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In re Agent Orange Product Liability Litigation

September 21, 1984


Appeal from an interlocutory order of the United States District Court for the Eastern District of New York (Weinstein, J.) pursuant to Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). Appeal dismissed.

Author: Cardamone

Before: MESKILL, KEARSE and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

This is yet another chapter in the "Agent Orange" litigation and presents as a threshold question whether the government may pursue an interlocutory appeal from a ruling of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) under the "collateral order" rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) Cohen). Because the answer to this procedural question is "no," we need not address the substantive issues.


Although the procedural history of this case is amply set forth in our previous opinion, In re United States, 733 F.2d 10 (2d Cir. 1984), we reiterate some pertinent facts for purposes of clarity. The primary action in this case was one by veterans of the armed forces against manufacturers of "Agent Orange" and other herbicides used by the United States Government during the Vietnam Era. The wives and children of the veterans also filed claims for direct and derivative injuries they suffered, resulting from the use of this chemical. Various chemical companies that manufactured the offending substance brought third party claims against the government. These third party claims were dismissed by the district court in a pretrial ruling pursuant to Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950). See In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762 (E.D.N.Y. 1980), pet'n for rearg. denied, 534 F. Supp. 1046 (E.D.N.Y. 1982) (Pretrial Order 26). After the case was reassigned to Chief Judge Weinstein in October 1983 pursuant to an order of the Judicial Panel on Multidistrict Litigation, on Chemical Companies' motion he reconsidered Pre-trial Order No. 26 and granted the government's motion to dismiss the Chemical Companies' third-party complaint as to the claims by the veterans and the "derivative" claims of their family members. However, he denied the government's motion to dismiss the third-party action as to the "independent" claims of the veterans' wives and children. 580 F. Supp. 1242 (E.D.N.Y. 1984) (Pretrial Order 91). Upon the district court's refusal to reconsider its decision, the government filed a petition for mandamus as well as a notice of appeal in the district court.

In its mandamus application the government unsuccessfully sought to have us vacate Pretrial Order 91 and restore Pretrial Order 26. In re United States, supra, 733 F.2d at 12-13. In an opinion filed on April 13 we summarily rejected the government's suggestion -- made for the first time at oral argument, but subsequently addressed by both sides in supplemental letters filed pursuant to Fed. R. App. P. 28(j) -- that the petition be treated as a plenary appeal under Cohen. We found that Pretrial Order 91 "did not decide an independent controversy," which the Cohen doctrine explicitly requires. In addition, the opinion noted that all points asserted at that time by the government could be fully and fairly raised on appeal from a final judgment. Id. at 14. Accordingly, the petition for mandamus was denied in all respects and the case was returned to the district court. On May 7, the day this case was scheduled to go to trial, it was announced that the veterans and the chemical companies had reached a settlement. The terms of that settlement in no way affect the third party claims against the government, which are scheduled to go to trial in the fall of 1984.


On this appeal the government seeks to revive its earlier argument and invoke the Cohen doctrine, a narrowly carved exception to the final judgment rule. We specifically are asked to review that part of Pretrial Order 91 which ruled that Feres v. United States, supra, does not bar the third-party complaint based on the independent claims of the servicemen's wives and children.*fn1

The final judgment rule, embodied in 28 U.S.C. § 1291, requires "that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits," Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981). In order to come within the small class of cases excepted from the rule by Cohen, a trial court's order must meet three conditions: first, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; and third, it must "be effectively unreviewable on appeal from a final judgment." Coopers v. Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); see Abney v. United States, 431 U.S. 651, 658-59, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). In addition, Cohen established that a collateral appeal of an interlocutory order must "presen[t] a serious and unsettled question," 337 U.S. at 547. See Nixon v. Fitzgerald, 457 U.S. 731, 742, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982).

One purpose of the final judgment rule is "to prevent an appeal on an issue concerning which the trial court has not yet made up its mind beyond possibility of change. . . ." Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 70 (2d Cir. 1973). Thus, in order to meet the requirements of the first Cohen prong, the matter must have been finally disposed of so that its decision is not "tentative, informal or incomplete." Cohen, 337 U.S. at 546. While there is no simple formula to define finality, see, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), an order expressly subject to future reconsideration by the issuing court is generally thought to be nonappealable. See, e.g., Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir. 1980) (order awarding attorney's fees prior to decision on the merits could not be appealed as a collateral order since "it was manifestly subject to later reconsideration by the court"); Matthews v. IMC Mint Corp., 542 F.2d 544, 547 (10th Cir. 1976) (collateral order doctrine does not permit appeal from order that denied intervenor's motion to quash an attachment, with leave to renew the motion upon a stronger showing of title to the attached property); Gerstle v. Continental Airlines, Inc., 466 F.2d 1374, 1377 (10th Cir. 1972) order decertifying a class not deemed final in light of trial court's statement that, if a future motion to have the case treated as a class action were filed, it would be set for hearing, and in light of other remarks showing that the determination was not beyond reconsideration).

The government asserts that the Feres doctrine, which guards against the threat to military discipline, protects it not only from potential liability, but also from having to submit to trial. Relying on cases such as Abney v. United States, supra, Helstoski v. Meanor, 442 U.S. 500, 61 L. Ed. 2d 30, 99 S. Ct. 2445 (1979), and Nixon v. Fitzgerald, supra, the government contends that this aspect of the Feres issue has been conclusively determined, that it is completely separate from the merits of the action, and that there can be no effective review of it after a final judgment since the prejudice of a trial will have already occurred... Upon examining the Cohen factors, it is plain that the government's application must fail.

In the first place, Pretrial Order 91 did not conclusively determine the disputed question. Assuming that the government has properly framed the disputed question, the language of the district court's order reveals that the occurrence of a trial is no certainty. It emphasized that the ruling was "tentative to assist the parties in preparing for trial" and that the government could "renew its motion to dismiss at any time before or during trial as further evidence and legal developments suggest." In re "Agent Orange", supra, 580 F. Supp. at 1256. The term "before or during trial" leaves open the distinct possibility of dismissal before the case is heard. In this connection, it has been noted that there is little justification for immediate appellate intrusion where, as here, "there is a plain prospect that the trial court may itself after the challenged ruling. . . ." 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3911, at 470 (1976).

The second prong of Cohen requires that the matter submitted for review be "separable from, and collateral to, rights asserted in the action." 337 U.S. at 546. The government argues that the question of whether Feres protects it from having to proceed with a trial is completely separate from the merits of the third party claims. Again we disagree. The issue of whether Feres insulates the government from a trial is inextricably intertwined with the question of the kinds of claims from which Feres grants the government immunity. One of the crucial policies offered in support of the Feres doctrine was avoiding the negative effects on military discipline that might attend suits by servicemen under the Tort Claims might attend suits by servicemen under the Tort Claims Act. See United States v. Brown, 348 U.S. 110, 112, 99 L. Ed. 139, 75 S. Ct. 141 (1954). In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977) Stencel), the Supreme Court extended the military discipline rationale to preclude a third party from seeking government indemnity for damages it may be required to pay an injured serviceman. Without entering into a discussion of the specific application of Feres, we merely note that this case presents a question of first impression in this Circuit since it deals not with the third party claims arising from the veterans' injuries, but with those third party claims arising from the independent injuries of the veterans' wives and children. Without a factual record, it is difficult to predict whether a finding of liability will undermine military discipline, as in Feres and Stencel, or whether this case is more akin to Justice Marshall's example of a cognizable FTCA action where government ...

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