Vietnam Veterans of America v. Central Intelligence Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIETNAM VETERANS OF AMERICA; Nos. 13-17430 SWORDS TO PLOWSHARES, Veterans 14-15108 Rights Organization; TIM MICHAEL JOSEPHS; WILLIAM BLAZINSKI; D.C. No. BRUCE PRICE; FRANKLIN D. 4:09-cv-00037-

ROCHELLE; LARRY MEIROW; ERIC P. CW

MUTH; DAVID C. DUFRANE;

KATHRYN MCMILLAN-FORREST,

Plaintiffs-Appellants– OPINION 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. 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…

Opinion by Judge W. FLETCHER; Partial Concurrence and Partial Dissent by Judge WALLACE.

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…

concurring in part and dissenting in part:

I agree that the text of AR 70-25 unequivocally commands the Army to provide certain newly acquired information to all former research volunteers when that information becomes available. Because the Army has “unlawfully withheld” agency action by denying that it owes this duty to certain past volunteers, I join the majority in affirming the district court’s judgment and injunction compelling the Army to comply with AR 70-25’s clear regulatory mandate. See 5 U.S.C. § 706 (1). I write separately in concurrence on this point only because I do not join the majority’s analysis of regulatory history to support its textual analysis.

I dissent, however, from the majority’s conclusion that AR70-25 also contains a “specific, unequivocal command” that the Army provide medical care to former research volunteers. I would affirm the district court’s decision to grant summary judgment against Plaintiffs on their claims for medical care, but on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).

I.

“Section 706(1) of the APA ... serves important interests, but [it] does…