Petition for Writ of Certiorari — Adams v. United States

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JUL 18 J987

- SOSEPH EASEANIOL, up,

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

NO.

IN RE:

“AGENT ORANGE” PRODUCT LIABILITY

LITIGATION

THOMAS ADAMS, ET AL.,

Petitioners

UNITED STATES OF AMERICA,

SECRETARY OF THE NAVY OF THE UNITED

STATES, ATTORNEY GENERAL OF THE

UNITED STATES,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BENTON MUSSLEWHITE

609 Fannin, Suite 517

Houston, Texas 77002

(713) 222-2288

Topp ENSIGN

Citizen Soldier

175 Fifth Avenue

New York, New York 10010

Counsel for Petitioners

Alpha Law Brief Co., Inc.— 8748 Westpark — Houston, Texas 77063 — 789-2000

QUESTIONS PRESENTED FOR REVIEW

Petitioners respectfully request the Supreme Court to

overrule Feres v. United States, 340 U.S. 135 (1950),

because none of the three rationales given in Feres for its

decision, nor the later rationalization of “military dis-

cipline”, justifies the continuance of such court-crafted

doctrine in the face of the plain language of the Federal

Tort Claims Act (FTCA) 28 U.S.C. sec. 1346(b), 2671-

2680, which does not contain an “incident to service”

exception to its coverage.

II.

In the alternative, if the Feres doctrine is held still to

be viable generally, it should not be any further extended

in scope and should be held not to apply to the claims of

servicepersons who served in Vietnam, and the derivative

claims of their spouses, parents and children, who were

injured as the result of pre-induction negligence; in-service

negligence where no benefits have been paid to them

under the Veterans’ Benefit Act (VBA), 38 U.S.C. 101,

et seq.; and post-discharge negligence and it should be

held also not to apply to the independent claims of the

wives and children.

III.

The Court of Appeals erred in holding that the “dis-

cretionary function exception” to the FTCA, 28 U.S.C.

sec. 2680(a), shields the United States from liability with

respect to the claims of the Vietnam veterans for pre-

induction negligence, in-service negligence where no bene-

fits have been paid by the VBA, post-discharge negli-

gence, and the independent claims of the wives and

children of those who served in Vietnam.

LIST OF ALL PARTIES TO THE PROCEEDINGS

IN THE DISTRICT COURT AND

THE COURT OF APPEALS

Petitioners in this Court and Plaintiffs in the action

in the District Court (hereinafter Plaintiffs) are listed

in the Appendix 1 attached to this Petition. The names

are so numerous that we are using the Appendices for

reference purposes to list the parties’ Plaintiffs. -

Respondents in this Court and the Defendants in the

courts below (hereinafter Defendant) are:

UNITED STATES OF AMERICA, SECRETARY

OF THE NAVY OF THE UNITED STATES AND

THE ATTORNEY GENERAL OF THE UNITED

STATES.

Ill

SUBJECT INDEX

Questions Presented for Review ...................00-.

List of All Parties to the Proceedings in the District Court

rt ks na a bk ws aoa e anes

Reference to Official and Unofficial Reports of Opinion De-

Grounds Upon Which the Jurisdiction of This Court Is

OR ree

Constitutional Provisions, Statutes and Rules Which This

te ev welkacecvasee

A. Course of the Proceedings Below ..................

C. Basis for Federal Jurisdiction in the District Court ..

D. Reasons Relied Upon For Allowance of Writ ......

II. The Feres Doctrine Should Be Overturned and

the Petitioners Ask This Court To Do So .....

III. Even If The Feres Doctrine Is Not Over-Turned

Wholesale, It Certainly Should Not Be Extended

To Apply To The Claims Based Upon Pre-Induc-

tion Negligence, In-Service Situations Where VBA

Benefits Have Not Been Paid, Post-Discharge

Negligence And The Independent Claims Of The

Civilian Wives And Children Of Vietnam Veterans

A. Suit for pre-induction negligence is not barred

ery ca ya he veh ses seeces

B. Feres is not and should not be applicable to

in-service situations where no benefits have

C. Feres cannot bar recovery for the post-dis-

charge torts alleged in this case ............

D. Feres does not bar independent claims of

wives and children of Vietnam veterans ...

IV. The Court Of Appeals Erred In Sweeping Av.ay

The Plaintiffs’ Claims Against The United States

Government Under The “Discretionary Function

ee ccc van bw ke Kane eeee sss

I kon cscscaeesececccecses

Certificate of Service

“J sa N OOO! —

APPENDICES

APPENDIX I:

Pine 68 Pee Sc oo was cen wadeees

APPENDIX II:

Order oi District Court Below ..........

APPENDIX III:

Court of Appeals Opinion in This Case ...

APPENDIX IV:

Court of Appeals Opinion in Aguiar Case

oe eer eer eeew eee

“Reave ns we Se

Page

17a

2la

28a

LIST OF AUTHORITIES

CASES Page

Adams, et al. v. U.S., et al., Nos. 86-6127 (2nd Cir. 1987). .3,4, 5, 25

Adickes v. Eiress, 398 US: 260 CI97O) 24 ccccccscceans 28

Agent Orange, In re, 603 F.Supp. 239 (E.D.N.Y. 1985) ... 3

Agent Orange, In re, 580 F.Supp. 1242 (E.D.N.Y. 1984) .. 23, 29

Aguiar, et al. v. U.S., et al., 818 F.2d 195 (2nd Cir. 1987) 2,3,4,5

Allen v. United States, 588 F.Supp. 247 (Utah, C.D., 1984),

of Wi ee Bt Ri Be ee 1g ere e rer 19

Arrendale v. United States, 469 F.Supp. 883 (N.D. Tex.

SUOUE. 5 ccsWasxdvasat ence corer hasan wiewe eens cree 24

Aretz v. United States, 503 F.Supp. 260 (S.D. Ga. 1977),

aff'd 616 F.2d 254, reh. 635 F.2d 485, remanded 660

ai Ear Ck LOREEN CA beak eee EE KS 17

Bivens v. Six Unknown Named Agents, 403 U.S. 338 (1971) 16

Boys Market, Inc. v. Retail Clerks, 398 U.S. 235 (1970) 12,13

Bridgford v. United States, 550 F.2d 978 (4th Cir. 1977) 24

Broudy v. United States, 661 F.2d 125 (9th Cir. 1981) ... 21

Broudy v. United States, 722 F.2d 506 (9th Cir. 1983) ... 21

Cole v. United States, 755 F.2d 873 (11th Cir. 1985) .... 21,22

Camtey wv: Gabe, 355 US. 4) (09ST) cise cccassvecnds 20

Everett v. United States, 492 F.Supp. 318 (S.D. Ohio 1980) 21

Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.

Cae SE. i atk Wile Oe hae ae see nw 96 ane we aD 10

Feres v. United States, 340 U.S. 135 (1950) ........... passim

Healy v. United States, 192 F.Supp. 325 (S.D.N.Y. 1961) 17

Helvering v. Hallock, 309 U.S. 106 (1940) ............ 12

Indian Towing Co. v. United States, 350 U.S. 61 (1955)..17, 27, 28

Kohn v. United States, 680 F.2d 922 (2nd Cir. 1982) .... 21

Molsbergen v. United States, 757 F.2d 1016 (9th Cir. 1982) 20, 21

Rayonier, Inc. v. United States, 352 U.S. 315 (1957) ... 17

Schuer v. Rhodes, 416 U.S. 232 (1974) ................ 20

Schwartz v. United States, 230 F.Supp. 536 (E.D. Pa.

PED. ss eG chee eae wee beens hs teasevies eka 21

Seveney v. United States Government, Dept. of Navy,

aa Pe. GSS CRS... TEA. TREY nao aks tnt dx ie> 21

Sheels v. United States, 72 F.Supp. 372 (W.D. La. 1947) 24

Shipek v. United States, 752 F.2d 1352 (9th Cir. 1985) 21

Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962) 13

Steele v. United States, 463 F.Supp. 321 (D. Alaska 1978) 24

Swift & Co. v. Wickham, 382 U.S. 111 (1965) .......... 12,13

Taggett v. United States, 551 F.Supp. 1231 (N.D. Ga. 1981) 21

Thornwell v. United States, 471 F.Supp. 344 (D.C.D.C.

NE oi dos da es oe aden ee ea ee ee a ce eee 22

United States v. Brown, 348 U.S. 100 (1954) ........... 18, 21, 25

United States v. Johnson, 107 S. Ct. 2063, US.

