throbber
FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`VIETNAM VETERANS OF AMERICA;
`SWORDS TO PLOWSHARES, Veterans
`Rights Organization; TIM MICHAEL
`JOSEPHS; WILLIAM BLAZINSKI;
`BRUCE PRICE; FRANKLIN D.
`ROCHELLE; LARRY MEIROW; ERIC P.
`MUTH; DAVID C. DUFRANE;
`KATHRYN MCMILLAN-FORREST,
`Plaintiffs-Appellants–
`Cross-Appellees,
`
`Nos. 13-17430
`14-15108
`
`D.C. No.
`4:09-cv-00037-
`CW
`
`OPINION
`
`v.
`
`CENTRAL INTELLIGENCE AGENCY;
`JOHN BRENNAN, Director of the
`Central Intelligence Agency; UNITED
`STATES DEPARTMENT OF DEFENSE;
`ASHTON CARTER, Secretary of
`Defense; UNITED STATES
`DEPARTMENT OF THE ARMY; JOHN
`M. MCHUGH, Secretary of the Army;
`UNITED STATES OF AMERICA;
`UNITED STATES DEPARTMENT OF
`VETERAN AFFAIRS; ROBERT A.
`MCDONALD, Secretary of Veterans
`Affairs,
`
`Defendants-Appellees–
`Cross-Appellants.
`
`

`
`2
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`Appeal from the United States District Court
`for the Northern District of California
`Claudia Wilken, District Judge, Presiding
`
`Argued and Submitted
`September 11, 2014—San Francisco, California
`
`Filed June 30, 2015
`
`Before: J. Clifford Wallace, Mary M. Schroeder,
`and William A. Fletcher, Circuit Judges.
`
`Opinion by Judge W. Fletcher;
`Partial Concurrence and Partial Dissent by Judge Wallace
`
`SUMMARY*
`
`Veterans Affairs
`
`The panel affirmed in part and reversed in part the district
`court’s judgment and injunction entered in an action brought
`by veterans organizations, and individuals who were subjects
`in chemical and biological weapons experiments conducted
`by the United States military, seeking declaratory and
`injunctive relief against federal agencies.
`
`The panel agreed with the district court that the U.S.
`Army had an ongoing duty under Army Regulation 70-25 to
`provide former test subjects with newly available information
`
` * This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`3
`
`relating to their health, and that this duty was judicially
`enforceable under § 706(1) of the Administrative Procedure
`Act. The panel held that the district court did not abuse its
`discretion in entering its injunction to enforce that duty.
`
`The panel also agreed with the district court that the Army
`had an ongoing duty to provide medical care. The panel
`disagreed with the district court’s denial of relief on the
`ground that the Department of Veterans Affairs provided
`medical care that to some degree duplicated the care the
`Army was obligated to provide. The panel held that the
`district court could not, in the absence of mootness,
`categorically deny injunctive relief to former volunteer
`subjects seeking necessary medical care because some former
`subjects may be entitled to receive medical care from another
`government agency. The panel vacated the district court’s
`summary judgment for the government on this claim and
`remanded to the district court.
`
`Judge Wallace joined the majority in affirming the district
`court’s judgment and injunction compelling the Army to
`comply with Army Regulation 70-25’s clear regulatory
`mandate, but wrote separately in concurrence because he did
`not join the majority’s analysis of regulatory history to
`support its textual analysis. Judge Wallace dissented from
`the majority’s conclusion that Army Regulation 70-25 also
`contained a command that the Army provide medical care to
`former research volunteers. He would affirm the district
`court’s summary judgment against plaintiffs on their claims
`for medical care, but on the alternative ground that their claim
`was not judicially enforceable under § 706(1) of the
`Administrative Procedure Act.
`
`

