Vietnam Veterans of America v. Cia ( 2016 )

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– ORDER AND
Cross-Appellees, AMENDED
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
Amended January 26, 2016
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 filed an amended opinion affirming in part and
reversing 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; denied the petition for panel rehearing; and
denied on behalf of the court the petition for rehearing en
banc.
*
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
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 may 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
4 VIETNAM VETERANS OF AMERICA V. CIA
was not judicially enforceable under § 706(1) of the
Administrative Procedure Act.
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.
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
VIETNAM VETERANS OF AMERICA V. CIA 5
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
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
6 VIETNAM VETERANS OF AMERICA V. CIA
(“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.
VIETNAM VETERANS OF AMERICA V. CIA 7
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
8 VIETNAM VETERANS OF AMERICA V. CIA
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,
VIETNAM VETERANS OF AMERICA V. CIA 9
[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
10 VIETNAM VETERANS OF AMERICA V. CIA
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
VIETNAM VETERANS OF AMERICA V. CIA 11
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.
12 VIETNAM VETERANS OF AMERICA V. CIA
In 1981 and 1986, the Army took two actions relevant to
the notification program: amending one record system and
creating 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. Chapter 2–5(j) of
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 2–8(c)
VIETNAM VETERANS OF AMERICA V. CIA 13
provided 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)”) of the reissued
regulation specified:
Duty to warn. Commanders have an
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.
Chapter 3–1(k) (“subsection (k)”) specified, “Volunteers are
authorized all necessary medical care for injury or disease
that is a proximate result of their participation in research.”
Finally, in what the Army later conceded was a “serious”
editing error, Appendix F of the reissued regulation provided
14 VIETNAM VETERANS OF AMERICA V. CIA
that “[r]esearch involving deliberate exposure of human
subjects to nuclear weapons effect, to chemical warfare
agents, or to biological warfare agents” was “exempt from
this regulation.”
The Army revised and 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 in 1990 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 biological and
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.
VIETNAM VETERANS OF AMERICA V. CIA 15
In 2009, Plaintiffs filed suit against DOD, the Army, the
CIA, the VA, and a number of individuals in their official
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
16 VIETNAM VETERANS OF AMERICA V. CIA
v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). We review
legal conclusions underlying the summary judgment de novo,
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 unequivocally commands the Army to
provide former test subjects with current information about
their health, and to provide medical care for harm and
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 again in 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
VIETNAM VETERANS OF AMERICA V. CIA 17
the district court did not abuse its discretion in issuing an
injunction enforcing this duty.
1. Duty to Warn Under AR 70-25
AR 70-25 requires 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:
Duty to warn. Commanders have an
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
Army contends in this litigation that Section (h) has merely
prospective effect, applying only to human subjects on whom
experiments were performed after 1988. We disagree.
18 VIETNAM VETERANS OF AMERICA V. CIA
The text of subsection (h) makes clear that the duty to
provide notice applies not only to possible future human test
subjects but also to former test subjects. There is nothing in
the text that limits the application of subsection (h) 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
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 this 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.”
This reading of AR 70-25 is consistent with the internal
agency discussions in the years leading up to the 1988 and
VIETNAM VETERANS OF AMERICA V. CIA 19
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
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.”
This reading of subsection (h) 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
20 VIETNAM VETERANS OF AMERICA V. CIA
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. Subsection (h) was first promulgated
in 1988, seven years after the amendment of the first of the
databases and two years after the creation of the other. In
other words, subsection (h) was promulgated only after the
Army had already concluded it had a duty to provide ongoing
medical care notifications, even to past participants.
Despite the foregoing, the government contends that
subsection (h) applies only to human subjects upon whom
experiments 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]’
VIETNAM VETERANS OF AMERICA V. CIA 21
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 government’s proposed interpretation of subsection
(h) is a “convenient litigating position” that does not warrant
Auer deference. The government acknowledges in its
briefing to us that no court has previously had occasion to
construe the notice provision of AR 70-25, and it points to no
prior interpretation of this provision by the Army, in litigation
or otherwise. Indeed, the district court noted that the Army
admitted that it “developed [its] interpretation only in the
context of this litigation.”
We do not believe that the interpretation of the notice
provision of AR 70-25 that the government now advances is
the “agency’s fair and considered judgment on the matter in
question.” Auer, 519 U.S. at 462. In the district court, the
government 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.
