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AMERICAN LEGION v. DERWINSKI

July 19, 1993

THE AMERICAN LEGION, et al., Plaintiffs,
v.
EDWARD J. DERWINSKI, Secretary, United States Department of Veterans Affairs, et al., Defendants. VIETNAM VETERANS OF AMERICA, et al., Plaintiffs, v. EDWARD J. DERWINSKI, Secretary, United States Department of Veterans Affairs, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court are defendants' motion to dismiss or, in the alternative, for summary judgment; plaintiffs' motion to supplement the record; plaintiffs' second motion to supplement the record; plaintiffs' motion for discovery; defendants' motion for a protective order staying discovery pending a ruling on defendants' dispositive motion; and the motion by certain members of Congress to reconsider the Magistrate Judge's order denying leave to file a memorandum as amici curiae.1 Upon consideration of the motions, the Court grants defendants' motion for summary judgment, grants in part plaintiffs' motion to supplement the record, and denies the remaining motions.

 Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Although findings of fact and conclusions of law are unnecessary in ruling on a summary judgment motion, the Court sets forth its reasoning. See Fed. R. Civ. P. 52(a).

 Background

 Plaintiffs are The American Legion, Vietnam Veterans of America, and nine individually-named Vietnam veterans and widows of veterans. *fn2" Defendants are the Secretaries of the Department of Veterans Affairs (VA) and the Department of Health and Human Services (HHS), the Directors of the Centers for Disease Control (CDC) and its Center for Environmental Health and Injury Control, and the United States. Plaintiffs challenge defendants' action terminating a congressionally-mandated study to investigate any long-term health effects in Vietnam veterans that may have resulted from exposure to phenoxy herbicides, including Agent Orange. See Pub. L. No. 96-151, 93 Stat. 1097 (1979) (amended 1981, 1984), 38 U.S.C. § 219 note. *fn3" Plaintiffs seek a declaratory judgment that defendants' decision to cancel the study violated the authorizing statute and the Administrative Procedure Act (APA), 5 U.S.C § 706. Plaintiffs also seek an injunctive order directing defendants to conduct the study. *fn4"

 For two years following enactment of the authorizing statute, the VA's contractor for the study encountered significant difficulties identifying veterans who had actually been exposed to herbicides. As a result, in 1981 Congress loosened the requirement of actual-exposure to allow the study to commence. See Pub. L. 97-72, 95 Stat. 1061 (1981). In January 1983, the VA entered into a contract with the CDC to design and execute the study. The CDC developed a protocol intended to identify discrete cohorts of veterans who were and were not likely to have been exposed to Agent Orange in Vietnam. The CDC planned to determine whether those likely to have been exposed suffered from any distinct health effects. By early 1984 the congressional Office of Technology Assessment (OTA) had approved the CDC's protocol as required by the authorizing statute. 38 U.S.C. § 219 note (a)(2)(A)(i).

 The CDC had qualified the study's potential within the protocol, noting that "since many of the proposed procedures are untested, modifications, indeed even a recommendation not to proceed with the Agent Orange study, may be required after pilot assessments." Erickson Decl. Ex. A at 11. Working with the United States Army and Joint Services Environmental Support Group to match military records of troop locations and herbicide spraying, the CDC found that the records were more deficient than it had anticipated. The data indicated that troops were often dispersed 20 kilometers from the main company's location records. In addition, records contained gaps of company locations for various days. Eventually, the CDC sought to adjust the original protocol in 1985. In response to the CDC's proposed changes, the OTA demanded a revised protocol. Furthering the OTA position, in January 1986, the chairmen of the House Veterans' Affairs Committee and the Senate Committee on Veterans' Affairs requested the CDC to suspend activity on the principal study until after the OTA approved a new protocol.

