Vietnam Veterans of America v. Central Intelligence Agency

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

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. RApp. P. 35.

*1071 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 mil 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…

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…