`
`4
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`COUNSEL
`
`James Patrick Bennett, Eugene G. Illovsky, Benjamin F.
`Patterson (argued), and Stacey Michelle Sprenkel, Morrison
`& Foerster LLP, San Francisco, California, for Plaintiffs-
`Appellants–Cross-Appellees.
`
`Melinda L. Haag, United States Attorney, Stuart F. Delery,
`Assistant Attorney General, Charles W. Scarborough
`(argued), Brigham John Bowen, Anthony Joseph Coppolino,
`and Mark B. Stern, Appellate Staff, Civil Division, United
`States Department of Justice, Washington, D.C., for
`Defendants-Appellees–Cross-Appellants.
`
`OPINION
`
`W. FLETCHER, Circuit Judge:
`
`From the inception of the United States’ chemical
`weapons program during World War I until the mid-1970s,
`the United States military conducted chemical and biological
`weapons experiments on human subjects.
` In these
`experiments, tens of thousands of members of the United
`States armed services were intentionally exposed to a range
`of chemical and biological agents.
`
`Plaintiffs are veterans’ organizations and individuals who
`were subjects in these experiments. They filed an individual
`and class action complaint seeking declaratory and injunctive
`relief against the Department of Defense (“DOD”), the Army,
`the Central Intelligence Agency (“CIA”), and the Department
`of Veterans Affairs (“VA”). The class comprises “[a]ll
`current or former members of the armed forces, who, while
`
`

`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`5
`
`serving in the armed forces, were test subjects” in these
`experimentation programs. Two of Plaintiffs’ claims,
`brought under § 706(1) of the Administrative Procedure Act
`(“APA”), are at issue in this appeal. Plaintiffs claim, first,
`that the Army has unlawfully failed to notify test subjects of
`new medical and scientific information relating to their health
`as it becomes available. They claim, second, that the Army
`has unlawfully withheld medical care for diseases or
`conditions proximately caused by their exposures to
`chemicals during the experiments.
`
`On cross-motions for summary judgment, the district
`court held that Army Regulation 70-25 (“AR 70-25”) imposes
`on the Army an ongoing duty to notify former test subjects of
`relevant new health information as it becomes available. The
`court issued an injunction requiring the Army to comply with
`that duty. The court held, further, that AR 70-25 imposes on
`the Army an ongoing duty to provide medical care, but the
`court declined to compel the Army to provide such care on
`the ground that Plaintiffs could seek medical care from the
`VA.
`
`We affirm in part and reverse in part. We agree with the
`district court that the Army has an ongoing duty under AR
`70-25 to provide former test subjects with newly available
`information relating to their health, and that this duty is
`judicially enforceable under § 706(1). We also agree with the
`district court that the Army has an ongoing duty to provide
`medical care. However, the district court denied relief on the
`ground that the VA provides medical care that to some degree
`duplicates the care the Army is obligated to provide. We
`disagree with the district court that relief should have been
`denied on this ground.
`
`