22 VIETNAM VETERANS OF AMERICA V. CIA
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
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 obligations were “[g]eneral
deficiencies in compliance” rather than failures to comply
with commands to perform discrete actions. Id. at 66.
Therefore, these obligations “lack[ed] the specificity requisite
for agency action.” Id.
“It is clear that section 706(1) applies to the situation
where a federal agency refuses to act in disregard of its legal
duty to act.” Equal Employment Opportunity Comm’n v.
Liberty Loan Corp., 584 F.2d 853, 856 (8th Cir. 1978).
VIETNAM VETERANS OF AMERICA V. CIA 23
Unlike the plaintiffs in SUWA, Plaintiffs have alleged both a
legal duty to perform a discrete agency action and a failure to
perform that action. They assert that the Army has an
ongoing “duty to warn” under subsection (h) of AR 70-25 and
that the Army has refused to perform that duty.
The precise efforts the Army must take to identify human
subjects in past experiments, and the precise content of the
notice to those subjects who have been identified, necessarily
entail some discretionary judgment. But discretion in the
manner in which the duty may be carried out does not mean
that the Army does not have a duty to perform a “discrete
action” within the meaning of § 706(a) and SUWA. See
SUWA, 542 U.S. at 65 (“[W]hen an agency is compelled by
law to act . . . but the manner of its action is left to the
agency’s discretion, a court can compel the agency to act, but
has no power to specify what the action must be.”);
Firebaugh Canal Co. v. United States, 203 F.3d 568, 578 (9th
Cir. 2000) (“Although the district court can compel the
Department of Interior to provide drainage service as
mandated by the San Luis Act, the district court cannot
eliminate agency discretion as to how it satisfies the drainage
requirement.”).
3. The District Court’s Injunction
The government argues that the district court’s injunction
is improper in its scope and duration. We disagree.
Under the district court’s injunction, the Army must
provide
individuals who, while serving in the armed
forces, were test subjects in any testing
24 VIETNAM VETERANS OF AMERICA V. CIA
program in which humans were exposed to a
chemical or biological substance for the
purpose of studying or observing the effects
of such exposure (that was sponsored,
overseen, directed, funded, and/or conducted
by the Department of the Army) . . . with
newly acquired information that may affect
their well-being that it has learned since its
original notification, now and in the future as
it becomes available[.]
Specifically, the injunction directs the Army to provide to
members of the class any information that may affect their
well-being that has been acquired by the Army and/or its
agents since June 30, 2006, or will be acquired in the future.
The injunction directs the Army to file with the court a report
“describing the efforts it has undertaken to locate the Newly
Acquired Information,” “confirming whether Newly
Acquired Information has been found and describing
generally its nature,” “explaining the plan it has in its
discretion developed for transmitting Newly Acquired
Information to the class members entitled to notification,”
“committing to transmit the Newly Acquired Information”
within 120 days of the entry of the injunction, and “outlining
the plan and policies it has in its discretion developed for
(i) periodically collecting and transmitting Newly Acquired
Information that becomes available to it after the Entry Date
and (ii) providing any necessary update reports to the Court
regarding such future efforts.”
We hold that the injunction is appropriately tailored to
direct the Army to carry out its duty to warn, and that the
district court acted within its discretion. In requiring the
Army to tell former test subjects about “newly acquired
VIETNAM VETERANS OF AMERICA V. CIA 25
information that may affect their well-being,” the injunction
reiterates the plain language of AR 70-25’s duty to warn. As
subsection (h) stated, “Commanders have an 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 injunction expressly preserves the Army’s ability to
act “in its discretion” to develop the appropriate policies in
order to carry out that duty. It does not prescribe particular
policies that the Army should follow. It does not even
specify the means by which the Army must give that notice.
In this respect, the injunction does not amount to
programmatic oversight or “judicial entanglement in abstract
policy disagreements which courts lack both expertise and
information to solve.” SUWA, 542 U.S. at 66. The injunction
simply directs the Army to fulfill its duty under subsection
(h).
B. Duty to Provide Medical Care
Chapter 3–1(k) of AR 70-25 (“subsection (k)”) provides,
“Volunteers are authorized all necessary medical care for
injury or disease that is a proximate result of their
participation in research.” Plaintiffs seek an injunction that
would require the Army to provide that care. The parties
agree that the government does not currently provide medical
care to former test subjects “in the absence of those
[individuals] being retirees of the military, medical retirees,
reservists or active duty military.”