CO Bs WUE oa ow wo eins Ce 08 ee ae Le passim

vi b

CASES Page

United States v. S.A. Empresa De Vicio Area Rico Gran-

eT BI, SOE CEGMO) vce eccccccccccanesecess 26

United States v. Stanley, 107 S. Ct. 3054, it oe

SU ROMNEY A ccd db concgecevcsnctcesceenesess 14, 16, 29, 30

Williams v. United States, 435 U.S. 804 (1st Cir. 1970) 24

Yellow Cab Co. v. United States, 340 U.S. 543 (1951) ... 25

STATUTES

Federal Tort Claims Act

OM MOIR, gg Sea ction scenes ceccasacacess 1

PEAR cc cases ees eacessancccasses 1

ke | ” Oa 19

De OE cc e a cer es vse ceseeeasseceass 3

RR ED vp ces dasscdenscncnaccascaseeses 3

TP IE es occa ne eeneaccseceeceseseses 3, 29

Jurisdiction

od Sle Yo "2 | Pea aire 1

National Environmental Policy Act

TR EME. , aces es cesceecsscscesecesencssess 20

Veterans Benefit Act

8 Re Se ne ere 1

; OTHER AUTHORITIES

Duty To Warn As An Inroad To The Feres Doctrine:

A Theory Of Tort Recovery For The Veteran, 43 Ohio

See ME EOE kg cu xenon caabacesceneceuaqieeearess 22

Judicial Recovery For The Post-Service Tort: A Veteran’s

Sem Battie. 14 Pac. 1.J. 333 (1988) .....ccccscseces 22

Note. The Effect Of The Feres Doctrine On Tort Actions

Against The United States By Family Members Of Serv-

icemen, 50 Fordham L. Rev. 1241 (1982) ............ 24

Remarks of Senator Alan Cranston, May 22, 1984, Cong.

ON Og” GE ae ee er 9

Restatement 2d of Torts, Section 402A ...........2.2245. 17

REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS DELIVERED

BY THE COURTS BELOW

1. The order of the district court dated June 19, 1986,

dismissing the claims in part and granting summary judg-

ment in part is attached as Appendix 2.

2. The opinion and order of the Court of Appeals,

dated April 21, 1987, affirming in part and reversing

and remanding in part, 818 F.2d 201 (2nd Cir. 1987),

is attached as Appendix 3.

GROUNDS UPON WHICH JURISDICTION

OF SUPREME COURT IS INVOKED

The judgment of the Court of Appeals was entered

on April 21, 1987 (Appendix 3). This Petition for Cer-

tiorari was properly transmitted within ninety days from

the date of such judgment and opinion. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES WHICH THIS CASE INVOLVES

This case involves the construction and application of

the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-

2680. It also involves, indirectly, the Veterans Benefit

Act (VBA), 72 Stat. 1118, as amended, 38 U.S.C. 301,

et seq. (1982 Ed.).

STATEMENT OF THE CASE

A. Course of the Proceedings Below

This case is a part of some of the most important liti-

gation ever to be brought in our courts —the “Agent

Orange Litigation”. The Vietnam veterans first filed, in

the United States District Court for the Eastern District

of New York, a class action suit against the chemical

manufacturers of Agent Orange, alleging injuries and

deaths as a result of their exposure to the product in

Vietnam, where it was used as a defoliant; the class was

certified; a purported settlement was reached; a final judg-

ment was entered; and that judgment was appealed to the

United States Court of Appeals for the Second Circuit.

The Court of Appeals affirmed; a Petition for Rehearing

and Rehearing En Banc was denied; and a Petition for

Certiorari in connection with the class action settlement,

notice of the class action, and other issues with respect

to the suit against the manufacturers, is presently being

prepared for filing in this Court.

After the settlement was reached with the plaintiff class

concerning the suit against the chemical manufacturers.

the plaintiffs filed suit, as a class, against the United States

in the case of Aguiar, et al, Plaintiffs v. United States,

et al., Defendants. The Vietnam veterans alleged, under

the FTCA, that they were exposed to Agent Orange in

Vietnam and they and, derivatively, their spouses, parents

and children (in the death cases) thereby sustained

damages for injuries and deaths which were caused by

the pre-induction negligence, post-discharge negligence

and in-service negligence of the United States and that

they had received no benefits under the VBA. The wives

and children of the Vietnam veterans alleged, also under

the FTCA, independent claims, asserting that the vet-

erans’ exposure to Agent Orange in Vietnam had caused

them to sustain genetic damage and through intercourse

between husband and wife after the husband’s discharge,

the wives were caused to sustain miscarriages and the

children were inflicted with birth defects.

The United States filed motions to dismiss and for

summary judgment, basically asserting that the court

should refuse to certify the class requested by the plain-

tiffs; that plaintiffs’ claims were barred by the doctrine

enunciated by the Supreme Court in Feres v. United

States, 340 U.S. 135 (1950); that such claims were also

barred by the discretionary function, combatant activities

and foreign country exceptions to the FTCA, 28 U.S.C.

2680(a), (j) and (k); and that summary judgment

should be granted because, as a matter of law, Agent

Orange had not been shown to cause any physical harm

to the Vietnam veterans or their wives and children.

The district court denied the request for certification of

the class; dismissed the direct claims of the veterans and

derivative claims of the wives, children and parents on

the ground that they were barred by Feres; and, as to

the independent claims of the wives and children, con-

cluded that “no evidence of probative value” had been

presented to show that their miscarriages and birth defects

had been caused by the veterans’ exposure to Agent

Orange.’ See In re “Agent Orange” Product Liability

Litigation, 603 F.Supp. 239, 242 (E.D.N.Y. 1985).

On appeal, the Aguiar plaintiffs appealed only the

rulings against the veterans and the derivative claims

of the wives, parents and children but did not appeal

the adverse ruling against the independent claims of the

wives and children. The Court of Appeals affirmed the

judgment of the court below and held that the Feres

doctrine and the discretionary function exception barred

all of the plaintiffs’ claims. See In re “Agent Orange”

Product Liability Litigation; Aguiar, et al. v. United

States, et al., 818 F.2d 195 (2nd Cir. 1987). (See

Appendix 4 to this Petition).

In the meantime, other veterans represented by the

undersigned counsel filed suit in the United States District

Court for the Southern District of Texas making basically

the same allegations as were made in Aguiar, See Tabs 1

and 2, Joint Appendix, Vol. 1 (Adams, et al. v. United

1. The children’s claims were dismissed without prejudice.

States). In the Texas suit, class action allegations were

included but all of the veterans represented by counsel

in that case were also listed individually. See Appendix 1 to

this Petition. The Multi-District Litigation Panel trans-

ferred the case to the same district court that was handling

the over-all Agent Orange litigation. Basically the same

motions that were filed in Aguiar were filed against the

plaintiffs in this case by the Government and Judge

Weinstein, the district judge, dismissed this case on

the same grounds as he had dismissed Aguiar. See Order,

Appendix 2. Whereas, as noted above, the Aguiar counsel

did not appeal the dismissal by the district court of the

independent claims of the wives and children, the counsel

in this case included not only the grounds asserted by

counsel in the Aguiar appeal but as additional grounds

complained of the district court’s dismissal of the inde-

pendent claims of the wives and children.

The Court of Appeals affirmed in this case the district

court’s dismissal of the veterans’ claims and the derivative

claims of the wives, children and parents on the ground

that such claims were barred by the Feres doctrine and

by the discretionary function exception to the FTCA and

reversed the district court’s dismissal of the independent

claims of the wives and children on the ground of absence

of causation and remanded same with directions that the

district court “dismiss them for lack of jurisdiction”. The

Court of Appeals reasoned that the independent claims of the

wives and children were also barred by Feres and the discre-

tionary function exception to the FTCA and that, therefore,

there was no reason to consider the summary judgment

which had been granted on the basis of no causation.

See In re “Agent Orange” Product Liability Litigation,

Thomas Adams, et al., Plaintiffs-Appellants v. United

States, et al., Defendants-Appellees, 818 F.2d 201 (2d

Cir. 1987) (attached as Tab 3).

B. Procedural Facts

These cases center around the use of Agent Orange

by the United States Armed Forces in Vietnam tor the

purposes of defoliating the jungle and destroying the food

crops of the enemy. Agent Orange is a 50:50 mixture of

dichlorophenoxyacetic acid (2,4-D) and _ trichlorophen-

oxyacetic acid (2,4,5-T). It was packaged in 55 gallon

drums which had a horizontal orange stripe around the

middle of the drum (hence, the “orange” in Agent

Orange). As a part of the manufacturing process, a con-

taminant is created. It is called tetrachlorodibenzo-para-

dioxin or 2,3,7,8-TCDD. The popular name is dioxin.

This manufacturing contaminant, present in greater

quantities as the heat, pressure and speed of the manu-

facturing process are increased, is one of the most

toxic compounds known to man. It is the exposure to

dioxin which is at the heart of the Agent Orange litiga-

tion. Once it enters the human body by inhalation (air-

ways), ingestion (mouth), or absorption (skin), it is

lipopyllic, meaning it is preferentially attracted to the fat

molecules within the body. There it stays, being largely

not excreted, working its insidious and pernicious effects

upon the anatomy.

When certain servicepersons filed the Aguiar complaint

it was admitted that such complaint was created to take

advantage and use every possible mechanism to plead

around the “incident to service” doctrine. (p. 5 of the

Original Brief in Aguiar). Since the complaint in this

case, the Adams case, is structured basically the same as

the Aguiar complaint, the comments we make now about

the Aguiar complaint are equally applicable to the

Adams complaint. The first, composite cause of action

contained allegations in separate counts as to pre-induc-

tion (Counts I-XXX), in-service (Counts XXXI-LXIV)

and post-discharge (Counts LXV-LXXXVI) time frames.

