791 F.3d 1122
9th Cir.2015Background
- From WWII to the mid-1970s, the U.S. military conducted chemical/biological experiments exposing tens of thousands of service members.
- Plaintiffs are veterans' organizations and individuals who participated as subjects and sued DOD, Army, CIA, and VA for relief under the APA.
- AR 70-25 codified duty to warn and to provide medical care; amendments in 1988 and 1990 expanded and clarified duties.
- In 1981 and 1986 the Army created/updated databases to track volunteers and to enable notification of newly acquired health information.
- District court granted partial summary judgment, holding an ongoing duty to warn and to provide medical care; injunction issued for warning; care injunction denied due to VA provision.
- Appeals court affirmed the warning duty and the care duty, but remanded for care remedies; concurrence/dissent debated enforceability under §706(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn applies to past subjects | Plaintiffs argue AR 70-25 imposes ongoing notice to all past subjects. | Defendants contend notice duty only applies to future subjects or is not clearly mandatory. | Duty to warn applies to past subjects; enforceable under §706(1). |
| Whether §706(1) can compel the warning duty | Army failed to warn; plaintiffs seek injunction enforcing the duty. | Agency discretion in implementing how to warn; no discrete action compelled. | Court can compel action; duty to warn is a discrete, enforceable command under §706(1). |
| Scope/duration of the district court's injunction | Injunction should require the Army to warn current and future subjects with newly acquired information. | Injunction should be limited and tailored; concerns over breadth. | Injunction appropriately tailored to enforce the duty to warn under AR 70-25. |
| Whether AR 70-25 creates a judicially enforceable duty to provide medical care | AR 70-25 requires ongoing medical care for disabilities caused by participation. | Subsection (k) is discretionary and not a mandatory command; care may be provided elsewhere. | Majority: Subsection (k) creates a duty to provide medical care; dissent would deny enforceability under §706(1). |
Key Cases Cited
- Southern Utah Wilderness Alliance v. BLM, 542 U.S. 55 (U.S. 2004) (settled standard for 'shall' and discrete agency action under §706(1))
- Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) (textual, mandatory commands required for §706(1) relief)
- Firebaugh Canal Co. v. United States, 203 F.3d 568 (9th Cir. 2000) (mandatory language for 'shall' in §706(1) analysis)
- Our Children’s Earth Found. v. EPA, 527 F.3d 842 (9th Cir. 2008) (textual approach to non-discretionary duties)
- Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217 (9th Cir. 2011) (limits on judicial power to compel agency action)
- WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014) (non-discretionary duty must be readily ascertainable from text)
- United States v. Monsanto, 491 U.S. 600 (1989) (statutory interpretation and mandatory language considerations)