26 VIETNAM VETERANS OF AMERICA V. CIA
We conclude that subsection (k), as promulgated in 1988
and 1990, requires the Army to provide former test subjects
with medical care for any injuries or diseases that were
proximately caused by Army experiments in which they
participated. The fact that the VA provides medical care to
some former test subjects, for reasons independent of AR 70-
25, does not relieve the Army of its duty under that
subsection.
1. Duty to Provide Care Under AR 70-25
The text of subsection (k) compels the conclusion that the
Army must provide care to former test subjects. It provides
that “[v]olunteers are authorized all necessary medical care”
for any injuries or diseases that are the proximate result of
their participation in Army experiments. In its brief to this
court, the government concedes that subsection (k) requires
the Army to provide medical care to research volunteers. It
contends, however, that the duty to provide medical care is
time-limited, such that the duty exists only during the
duration of the actual experiment. We disagree that
subsection (k) contains this time limitation.
Subsection (k) uses the word “authorized” in describing
the duty of the Army — “[v]olunteers are authorized all
necessary medical care.” (Emphasis added.) The natural
reading of the word “authorized” is that the volunteers are
entitled to receive the “necessary medical care” specified in
the subsection. To take a familiar example, when a collective
bargaining agreement says that an employee is authorized a
certain amount of sick leave, the employee is entitled to that
leave. She must show that she is actually sick — just as test
subjects must show they suffer from diseases that are a
proximate result of their participation in government
VIETNAM VETERANS OF AMERICA V. CIA 27
experiments — but if she can do so, she is entitled to take
time off for sick leave. The meaning of “authorized” is no
different here.
The government, agreeing with this reading of the word
“authorized,” concedes in its brief to us that the Army has a
duty under subsection (k) to provide necessary medical care.
However, the government contends that the Army’s duty to
provide medical care ends as soon as the experiment ends. It
argues in its brief that “the early versions of AR 70-25 make
clear that the only medical care contemplated under that
regulation was care during the pendency of the relevant
testing program itself. Nothing in any of the later versions of
AR 70-25 expands the limited scope of medical care available
beyond the period that an individual is participating in a
specific experiment.” We disagree.
There is nothing in the text of the current version of AR
70-25, first promulgated in 1988, that supports a conclusion
that the Army has a duty to provide medical care, but that the
duty ceases as soon as the experiment ends. The
government’s argument is inconsistent with the plain text of
subsection (k), which states, “Volunteers are authorized all
necessary medical care for injury or disease that is a
proximate result of their participation in research.”
(Emphasis added.) There is nothing in this language to
suggest that “all” means anything other than “all.” Nor is
there anything in this language that states or even suggests a
temporal restriction on volunteers’ entitlement to receive
medical care. Not only is the government’s argument
inconsistent with the text, but it also makes little sense. If the
government is right, volunteers were entitled to medical care
if they became sick during the actual experiment, but not if
28 VIETNAM VETERANS OF AMERICA V. CIA
they fell sick as a result of the experiment the day after it
ended.
In sum, we agree with the government that subsection (k)
requires the Army to provide medical care to all of those
authorized to receive it. However, we disagree as to the
period during which the care must be provided. The temporal
limitation for which the government argues cannot be found
in the text of subsection (k). Instead, the text compels the
conclusion that the only limitation is causal. We hold, as did
the district court, that “AR 70-25 entitles [Plaintiffs] to
medical care for disabilities, injuries or illnesses caused by
their participation in government experiments,” not only
during the course of the experiment but also after the
experiment has ended.
2. Injunction to Provide Medical Care
Section 706(1) of the APA provides that a reviewing
court “shall . . . compel agency action unlawfully withheld.”
The word “shall” requires a court to compel agency action
when, as here, there is a “specific, unequivocal command”
that the agency must act. SUWA, 542 U.S. at 63–64 (citation
omitted). “The term ‘shall’ is usually regarded as making a
provision mandatory, and the rules of statutory construction
presume that the term is used in its ordinary sense unless
there is clear evidence to the contrary.” Firebaugh Canal
Co., 203 F.3d at 573–74; cf. United States v. Monsanto,
491 U.S. 600, 607 (1989) (finding that “Congress could not
have chosen stronger words to express its intent that
forfeiture be mandatory” than to state that a court “shall”
order forfeiture).
