Wednesday, July 1, 2015
Ninth Circuit Panel Sides With Veterans in Suit Over Experiments
By KENNETH OFGANG, Staff Writer
The U.S. military must continue to alert veterans exposed to chemical and biological weapons experiments of any new information that may affect their health and provide them ongoing medical care, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed in part, and reversed in part, a ruling by U.S. District Judge Claudia Wilken.
Wilken sided with the plaintiff class, comprised of thousands of Army veterans, in sustaining claims that the government had duties to them and that those duties were judicially enforceable. The appellate panel agreed, but also reversed a part of the judge’s order.
Wilken, while finding that the government was obligated to provide medical care to the test subjects, declined to compel the U.S. Army to provide that care on the grounds that care was available through the Department of Veterans Affairs. But the appeals court said that was an insufficient basis to deny the requested relief because there was no evidence that the care available at the VA would be “equal in scope and quality” to what the veterans are entitled to.
The plaintiffs sued the CIA, the Department of Defense, and others, accusing them of failing to properly treat health problems caused by the experiments, which took place between 1942 and 1975. They said the government exposed them to chemical agents, germs and drugs in researching how to defend against nontraditional weapons attacks, and failed to provide proper notice to many of the veterans about health hazards they faced by participating in the experiments.
The government has acknowledged the testing program, and in fact a 1953 DOD directive, and an Army regulation dating to 1962, require that subjects be tested only with their informed consent. A 1988 amendment adds that “[t]he duty to warn exists even after the individual volunteer has completed his or her participation in research.”
The government argued, however, that the 1988 amendment is not retroactive, a position rejected by Wilken and the appellate panel.
Judge William Fletcher, writing yesterday for the Ninth Circuit, noted that the regulation was revised in 1990 to make it explicitly applicable to “[r]esearch involving deliberate exposure of human subjects to nuclear weapons effect, to chemical warfare agents, or to biological warfare agents.” The change, Fletcher said, “would have made little sense if the notice requirement applied only prospectively.”
The government’s contrary argument, he said, was a “convenient litigating position” rather than an administrative interpretation to which a court should defer.
“We conclude that [the regulation] 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,” Fletcher wrote. “The fact that the VA provides medical care to some former test subjects, for reasons independent of [the regulation] does not relieve the Army of its duty….”
Fletcher’s opinion was joined by Senior Judge Mary M. Schroeder.
Senior Judge J. Clifford Wallace dissented in part, arguing that the Army regulation does not include a “specific, unequivocal command” that the Army provide medical care to former research volunteers, and that the district judge’s order denying that form of relief should be sustained “on the alternative ground that their claim is not judicially enforceable under section 706(1) of the Administrative Procedure Act (APA).”
The case is Vietnam Veterans of America v. CIA, 13-17430.
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