The pre-induction counts sought to show that the opera-

tive acts and/or omissions on the part of the United States

occurred prior to service on the part of the plaintiffs and

thus considerations of military discipline had no relevance.

These included, inter alia, such negligent acts as failing

to warn each irductee of the hezards of Agent Orange

prior to induction; in failing to adequately test the Agent

Orange prior to each veteran’s induction; in failing to

require the removal of the dioxin contaminant prior to

each veteran’s induction; in negligently approving defec-

tive specifications for the Agent Orange prior to each

veteran’s induction; and by distributing, prior to each

veteran’s induction, a product not fit for intended pur-

poses or safe for use by human beings.

The three court-constructed criteria of the “incident to

service” doctrine were said not to be met in relation to

the in-service period, see our discussion infra, and that

the United States should in any event be estopped to

assert the doctrine, because tthe Veterans Administration

had denied all claims for benefits of the plaintiffs under

the VBA on the ground that the exposure to Agent

Orange did not cause any maladies, while at the same

time asserting that the damages claimed by the Plaintiffs

occurred while they were serving in Vietnam and thus

were “incident to service.”

The allegations of in-service negligence included the

allegations that the previously alleged acts of pre-induction

negligence also occurred during each veteran’s service

and further allegations of failure to monitor, treat and

diagnose, or the misdiagnosing of potential health prob-

lems arising from exposure to Agent Orange and the

failure to provide protective gear, institute instructions

as to protective hygiene and take other steps to reduce

the hazards of Agent Orange.

As to the post-service period, the plaintiffs alleged that

the United States could not invoke military discipline by

definition with regard to that period because many of the

acts and/or omissions were those of the Veterans Ad-

ministration and other agencies and departments as op-

posed to the military. Because of the plaintiffs’ concern

for case law which spoke of “continuing tort” in relation

to post-discharge claims, two entirely separate counts and

causes of action were set out. The first cause of action

encompassed all three periods and the second cause of

action encompassed only the period after discharge and

it was there asserted the acts of negligence and the con-

sequent damages occurred after the veteran was discharged

from the service. The complaint not only contained alle-

gations on behalf of the wives and children as being

derivative of the veterans claims (for death benefits, loss

of consortium, etc.), but also claims for miscarriages and

birth defects which were precipitated by intercourse be-

tween the veteran and his wife after the veteran was

discharged. The allegations of post-discharge negligence

are further discussed, infra.

C. Basis for Federal Jurisdiction in the District

Court.

The basis for jurisdiction in the district court was the

FTCA, supra.

D. Reasons Relied Upon For Allowance of Writ.

I. -Preliminary statement.

In United States v. Johnson, 107 S. Ct. 2063, - US.

(May 18, 1987), Justice Antonin Scalia, joined by

three other Justices of the Supreme Court, stated in dissent:

As it did almost four decades ago in Feres vy.

United States, 340 U.S. 135 (1950), the Court

today provides several reasons why Congress might

have been wise to exempt from the Federal Tort

Claims Act (FTCA), 28 U.S.C. sec. 1346(b), 2671-

2680, certain claims brought by servicemen. The

problem now, as then, is that Congress not only

failed to provide such an exemption, but quite plain-

ly excluded it. We have not been asked by the re-

spondent here to overrule Feres; but I can perceive

no reason to accept the petitioner’s invitation to

extend it as the Court does today.

107 S. Ct. at 2070. The Petitioners-Plaintiffs in this case,

who sacrified heart, soul and health for this country in

Vietnam, now ask the Supreme Court of the United States

“to overrule Feres’.

There could not be a better vehicle for that undertaking

than this case. This case involves the plight of thousands

of the young people of America—mostly the disadvantaged

of our nation—who, instead of going to Canada, Sweden

or Torremolinas, accepted their draft notices and were

sent off to an undeclared war that most of the American

people did not want or much care about and who then

served bravely while being exposed to a chemical herbicide

that they did not know—nor were they ever told—con-

tained one of the most toxic and deadly chemical com-

pounds known to man. -

At least the Vietnam veteran had some general under-

standing of the perils he faced in fighting the Vietcong

but he had no understanding—nor was any effort made

to give him any—of the dangers of Agent Orange. The

state of the art under war conditions was such that

certain methods of spraying, use of prophylatic and pro-

tective gear, medical monitoring and other steps could

have been taken to drastically reduce the exposure to,

and risk of harm from, Agent Orange, without adversely

affecting our soldiers’ capability to do battle. But ab-

solutely no effort was made by the Government to do

these things.

Indeed, the cruel hoax of it all is that so many of those

Vietnam veterans who were fortunate enough to have

survived the perils of combat were not fortunate enough

to have avoided the menaces of Agent Orange. And in

another chapter of this cruel hoax, when the veterans,

through the help of such people as Maude de Victor,

finally realized that those who were exposed to Agent

Orange were experiencing certain types of medical prob-

lems in unusually large numbers, they got no help—

indeed only reproach—from the Veterans Administration

and, despite subsequent legislation enacted to encourage

the approval of Agent Orange claims, the V.A. continues

to this day to stonewall the Agent Orange claimants.

Senator Alan Cranston severely criticized the Veterans

Administration for its failure to approve Agent Orange

claims. See remarks of Sen. Cranston, May 22, 1984,

Cong. Rec., S. 6245.

When the late President Eisenhower warned us, in

one of his greatest speeches as President, of the military-

industrial complex he must have been clairvoyant about

the coming plight of the Vietnam veteran. These powerful

forces—the chemical companies and the military—ar-

rayed against the virtually powerless veterans have forged

together the last and cruelest hoax of all (and indeed a

myth )—that long-term exposure to dioxin does not cause

any health problems. Tragically, the district court and

Court of Appeals—without having any evidence before

them of clinical analyses of any of the 248,000 claims

filed in connection with the settlement with the chemical

companies, except for the ten who were going to trial on

May 7, 1984°’—accepted the thesis that there could

not possibly be a fact issue on causation as to any

2. This was the trial against the chemical companies which was

made unnecessary by the settlement reached with the chemical com-

panies in the early morning hours of May 7, 1984. Such settlement is

the subject of a separate Petition for Certiorari being filed by the

veterans.

‘

claimant, including the ten scheduled to go to trial.

Such shocking assumption totally ignored the fact that

there was overwhelming evidence in the record—in the

form of multiple markers; confirming clinical studies:

evidence of strong exposure; corroborating statistical in-

formation; favorable interpretations of existing epidemi-

ological studies; animal studies; and the forceful opinions

of over fourteen world-class scientists, clinicians, toxi-

cologists, chemical analysts, biostatisticians, epidemi-

ologists, oncologists, internists and other medical causa-

tion experts—which clearly established fact issues as to

those ten claimants and suggested that thousands of the

other 248,000 claimants probably had viable claims as

well. The holding of the district court and the strong

corroborating statements of the Court of Appeals also

undeniably conflict with what has become the majority

rule in cases of this type, as recently stated by the District

of Columbia Court of Appeals in Ferebee v. Chevron

Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), cert.

den. 105 S. Ct. 545 (1984).°

While the myth of no-causation is not a direct issue

before this Court, we mention it because it perme-

ates the rationale employed by the Court of Appeals in

reaching its conclusions about the applicability of the

discretionary function exception and the Feres doctrine.

The pervading essence of the plaintiffs’ claims in

this case is that the decision to use Agent Orange

as a defoliant in Vietnam is not challenged, is

3. The court in Ferebee stated:

Judges, both trial and appellate, have no special competence to

resolve the complex and refractory causal issues raised by the

attempt to link low level exposure to toxic chemicals with human

disease. On questions such as these, which stand at the frontier

of current medical and epidemiological inquiry, if experts are

willing to testify that such a link exists, it is for the jury to

decide whether to credit such testimony.

736 F.2d at 1534.

not alleged to be negligent and is not a part of the

claimed misconduct on the part of the Government.

Moreover, it must be understood that most of the negli-

gent and defective design acts asserted by plaintiffs took

place in the United States, before the Agent Orange ever

reached Vietnam and before it ever became a part of

the political process, the discretionary functions of the

military, or the whims of the battlefield.

Thus, we have the situation here where the Vietnam

veterans—who are finally, just now, being recognized as

the real American heroes they have always been—stand

before the Highest Court in our land and—having been ju-

dicially finessed into a totally inadequate settlement with

the chemical companies* and having been denied all

benefits under the VBA—ask for the justice they deserve

but have been denied in all other courts of our land.

II. The Feres doctrine should be overturned

and the Petitioners ask this Court to do so.

It would not serve any purpose for us to repeat the

eloquent arguments made by Justice Scalia, joined by

three other Justices, in the dissent in United States v.