VIETNAM VETERANS OF AMERICA V. CIA 29
We recognize that the operation of § 706(1) is restricted
to discrete actions that are unequivocally compelled by
statute or regulation. Courts are not permitted under § 706(1)
to enter “general orders compelling compliance with broad
statutory mandates.” SUWA, 542 U.S. at 66. In its petition
for rehearing and rehearing en banc, the government argues
for the first time that an injunction ordering the Army to
comply with its duty under subsection (k) is inconsistent with
§ 706(1) because such an injunction would require a “broad
restructuring of Army programs and operations.” The
government substantially exaggerates the impact of an
injunction requiring the Army to provide medical care to
human test subjects who were harmed by DOD experiments.
Between 1955 and 1975, DOD exposed about 6,700
human subjects to chemical and biological agents. DOD has
since terminated these programs. The group of plaintiffs
therefore cannot expand, and some of these 6,700 veterans
have undoubtedly died. DOD also exposed numerous human
subjects to chemical agents during World War II. We cannot
determine from the record in this case how many of these
subjects are still living, but the number cannot be large. In
fact, as of 2005, the Army had identified contact information
for only 319 World War II human test subjects. Requiring
the provision of medical care to this limited population would
hardly require a “broad restructuring of Army programs and
operations.” Instead, the Army would be required to provide
medical care to a relatively small group of living veterans
who were injured as a proximate result of the government’s
conduct. This is a discrete action specifically mandated by
subsection (k) of AR 70-25, for which judicial enforcement
pursuant to § 706(1) is required.
30 VIETNAM VETERANS OF AMERICA V. CIA
The district court concluded that the Army is required
under subsection (k) to provide necessary medical care on an
ongoing basis, but held that an injunction was unnecessary,
given the availability of medical care from the VA. The court
explained that it would “not enjoin one government agency
to provide health care when another agency has been
congressionally mandated to do so.” Notably, however, the
district court did not hold that the availability of medical care
from the VA rendered Plaintiffs’ request for an injunction
moot. Nor does the government argue to us that the
availability of medical care from the VA renders the
Plaintiffs’ request moot. We can readily see why it does not
make such an argument, for there is nothing in the record
upon which to base a conclusion that the medical care
available from the VA would be equal in scope and quality to
the medical care that Plaintiffs claim is owed to them by the
Army. Indeed, the government admitted in the district court
that it does not provide medical care to former test subjects
“in the absence of those [former subjects] being retirees of
the military, medical retirees, reservists or active duty
military.” In the absence of mootness, we cannot agree that
the Army’s duty to provide care is excused by the availability
of medical care from another government agency, even if that
care that would overlap to some degree and in some manner
with the care that the Army is required to provide.
We hold that the district court may 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. Given the present posture
of the case, however, we do not address whether and in what
manner the district court might nonetheless take the VA’s
VIETNAM VETERANS OF AMERICA V. CIA 31
provision of medical care into account in formulating an
injunction on remand.
Conclusion
We hold that Chapter 3–2(h) of AR 70-25 imposes a duty
on the Army to provide all former test subjects with newly
acquired information that may affect their well-being, and
that this duty is judicially enforceable under § 706(1). We
hold that the district court did not abuse its discretion in
entering its injunction to enforce that duty. We hold, further,
that the district court was right to find that Chapter 3–1(k)
imposes a duty to provide medical care. The district court
should not, however, have declined to compel the provision
of medical care on the ground that another agency was
providing similar care to some former test subjects. We
therefore vacate the district court’s summary judgment for the
government on this claim and remand to the district court.
AFFIRMED in part, REVERSED and REMANDED in
part.
WALLACE, Circuit Judge, 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
32 VIETNAM VETERANS OF AMERICA V. CIA
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 not give us license to ‘compel agency action’
whenever the agency is withholding or delaying an action we
think it should take.” Hells Canyon Pres. Council v. U.S.
Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). Rather, our
authority to “compel agency action” is “carefully
circumscribed to situations where an agency has ignored a
specific . . . command,” id., that is located in a federal statute
or “agency regulation[] that ha[s] the force of law,” Norton v.
S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 65 (2004).
Moreover, the “purportedly withheld action must not only be
‘discrete,’” Hells Canyon, 593 F.3d at 932, meaning that it
must be a “precise, definite act,” SUWA, 542 U.S. at 63, “but
also ‘legally required,’” 593 F.3d at 932, meaning that the
text of the statute or regulation contains an “unequivocal
command” about which an official has “no discretion
whatever,” 542 U.S. at 63 (internal quotation marks omitted),
VIETNAM VETERANS OF AMERICA V. CIA 33
such that the duty “could traditionally have been enforced
through a writ of mandamus.” Hells Canyon, 593 F.3d at 932.
