Iron Cloud v. SullivanIron Cloud v. Sullivan
Robert Mandel, Rapid City, SD (Kevin V. Schieffer and Edith Blackwell, on brief), for appellees.
Before BOWMAN, Circuit Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.
BOWMAN, Circuit Judge.
These consolidated appeals are from District Court1 orders denying preliminary injunctive relief and class certification, and dismissing appellants’ complaint for failure to exhaust administrative remedies. We hold that the action is moot, as contended by appellees (collectively, the government), and dismiss the appeals.
On February 19, 1992, the appellants sought a temporary restraining order and a preliminary injunction to halt the appellees’ testing of a hepatitis A vaccine. At that time, studies of the vaccine were being conducted with Native American children ages three to twelve on the Pine Ridge and Standing Rock Indian Reservations in North and South Dakota, and in Rapid City, South Dakota, where the test subjects were Native American infants whose parents sought medical services at the Sioux San Hospital. All three studies were noted in the complaint, which alleged that parents were asked to give informed voluntary consent to their children‘s participation in the studies even though the government provided incomplete, misleading, and inaccurate information regarding the scope of the testing programs and the safety of the vaccine.2
The appellants’ motions for preliminary injunctive relief were denied on February 20, and they filed a notice of appeal. The government‘s motion to dismiss the claim for declaratory and permanent injunctive relief remained pending before the District Court. On July 16, 1992, the court dismissed the appellants’ case for failure to exhaust administrative remedies. The court concluded that appellants should have sought relief from the Food and Drug Administration before taking their claims to federal court. Appellants also have appealed that order, and the appeals were consolidated for oral argument and decision by this Court.
The government contends that testing of the vaccine on the reservations has ceased, on Pine Ridge in October 1991 and on Standing Rock in February 1992, and that contention is unrebutted. There is some question whether the Rapid City infant program is ongoing, has ceased soliciting participants, or has been abandoned altogether. That disputed fact is of no consequence here, as there are no plaintiffs in this suit who have standing to challenge the Rapid City study.3 The government is no longer testing the vaccine on the reservations, and thus the case is moot.
In order to invoke the jurisdiction of the federal courts, the parties must demonstrate an “actual, ongoing” case or controversy within the meaning of Article III of the Constitution. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). Although there may have been an actual controversy when this action was filed,4 the case did not remain alive once the testing programs ended. In any event, “[t]he rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974)).
We are mindful that a controversy that has become moot, especially one involving governmental action, may be “capable of repetition, yet evading review” and thus justiciable despite its mootness. Super Tire Eng‘g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974). Although this case theoretically is capable of repetition, we do not believe that the facts here suggest “a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam), quoted in Lewis v. Continental Bank Corp., 494 U.S. at 481, 110 S.Ct. at 1255. First, the government has assured us that it has no plans to do further testing of the hepatitis A vaccine on the reservations, and there is nothing in the record indicating that the tribal governments, having withdrawn their support for the studies, will agree to their resumption. Further, we have every confidence that the government has learned from this experience and will be less cavalier in the future in its approach to seeking voluntary informed consent from prospective subjects for experimental pharmaceutical tests to be conducted on Indian reservations or anywhere else.5
Moreover, we do not believe that “the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration,” id., thus the case does not “evade review.” Ordinarily, a vaccine-testing program of this nature takes years to complete, and the adequacy of informed consent to participate in such a program may be challenged in the earliest stages of the program. These studies were ended early because the tribal governments withdrew their support, and not because the government was attempting in bad faith to moot the appellants’ lawsuit. See supra note 4.
We have taken with these appeals appellants’ motion to amend the complaint pursuant to
The appeals are dismissed as moot. The judgment of the District Court is vacated and the case is remanded with directions to the court to dismiss the action as moot. See Deakins v. Monaghan, 484 U.S. 193, 200, 108 S.Ct. 523, 528, 98 L.Ed.2d 529 (1988).