Johnson, 107 S. Ct. at 2070-2076. We agree with

Justice Scalia’s conciusion that the original three rationale

given for the Feres doctrine have been displaced or dis-

credited by subsequent decisions and we agree, further,

that the later conjured rationale, “military discipline”,

is judicially inappropriate. Moreover, there is no possible

way that “military discipline” can be affected by the types

of claims made in this case. Justice Scalia summed up

4. The subject of the gross inadequacy of the settlement [$180

million dollars for 248,000 claims, 128,000 of which involve serious

injury or death], and the way in which the class members were

finessed into not opting out of the class and a settlement they do

not want, is the subject of a separate Petition for Certiorari which

will be filed within 90 days of the denial of the motion for rehearing

in the case against the chemical companies.

our position with regard to overturning the Feres doctrine

better than we ever could:

In sum, neither the three original Feres reasons

nor the post hoc rationalization of “military disci-

pline” justifies our failure to apply the FTCA as

written. Feres was wrongly decided and _ heartily

deserves the “widespread, almost universal criticism”

it has received. Jn re “Agent Orange” Product Liabil-

a ity Litigation, 580 F.Supp. 1242, 1246 (E.D. N.Y.),

appeal dism’d, 745 F.2d 161 (CA 2 1984).

* * *

. . . because Johnson devoted his life to serving in

his country’s armed forces, the Court today limits

his family to a fraction of the recovery they might

ottherwise have received. If our imposition of that

sacrifice bore the legitimacy of having been pre-

scribed by the people’s elected representatives, it

would (insofar as we are permitted to inquire into

such things) be just. But it has not been, and it is not.

107 S. Ct. at 2074-2076.

We can only hope that those Justices who joined the

majority in United States v. Johnson will in this, one of

the most notable cases ever to come before the Court,

seriously consider the opinion of Justice Scalia in John-

son and take the courageous, historic step of admitting

that the Court made a mistake in 1950.

Principles of stare decisis do not preciude such an

undertaking. In The Boys Market, Inc. v. Retail Clerks

Union, 398 U.S. 235 (1970), this Court observed that

“stare decis is a principle of policy and not a mechanical

formula of adherence to the latest decision, however re-

cent and questionable, when such adherence involves

collision with a prior doctrine more embracing in its

scope, intrinsically sound, and verified by experience”,

citing Helvering v. Hallock, 309 U.S. 106 (1940) and

Swift & Co. v. Wickham, 382 U.S. 111 (1965). 398 USS.

at 241. In Boys Market this Court overruled Sinclair

Refining Co. v. Atkinson, 370 U.S. 195 (1962), in an

analogous context. In Sinclair, the Supreme Court had

rendered a decision which Justice Brennan, speaking for

the Court, deemed to be “a significant departure” from

Congressionally stated policy of promoting “the peaceful

settlement of labor disputes”, id. at 241. After noting

that developments subsequent to Sinclair supported the

need for reconsideration of Sinclair, Justice Brennan de-

bunked the contention that the failure of Congress to

respond to a decision such as Feres implies an acceptance

of that decision as valid law, stating:

Nor can we agree that conclusive weight should

be accorded to the failure of Congress to respond

to Sinclair on the theory that congressional silence

should be interpreted as acceptance of the decision.

The Court has cautioned that “[i]t is at best treach-

erous to find in congressional silence alone the adop-

tion of a controlling rule of law.” Girouarc v. United

States 328 U.S. 61, 69, 90 L.Ed. 1084, 1090, 66

S. Ct. 826 (1946). Therefore, in the absence of any

persuasive circumstances evidencing a clear design

that congressional inaction be taken as acceptance of

Sinclair, the mere silence of Congress is not a suffici-

cient reason for refusing to reconsider the decision.

Helvering v. Hallock, supra, at 119-120, 84 L.Ed.

at 612.

398 U.S. at 241-242, 26 L.Ed.2d at 205.

In the case of Feres, as Justice Scalia so clearly eluci-

dates in United States v. Johnson, the initial decision

was directly contradictory to the plain language

of the congressionally enacted FTCA; “subsequent de-

velopments” (in the form of Supreme Court decisions)

have discredited the original rationales stated in Feres,

further suggesting the need for reexamination of that

unfortunate decision; and there has been no indication

7”

from Congress of a “clear design that congressional in-

action [should] be taken as acceptance” of Feres.

Indeed, in one of the most recent decisions of this Court,

United States v. Stanley, 107 S. Ct. 3054, —___U.S.___

(June 25, 1987). Justice Scalia, speaking for the Court,

discusses the significance of the power given Congress by

the Constitution with regard to matters affecting the mili-

tary and how, once Congress speaks, the Court should give

Congress its say. 107 S. Ct. at 3062, 3063. As Justice

Scalia reasons in the minority opinion in United States

v. Johnson, if Congress, with all of its Constitutional

power in military matters, had wanted to exempt matters

“incident to military service” from FTCA coverage it

could have easily done so, but Congress freely—and we

believe purposefully—chose not to do so.

We respectfully suggest that this case is the time and

the place to remove the blight of Feres.

III. Even if the Feres doctrine is not over-turned

wholesale, it certainly should not be ex-

tended to apply to the claims based upon

pre-induction negligence, in-service situa-

tions where VBA benefits have not been

paid, post-discharge negligence and the in-

dependent claims of the civilian wives and

children of the Vietnam veterans.

It goes without saying that the Supreme Court has not

yet passed directly upon the questions of whether or not

the Feres doctrine was meant to preclude direct and de-

rivative claims of veterans and their wives and children

based upon pre-induction negligence, in-service situations

where no benefits have been paid, post-discharge negli-

gence and the independent claims of civilian wives and

children of the servicemen. As is obvious from the

majority opinion in United States v. Johnson, great weight

was placed upon the fact that “his wife (Johnson’s wife)

received and is continuing to receive statutory benefits on

account of his death”. 107 S. Ct. at 2068, 2069. The

Court stated:

. . . Where a service member is injured incident to

service—that is, because of his military relationship

with the Government—it “makes no sense to permit

the fortuity of the situs of the alleged negligence to

affect the liability of the Government to [the] ser-

viceman.” Ibid. Instead, application of the under-

lying federal remedy that provides “simple, certain,

and uniform compensation for injuries or death of

those in armed services,” Feres, supra, at 144 (foot-

note omitted), is appropriate.

Second, the existence of these generous statutory

disability and death benefits is an independent rea-

son why the Feres doctrine bars suit for service-

related injuries. In Feres, the Court observed that

the primary purpose of the FTCA “was to extend a

remedy to those who had been without; if it inci-

dentally benefitted those already well provided for,

it appears to have been unintentional.” 340 U‘S. at

140.

107 S. Ct. at 2068.

It is undisputed, as noted above, that in this case the

Veteran’s Administration has rejected all Agent Orange

claims by the plaintiffs for benefits. Therefore, the factual

basis for the controlling rationale relied upon by the

majority in Johnson is totally absent in this case.

The other, primary rationale employed by the majority in

Johnson is the one involving “military discipline and effec-

tiveness”. One has only to utilize sheer common sense to

recognize that claims for pre-induction negligence and post-

discharge negligence, as well as independent claims by civili-

an wives and children, can in no way affect military disci-

pline or effectiveness. See the discussion along these lines by

Justice Scalia in the dissent in Johnson, 107 S. Ct. at 2073,

2074. We do not understand the majority opinion in

United States v. Stanley to in anywise contradict the mi-

nority opinion in Johnson. The question of FTCA cov-

erage was dismissed by this Court in Stanley as not hav-

ing been properly before the Eleventh Circuit, 107 S. Ct.

3059, 3060, and, therefore, this Court did not pass upon the

rationale of the Eleventh Circuit, Stanley v. United States,

749 F.2d 1530, that post-discharge negligence allegations

might constitute “a viable FTCA claim against the United

States”, despite Feres. See discussion id.

This Court, in Stanley, was deciding whether a veteran

had a cause of action for money damages under Bivens v.

Six Unknown Named Agents of Federal Bureau of Nar-

cotics, 403 U.S. 338 (1971) (“Bivens cause of action’),

against certain individuals whom he claimed were respon-

sible for secretly administering LSD to him during his

term of service. In holding that Bivens did not extend to

“incident to service” misconduct, Justice Scalia signifi-

cantly noted that “if anything we [the Court] might have

felt more free to compromise military concerns in the

latter context [FTCA suits], since we were confronted

with an explicit congressional authorization for judicial

involvement that was, on its face, unqualified; whereas

we are here confronted with an explicit constitutional

authorization for Congress ‘[t]o make Rules for the Gov-

ernment and Regulation of the land and naval Forces’,

U.S. Const. Art. 1, Sec. 8, cl. 14, and rely only upon

inference for our own authority to allow money dam-

ages.” 107 S. Ct. at 3062.

With these comments we now proceed to discuss each

of the categories of claims.

A. Suit for pre-induction negligence is not

barred by Feres.

There are numerous reasons why Feres should not op-

erate as a bar to the pre-induction allegations contained

in plaintiffs complaint. The first and foremost is that

there is no reason consistent with military morale or effi-

ciency why pre-induction military conduct cannot subserve

liability. The Government, the district court and the Court

of Appeals argued to the contrary, relying on Healy v.

United States, 192 F.Supp. 325 (S.D.N.Y. 1961), aff'd

295 F.2d 958 (2 Cir. 1961) and its progeny. See 603 F.

Supp. at 245 and 818 F.2d at p. 200. The problem is

that they stretched Healy beyond its peculiar facts.

Moreover, contrary to what the lower court held with-

out analysis, none of the three Feres rationales are affected

by accepting pre-induction claims. It is beyond cavil here

that the veterans have no VBA benefits. There is no

military discipline involved at the pre-induction stage

other than in the pre-induction physical to which Healv

relates solely, and which is not involved in these cases.

