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RYAN v. CLELAND

February 8, 1982

MICHAEL RYAN et al., Plaintiffs, against JOSEPH MAXWELL CLELAND, ADMINISTRATOR, UNITED STATES VETERANS ADMINISTRATION et al., Defendants.


The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

Plaintiffs, who describe themselves as the victims of defendant Veterans' Administration's (VA) systemwide and institutionalized medical malpractice, brought this action seeking equitable and declaratory relief enjoining the VA from promulgating certain policies and compelling it to implement other policies. The original complaint asserted many bases for jurisdiction: federal question, 28 U.S.C. § 1331; the supremacy clause of the federal constitution, Article VI, § 2; the ninth amendment of the federal constitution; the due process clause of the fifth amendment; the due process, equal protection, and privileges and immunities clauses of the fourteenth amendment; diversity jurisdiction under 28 U.S.C. § 1332; the civil rights act of 1871, 42 U.S.C. § 1983; and, finally, various unidentified federal and state statutes and regulations protecting the rights of veterans "since the formation of the Continental Army in 1776".

 Defendants moved to dismiss, contending that none of the jurisdictional bases relied upon by plaintiffs permit the court to consider the wide ranging claims presented in the complaint. Plaintiffs then responded to that motion by cross-moving for permission to serve and file an amended complaint and for additional immediate relief. Defendants responded to the cross-motion by urging the court to deny leave to amend, or, alternatively, to dismiss the amended complaint because even under the amended jurisdictional theories propounded by plaintiffs' attorney, no statute conferred jurisdiction over the issues raised in the amended complaint.

 Complicating the procedural morass still further, some of the parties in the multidistrict litigation pending before the court have argued that many of the causes of action asserted in these complaints are interrelated to and dependent upon the court's determination of pending motions in that multidistrict litigation, In re Agent Orange Products Liability Litigation, MDL-381. Although the court agrees that there is some overlap between some of the MDL-381 issues and those issues that plaintiffs seek to bring before the court in these complaints, the court is, nevertheless, without power to consider any complaint not properly before it on a valid jurisdictional base. The key issue presented by the government's motion, therefore, is whether any statute confers upon this court jurisdiction over any of the causes of action set forth in the original or amended complaints.

 THE PROPOSED AMENDED COMPLAINT

 Since the proposed amended complaint does not rely on all of the jurisdictional bases set forth in the original complaints, the court assumes that those jurisdictional bases not set forth in the amended complaint and addressed in plaintiffs' memorandum of law have been abandoned. Accordingly, the court will focus its attention upon the proposed amended complaint.

 The amended complaint (hereinafter "the complaint") seeks declaratory, injunctive and mandamus relief only; it does not seek money damages, although defendants would certainly incur substantial expense if the relief sought were granted. The complaint is not organized in the normal fashion of setting forth separate, identifiable causes of action; instead, the jurisdictional statutes are identified, class action allegations are set forth, a description of plaintiffs' claims follows, and, finally, plaintiffs' prayer for relief concludes the 37 page pleading.

 Plaintiffs allege that from 1962 through 1971, approximately 2.4 million American servicemen were exposed to contaminated herbicides intended for use in Southeast Asia. An unidentified number of these veterans now manifest what plaintiffs state are symptoms of exposure to the toxic agent, dioxin. Plaintiffs contend that upon their discharge from the armed forces the United States failed to warn the veterans of any dangers associated with exposure to dioxin, and that the VA and other governmental agencies failed to provide the necessary medical care and treatment to plaintiffs.

 Plaintiffs allege that as of January 9, 1980, the VA and the individual VA officers knew, or should have known, of the dangers associated with exposure to dioxin. Plaintiffs describe in detail the scientific "proof" of causation of which the defendants should have been aware, and they list two pages of "known" toxic effects from exposure to dioxin.

 Plaintiffs contend that the VA and the individual defendants have ignored their duty to provide veterans with "timely and complete" care for any disability that is "within the range of probability" service-related. The individual defendants allegedly have conspired to withhold information about the effects of exposure to dioxin from plaintiffs and from the general public, to withhold medical care from the veterans, and to mislead and misrepresent to the veterans and their families the effects of exposure.

 Additional specific allegations include claims that defendants have discouraged veterans from filing claims for veterans' benefits, from filing claims for actionable torts under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and from filing claims for violations of the constitutional rights of the veterans and their families. Plaintiffs also allege that defendants have conspired to over-medicate veterans with psychotropic drugs, and to ignore symptoms of brain damage, nervous system damage, and other serious genetic damage. Plaintiffs contend that defendants' policies are grossly negligent, deliberately indifferent, and result in the deprivation of the veterans' vested rights to timely and complete care. Plaintiffs also allege that certain veterans are so physically, emotionally and economically helpless that they are in fact prisoners of the VA hospital system.

