Agent Orange Product Liability Litigation, In re

• Decision Date: 21 April 1987
• Docket Number: D,Nos. 1077,1079,1078,s. 1077
• Citation: 818 F.2d 194
• Parties: In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. Philip J. AGUIAR, et al., each of said plaintiffs individually and as representative of all those similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, et al., 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, Plaintiff, v. UNITED STATES of America, et al., Defendants-Appellees. LOUGHERY, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants. ockets 85-6091, 85-6093 and 85-6095.
• Court: U.S. Court of Appeals — Second Circuit

Page 194

818 F.2d 194

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

Philip J. AGUIAR, et al., each of said plaintiffs

individually and as representative of all those

similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, et al., 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, Plaintiff, v. UNITED STATES of America, et al., Defendants-Appellees.

LOUGHERY, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants.

Nos. 1077, 1078, 1079, Dockets 85-6091, 85-6093 and 85-6095.

United States Court of Appeals Second Circuit.

Argued April 10, 1986.

Decided April 21, 1987.

Joan M. Bernott, Sp. Litigation Counsel, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Asst. Atty. Gen., Arvin Maskin, U.S. Atty., Washington, D.C., and Raymond J. Dearie, U.S. Atty., E.D.N.Y., of counsel), for defendant-appellee U.S Neil R. Peterson, Philadelphia, Pa. (Gene Locks, Greitzer and Locks, Philadelphia, Pa., of counsel), David W. Moyer and Philip E. Brown (Hoberg, Finger, Brown, Cox & Molligan, San Francisco, Cal., of counsel), Thomas Henderson, Pittsburgh, Pa. (Henderson & Goldberg, Pittsburgh, Pa., of counsel), David J. Dean, Carle Place, N.Y. (Dean, Falanga & Rose, Carle Place, N.Y., of counsel), John O'Quinn, Houston, Texas (O'Quinn, Hagan & Whitman, Houston, Texas, of counsel), Stanley M. Chesley, Cincinnati, Ohio (Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, of counsel), Newton B. Schwartz, Houston, Tex., Stephen J. Schlegel, Chicago, Ill. (Schlegel & Trafelet, Chicago, Ill., of counsel), for plaintiffs-appellants.

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, 818 F.2d 145.

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. Sec. 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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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. Sec. 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. Secs. 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 of 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 before 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. ¹ 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 Sec. 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, 97 S.Ct. 2464, 2469, 53 L.Ed.2d 423 (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, 97 S.Ct. 345, 50 L.Ed.2d 224 (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 regard to this appeal with a letter to the Court Clerk in which he stated:

Mr. Moyer and I, on behalf of the AOPMC, represent the class, as opposed to any particular individuals on this appeal. The only exception is that Mr. Moyer's firm represents additionally and individually all the plaintiffs in the Aguiar matter (82-780). However, only class issues are here being raised on behalf of those plaintiffs.

After some intervening explanatory paragraphs, the letter concluded This explains why we are withdrawing the third issue pertaining to wives' independent claims for miscarriages. The District Court's determination in that regard could not apply to the class and any appeal thereof would have to be in individual cases in which we have no authorization to proceed and no attorney-client relationship.

If the foregoing statements are correct--and it does appear that the arguments in appellants' briefs are confined to class issues rather than those of any individual plaintiff--this appeal can be quickly disposed of. It is well established that neither the district court nor this Court has jurisdiction over a Federal Tort Claims class action where, as here, the administrative prerequisites of suit have not been satisfied by or on behalf of each individual claimant. See, e.g., Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Lunsford v. United States, 570 F.2d 221, 224-27 (...