A.
Our analysis must focus exclusively on the text of the
relevant statutes or regulations to determine whether this
standard is satisfied. This purely textual approach, amounting
to a “clear-statement rule,” is not unique to the section 706(1)
context. It is indispensable whenever a statute requires us to
determine whether a particular text obligates agency actors to
assume a specific duty or to perform a discrete act.
Like an action brought under section 706(1) of the APA,
for example, a citizen suit may be brought under section
505(a)(2) of the Clean Water Act only where plaintiffs
“allege[] a failure of the [EPA] Administrator to perform any
act or duty under this chapter which is not discretionary with
the Administrator.” 33 U.S.C. § 1365(a)(2). If plaintiffs are
to succeed in their citizen suit against the Administrator, we
have held that “the nondiscretionary nature of the duty must
be clear-cut—that is, readily ascertainable from the statute
allegedly giving rise to the duty.” WildEarth Guardians v.
McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014). In other
words, “[w]e must be able to identify a ‘specific, unequivocal
command’ from the text of the statute at issue using
traditional tools of statutory interpretation; it’s not enough
that such a command could be teased out ‘from an
amalgamation of disputed statutory provisions and legislative
history coupled with the [agency’s] own earlier
interpretation.’” Id. (emphasis added), quoting Our
Children’s Earth Found. v. E.P.A., 527 F.3d 842, 851 (9th
Cir. 2008) (stating that plaintiffs must “point to a
nondiscretionary duty that is readily-ascertainable and not
34 VIETNAM VETERANS OF AMERICA V. CIA
only [] the product of a set of inferences based on the overall
statutory scheme” (alteration in original) (internal quotation
marks omitted)).
B.
Because our inquiry under section 706(1) is necessarily
limited to whether the text of the relevant Army regulations
states a specific, unequivocal command to take discrete
agency action, I cannot join the majority’s perusal of
“internal agency discussions in the years leading up to the
1988 and 1990 revisions of [AR 70-25],” nor its discussion of
the Army’s creation of volunteer databases in 1981 and 1986.
The majority includes these historical observations because
it believes they support our reading of AR 70-25. They do, of
course, but that is irrelevant. Our job is to determine only
whether a statute or regulation itself objectively creates a
mandatory duty. As we have previously held, it is
inappropriate “for us to divine a ‘specific, unequivocal
command,’ from an amalgamation of disputed statutory
provisions and legislative history coupled with the [agency’s]
own earlier interpretation.” Our Children’s Earth Found.,
527 F.3d at 851, quoting SUWA, 542 U.S. at 63. To be sure,
the majority does not rely exclusively—or even chiefly—on
non-textual sources in concluding that the Army has an
unequivocal duty to warn. But by including a discussion of
regulatory history and historical facts in support of its textual
analysis, the majority improperly suggests that these extra-
textual sources and observations have some bearing on
whether we are authorized to compel unlawfully withheld
agency action under section 706(1). I write separately to
dispel any doubt: they do not. I thus join in the result but not
that part of the majority’s analysis.
VIETNAM VETERANS OF AMERICA V. CIA 35
II.
I dissent from the majority’s conclusion that AR 70-25
creates an unequivocal duty for the Army, enforceable under
section 706(1), to provide medical care to former research
volunteers. As stated above, the Supreme Court’s standard
under section 706(1) for compelling agency action is
demanding. See SUWA, 542 U.S. at 63. We ourselves have
explained that we can compel agency action only when the
legal obligation is “so clearly set forth that it could
traditionally have been enforced through a writ of
mandamus.” Hells Canyon, 593 F.3d at 932.
Only two provisions of AR 70-25, as promulgated in
1988, could potentially provide the basis for a judicially
enforceable duty to provide medical care. Neither does.
A.
1.
The first is Chapter 3–1(k) (subsection (k)), which
provides, “Volunteers are authorized all necessary medical
care for injury or disease that is a proximate result of their
participation in research.” This subsection is not an
“unequivocal command” to provide medical care. That is,
while the authorization in subsection (k) certainly removes a
barrier to volunteers’ receipt of medical care—making it
clear, at least, that volunteers should not be denied medical
care for lack of authorization—it does not clearly require the
Army to provide medical care. This is a far cry from the
typical mandatory language we usually require in section
706(1) cases. See Rivas v. Napolitano, 714 F.3d 1108, 1111
(9th Cir. 2013) (observing that “[t]he mandatory language
36 VIETNAM VETERANS OF AMERICA V. CIA
used in the regulation makes the act of reconsideration non-
discretionary”).
