U.S., In re

• Decision Date: 13 April 1984
• Docket Number: No. 381,D,No. 1181,1181,381
• Citation: 733 F.2d 10
• Parties: In re UNITED STATES of America, Petitioner. In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. ocket 84-3021. MDL
• Court: U.S. Court of Appeals — Second Circuit

Page 10

733 F.2d 10

39 Fed.R.Serv.2d 1497

In re UNITED STATES of America, Petitioner In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

No. 1181, Docket 84-3021.

MDL No. 381.

United States Court of Appeals Second Circuit.

Argued April 2, 1984.

Decided April 13, 1984.

Joan M. Bernott, Sp. Litigation Counsel Torts Branch, Civil Div. U.S. Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Civil Div., Washington, D.C., Raymond J. Dearie, U.S. Atty., E.D.N.Y., Arvin Maskin and Gretchen Leah Witt, Trial Attys., E.D.N.Y., Brooklyn, N.Y.), for petitioner United States of America.

David J. Dean, Dean, Falanga, Sinrod & Rose, Carle Place, N.Y., for plaintiffs-respondents.

Leonard L. Rivkin, Garden City, N.Y. (Rivkin, Leff, Sherman & Radler, Jeffrey Silberfeld, Leslie R. Bennett, Garden City, N.Y., Pamela R. Esterman, on the brief); Philip D. Pakula, New York City (Townley & Updike, New York City, of counsel); Kelley, Drye & Warren, Cadwalader, Wickersham & Taft, New York City, Clark, Gagliardi & Miller, White Plains, N.Y., Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, N.J., Shea & Gould, Arthur, Dry & Kalish, New York City, (of counsel), for defendants-respondents.

Before VAN GRAAFEILAND and CARDAMONE, Circuit Judges, and BRIEANT, District Judge. ^*

BRIEANT, District Judge:

This multidistrict diversity litigation in the Eastern District of New York concerns claims by Vietnam War veterans and certain of their wives and children. Defendants are chemical manufacturers from which the United States (the "Government") procured, directly or indirectly, various herbicides and defoliants (collectively for convenience "Agent Orange"). From use thereof in combat the veterans allege various injuries, including genetic damage. The wives and children allege, respectively, miscarriages and birth defects, as direct, non-derivative injuries to them resulting from use of Agent Orange by the veterans. The wives and children also allege various derivative claims.

Plaintiffs base liability on negligence, including failure to warn, strict liability, breach of implied warranty, intentional tort and nuisance. Compensatory and punitive damages are sought.

Relying on the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) ("FTCA"), the chemical companies filed third-party complaints against the Government for indemnification and contribution on various theories.

By interlocutory pre-trial ruling, Order No. 26, issued December 29, 1980, see In re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980), petition for rearg. denied, 534 F.Supp. 1046 (E.D.N.Y.1982), then District Judge Pratt dismissed all third-party claims against the Government. Familiarity of the reader with Order No. 26 is assumed. Essentially, Order No. 26 was based on the court's analysis of the Feres doctrine, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), as extended by Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Feres held that Congress, in enacting the FTCA, did not intend to waive sovereign immunity with respect to service related claims of military personnel. Stencel extended the Feres doctrine, holding that:

[T]he right of a third party to recover in an indemnity action against the United States recognized in [United States v.] Yellow Cab [Company, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951) ], must be held limited by the rationale of Feres where the injured party is a serviceman.

431 U.S. at 674, 97 S.Ct. at 2059.

The district court, in dismissing the third-party claims, determined that all of the underlying claims, including the derivative and independent claims of family members were "incident to [military] service," and thus the third-party claims were barred by Feres and Stencel, 506 F.Supp. at 781. Thereafter, pre-trial discovery proceeded. The case was reassigned to Chief Judge Weinstein on October 18, 1983.

