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Vietnam Veterans of America v. Central Intelligence Agency

United States Court of Appeals, Ninth Circuit

June 30, 2015

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

Argued and Submitted, San Francisco, California: September 11, 2014.

Page 1123

Appeal from the United States District Court for the Northern District of California. D.C. No. 4:09-cv-00037-CW. Claudia Wilken, District Judge, Presiding.

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 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.

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.

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.

OPINION

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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 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

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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 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 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

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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 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 . . . drugtesting 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

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Army by independent contractors, that were initiated to 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,

Participants in those projects who are 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.

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 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 ...


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