811 F.3d 1068
9th Cir.2015Background
- From 1942-1975 the War Department and later the Army conducted chemical/biological weapon experiments on tens of thousands of service members.
- Plaintiffs, veterans groups and former test subjects, sued DOD, the Army, CIA, and VA seeking declaratory/injunctive relief under the APA §706(1).
- AR 70-25 in 1988-1990 imposed a duty to warn former volunteers of newly acquired health information and to provide medical care for injuries caused by participation.
- District court held AR 70-25 imposes ongoing notice and medical-care duties; injunction issued to enforce notice, and medical-care relief denied due to VA availability.
- The Ninth Circuit affirmed in part (duty to warn enforceable) and reversed/remanded in part (medical-care relief not properly denied).
- Judge Wallace concurred in part and dissented in part, agreeing on the duty to warn but dissenting on a judicially enforceable duty to provide medical care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AR 70-25 imposes a duty to warn past subjects. | Plaintiffs argue AR 70-25's duty to warn is mandatory and applies to pre-1988 subjects. | Defendants argue duty to warn is prospective-only, not applicable to pre-1988 subjects. | Yes; duty to warn applies to past subjects and is enforceable. |
| Whether AR 70-25 creates a judicially enforceable duty to provide medical care. | Plaintiffs contend AR 70-25 requires ongoing medical care for injuries proximate to participation. | Defendants contend no unequivocal command; care is discretionary and not judicially enforceable under §706(1). | No; the majority cannot establish a specific, unequivocal command to provide ongoing medical care; remand to consider injunctive relief only for warning. |
| Whether the district court's injunction to warn was proper in scope/duration. | Plaintiffs seek broad, ongoing notification of newly acquired health information. | Defendants argue the injunction is overbroad and encroaches on agency discretion. | The injunction is appropriately tailored to enforce the duty to warn. |
Key Cases Cited
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (establishes limits for §706(1) relief requiring discrete, non-discretionary agency action)
- Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) (non-discretionary command required for §706 relief)
- Firebaugh Canal Co. v. United States, 203 F.3d 568 (9th Cir. 2000) (discretion in manner of action does not negate duty to act)
- Our Children's Earth Found. v. EPA, 527 F.3d 842 (9th Cir. 2008) (textual/supra-text interpretation limits in §706(1) analyses)
- Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217 (9th Cir. 2011) (clarifies §706(1) demand for non-discretionary duties)
- Gonzales v. Oregon, 546 U.S. 243 (2006) (Auer deference limitations in ambiguous agency interpretations)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference depends on agency interpretation quality and context)
- United States v. Monsanto, 491 U.S. 600 (1989) (mandatory language and statutory intent in interpreting 'shall')
- WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014) (non-discretionary-duty standard for §706(1) is clear-cut)