`
`6
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`I. Background
`
`As relevant to this suit, beginning in 1942 the War
`Department (as it was then called) approved the use of human
`subjects in experiments to test the effects of chemical
`weapons. Some experiments tested the effectiveness of
`various chemical agents, while others tested the effectiveness
`of protective clothing and other defenses. By the end of
`World War II, more than 60,000 service members had served
`as subjects in the United States’ chemical weapons research
`program.
`
`During the World War II-era tests, “soldier volunteers”
`were intentionally exposed to a variety of chemical agents.
`According to a 1993 report by the National Academy of
`Sciences, they were exposed to Lewisite (an arsenic-based
`blister agent) and mustard gas, as well as other “gases such as
`phosgene (a choking agent), hydrogen cyanide and cyanogen
`chloride (blood poisoning agents), and chloroacetophenone
`(tear gas).” A 2006 VA report recounted that these subjects
`“were exposed commonly to acutely toxic levels . . . of agents
`via small drops applied to the arm or to clothing, or in gas
`chambers, sometimes without protective clothing.” “Some
`experiments apparently involved less protected subjects who
`were reported to have experienced severe burns to the genital
`areas, including cases of crusted lesions to the scrotum . . . .
`Documented injuries among experimental subjects . . . [were]
`initially ‘quite high’—one study of accidental injuries
`identified over 1,000 cases of acute mustard agent toxicity
`resulting in eye, ear, nose and throat symptoms . . . over a 2-
`year period.”
`
`In the 1950s, DOD initiated a new wave of chemical
`weapons research and experimentation, focused on “agents
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`7
`
`perceived to pose greater threats than sulfur mustard or
`Lewisite,” such as nerve agents and chemicals with “intense
`psychoactive properties.” These experiments were conducted
`over the course of about twenty years, from 1955 to 1975.
`During the course of this research, DOD exposed about 6,700
`human subjects to more than 250 different chemical and
`biological agents.
`
`Beginning in the 1950s, the Army established policies and
`issued regulations governing the use of human subjects. On
`February 26, 1953, Secretary of Defense Charles Wilson sent
`a memorandum (“the Wilson Directive”) to the Secretaries of
`the Army, Navy, and Air Force. The Wilson Directive set
`conditions for “the use of human volunteers by the
`Department of Defense in experimental research in the fields
`of atomic, biological and/or chemical warfare.” It stated that
`“[t]he voluntary consent of the human subject is absolutely
`essential,” and instructed that a volunteer subject “should
`have sufficient knowledge and comprehension of the
`elements of the subject matter involved as to enable him to
`make an understanding and enlightened decision” about
`participating.
`
`On June 30, 1953, Brigadier General John Oakes,
`Secretary of the General Staff of the Army, sent a
`memorandum (“CS:385”) to the Army’s Chief Chemical
`Officer, the Army Surgeon General, and other top Army
`officials, reiterating the policies articulated in the Wilson
`Directive. CS:385 provided that “[a]gents used in research
`must have” several “limiting characteristics,” including
`“[c]ontrollable
`lethality,” “[n]o serious chronicity
`anticipated,” “[e]ffective therapy available,” and “[a]dequate
`background of animal experimentation.” The memorandum
`provided further, that “[a]s added protection for volunteers,
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`other] safeguards will be provided,” including that “[a]ll
`apparatus and instruments necessary to deal with any
`emergency situations must be available,” and that “[m]edical
`treatment and hospitalization will be provided for all
`casualties of the experimentation as required.”
`
`8 [
`
`In 1962, the Army promulgated AR 70-25, a regulation
`prescribing policies and procedures to govern the use of
`volunteers in Army research involving human subjects. AR
`70-25 reiterated the policies in the Wilson Directive,
`including the requirement of voluntary consent. The
`regulation provided:
`
`[The volunteer] will be told as much of the
`nature, duration, and purpose of
`the
`experiment, the method, and means by which
`it is to be conducted, and the inconveniences
`and hazards to be expected, as will not
`invalidate the results. He will be fully
`informed of the effects upon his health or
`person which may possibly come from his
`participation in the experiment.
`
`The regulation also provided, in language similar to CS:385,
`that “[a]ll apparatus and instruments necessary to deal with
`likely emergency situations will be available,” “[r]equired
`medical treatment and hospitalization will be provided for all
`casualties,” and “[a] physician approved by The Surgeon
`General will be responsible for the medical care of
`volunteers.” The Army reissued AR 70-25 in 1974 with the
`foregoing language unchanged.
`
`In 1975, the Army ceased performing large scale
`experiments exposing human subjects to chemical agents. In
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`9
`
`the late 1970s, against a backdrop of mounting public concern
`about the long-term effects of such experiments, Army
`officials exchanged a series of memoranda outlining a
`program for notifying past subjects about the health
`consequences of their participation in the experiments. On
`August 8, 1979, Army General Counsel Jill Wine-Volner
`wrote a memorandum to a number of high-level Army
`officials and to the Army Surgeon General. She wrote that
`the Secretary of the Army
`
`has concluded that, as a policy matter, some
`type of notification program is necessary.
`Moreover,
`the
`legal necessity
`for a
`notification program is not open to dispute.
`The Department of Justice has concluded that
`another Federal agency ‘may well be held to
`have a legal duty to notify those . . . drug-
`testing subjects whose health [it] has reason to
`believe may still be adversely affected by
`their prior involvement in [the] drug-testing
`program.’
`
`(Omission and alterations in original.)
`
`On September 24, 1979, Wine-Volner wrote another
`memorandum, this time to the Director of the Army Staff,
`providing “broad guidance” about “a program to notify
`participants in Army drug or chemical/biological agent
`research programs.” The memorandum provided, inter alia:
`
`The Army should review all research
`programs, regardless of whether conducted by
`the Army or on behalf of the Army by
`independent contractors, that were initiated to
`
`