The majority, of course, believes the more “natural
reading” of the word “authorized” is that “the volunteers are
entitled to receive the ‘necessary medical care’ specified in
the subsection.” But regardless of how “natural” the majority
believes its reading to be, it is not the only plausible reading.
The only thing that subsection (k) makes clear is that
volunteers are authorized to receive medical care, which is
one or two logical steps away from the majority’s conclusion
that the Army has a legal obligation to provide them with that
medical care. Although it is possible to read into the text of
subsection (k) the assumption that the authorization is the
only thing volunteers need in order to be entitled to medical
care, and the assumption that the Army has a duty to provide
medical care to anyone who is entitled to it, it is also possible
to read the text of subsection (k) without those assumptions.
Because the text is reasonably open to interpretation, it does
not state an unequivocal command.
2.
Subsection (k)’s “authorization” for medical care, in
addition to not being legally required, also is not discrete
agency action. Discrete agency action for purposes of section
706(1) is a “precise, definite act,” like the promulgating of a
rule or the taking of some decision by a statutory deadline.
SUWA, 542 U.S. at 63. The phrase “[v]olunteers are
authorized all necessary medical care for injury or disease
that is a proximate result of their participation in research,”
does not qualify as “the ordering of a ‘precise, definite act . . .
about which [an official] ha[s] no discretion whatever.’” Id.
This is most easily demonstrated by comparing subsection (k)
VIETNAM VETERANS OF AMERICA V. CIA 37
to subsection (h)—the “duty to warn” subsection—which
does command discrete agency action.
Subsection (h) unambiguously identifies which agency or
officers (“Commanders”; “MACOM”) are “legally required”
(“have an obligation”; “must establish”) to perform a
“discrete action,” (“provide [volunteers] with any newly
acquired information”) which is described “precise[ly]” and
“definite[ly]”:
• What: “information that may affect their well-
being”;
• When: “when [it] becomes available” and “even
after the individual volunteer has completed his or
her participation in research”;
• To Whom: “research volunteers”—“[t]o
accomplish this, [the Army] must establish a
system which will permit identification of
volunteers who have participated in research . . .
and take actions to notify volunteers of newly
acquired information.”
Subsection (k), in contrast, leaves us to guess at which
agency officer is obligated to provide the medical care
(assuming, of course, that “authorized” means “required”—it
does not), what such medical care would consist of, or when
and how long medical care must be provided (only during
research? only in “emergency” situations? forever?). As a
result, subsection (k) “lack[s] the specificity requisite for
agency action.” SUWA, 542 U.S. at 66.
38 VIETNAM VETERANS OF AMERICA V. CIA
B.
Only one other provision of AR 70-25 could possibly
provide the basis for a judicially enforceable duty to provide
medical care: Chapter 2–5(j) (subsection (j)). Subsection (j)
provides, “The Surgeon General . . . will . . . [d]irect medical
followup, when appropriate, on research subjects to ensure
that any long-range problems are detected and treated.”
Subsection (j), like subsection (k), lacks the usual language
of obligation. Subsection (j) contemplates action by the Army
Surgeon General only “when appropriate.” That grant of
discretion prevents us from concluding that this language
represents a “specific, unequivocal command” directing the
Surgeon General to provide medical care.
C.
For these reasons I would affirm the district court’s
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 APA.
I am not unsympathetic to the notion that those who have
served our country—especially those who have risked their
health and well-being in that service—should have access to
appropriate medical care. However, the Supreme Court has
counseled us, and we have recognized, that “[e]ven if a court
believes that the agency is withholding or delaying an action
the court believes it should take, the ‘ability to compel agency
action is carefully circumscribed to situations where an
agency has ignored a specific legislative command.’”
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217,
1221–22 (9th Cir. 2011), quoting Hells Canyon, 593 F.3d at
932. “As much as we as citizens are concerned with the plight
VIETNAM VETERANS OF AMERICA V. CIA 39
of veterans seeking the prompt provision of the health care
and benefits . . . as judges we may not exceed our
jurisdiction.” Veterans for Common Sense v. Shinseki,
678 F.3d 1013, 1016 (9th Cir. 2012) (en banc). I am therefore
compelled to dissent from this part of the majority opinion.