Appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, C.J.) dismissing all of appellants' third-party claims against the United States for contribution or indemnity under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Affirmed.
Before: VAN GRAAFEILAND, WINTER AND MINER, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Our discussion of the background and procedural history of this litigation appears in Judge Winter's lead opinion, No. 84-6273.
In this opinion, we address the third-party claims of the chemical companies ("appellants") against the United States which were dismissed by the district court. 611 F. Supp. 1221. For the reasons that follow, we conclude that the district court did not err in thus disposing of the claims.
Transfer of the first batch of Agent Orange cases to the Eastern District of New York pursuant to the Multidistrict Litigation Statute, 28 U.S.C. § 1407, was followed promptly by a variety of motions, one of which was address to appellants' third-party complaints. Relying largely on Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977), then District Judge Pratt granted the Government's motion to dismiss the third-party pleadings. 506 F. Supp. 762, 772-74, 798. However, Judge Pratt did not enter a final order to that effect. See 534 F. Supp. 1046, 1050-51.
In 1984, Chief Judge Weinstein, responding to appellants' motion for reconsideration of Judge Pratt's order, amended the order by granting the Government's motion to dismiss "only as to the claims by the veterans and the derivative claims by their family members." He denied the Government's motion insofar as it involved the "independent claims of the plaintiffs' wives and children." 580 F. Supp. 1242, 1244. However, following settlement of the class action against appellants, Chief Judge Weinstein granted the Government's motion to dismiss that portion of the third-party complaint which involved the independent claims of the wives and children. 611 F. Supp. at 1222. Thus, all third-party claims against the Government in the instant action were dismissed.
Appellants now ask this Court to reverse the order and judgment of dismissal, insisting that the Government should reimburse them in whole or in part for the $180 million they paid pursuant to the settlement agreement. They ask us to reject the Stencel holding and the Feres doctrine upon which it was based, see Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), contending that Feres should not be applied to the "massive tort claims alleged in this unique litigation." We believe that the exact converse is true, and that the Feres doctrine was specifically intended to apply to the "significant risk of accidents and injuries [that] attend such a vast undertaking" as is involved herein. Stencel, supra, 431 U.S. at 672.
The greater the scope of military decision and the more far-reaching its effect, the more it assumes the aspects of a political determination, which, in and of itself, is not subject to judicial second-guessing, Chicago & Southern Air Lines, Inc v. Waterman Steamship Corp., 333 U.S. 103, 111, 92 L. Ed. 568, 68 S. Ct. 431 (1948). See, e.g., DaCosta v. Laird, 471 F.2d 1146, 1147 (2d Cir. 1973) (President Nixon's tactical decision to mine North Vietnam harbors held to create a non-justiciable political question); Holtzman v. Schlesinger, 484 F.2d 1307, 1310 (2d Cir. 1973) (bombing of Cambodia held to involve diplomatic and military expertise not vested in judiciary and thus political in nature), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974); Pauling v. McNamara, 118 U.S. App. D.C. 50, 331 F.2d 796, 798-99 (D.C. Cir. 1963) (explosion of nuclear bombs held to constitute a large matter of basic national policy and to present no judicially cognizable issue), cert. denied, 377 U.S. 933, 12 L. Ed. 2d 297, 84 S. Ct. 1336 (1964). See also In re "Agent Orange" Product Liability Litigation, Nos. 85-6091, 85-6093, 85-6095, at 7-13. As the bombing in Cambodia was designed to protect United States military and civilian personnel from a "grave risk of personal injury or death", Holtzman, supra, 484 F.2d at 1311 n.1, so also was the President's decision to use Agent Orange to defoliate Vietnamese jungle trials, a decision in which the South Vietnamese military, to some extent at least, participated. Recognizing as we must that our judicial system is ill-equipped to handle service-related tort claims involving hundreds of thousands of soldiers, we believe that it is in massive cases such as the instant one where the Feres doctrine is best applied.
Once the continuing vitality of the Feres doctrine is acknowledged, see, e.g., United States v. Shearer, 473 U.S. 52, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (1985); H.R. Rep. No. 97-384, 97th Cong., 1st Sess. 5 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 2692, 2695, recognition of Stencel as binding authority against recovery by appellants inevitably must follow. A court considering the merits of appellants' claims would be required to answer the same questions concerning the discretionary military and political decisions of the Executive and Legislative Branches of Government that it would not feel qualified to answer in suits by individual servicemen. Stencel, supra, 431 U.S. at 673.
The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions.
Moreover, a recovery by appellants in the instant case would violate well-established principles of tort law. Appellants contend that they are entitled to recover both contribution and indemnity from the Government. In support of this contention, they advance a most unique theory of law, i.e., that they are entitled to recover even though the claims they settled were without merit. Both appellants and the Government have contended, and continue to contend, that Agent Orange did not cause the injuries of which the plaintiffs complain. "Third party defendants as well as third party plaintiffs agree that Agent Orange cannot be shown to have caused any injury to any member of the class." 611 F. Supp. at 1222. Nonetheless, appellants assert that they are entitled to reimbursement from the Government. They say that "the district court's finding that there is no proof that Agent Orange caused harm is not relevant here." They argue that the very absence of liability justifies recovery against the Government, asserting that "the overwhelming evidence in the record that Agent Orange caused no harm provides strong justification for spreading the risk." Whether we view appellants' claims against the Government as seeking contribution or indemnity, we find no merit in the above contentions. See HS Equities, Inc. v. Hartford Accident & Indemnity Co., 609 F.2d 669, 674 (2d Cir. 1979).
Contribution is the proportionate sharing of liability among tort-feasors. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 240 n.12 (2d Cir.), cert. denied, 389 U.S. 931, 88 S. Ct. 295, 19 L. Ed. 2d 292 (1967). "Typically, a right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury and one of the joint tort-feasors has pad more than his fair share of the common liability." Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 87-88, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981). "Contribution rests upon a finding of concurrent fault." Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 115, 40 L. Ed. 2d 694, 94 S. Ct. 2174 (1974). Where, as here, a third-party plaintiff insists that it is not at fault, it cannot contend successfully that the third-party defendant is a joint ...