`
`10
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`study possible military, rather than medical,
`applications of various drugs and chemical/
`biological agents. If there is reason to believe
`that any participants
`in such research
`programs face the risk of continuing injury,
`those participants should be notified of their
`participation and the information known today
`concerning the substance they received. This
`notification should be [e]ffected regardless of
`whether the individuals were fully informed
`volunteers at the time the research was
`undertaken.
`
`On October 25, 1979, Lieutenant General John McGiffert,
`Director of the Army Staff, wrote a memorandum to the
`heads of Army staff agencies, “establish[ing] Army Staff
`responsibilities for review of past Army research involving
`possible military applications of drug or chemical/biological
`agents.” He wrote, “The objective of this effort is to identify
`and notify those research participants who may face the risk
`of continuing injury.” He continued,
`
`those projects who are
`in
`Participants
`considered by medical authority to be subject
`to the possible risk of a continuing injury are
`to be notified. In the event that long-term
`hazards of a substance are not known, The
`Surgeon General (TSG) should continue to
`monitor research developments, and if at
`some future time more information makes it
`necessary to take some action, TSG should
`recommend appropriate action, including
`notification.
`
`

`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`11
`
`In 1981 and 1986, the Army took two actions relevant to
`the notification program: it amended one record system and
`created another. The first system, the Research and
`Experimental Case Files, as amended in 1981, compiled a
`database about “[v]olunteers (military members, Federal
`civilian employees, state prisoners) who participated in Army
`tests of potential chemical agents and/or antidotes from the
`early 1950’s until the program ended in 1975.” Privacy Act
`of 1974; Amendment to System Notice, 46 Fed. Reg. 60,639,
`60,640 (Dec. 11, 1981). The purposes of the system were
`“(1) to follow up on individuals who voluntarily participated
`in Army chemical/biological agent research projects for the
`purpose of assessing risks/hazards to them, and (2) for
`retrospective medical/scientific evaluation and
`future
`scientific and legal significance.” Id. The second system, the
`Medical Research Volunteer Registry, newly created in 1986,
`was designed to maintain “[r]ecords of military members,
`civilian employees, and non-DOD civilian volunteers
`participating in current and future research sponsored by the
`U.S. Army Medical Research and Development Command.”
`Privacy Act of 1974; New Record System, 51 Fed. Reg.
`23,576, 23,577 (June 30, 1986). One of the stated purposes
`of the second system was “[t]o assure that the U.S. Army
`Medical Research and Development Command (USAMRDC)
`can contact individuals who participated in research
`conducted/sponsored by the Command in order to provide
`them with newly acquired information, which may have an
`impact on their health.” Id.
`
`In 1988, the Army reissued AR 70-25. The reissued
`regulation provided that the Army Surgeon General “will . . .
`[d]irect medical followup, when appropriate, on research
`subjects to ensure that any long-range problems are detected
`and treated.” Chapter 3–1(k) (“subsection (k)”) of the
`
`

`
`12
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`reissued version provided, “Volunteers are authorized all
`necessary medical care for injury or disease that is a
`proximate result of their participation in research.”
`
`The reissued regulation also stated that “commanders will
`. . . [e]nsure that research volunteers are adequately informed
`concerning the risks associated with their participation, and
`provide them with any newly acquired information that may
`affect their well-being when that information becomes
`available.” Chapter 3–2(h) (“subsection (h)”) specified:
`
` Commanders have an
`Duty to warn.
`obligation to ensure that research volunteers
`are adequately informed concerning the risks
`involved with their participation in research,
`and to provide them with any newly acquired
`information that may affect their well-being
`when that information becomes available.
`The duty to warn exists even after the
`individual volunteer has completed his or her
`participation in research. To accomplish this,
`the MACOM [(Major Army Commands)] or
`agency conducting or sponsoring research
`must establish a system which will permit the
`identification of volunteers who have
`participated
`in
`research conducted or
`sponsored by that command or agency, and
`take actions to notify volunteers of newly
`acquired information.
`
`Finally, in what the Army later conceded was a “serious”
`editing error, Appendix F provided that “[r]esearch involving
`deliberate exposure of human subjects to nuclear weapons
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`13
`
`effect, to chemical warfare agents, or to biological warfare
`agents” was “exempt from this regulation.”
`
`The Army reissued AR 70-25 two years later. This 1990
`revision remains in force today. This revision was, in all
`relevant respects but one, the same as the 1988 revision.
`There was, however, one important change — the correction
`of the erroneous exemption from coverage of human subjects
`who had been deliberately exposed to “nuclear weapon
`effect” and to chemical and biological agents. The 1990
`“Summary of Change” specified, “This change is published
`to correct a serious error that occurred during the final editing
`of the current revision. In attempting to respond to guidance
`from the Office of The Judge Advocate General that a
`subparagraph be moved from the text of the regulation to
`appendix F, the wrong sub-paragraph was moved.” Chapter
`1–4(d)(4) of AR 70-25 was changed to state explicitly, “The
`guidance in this regulation pertains to . . . [r]esearch
`involving deliberate exposure of human subjects to nuclear
`weapons effect, to chemical warfare agents, or to biological
`warfare agents.”
`
`In the decades since the termination of chemical testing
`on human subjects, Defendants have identified, contacted,
`and notified some of the former subjects. For example, in
`1990 DOD contacted 128 veterans who had participated in
`World War II mustard gas testing. In 2004, DOD identified
`6,387 individuals who had been exposed to mustard gas or
`other agents during World War II-era experiments.
`Beginning in March 2005, the VA sent letters to the 319 of
`those individuals for whom it could find contact information.
`
`In 2009, Plaintiffs filed suit against DOD, the Army, the
`CIA, the VA, and a number of individuals in their official
`
`