 In addition to the mandated OTA oversight, the authorizing statute charged the President with monitoring the Agent Orange exposure study to assure its scientific validity. 38 U.S.C. § 219 note (c). As a result, an interagency council of Cabinet and subcabinet level officers known as the White House Domestic Policy Council (DPC) had organized a subgroup, the Agent Orange Working Group (AOWG). In early 1986, following the OTA's demand for a new protocol, the AOWG's Science panel convened a Subpanel on Exposure Assessment (Subpanel) to review the status of the study. The June 1986 Subpanel report and a companion pilot assessment disclosed a considerable potential for misclassification of exposed and non-exposed veterans. The study confirmed the difficulty of identifying reliable cohorts to examine. Subsequently, the AOWG Science panel concluded that an exposure study based on military records alone was not scientifically valid. The AOWG Science panel recommended that the CDC develop an independent verification method to determine the likelihood of veterans' exposure to Agent Orange.

 Adopting the AOWG Science panel's recommendation in the summer of 1986, the CDC developed a validation study to verify the accuracy of exposure estimates based on military records. By measuring the 2,3,7,8-TCDD (dioxin) level in blood serum, the CDC could reasonably determine previous exposure to phenoxy herbicides. The study results showed no correlation between the military records' estimates of exposure to Agent Orange and the veterans' blood dioxin levels.

 Based on the recommendation of the AOWG Science panel and the results of the blood dioxin verification study, the CDC concluded that a scientifically valid exposure study could not be performed. In August 1987, after reviewing these findings, the OTA Agent Orange Advisory Panel, the AOWG Science panel, and the AOWG all recommended that the Agent Orange exposure study be cancelled. On October 9, 1987, the AOWG initiated the process for terminating the contracts of the CDC study. The DPC approved the AOWG recommendation on November 5, 1987. The AOWG informed the congressional committees that the study had "proved scientifically impossible to do." Beach Decl. Exs. G and H at 1.

 Subsequently, on November 24, 1987, the VA requested a written report from the CDC regarding the recommendation that no scientifically valid study could be performed. *fn5" In December 1987, the VA Department of Medicine and Surgery conducted an independent review of the CDC's findings and endorsed the recommendation. The VA Administrator notified the House Veterans' Affairs Committee and the Senate Committee on Veterans' Affairs in a February 9, 1988, letter that:

 
no one has successfully identified a large enough group of Vietnam veterans known to have been exposed to Agent Orange or other herbicides to allow the preparation of a protocol and the conduct of an epidemiological study as required by Public Law 96-151. I must, therefore, advise you that no scientifically sound study can be undertaken and request that the VA be relieved of the requirement to do this research.

 Hobson Decl. Ex. E at 1-2. On February 17, 1988, the VA notified the congressional committees that funds previously appropriated for the Agent Orange study would revert to the Treasury Department. Subsequently, Congress ordered those funds shifted to other veterans' studies "upon cancellation of that contract." Pub. L. No. 100-687, § 1201, 102 Stat. 4105, 4125 (1988).

 Discussion

 In response to plaintiffs' claims contesting the termination of the study, defendants contend that they are entitled to summary judgment on two grounds. *fn6" First, defendants claim that Congress ratified the decision to cancel the study. Second, they argue that their actions were rational and otherwise in accordance with law, and therefore did not violate the APA. The Court first addresses defendants' ratification claim and then examines the alleged APA violations.

 I. Congressional Ratification

 Defendants claim that they are entitled to summary judgment because Congress approved the decision to cancel the exposure study in 1988. Defendants contend that Congress ratified the cancellation when it transferred the funds originally appropriated for the Agent Orange exposure study to other veterans' studies. Plaintiffs assert that defendants have failed to satisfy the heavy burden required to demonstrate ratification by appropriation.

 In Associated Electric Cooperative, Inc. v. Morton, this Circuit held that "ratification by appropriation will not be found unless prior knowledge of the specific disputed action can be clearly demonstrated and the appropriation plainly shows 'a purpose to bestow the precise authority which is claimed'." Associated Elec. Coop. Inc. v. Morton, 507 F.2d 1167, 1174 (D.C. Cir. 1974) (citations omitted), cert. denied, 423 U.S. 830 (1975). When Congress reappropriated the funds from the Agent Orange study, it made no reference to repealing the authorizing statute. Pub. L. No. 100-687, § 1201, 102 Stat. 4105, 4125 (1988). Viewing the evidence in the light most favorable to plaintiffs, the Court finds that there is a genuine issue of material fact in dispute as to whether Congress had the requisite purpose to repeal the substantive law which ...


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