Vietnam Veterans of America v. CIA, No. 13-17430 (9th Cir. 2015)
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Plaintiffs, veterans' organizations and individuals subject to U.S. military chemical and biological weapons experiments, filed an individual and class action complaint seeking declaratory and injunctive relief against the DOD, the Army, the CIA, and the VA. Two of plaintiffs’ claims, brought under section 706(1) of the Administrative Procedure Act (APA), 5 U.S.C. 706(1), are at issue in this appeal: first, the Army has unlawfully failed to notify test subjects of new medical and scientific information relating to their health as it becomes available; and second, the Army has unlawfully withheld medical care for diseases or
conditions proximately caused by their exposures to chemicals during the experiments. The court held 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 section 706(1); the district court did not abuse its discretion in entering its injunction to enforce that duty; the district court was right to find that Chapter 3–1(k) imposes a duty to provide medical care; but, the district court did not, however, have the power to decline to compel care on the ground that another agency was providing similar care to some former test subjects. Accordingly, the court vacated the district court’s summary judgment for the government on this claim and remanded to the district court.
Court Description: 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 VIETNAM VETERANS OF AMERICA V. CIA 3 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. 4 VIETNAM VETERANS OF AMERICA V. CIA
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