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In re Agent Orange Product Liability Litigation. Philip J. Aguiar

decided: April 21, 1987.

IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. PHILIP J. AGUIAR; WESLEY L. BELL; ROBERT BLAKE, II, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR JESSICA L. BLAKE; RICK L. BUTLER; ANTHONY A. DERAPS; JAMES K. EFISHOFF; JUAN H. GONZALES; CHARLES W. HALL; WILLIE N. HOWARD; CLIFFORD N. HUCKABAY, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR GINA MARIE HUCKABAY; RAY C. JONES; GLEN J. MARTIN, JR.; TIMOTHY J. MCCORMICK; MICHAEL J. MCTIGHE; BEVERLY NEHMER, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR RICHARD ALLAN NEHMER; CLARENCE A. PERRY, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR SHON CARLOS PERRY AND BRANDON VIDAL PERRY; ALVIN G. RINEBARGER, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR IAN L. RINEBARGER, STRAH K. RINEBARGER, AND BROGUE C. RINEBARGER; ROBERT EL. L. SHIPPEN; LLOYD W. SNYDER; JOE VALENZUELA; WILLIAM G. WAMSLEY; JAMES A. ABERNATHY; FRANCES J. BARNES; RICHARD A. BUNKER; JOHN F. BISSELL; RUFUS DIAGLE; MERLE J. FULTON-SCOTT; RICHARD A. GARCIA; ROBERT W. GILLESPIE; KATHLEEN E. GILLESPIE; JIMMY L. GILYARD; ROOSEVELT GIVENS; RANDOLPH HARRIS; SAM HAYNES; JOHN MANKOWSKI; MICHAEL L. MATTHEWS; TOMMY L. NEWTON; ALLAN L. NYHART; JOHN T. PEEFF; ANDREW D. ROMEROI; RAUL G. SCHOENSTEIN; JOHN R. SHAW, III; JOHN L. SHUMPERT; GEORGE T. SOUZA; PETER S. TIFFANY; JOSEPH L. VARGAS; WAYNE C. YOUNG; GERRIE CLAY, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR TREALIFA CLAY AND PENNIE CLAY; EACH OF SAID PLAINTIFF INDIVIDUALLY AND AS REPRESENTATIVE OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA; JOSEPH MAXWELL CLELAND, ADMINISTRATOR, UNITED STATES VETERANS ADMINISTRATION, AND HIS SUCCESSORS, ROBERT E. NIMMO AND HARRY N. WALTERS; GUY MCMICHAEL, GENERAL COUNSEL, UNITED STATES VETERANS ADMINISTRATION, AND HIS SUCCESSOR, JOHN MURPHY; DONALD CUSTIS, CHIEF MEDICAL DIRECTOR, UNITED STATES VETERANS ADMINISTRATION, AND THE ACTING CHIEF, JOHN GRONVALL; CHARLES PECKARSKY, CHIEF BENEFITS DIRECTOR, UNITED STATES VETERANS ADMINISTRATION, AND HIS SUCCESSOR, DOROTHY STARBUCK; AND THE VETERANS ADMINISTRATION OF THE UNITED STATES AND OTHER DEPARTMENTS AND AGENCIES OF THE UNITED STATES GOVERNMENT, AS THEIR SEVERAL INTERESTS MAY APPEAR, AND SUCCESSORS TO THE ABOVE OFFICIALS, AS NECESSARY, DEFENDANTS-APPELLEES; DAN FORD, AND HIS WIFE, CHRISTINA FORD; INDIVIDUALLY, AND AS MEMBERS AND REPRESENTATIVE OF A CLASS, PLAINTIFFS-APPELLANTS, V. UNITED STATES OF AMERICA, ET AL., DEFENDANTS-APPELLEES; DANIEL C. BATTS, PLAINTIFFS, V. UNITED STATES OF AMERICA, ET AL., DEFENDANTS-APPELLEES; LOUGHERY, ET AL., PLAINTIFFS-APPELLANTS, V. UNITED STATES OF AMERICA, ET AL., DEFENDANTS



Appeal from a summary judgment of the United States District Court for the Eastern District of New York (Weinstein, C.J.), dismissing so-called "Agent Orange" complaints against the United States. Dismissed in part and affirmed in part.

Author: Van Graafeiland

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 addition to the numerous individual claims spawned by Agent Orange, two large class actions were brought. The first, against the chemical companies, was settled. The second, against the United States, was dismissed, and the dismissal is being challenged on this appeal.