`
`14
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`VIETNAM VETERANS OF AMERICA V. CIA
`
`capacities. The complaint alleged that the Army was
`required, on an ongoing basis, to (1) provide notice to former
`test subjects about their exposures to biological and chemical
`agents and the currently known health effects of those agents,
`and (2) provide medical care to these test subjects for
`diseases or conditions proximately caused by
`their
`participation in military experiments.
`
`The district court granted in part and denied in part
`Plaintiffs’ motion for partial summary judgment, and granted
`in part and denied in part Defendants’ cross-motion for
`summary judgment. The court held that the Army has an
`ongoing duty to notify former test subjects about newly
`available medical and scientific information relating to their
`health, and that the Army has not fully complied with that
`duty. The court issued an injunction requiring the Army to
`comply. The court also concluded that the Army has an
`ongoing duty to provide test subjects with medical care, but
`it declined to issue an injunction enforcing compliance with
`that duty on the ground that medical care was available from
`the VA.
`
`The parties cross-appealed.
`
`II. Standard of Review
`
`We review a district court’s summary judgment de novo.
`Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th
`Cir. 2007). A permanent injunction “‘involves factual, legal,
`and discretionary components,’” so we “review a decision to
`grant such relief under several different standards.” Momot
`v. Mastro, 652 F.3d 982, 986 (9th Cir. 2011) (quoting Walters
`v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). We review
`legal conclusions underlying the summary judgment de novo,
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`15
`
`factual findings for clear error, and the scope of the injunction
`for abuse of discretion. Id.
`
`III. Discussion
`
`Section 706(1) of the APA provides that a court “shall
`compel agency action unlawfully withheld or unreasonably
`delayed.” 5 U.S.C. § 706(1). A court can compel agency
`action under this section only if there is “a specific,
`unequivocal command” placed on the agency to take a
`“discrete agency action,” and the agency has failed to take
`that action. Norton v. S. Utah Wilderness Alliance (SUWA),
`542 U.S. 55, 63–64 (2004) (citation omitted). The agency
`action must be pursuant to a legal obligation “so clearly set
`forth that it could traditionally have been enforced through a
`writ of mandamus.” Hells Canyon Pres. Council v. U.S.
`Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). Plaintiffs
`argue that AR 70-25 imposes unequivocal commands on the
`Army to provide former test subjects with current information
`about their health, and to provide medical care for diseases
`caused by the experiments. We agree.
`
`A. Duty to Warn
`
`We conclude that Chapter 3–2(h) of AR 70-25
`(“subsection (h)”), as promulgated in 1988 and 1990, requires
`the Army to provide former test subjects with “newly
`acquired
`information” regarding
`their health as
`that
`information becomes available. We agree with the district
`court that this “duty to warn” applies not only to future
`human subjects, but also to test subjects who participated in
`experiments predating the regulation. We hold, further, that
`the district court did not abuse its discretion in issuing an
`injunction enforcing this duty.
`
`