Beginning on October 21, 1983, in pre-trial conferences, Chief Judge Weinstein expressed his disagreement with the dismissal of the third-party claims and disclosed an intention to reconsider the point. ¹ Ultimately, by Order No. 91, filed February 10, 1984, after the court had informed counsel for all parties and the Government that it intended to commence a jury trial of the case on May 7, 1984, Chief Judge Weinstein considered a motion for reconsideration of Order No. 26. On such reconsideration, the court adhered to those provisions in Order No. 26 that dismissed so much of the third-party complaints relating to the claims of the veterans, and the derivative claims of their family members, but denied the Government's motion to dismiss those parts of the third-party complaints relating to the independent claims of the wives and children. In Order No. 91, Chief Judge Weinstein concluded that while the Feres-Stencel doctrine bars the third-party complaints as they relate to the servicemen's claims, the doctrine was totally inapplicable to claims by third-parties for indemnity or contribution as to the independent (non-derivative) claims of the wives and children.

By its petition for mandamus, pursuant to the All Writs Act, 28 U.S.C. Sec. 1651, the Government now seeks to have this Court command the trial judge to "vacate Pretrial Order 91 and restore as law of the case Pretrial Order 26." This relief if granted will prevent the district court in limine from the issues in the third-party complaints insofar as concerns the claims of civilians.

Here our task is not to review the merits of Judge Weinstein's conclusion. It may well be that, on an appeal from a final judgment, and upon a complete trial record, this Court will conclude that the Feres-Stencel doctrine is broad enough to encompass this situation, as other courts have. See, e.g., Mondelli v. United States, 711 F.2d 567 (3d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984); Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3086, 77 L.Ed.2d 1347 (1983); Scales v. United States, 685 F.2d 970 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983); Monaco v. United States, 661 F.2d 129 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); but see contra West v. United States, 729 F.2d 1120 (7th Cir.1984). Yet, considering that Judge Weinstein concluded that Feres-Stencel did not encompass this situation, he may proceed to try the merits of the case. We consider only whether, under all the circumstances, the extraordinary writ of mandamus should now issue.

A writ of mandamus of the sort sought here will issue only in extraordinary situations. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980) (per curiam); Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661, 98 S.Ct. 2552, 2556, 57 L.Ed.2d 504 (1978); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964). The use of a writ of mandamus at this stage as an attempt to obtain a "merits type" appeal of an interlocutory order has been rejected by the Supreme Court. Ex Parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947) ("We are unwilling to utilize them as substitutes for appeals. As extraordinary remedies, they are reserved for really extraordinary causes."). See also In re United States, 680 F.2d 9, 11 (2d Cir.1982); In re United States, 565 F.2d 19 (2d Cir.1977) ("Socialist Workers Party"), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978).

Mandamus is an extraordinary remedy, and "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, supra, 389 U.S. at 95, 88 S.Ct. at 273 (quoting Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). This Court has noted a special reluctance to grant the remedy: "[M]ere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ." United States v. DiStefano, 464 F.2d 845, 850 (2d Cir.1972). See also Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956); Maryland v. Soper, 270 U.S. 9, 29-30, 46 S.Ct. 185, 189-190, 70 L.Ed. 449 (1926).

We conclude that Order No. 91 is based upon a studied and rational explication of the applicable law with respect to an issue which neither the Supreme Court nor this Court has yet addressed. ² Whether right or wrong, the Order is clearly within the power of the district court to act, and to reach the conclusion of law which it did. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Since that court is not acting beyond its power, we need go no further in our analysis to satisfy ourselves that the petition for mandamus must be denied.

We discuss briefly certain of the claims made by the Government in support of the petition. Mandamus may not be granted in this case on any view of "law of the case." It is well established that the interlocutory orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any time prior to final judgment, and may be modified to the same extent if the case is reassigned to another judge. See, e.g., Slotkin v. Citizens Casualty Co. of New York, 614 F.2d 301, 312 (2d Cir.1979), cert. denied, 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980); Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-36 (2d Cir.), petition for cert. dismissed per stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956). As Judge Learned Hand said in Dictograph Products :...