And there is nothing “distinctively federal” about product

design, military specifications, product manufacture, and

the requirement to warn and to warn adequately of

hazards. See Aretz v. United States, 503 F.Supp. 260

(S.D. Ga. 1977), aff'd 605 F.2d 417 (Sth Cir. 1979),

reh. granted 616 F.2d 254, reh. 635 F.2d 485, cert’d

ques. answered 280 F.2d 345, remanded 660 F.2d 531.

Even if there were, that requirement was jettisoned in

the cases of Indian Towing Co. v. United States, 350

U.S. 61 (1957) and Rayonier, Inc. v. United States, 352

U.S. 315 (1957), as noted in Healy itself and dis-

cussed in Justice Scalia’s dissent in U.S. v. Johnson. More-

over, the focus of the plaintiffs’ strict liability claims under

sec. 402A of the Restatement 2d of Torts is on the

product, not on the conduct of the United States.

In short, Feres does not bar recovery for pre-induction

torts or strict liability because: (1) neither Feres itself

nor its rationales apply and (2) the focus of the inquiry

in strict liability is on the product.

B. Feres should not be applicable to in-

service situations where no _ benefts

have been paid.

As we indicated above, if anything is made clear by

the majority opinion in U.S. v. Johnson, it is that claims

based upon in-service situations must be treated differ-

ently where no VA benefits are being paid, from those

where VA benefits are being paid. As we have stated,

this case involves one where it is undisputed that VA

benefits are not being paid with respect to the plaintiffs’

Agent Orange claims. Against this background of malig-

nant neglect and literally unswerving denial of service-

connection by the V.A., the United States, in the district

court, trumpeted the assertion that those selfsame vet-

erans’ claims were “incident to service” under a Feres

doctrine which articulates that such injuries should be

compensated under a “uniform . . . certain compensation

system.” 340 U.S. at 144. There is no such “certain”

system here. There is no compensation at all. There is,

in short, no “quid” for the “pro quo” which has always

been the fundament of the constitutionality of the ex-

clusivity of a compensation system.

The third supposed rationale of Feres—military dis-

cipline—is discussed in United States v. Brown, 348 U.S.

100 (1954). Brown held that post-discharge negligent

treatment of a service-connected injury in a VA hospital

was actionable under the Tort Act, even though the plain-

tiff had already received added benefits for superimposed

malpractice injury under the VBA, because the by-then

civilian ex-serviceman was not under military d..cipline

at the time. By the same token, the injuries of the plain-

tiffs in this case were not manifested until many years

after their service. And, as the district court in this case

earlier held, “it is the degree of that effect [on discipline]

that is important.” 580 F.Supp. at 1250-51.

Not only are the Feres rationales not met here, but the

failure to meet the “certain” compensation system ration-

ale is and should be fatal to the United States’ reliance

upon Feres. We begin with the proposition that the

United States will “be liable . . . in the same manner

.. . a§ a private individual” under the FTCA (28 U.S.C.

2674). Next add the fact, as noted above, that these

plaintiffs have been denied benefits under the VBA. What

plaintiffs seek here is judicial recognition of those denials,

not in the sense of res judicata or collateral estoppel,

but as a prefix to liability under the FTCA.

The plain truth it that to say administratively that the

injuries are not service-connected and to say in court

that they are incident to service smacks of inconsistency

rather than acceptable alternative pleading. This Court

has inherent authority to estop the United States from

invoking the Feres doctrine, just as the court in Allen

v. United States, 588 F.Supp. 247, at 345-346 (Utah,

C.D., 1984), revd 758 F.2d 1384 (10th Cir. 1987),

cert. application pending, effectively estopped the United

States from asserting the statute of limitations against the

radiation claims there involved. Finally, as Justice Scalia

observed in Johnson, the courts should be especially

vigilant to prevent unwarranted extension of Feres since

the defense is a court-created, not a legislatively-man-

dated, doctrine.

C. Feres cannot bar recovery for the post-

discharge torts alleged in this case.

In the veterans’ complaint, post-discharge torts are

pleaded as a completely separate and alternative cause

of action. That alternative cause of action accepts the

repeated assertions of the United States throughout the

course of this litigation that during the Vietnam war,

the Government did not have knowledge that the Agent

Orange used in Vietnam was contaminated with signifi-

cant amounts of dioxin, and was not aware of the hazards

of such dioxin-contaminated herbicide. More specifically,

the second cause of action alternatively alleges that the

Government began to attain such knowledge in late 1969,

and that thereafter there was a veritable “explosion of

9 5

knowledge”.

In any event, for purposes of this Petition and insofar

as the United States’ motion to dismiss below is concerned,

the allegations of the complaint must be taken as true.

Schuer v. Rhodes, 416 U.S. 232, 236 (1974); Conley

v. Gibson, 355 U.S. 41 (1957); Molsbergen v. United

States, 757 F.2d 1016 (9th Cir. 1982), at 1918, fn. 2.

Thus, for the purposes of the second cause of action, the

Court should give effect to the alternative allegations

that the Government’s information concerning the dangers

of Agent Orange did not even begin to accrue until late

1969. The issue of exactly when the Government’s infor-

mation grew to the point where it can be said it had

knowledge of the dangers of Agent Orange and was neg-

ligent in failing to warn and monitor, need not be decided

5. That knowledge came from various sources, including the

registration proceedings under the Federal Insecticide, Fungicide

and Rodenticide Act (FIFRA) concerning 2,4,5-T, conducted by the

U.S. Department of Agriculture and its successor, the EPA, as regu-

lator of herbicide registrations; scientific studies prepared or ac-

quired by EPA; environmental impact statements issued pursuant

to the National Environmental Policy Act (NEPA), 42 U.S.C. sec.

4321, et seq., in connection with 2,4,5-T spraying in national forests;

litigation under FIFRA; and NEPA studies conducted by or in

behalf of the VA and other federal and state agencies and depart-

ments in connection with Agent Orange legislation, including the

Veteran’s Health Programs’ Extension and Improvement Act of

1979 (Public Law 96-151), and the Veterans Health Care Training

and Small Business Loan Act of 1981 (Public Law 97-72).

now; it is enough that under the alternative allegations

in the complaint, the Government’s knowledge arose

during the post-discharge period.°®

Case law has not held that Feres inflexibly bars all

FTCA suits against the United States merely because the

claim is linked with an in-service injury. The Supreme

Court itself has allowed recovery under the FTCA where

negligent acts were committed by the Government after

the veteran had left the service. U.S. v. Brown, supra,

348 U.S. at 110. Since Brown, and both before and after

the district court’s ruling in the instant case, many cases

have recognized a cause of action for the government’s

negligent post-discharge failure to warn (and/or monitor

or treat) a veteran who had been previously injured or

exposed to a harmful substance while still in the service.

See Molsbergen v. United States, supra, 757 F.2d at 1016;

Cole v. United States, 755 F.2d 873 (11th Cir. 1985);

Broudy v. United States, 661 F.2d 125 (9th Cir. 1981),

after remand, 722 F.2d 566 (9th Cir. 1983); Shipek v.

United States, 752 F.2d 1352 (9th Cir. 1985); Kohn v.

United States, 680 F.2d 922, 926 (2nd Cir. 1982);

Taggett v. United States, 551 F.Supp. 1231 (N.D. Cal.

1982); Seveney v. United States Government, Dept. of

Navy, 230 F.Supp. 653 (D.C. R.I. 1982); Schwartz v.

United States, 230 F.Supp. 536 (E.D. Pa. 1964); Everett

y. United States, 492 F.Supp. 318 (S.D. Ohio 1980);

6. A summary of the allegations of the second cause of action

is instructive. Plaintiffs allege that, after the plaintiffs’ respective

discharges, the United States owed a special duty to former service-

people to warn them of the potential hazards to their health of the

Agent Orange to which they had been exposed, and to see to it that

they were properly diagnosed, treated and compensated for illnesses,

etc., sustained as a result of their service in Vietnam. It is further

alleged that a failure to counsel the veterans and their families

regarding genetic and reproductive hazards of herbicides and the

failure to test, after the fact, the herbicide it Aad used in Vietnam

to determine whether it presented any health hazards to former

servicemen, was negligence.

Thornwell v. United States, 471 F.Supp. 344 (D.D.C.

1979).

It should be noted that the plaintiffs in Cole did not

allege that the Government had no knowledge of the

dangers of radiation until after plaintiffs’ discharge,

but instead alleged that in the post-discharge period

the Government’s knowledge expanded to the point

where there arose a new duty to warn of the danger.

Id. at 875, 876, fn. 4. See also, Jd. at 878, fn. 14.

Moreover, the 11th Circuit distinguished the “continuing

tort” theory (which was also cited by the district court in

the instant case in favor of dismissal, 603 F.Supp. at 245)

from the theory that the Government’s expanded knowl-

edge creates a new duty to warn. 755 F.2d at 876-877.’