`
`16
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`VIETNAM VETERANS OF AMERICA V. CIA
`
`1. Duty to Warn Under AR 70-25
`
`AR 70-25 obligates the Army to warn volunteers of the
`risks of participating in the experiments, and to provide them
`with new information “that may affect their well-being” as it
`becomes available. Subsection (h) of AR 70-25 provides:
`
` Commanders have an
`Duty to warn.
`obligation to ensure that research volunteers
`are adequately informed concerning the risks
`involved with their participation in research,
`and to provide them with any newly acquired
`information that may affect their well-being
`when that information becomes available.
`The duty to warn exists even after the
`individual volunteer has completed his or her
`participation in research. To accomplish this,
`the MACOM [(Major Army Commands)] or
`agency conducting or sponsoring research
`must establish a system which will permit the
`identification of volunteers who have
`participated
`in
`research conducted or
`sponsored by that command or agency, and
`take actions to notify volunteers of newly
`acquired information.
`
`Subsection (h) was added to AR 70-25 in 1988. The text
`makes clear that the duty to provide notice applies not only to
`possible future subjects but also to former subjects. There is
`nothing in subsection (h) that limits its application to those
`who volunteered in experiments after the promulgation of the
`regulation in 1998. Indeed, subsection (h) specifically
`requires Army commanders to identify the volunteers “who
`have participated in research conducted or sponsored by that
`
`

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`VIETNAM VETERANS OF AMERICA V. CIA
`
`17
`
`command or agency, and take actions to notify volunteers of
`newly acquired information.” (Emphasis added.) Similarly,
`subsection (h) provides that “[t]he duty to warn exists even
`after the individual volunteer has completed his or her
`participation in research.”
`
`The Army’s revision of AR 70-25 in 1990 makes even
`more compelling our reading of subsection (h). The 1990
`version retains the provision of the 1988 regulation that
`requires notice to human subjects. But the Army made an
`important change in 1990 in stating explicitly that the notice
`requirement under AR 70-25 applies to “[r]esearch involving
`deliberate exposure of human subjects to nuclear weapons
`effect, to chemical warfare agents, or to biological warfare
`agents.” Chapter 1–4(d)(4). The 1990 revision would have
`made little sense if the notice requirement applied only
`prospectively. The only subjects to whom Chapter 1–4(d)(4)
`could apply are those who had previously been part of Army
`experiments. As the district court stated, “Because the Army
`did not [in 1988 or 1990] — and does not — engage in such
`ongoing testing, there would have been no reason to add this
`language to AR 70-25 in 1990 if the regulation did not
`encompass those who had already become such test subjects.”
`
`Our reading of AR 70-25 is consistent with the internal
`agency discussions in the years leading up to the 1988 and
`1990 revisions of the regulation. Army memoranda
`discussing proposed notification programs all recognized an
`obligation to warn individuals who had been subjects in past
`research and testing about the potential long-term health
`risks, as well as to provide additional information about those
`risks when such information became available. For example,
`Army General Counsel Jill Wine-Volner wrote in her August
`1979 memorandum that “the legal necessity for a notification
`
`

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`18
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`VIETNAM VETERANS OF AMERICA V. CIA
`
`program is not open to dispute.” That led Wine-Volner to
`write a second memorandum in September 1979 stating that
`“[i]f there is reason to believe that any participants in [the
`biological and chemical weapons testing] programs face the
`risk of continuing injury, those participants should be notified
`of their participation and the information known today
`concerning the substance they received.” She wrote, further,
`“This notification should be [e]ffected regardless of whether
`the individuals were fully informed volunteers at the time the
`research was undertaken.”
`
`Our reading is also consistent with the amending and
`creating of databases in 1981 and 1986. As we describe
`above, in 1981 the Army amended a database that included
`members of the military who had previously volunteered for
`human testing in order “to follow up on individuals who
`voluntarily participated in Army chemical/biological agent
`research projects for the purpose of assessing risks/hazards to
`them.” Privacy Act of 1974; Amendment to System Notice,
`46 Fed. Reg. 60,639, 60,640 (Dec. 11, 1981). Then, in 1986,
`the Army created a new database that included members of
`the military “participating in current and future research” in
`order to “contact individuals who participated” in such
`research in order to provide them with “newly acquired
`information, which may have an impact on their health.”
`Privacy Act of 1974; New Record System, 51 Fed. Reg.
`23,576, 23,577 (June 30, 1986). The Army clearly
`anticipated using these databases to provide ongoing medical
`health information to the volunteers who had participated in
`the Army’s chemical and biological research experiments
`before 1988.
`
`Despite the foregoing, Defendants contend that subsection
`(h) applies only to human subjects upon whom experiments
`
`