At the outset of this litigation, ingenious counsel, concerned that they might not be able to state a claim for relief under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), attempted to invoke federal court jurisdiction by also alleging constitutional and civil rights violations, mandamus and equitable jurisdiction. These additional grounds for the exercise of jurisdiction were properly rejected by the district court. Ryan v. Cleland, 531 F. Supp. 724, 730-33 (E.D.N.Y. 1982); see Chappell v. Wallace, 462 U.S. 296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983). They have not been asserted on this appeal. Appellants' claims now before us are predicated solely on the provisions of the FTCA.

Because the case comes to us in a rather peculiar posture, familiarity with the administrative claim requirements of the FTCA is necessary for an understanding of the discussion that follows. The administrative claim requirements of the FTCA, 28 U.S.C. § 2675(a), prohibit an action seeking money damages from the United States for personal injury or death unless the claimant has first presented the claim to the appropriate federal agency and it has been denied. Interpretative regulations provide that the claim must be presented in writing by the injured person or his duly authorized agent or legal representative and must be for "money damages in a sum certain." 28 C.F.R. §§ 14.2(a), 14.3(b). Section 2401(b) of 28 U.S.C. sets up a two-year limitation period for the filing of claims.

Shortly after the original class action was brought in 1979, the plaintiffs moved to be relieved of the requirement of filing separate claims in order to protect their individual rights. Then District Judge George Pratt, to whom the case was assigned, correctly held that the filing requirements were jurisdictional in nature and that the court could not order the Government to ignore the statutory requirements. In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 757, 760-61 (E.D.N.Y. 1980) As might have been expected, plaintiffs' attorneys thereafter concentrated most of their fire on the chemical companies.

However, after the class action against the chemical companies was settled in 1984, an "Eighth Amended Complaint" was filed against the Government and certain Government officials on behalf on the above-captioned "Aguiar" group of plaintiffs and Dan and Christina Ford. The complaint identified a proposed class as:

persons who were in the United States, New Zealand or Australian Armed Forces and assigned to Vietnam during the hostilities from 1961 to 1972, who claim injury from exposure to Agent Orange (and other phenoxy herbicides) and their spouses, parents and children born September 1, 1984 (or such other later date as may be fixed by this Court) who claim direct, indirect, independent or derivative injury as a result of such exposure.

In a Memorandum Order and Judgment, 603 F. Supp. 239, Chief Judge Weinstein, who succeeded Judge Pratt, denied the plaintiffs' motion for class certification, id. at 242, and granted the Government's motion for summary judgment against "all claims direct or derivable of the veterans and their wives and against all of the children's derivative claims" and dismissed the direct claims of the children without prejudice. Id. at 248.

Three notices of appeal then were filed. The caption of the first contained the names of all the above-captioned plaintiffs-appellants. It was filed by the "Agent Orange Plaintiffs' Management Committee", which did not identify itself as representing any of the individual plaintiffs-appellants in this action against the Government.*fn1 The caption of the second contained only the names of the first group of plaintiffs-appellants above named, beginning with "Aguiar" and ending with "Clay", and was filed by the firm of Hoberg, Finger, Brown, Cox & Molligan as "Attorneys for Plaintiffs". The third caption contained only the names of the cases referred to in the district court's opinion as having been "previously dismissed", beginning with " Loughery v. United States " and concluding with " Xirau v. Dow Chemical Co. ". 603 F. Supp. at 248-49. This notice of appeal also was filed by the Agent Orange Plaintiffs' Management Committee, which did not describe itself as the attorney for any of the plaintiffs in that group of cases.

The Government contends at the outset that the appeal should be dismissed as academic because class certification was denied in the instant action and there is no individual appellant. "Instead", the Government argues, "this appeal is brought by Committee counsel acting exclusively as a pro bono fiduciary for a decidedly uncertified class, many or most of whose numbers disavow the complaint." This, we think, misstates the legal issue which the Management Committee's unusual procedure has created. The denial of class certification does not preclude individual plaintiffs properly before the court from pressing their own claims, 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1795 at 322. These may include an appellate challenge to the denial of class certification. United Airlines, Inc. v. McDonald, 432 U.S. 385, 393, 53 L. Ed. 2d 423, 97 S. Ct. 2464 (1977). The question, then, is not whether the individual party-plaintiffs could make an effective decision to appeal, but whether the Management Committee had the authority to make this decision for them. See Massachusetts v. Feeney, 429 U.S. 66, 50 L. Ed. 2d 224, 97 S. Ct. 345 (1976) (per curiam). Insofar as the first and third notices of appeal are concerned, we think that the question must be answered in the negative. The Agent Orange Plaintiffs' Management Committee claims to represent a class, an uncertified class at that, not any individual plaintiffs.

The above described second notice of appeal presents a stronger case for appealability, since it was filed by attorneys claiming to represent all of the individual plaintiffs in the Aguiar group. However, counsel for the Management Committee proceeded to muddy the waters with ...


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