Viet. Veterans Am. v. Cent. Intelligence Agency

• Decision Date: 30 June 2015
• Docket Number: 14–15108.,Nos. 13–17430,s. 13–17430
• Citation: 811 F.3d 1068
• Parties: 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, 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.
• Court: U.S. Court of Appeals — Ninth Circuit

811 F.3d 1068

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,

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.

Nos. 13–17430

14–15108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 2014.

Filed June 30, 2015.

Amended Jan. 26, 2016.

James Patrick Bennett, Eugene G. Illovsky, Benjamin F. Patterson (argued), and Stacey Michelle Sprenkel, Morrison & Foerster LLP, San Francisco, CA, 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.

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.

W. FLETCHER, Circuit Judge:

ORDER

The opinion filed on June 30, 2015 and published at 791 F.3d 1122 is hereby amended. The amended opinion is filed concurrently with this order.

With these amendments, Judges Schroeder and W. Fletcher voted to deny the petition for rehearing. Judge Wallace voted to grant the petition for rehearing. Judge W. Fletcher voted to deny the petition for rehearing en banc, and Judge Schroeder so recommended. Judge Wallace recommended granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

Future petitions for panel rehearing and petitions for rehearing en banc will not be entertained.

OPINION

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 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 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.

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 experimental 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 conducted a new wave of chemical weapons research and experimentation, focusing on "agents 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 experimental 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 test 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, [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."

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 the late 1970s, against a backdrop of mounting public concern about the long-term effects of such...