nerve gas sarin on a Laotian village in 1970 as part of a secret mission to kill American defectors.
The Pentagon blasted the report, concluding that non-lethal CS gas, not sarin, was used during the operation, which it said was designed to create a diversion for a Royal Lao Army offense and to exert pressure on North Vietnamese forces.
CNN and Time undertook an internal investigation and determined that the reporting was flawed, that there was insufficient evidence that any deadly gas was used or that American deserters were present, let alone targeted, in the village.
Two CNN producers were fired—although they later received monetary settlements—a senior producer resigned, and reporter Peter Arnett was reprimanded and soon left the network.
The report quoted Hagen as saying that “nerve gas” was used. In his complaint, he alleged that he was stigmatized as a murderer as a result of how his quotes were used in the report.
But Fogel, in granting summary judgment, said there was no showing that he had suffered “severe and extreme emotional distress” as a matter of law. Fogel subsequently moved for relief from the judgment under Rule 60 of the Federal Rules of Civil Procedure, but Fogel denied the motion.
The appellate panel, in its unpublished memorandum affirming that ruling, said that Hagen could not obtain review of the underlying judgment, because he did not appeal within 30 days and no exception to the time limit applied.
The appeal was timely as to the denial of the Rule 60 motion, but Hagen’s brief only argued the merits of the grant of summary judgment, not the denial of his motion, the panel explained.
The case is Hagen v. Cable News Network, Inc., 06-17034.
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