It is clear that the decision of the Court of Appeals

below, in holding that Feres bars claims based upon post-

discharge negligence, has created severe conflicts among

the circuit courts which suggest the intervention of this

Court to resolve those conflicts. Certainly such interven-

tion is appropriate when the conflicts involve a case of

such profound national importance.

Moreover, as the cases cited above reflect, an analysis

of the three Feres rationales, as they apply to plaintiffs’

post-discharge tort claims, further underscores the con-

clusion that such claims are not barred. In analyzing these

factors it is important to recognize that the post-discharge

torts alleged are claims by civilians (former servicepeople)

who challenge the Government (primarily non-military

departments) for failure to act (failure to warn, counsel,

diagnose, treat, monitor, etc.) in the period after dis-

7. See also the academic literature discussing the cases and sup-

porting the viability of post-discharge torts under Feres; e.g., Judi-

cial Recovery for the Post-Service Tort: A Veteran’s Last Battle, 14

Pac.L.J. 333 (1983); Duty to Warn as an Inroad to the Feres

Doctrine: A Theory of Tort Recovery for the Veteran, 43 Oh.St.

L.J. 267 (1982).

charge, based on knowledge gained after discharge, and

who seek compensation not for the exposure to Agent

Orange, but for the manifestation and aggravation of their

injuries and the inability to ameliorate them due to the

lack of a timely warning and treatment once the dangers

and risks of Agent Orange exposure had been learned

by the United States.

D. Feres does not bar independent claims

of wives and children of Vietnam vet-

erans.

Judge Weinstein, in In re Agent Orange Product Liabil-

ity Litigation, 580 F.Supp. 1242 (E.D. N.Y. 1984),

stated the issue with respect to the wives and children

succinctly:

The wives’ contentions are that their husbands’ ex-

posure to Agent Orange damaged their husbands’

sperm causing them to miscarry. The children claim

that genetic damage to their fathers caused their own

birth defects.

580 F.Supp. at 1247. As with the pre-induction negligence

claims, the in-service claims where the VBA has denied

benefits and the post-discharge negligence claims, this

Court has never expressly addressed the issues with regard

As to the three rationales given to justify Feres, Judge

Weinstein, whose first decision on the subject we take the

rare step of adopting, 580 F Supp. at 1250, et seq., had

this to say about those rationales in the context of the

claims of the wives and children: (1) The rationale of a

“uniform, comprehensive, no-fault compensation scheme”,

Feres, 340 U.S. at 145, “does not apply to the independent

claims of the wives and children” because “that group

will not be compensated by the Veterans Benefit Act for

their own injuries” and allowing their suit would fulfill

“the primary purpose of the (FTCA), [viz] to extend

a remedy to those who had been without (a remedy).

Feres, 340 U.S. at 140”. 580 F.Supp. at 1250.

(2) Suits by civilians alleging military negligence

have been permitted “without even discussing the

effects of the suit on military discipline”. 580 F.Supp.

at 1250, citing Bridgford v. United States, 550 F.2d 978

(4th Cir. 1977); Williams v. United States, 435 F.2d

804 (1st Cir. 1970); Arrendale v. United States, 469

F.Supp. 883 (N.D. Tex. 1979); Steele v. United States,

463 F.Supp. 321 (D. Alaska 1978). See generally, Note,

The Effect of the Feres Doctrine on Tort Actions Against

the United States by Family Members of Servicemen, 50

Fordham L. Rev. 1241, 1244 (1982). As Judge Wein-

stein stated:

The fact that an officer might refrain from giving an

order to the soldier because a civilian might ulti-

mately sue the United States is so ephemeral and

far-fetched that it is given no weight at all in deter-

mining the limits of Feres. . . . There is another

reason why the military discipline argument seems

tenuous here. We are called on to decide claims that

arise out of military orders given some twenty years

ago. . . . Lombard v. United States, 690 F.2d 215,_

233 (D.C. Cir. 1982) (Ginsburg, J., dissenting).

580 F.Supp. at 1250, 1253; (3) With regard to the third

rationale, based upon the “distinctively federal . . . char-

acter” of the relationship between the servicemen and the

government, Feres, 340 U.S. at 143, the relationship of

the wives and children’s independent claims with the

federal government is not “distinctively federal in char-

acter”, 580 F.Supp. at 1254, and, as Judge Weinstein

pointed out, “the [district] court has concluded that on

many substantive issues one law will apply to all claims”

and, therefore, the “fortuity of the place of injury will

. not affect their recovery”. id. at 1254.

The Court of Appeals, in concluding that Feres barred

the independent claims of the wives and children, Adams,

818 F.2d at 202-204, has once again generated a

conflict with other courts of appeals and has unreason-

ably extended the court-crafted Feres doctrine into mortal

conflict with the intent of Congress when it adopted

the FTCA.

As we noted above, Justice Scalia suggested that if

Feres is not going to be overturned, it certainly should

not be extended any further. 107 S. Ct. 2070, 2075. What

Justice Scalia had to say is consistent with the attitude of

the Supreme Court previously expressed in United States

v. Yellow Cab Co., 340 U.S. 543, 554 (1951):

We think that the congressional attitude in passing

the Tort Claims Act is . . . accurately reflected by

Judge Cardozo’s statement in Anderson v. John L.

Hayes Construction Co., 243 N.Y. 140, 147, 153

N.E. 28, 29-30: “The exemption of the sovereign

from suit involves hardship enough, where consent

has been withheld. We are not to add to its rigor

by refinement of construction, where consent has

been announced.”

In sum, we submit that the Supreme Court should no

longer remain silent on these issues—pre-induction negli-

gence, in-service negligence where the plaintiffs have had

no compensation relief, post-discharge negligence,* and

the independent claims of wives and children in the con-

text of this case—particularly in view of the importance

8. We do not wish to imply that U.S. v. Brown does not possibly

constitute a dispositive precedent with regard to post-discharge negli-

gence. Justice Scalia, in Stanley, seems to imply that it might be just

that kind of precedent. 107 S. Ct. 3058, 3059. (Where Brown was cited

in reference to the plaintiffs’ post-discharge negligence claims). But

Justice Scalia also noted that “no-holding is broader than the facts

before the court”, id. at 3062, and we, therefore, simply say that

Brown at least provides analogous precedent with regard to post-

discharge negligence.

of those issues to the body of law involving the FTCA.

Moreover, in view of the expressions of doubt about the

continued validity of the Feres doctrine; the skepticism

about any further extension of it; the direct and inferred

conflicts among many of the courts of appeals’ decisions

on these very issues; and the overriding national import-

ance of this case, we suggest that this is a compelling case

for certiorari intervention by this Court.

IV. The Court of Appeals Erred In Sweeping

Away The Plaintiffs’ Claims Against The

United States Government Under the “Dis-

cretionary Function Exception”.

The most recent pronouncement by the Supreme Court

concerning the discretionary function exception to the

FTCA is United States v. S.A. Empresa De Vicio Area

Rio Grandense (Varig Airlines), 467 U.S. 797, 81 L.Ed.

2d 660 (1984) (hereinafter referred to as the “Varig

decision”). In that case, the Court held that the dis-

cretionary function exception to the FTCA extends to

the discretionary acts of the government acting in its role

as a regulator of private individuals. In this case, there is

absolutely no contention against the United States Gov-

ernment that it was negligent in performing discretionary

acts while acting in its role as a regulator of private in-

dividuals. Thus, Varig does not apply to this case.

As we indicated in our Preliminary Statement, plaintiffs

in this case did nor allege negligence in connection with

the decision of the military to use Agent Orange in Viet-

nam to defoliate the jungles. That decision could very

well have been a discretionary function. The negligence

and product defects which we allege to have occurred

relate not to the making of that decision but solely to the

manner in which that decision was carried out.

This case is closely analogous to the case of Indian

Towing Company v. United States, 350 U.S. 61 (1955).

This Court in Indian Towing, after considerable discus-

sion, concluded as follows:

The Coast Guard need not undertake the light-

house service. But once it exercised its discretion

to operate a light on Chandeleur Island and engen-

dered reliance on the guidance afforded by the light,

it was obligated to use due care to make certain

that the light was kept in good working order; and,

if the light did become extinguished, then the Coast

Guard was further obligated to use due care to

discover this fact and to repair the light or give

warning that it was not functioning. Jf the Coast

Guard failed in its duty and damage was thereby

caused to petitioners, the United States is liable

under the Tort Claims Act.

350 U.S. at 69; emphasis ours.

In this case, as we stated above, we do not question

the decision of the United States to utilize Agent Orange

in Vietnam for the purpose of defoliating the jungle.

Whether that decision was right or wrong; whether it was

negligently made or not; whether it was properly made

or not do not constitute the basis of our allegations and

do not form any part of our cause of action. What we

do allege is that once the decision was made to use

Agent Orange, as the decision was made by the Coast

Guard in Indian Towing to “undertake the lighthouse

service”, the United States had the continuing duty to

carry out that decision prudently. It had the duty not

to use defective or contaminated products. It most cer-

tainly had the duty to warn the servicemen of the dangers

of Agent Orange. It had the duty to provide prophylatic

and other protective gear that was state of the art in

order to eliminate or reduce the hazards of exposure.