 The relief demanded in the complaint is varied and far-reaching. Plaintiffs seek the designation of a class representative; a declaration that every Viet Nam veteran has the right to claim the protection of the law; a declaration that every Viet Nam veteran is entitled to a remedy for the violation of a vested legal right; a declaration that defendants have deprived plaintiffs of their rights under the fifth and ninth amendments; a declaration that the individual defendants have violated the veterans' fifth, eighth and ninth amendment rights; a declaration that the prescription of psychotropic drugs without justification constitutes cruel and unusual punishment under the eighth amendment; a declaration that the individual defendants should be charged with knowledge of the dangerous properties and toxic characteristics of the chemicals to which the veterans were exposed during their service in the armed forces; a declaration that defendants' refusal to warn plaintiffs of these toxic qualities is a breach of a fiduciary duty owed to them; a declaration that the VA and all other governmental agencies are estopped from asserting the statute of limitations as a bar to any future claim by veterans; a declaration that the proposed class action complaint complies with the FTCA's notice of claim requirement, making it unnecessary for plaintiffs to file individual claims; an order directing defendants to prepare a data base including the complete medical history of all the veterans claiming exposure to dioxin; an order directing the VA to prepare a form notice to all veterans advising them of the potential consequences from their exposure to dioxin, that they are entitled to medical care for any resulting injury, that this complaint has been filed, that the class action suit against the chemical companies is pending (MDL-381), that they have the right to file claims under the FTCA, and providing them sufficient information to enable them to accurately complete those claims; an order requiring defendants to disclose all information in their possession to veterans and their families; an injunction against any further prescription of psychotropic drugs absent certain safeguards, including a prior complete psychological, psychiatric and physiological evaluation, a full explanation of the potential effects of the drugs to the veteran and his family, and more complete testing of the effects of the drugs; an order directing the VA to conduct an extensive series of examinations and tests on all veterans; a full disclosure of all information in the possession of the VA to plaintiffs' attorneys; an order prohibiting the VA from performing only limited examinations of plaintiffs; and, finally, an order enjoining defendants from distribution of certain objectionable documents, including a pamphlet entitled "Worried About Agent Orange?".

 RELATIONSHIP TO MDL-381

 Before proceeding to a discussion of whether jurisdiction properly lies over any of the matters set forth in plaintiffs' complaint, it is necessary to identify those aspects of plaintiffs' requested relief that have already been determined in the context of the multidistrict litigation pending before the court, In re Agent Orange Product Liability Litigation, MDL-381.

 Plaintiffs' allegation that the government has breached a duty to warn veterans of potential dangers associated with exposure to Agent Orange has already been found to be barred by Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), and its progeny. Without attempting to reiterate in full all of the reasons why this court concluded that the government was immune from suit for its failure to inform the plaintiff veterans of possible dangers associated with exposure to Agent Orange, essentially, the court concluded that plaintiffs' claims are "incident to and arising out of service" within the meaning of Feres, and, thus, barred by the doctrine of sovereign immunity. The court reasoned that the failure to alert the plaintiff veterans to the dangers to which they may have been exposed during their military service was inseparable from and part of plaintiffs' wartime claims relating to use of Agent Orange. See In re Agent Orange Products Liability Litigation, MDL-381, pretrial order # 26, 506 F. Supp. 762, 777-79 (E.D.N.Y.1980).

 Although the Agent Orange litigation focused upon the government's position in the context of third party claims by the government contractor defendants, the government is equally immune from suit for its wartime activities when it is plaintiffs who are suing the government directly. Indeed, the third-party liability claim considered by the court was bottomed on a premise of direct liability of the government toward the veterans. Accordingly, to the extent that plaintiffs seek relief from the United States due to an alleged failure to warn the plaintiff veterans, the court has already determined that the government is immune from suit, and the motion to dismiss the causes of action seeking this relief must be granted.

 To the extent that plaintiffs ask the court to relieve them from the notice of claim requirement set forth in the FTCA, the court has already determined it is without jurisdiction to do so. As the court has earlier stated in the context of the Agent Orange litigation:

 
Accordingly, the court would be without jurisdiction to adjudicate any FTCA claim against the government by any plaintiff who does not file a notice of claim that complies with the requirements of 28 USC § 2401(b) and the court may neither repeal the statute, nor order the government to ignore the statutory requirements, nor toll the running of the two year period. In re Agent Orange Product Liability Litigation, MDL-381, Pretrial Order # 5, 506 F. Supp. 757, 760 (E.D.N.Y.1980).

 Moreover, as the court has previously noted, since the court is without power to waive the jurisdictional requirements of the FTCA, it is important that plaintiffs not be misled into thinking that they have protected their rights under the FTCA by merely filing a complaint in this action or in the multidistrict litigation.

 The government's motion to dismiss those aspects of the complaint asking the court to fashion an alternative to the cumbersome requirements of the FTCA must be granted.

 REVIEW OF VA ACTIONS

 Both the original and the proposed amended complaint identify defendants as the VA itself, along with the administrator and various of its officials and their successors in interest. Although plaintiffs contend that a variety of statutes confer jurisdiction over actions of the VA, ...


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