`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`19
`
`were performed after 1988. They contend that subsection (h)
`is ambiguous and that under Auer v. Robbins, 519 U.S. 452
`(1997), we must defer to the interpretation that the Army has
`proposed during this litigation. We find no ambiguity in the
`text of subsection (h). But even if subsection (h)
`were ambiguous, Auer deference is inappropriate.
`
`Under Auer, “[a]n administrative rule may receive
`substantial deference if it interprets the issuing agency’s own
`ambiguous regulation.” Gonzales v. Oregon, 546 U.S. 243,
`255 (2006). Auer deference is not warranted in all
`circumstances. Deference is not warranted “when there is
`reason to suspect that the agency’s interpretation ‘does not
`reflect the agency’s fair and considered judgment on the
`matter in question.’” Christopher v. SmithKline Beecham
`Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S.
`at 462). “This might occur when . . . it appears that the
`interpretation is nothing more than a ‘convenient litigating
`position,’” id. (quoting Bowen v. Georgetown Univ. Hospital,
`488 U.S. 204, 213 (1988)), or a “‘post hoc rationalizatio[n]’
`advanced by an agency seeking to defend past agency action
`against attack,” id. (quoting Auer, 519 U.S. at 462) (emphasis
`and alteration in original).
`
`The Army’s proposed interpretation of subsection (h) is
`a “convenient litigating position” that does not warrant Auer
`deference. Defendants acknowledge in their briefing that no
`court has previously had occasion to construe the notice
`provision of AR 70-25, and they point to no prior
`interpretation of this provision by the Army, in litigation or
`otherwise. Indeed, according to the district court, the Army
`admitted that it “developed [its] interpretation only in the
`context of this litigation.”
`
`

`
`20
`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`We do not believe that the interpretation of the notice
`provision of AR 70-25 that the Army now advances is the
`“agency’s fair and considered judgment on the matter in
`question.” Auer, 519 U.S. at 462. The Army supported its
`interpretation of AR 70-25 by relying on the testimony of Dr.
`Michael Kilpatrick, Director of Strategic Communications for
`the Office of the Under Secretary of Defense for Health
`Affairs. However, we have reason to doubt Dr. Kilpatrick’s
`analysis. As the district court observed, “Notably, the agency
`representative upon whose interpretation Defendants rely was
`mistaken about the date on which the operative parts of the
`regulation were amended, suggesting that he did not have a
`clear understanding of the context in which these changes
`were made.”
`
`The text of AR 70-25 requires the Army to provide
`ongoing notice to volunteers who “have participated” in the
`Army’s testing programs. We conclude that this duty applies
`to human subjects in the pre-1990 experiments.
`
`2. Enforceability Under § 706(1)
`
`Even though AR 70-25 imposes a duty on the Army to
`provide notice to prior test subjects of information regarding
`their well-being, we can enforce that duty only if the text of
`the regulation is a “specific, unequivocal command” to take
`“discrete agency action.” SUWA, 542 U.S. at 63–64 (citation
`omitted). The duty to warn contained in subsection (h) is
`such a command.
`
`We recognize that § 706(1) poses an obstacle for parties
`seeking to compel agency action. In SUWA, the Court
`explained that parties are entitled to relief under § 706(1)
`only if the agency “failed to take a discrete agency action that
`
`

`
`VIETNAM VETERANS OF AMERICA V. CIA
`
`21
`
`it is required to take,” id. at 64, such as “the failure to
`promulgate a rule or take some decision by a statutory
`deadline,” id. at 63. The plaintiff in that case, the Southern
`Utah Wilderness Alliance, alleged that the Bureau of Land
`Management (“BLM”) had failed to manage wilderness study
`areas “in a manner so as not to impair the suitability of such
`areas for preservation as wilderness,” id. at 65 (quoting 43
`U.S.C. § 1782(c)), and that BLM had failed to “manage the
`public lands . . . in accordance with the land use plans,” id. at
`67 (quoting 43 U.S.C. § 1732(a)). The Court held that the
`failures to meet these statutory obligatio

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