It had the duty to medically monitor the servicemen with

respect to their exposure. It had the duty to give pre-

induction warnings and exercise prudence with regard to

pre-induction matters. It had the duty, on a post-discharge

basis, to warn the plaintiffs of the dangers of Agent

Orange, medically monitor the plaintiffs, and provide

medical care and aid to them. It had the duty to warn,

counsel and medically monitor the wives concerning

pregnancy and potential genetic damage to their husbands.

In short, the acts of commission and omission and product

defects which plaintiffs have asserted in this case are

precisely analogous to those which this Court has said

in Indian Towing do not come within the umbrella of

the discretionary function exception.

Another observation should be added to our discussion

of the discretionary function exception. As Judge Wein-

stein observed, the record before the district court did

not contain a complete and conclusory negation of all

possible and potential fact issues with regard to that

exception. Judge Weinstein noted:

The record is not sufficiently developed at this point

to enable the court to conclude whether the govern-

ment’s decisions come within the discretionary func-

tion exemption. It is not clear who made the relevant

decisions or what those decisions were. It would

therefore be improper to grant summary judgment.

580 F.Supp. at 1255-1256. The foregoing is consistent

with the general observations of this Court in Adickes

v. Kress, 398 U.S. 260 (1970), concerning fact issues.

We do not understand why the Court of Appeals was so

extravagant in its assumption of facts which either were

obviously in dispute or which had not been conclusively

negated by the Government.

It is in the interest of justice for this Court to grant

certiorari because of the urgent need to maintain uni-

formity of decisions and for judicial clarification of the

discretionary function exception and its application to a

case such as this one.°

CONCLUSION AND PRAYER

Justice O’Conner, in her dissent in U.S. v. Stanley,

stated that “[nJo judicially crafted rule should insulate

from liability . . . involuntary and unknowing human

experimentation”. 107 §. Ct. at 3065. Much reference

has been made of the use of Agent Orange as a tool

of chemical warfare (destroying food crops as well as

exposing human beings, including our own soldiers,

to highly toxic chemicals) in possible violation of treaties

as old as the Hague Convention Respecting the Laws

and Customs of War on Land, Oct. 18, 1907, 36 Stat.

2277, T.S. No. 589 (Hague Convention), Art. 23(a).

In all candor, we did not raise the constitutional tort

issues, even though they were pled in the district court,

in our appeal in the Second Circuit and, therefore, we

cannot raise them now. However, we mention the specter

of chemical warfare because of its serious implications—

to our soldiers, to all people everywhere and to the

9. Although they had nothing to do with the decision of the

Court of Appeals in this case, Judge Weinstein, in one of his many

reversals of opinion (compare 603 F.Supp. 239 with 580 F.Supp.

1242) did mention in 603 F.Supp. two other exceptions to the FTCA,

the combatant activities exception, Sec. 2680(y), and the foreign

country exception, 28 U.S.C. 2680(k), as being possible grounds

for denial of FTCA coverage. However, as he earlier explained, these

two exceptions simply do not apply; the combatant activities ex-

ception does not apply because it only involves actually engaging the

enemy in the exercise of physical force and violence; the foreign

country exception is not applicable because it was designed to ensure

that “the United States (is not subject) to liabilities dependent upon

the laws of a foreign power”; only United States law has been held

to apply in the Agent Orange case, /n re Agent Orange Products

Liability Litigation, P.T.O. 92, 580 F.Supp. 690, 707 (E.D. N.Y.

1984); moreover, the foreign country exception applies only to acts

or omissions occurring in the foreign country, not to those arising

in the United States. 580 F.Supp. at 1254-1255 and the authorities

therein cited.

survival of our planet—and because, though it may not

be a direct issue before this Court, it surely enhances the

importance to this nation of a consideration by this Court

of the direct issues which are here presented.

In the final analysis, it is our brave soldiers who are

our primary concern in this litigation and it is a national

tragedy that a federal judge has thrust upon them a

settlement they did not want; our Government has not

only denied liability but has skillfully distorted the

causation issue by using tax dollars to finance epidemi-

ological studies not based upon sound epidemiological

principles (such as the Ranch Hand study conducted

by the Air Force);’® our Veteran’s Administration

has callously turned its back on their claims; and the

Congress has done no more than give lip-service—but

no benefits—to solve this nation’s nagging Agent Orange

problem.

As Justice Brennan stated in Stanley, 107 S. Ct. at 3077,

“{sloldiers ought not be asked to defend a Constitution

indifferent to their essential human dignity.”

Plaintiffs pray the Court to grant certiorari in this case.

10. The Ranch Hand Study involved an analysis only of the Air

Force personnel who did the spraying, went back to base every night,

bathed, slept clean, drank clean water and ate clean food. It did not

involve the soldiers who fought on the ground, had Agent Orange

sprayed on them, traveled through heavily sprayed brush, ate food

and drank water contaminated with it and slept in clothes soaked

in it. Yet, the Air Force had the audacity to claim the Study con-

stituted proof of no causation with respect to the ground troops.

Respectfully submitted,

BENTON MUSSLEWHITE

609 Fannin, Suite 517

Houston, Texas 77002

(713) 222-2288

Topp ENSIGN

Citizen Soldier

175 Fifth Avenue

New York, New York 10010

Counsel for Petitioners

CERTIFICATE OF SERVICE

I hereby certify that on this day of August,

1987, true and correct copies of the above and foregoing

Petition for Writ of Certiorari were sent to all counsel

of record.

Solicitor General of the United States

Tenth St. and Constitution Ave.

Washington, D.C. 20530

Jay Tidmarsh

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 888

Benjamin Franklin Station

Washington, D.C. 20044

Joan Bernott

United States Department of Justice

Civil Division

Torts Branch

521 12th St., N.W., Room 822

Washington, D.C. 20530

L. Kevin Sheridan

Executive Assistant

U. S. Attorney

Eastern District of New York

United States Courthouse

225 Cadman Plaza East

Brooklyn, New York 11201

BENTON MUSSLEWHITE

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

THOMAS ADAMS; TEREAS ADAMS; JOHN

L. ANDERSON; RITA ANDERSON; BILL

ANGILAN; DANIEL ANQUETIL; PATTY

ANQUETIL; ANGELO ANTINORO, JR.,

RONALD L. ANTRIM; JAMES H. APPLING:

RAY R. ARAGON; SHERRILL C. ARMAND:

MRS. SHERILL C. ARMAND, MRS. MARK

L. ARNOLD; JOSE ARROYO; MRS. JOSE

ARROYO; WILLIAM B. ASKEW; JOANN

ASKEW; JOSEPH L. AUYER; MRS. JOSEPH

L. AUYER; WILLIAM BALDERAS; MRS.

WILLIAM BALDERAS; MRS. STELLA BAL-

DERAS; EDWARD F. BELICE, JR.; MRS.

MAMIE L. BERRY; EUGENE BERRY JR.;

JAN M. BEST; JAMES A. BIEGGER; JOHN

M. BIGGS; KENNETH J. BIHLER; EVER-

ETT P. BRYCE; CONNIE MITCHELL;

NOAH W. MONK; THOMAS G. MONTA-

GUE; INEZ I. MONTES; MRS. ESTELLO

MONTES; RUBEN MONTES; MRS. DELIA

MONTES; MICHAEL E. MONTGOMERY;

ANDREW L. MOOTHART; LEANNA MOOTH-

ART; NANCY MORIARTY; EDWARD J.

MORIARTY, JR; PAUL R. MOREN; DALE

L. MORIN; JAMES W. MORRIS; VINCENT

R. MOSES; EUGENE C. MOSHER; BOB

MOSIER; MRS. CAROLIN MOSIER; SAM

MOSS; ROBERT F. MULFORD; YVONNE

MULFORD; LORENZO T. ANTHONY H.

MUNRO; PATRIC J. MURPHY; RODGER

MURRAY; MRS. BIRTHA MURRAY; TIMO-

THY A. HOBERT W. NELSON; ALBERT

NERIA; BONITA NERIA; ROBERT NEW-

COMBE; GEORGE M. NEWMAN; RICHARD

BUIE; MRS. CATHY BUIE; TRUMAN E.

