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.
`
`
`
`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
`
`
`
`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,
`
`
`
`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
`
`
`
`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
`
`
`
`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
`
`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,
`
`
`
`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
`
`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
`
`
`
`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
`
`
`
`18
`
`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
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