BULLARD; DICKEY BYRD; LANDRY CAL-

LEGIN; ZANE H. CASSELL; ROBERT CAS-

TAGNA; DONALD G. CHESSMAN; LEDON

CARLTON R. CHRISTENSEN; ROBERT

C.A.-1-85-6065

CLEMENTS; RANDY B. COATES; JOSEPH §

F. CONNOLLY, II; MALCOLM COX; JAMES §

Vv. DALE; RAYMOND F. DALY; JIMMY G. §

DANIEL: HERBERT L. DAWSON: CLIF- §

FORD R. DAY: RICHARD DECK; MRS. §

DONNA DELONEY; JAMES A. DELONEY; §

ALBERT DESPER; JACOB W. DEWOLF; §

MRS. DEBRA DEWOLF; ROBERT E. DOU- §

CETTE: RANDOLPH DUDLEY; ROBERT §&

M. DUNN; MRS. JANICE DUNN; MELVIN §

A. ELLIS: MRS. MELVIN A. ELLIS; JOHN §

ELWIN: DELBERT G. FELDMAN; BAR-_ §

BARA J. FELDMAN; RICHARD FIEDER- §

LEIN: ELAIN FIEDERLEIN; GARY W. FISH- §

ER: WAYNE W. FORD; MARGARET FORD; §

ROBERT J. FRAY; M. K. FRESBIE; MRS. §

MATTIE J. GALLUP; ROBERT GALLUP; §

ERNEST GANDY: MRS. ERNEST GANDY; ~@—G4-+85-6065

ROJELIO GARCIA; JOE S. GIBBONS; DAVID §

M. GODFREY; KATHLEEN GOMES; JOHN §

GOMES, JR.; RICHARD B. GONZALEZ; §

NYDIA GONZALEZ: WILLIE B. NEWSON; §

ELLIS E. NICHOLAS, JR.; JANET F. NICH- §

OLS: MRS. JOSEPH G. NICHOLS; ELLIS E. §

NICHOLS: ELLIS E. NICHOLS, JR.; LARRY §

D. NICHOLSON: STANLEY C. NICHOLSON; §

MRS. STANLEY C. NICHOLSON; BETTY M. §

NICHOLSON: TERRY M. NOAH; MRS. 8

TERRY M. NOAH; DANIEL D. NUTTER; §

KAREN NUTTER; MARTIN J. NUYIANES; §

THOMAS A. O’HEARN; FREDERICK OL- §

DORFF; MRS. KIMI OLDORFF; JAMES §

O'NEAL: JAMES E. OUTLER; JOHN C. §

OWEN: MRS. ALVA R. OXYER; EDWARD §&

W. OXYER: DONATA PALUMBO; MRS. §&

THOMAS R. PARKER; THOMAS M. PARK- §

ER: ROBERT L. PARNELL; PETER F. PAS- §

QUALE; GENE W. PATZER; MICHAEL K. §

PAULEY: HENRY L. PAYNE; EARL L. §

PAYNE: MRS. PATTI PAYNE; WILLIAM §

E. PEARCH: BUDENA PEARCH; JEFFREY §

PERLA: MRS. CHERYL J. PICARD; LOUIS §

R. PICARD: MRS. KATY L. PICKETT; LAW- §

RENCE T. PICKETT; THOMAS J. PIZZUTO; §

MRS. ANN PIZZUTO; JAMES M. PLEI- §

CONES: MRS. BETTY B. PLEICONES; GUY §

A. PLOTT: ERNEST PONTI; KENNETH B. §

POOLE; ROBERT S. POPE, JR.; MRS. EVE-

LYN POPE, JR.; MARK A. POWERS; JOHN

H. PRICE; WILLIAM E. GREENE; DOUG-

LAS W. GREGORY; MARY GREGORY;

RICKY R. GRESHAM; RICHARD E. HAEHL:

ROGER R. HAGWOOD; WADE HARDIN:

MRS. JOYCE I. HEWITT; PERCELL E. HEY-

WARD; WILLIE A. HICKS; JUDY J. HIG-

GINS; HARRY J. HILEWITZ; DENNIS G.

HOBACK; STEVEN D. HOLLOWAY; JAMES

M. HOLMES: JOHN J. HOMICKI; JOHN L.

HOOVER; GORDON R. HORNE; SHIRLEY

R. HOUSE; MARY HOUSE; KEVIN J. HOW-

ARD; RONALD J. HOWELL; MAUREEN

HOWELL: THEODURE J. HRONES; DON-

ALD J. HUBERT; TERRY HUCKABY; PEG-

GE J. HUCKABY; CLAUDE HYATT; DIANE

HYER; CLARENCE I. HYER, JR.; GEORGE

T. IMES; JAMES R. JAHNZ; RICHARD

JAMES; JAMES A. JANKO; ALBERT H.

JARRY; PATRICIA M. JARRY; L. W. JOHN-

SON; MRS. SHON JOHNSON; STEPHEN

B. JONES; LEE F. JONES; MRS. JOAN I.

JONES: DAN JORDAN; MRS. DONNA JOR-

DAN; ESSIC J. JORDAN; ROBERT L. JOR-

DAN: FRED KAMMERZELL; MRS. FRED

KAMMERZELL; ROBERT F. KANE: MRS.

COLLEEN KANE; JAMES KANE: JOHN L.

PRICE; RICHARD J. PROFERA; MRS.

CATHY PROFERA; DANIEL A. PYNN;

RUTH PYNN; ELMER R. RADFORD; MRS.

SANDRA K. REARDON; EDMUND R. REAR-

DON, JR.; MERLE REDCAY; ERROL L.

REDDOCK; RICHARD REID; MICHAEL

REILLY; ROBERT R. RETZ; MRS. JUDITH

RETZ: FREDDIE RHAMES; PAUL M. RICH-

ARDS; ALFRED F. RICK; MRS. PAULA

RICK: DENNIS N. RICKLEY; WILLIAM R.

RIDNER; MRS. SHARON RIDNER; MARK

R. RIENZIE; VIRGINIA E. RIGGS; THOMAS

RILEY; ANGELO J. RITA; LAWRENCE F.

RITCHIE; MRS. HELGA RITCHIE; ARTHUR

C. RITTER; PAMELA J. ROBACK; RICH-

ARD J. ROBACK; JAMES D. ROBBINS:

MRS. DARNELLE ROBINS; STEPHEN S.

ROBBINS; ONNIE B. ROBINSON; ROY A.

RODRIQUEZ; RICHARD R. ROGERS; NA-

COP (OP CO? (0? CO? (0? CO? CO? CO? CO? (OR CO? CO? (0? CO? CO? CO? COR COR COR COR LI? COR LOR LOR CO? LP LOR LP? CO? L2 LP GOR LIP? LH? LI LP? LP LR LOR LI LP LP GI LP CP? GP

C.A.-1-85-6065

POLEON ROWELL; CRESCENCIO SAN-

CHEZ; EDDIE C. SANDEFER; FRED K.

SAUPE; HERMAN R. SCHINDLER; MRS.

KAREN L. SCHINDLER; MRS. BARBARA

SCHNEIDER; MICHAEL A SCHNEIDER;

ROBERT H. SEIFERHELD; BETTY SEX-

TON; LARRY G. SHALUER; ANDREW

KEENE; F. M. KENDALL; JAMES M. KUR-

ILKO; BRUCE R. LANG; EDWARD G. LAW-

IDA: HAROLD J. LEDFORD; JAMES H.

LENT: LINDA J. LENT; GARY P. LEON-

ARDELLI; LYNN LEONARDELLI; DONALD

LEWIS; DALE R. LEWIS, JR.; THOMAS M.

LINDSAY; ADRIAN L. LINKER; WILLIAM

B. LIPSCOMB; JOHN L. LOVE; GERALD

LOVEDAY; DONNA L. LOVEDAY; MELVIN

K. LOVELACE; MRS. EVELYN K. LOVE-

LACE; ROBERT S. LUCIANO; PATRICIA

LUCIANO; ROBERT B. LUFT; CAROL A.

LUFT; KAREN A. LUSCAN; JOSEPH T.

LUSCAN, JR.; VERNON E. LYTLE; JOE

MACLAREN; PETER W. MADLEM; WIL-

LIAM P. MAGNESS; RICHARD MANDRI-

OTA; LOUIS E. MANOGUE; MRS. TERRY

H. MANOQUE; MARIE MARCHIONE; KEN-

NETH D. MARCUM; MRS. JEANINE L.

MARCUM; MRS. GLORIA MARTIN; FED-

ERICO MARTINEZ; MRS. NOEMI MARTIN-

EZ; STEVEN W. MAXSON; TIMOTHY D.

McCALL; RICHARD F. McHUGH; EDWIN

J. McINTYRE; MRS. ELOIS McKINNEY;

HASKEL R. McKINNEY; BENJAMIN K. Mc-

KINNEY; ROXANE McKINNEY; PATRICK

D. McMAMUS; WARREN D. McPHERSON;

MICHAEL E. McQUILKIN; DENNIS M.

SHARKEY; MRS. DENNIS M. SHARKEY;

DENNIS M. SHARKEY; LEONARD G. SHEF-

LOTT; LEONARD E. SHEPARD; MRS.

LEONARD E. SHEPARD; MICHAEL L.

SHERMAN; MRS. SONDRA SHOURD; GER-

ALD SHOURD; WILBER E. SINGLETON;

RICHARD J. SKINNER; JACQUELINE C.

SMITH; STANLEY G. SMITH; GARY J.

SMITH; RONALD SMITH; JOE SMITH;

MRS. KATHERINE E. SPENCER; THOMAS

W. SPENCER, JR.; MRS. ELLEN SPIN-

ELLI; RONALD SPINELLI; MRS. MARY E.

CO? CO? (CO? 60? 60? G0? 60? CO? 60? CO? (0? 60? 60? 40? 40? CO? 60? (0? 60? C0? (0? CO? (0? 60? 60? 0? CO? 40? (0? CO? CO? 40? COR CO? CO? CO? (0? COR CO? CO? CO? (0? COR CO? (0? CO? CO?

C.A.-1-85-6065

STALEY; LESLIE J. STALEY; JERRY L.

STALMACH; RAYMOND N. STANCIL: STE-

PHEN STREET; WALTER A. SWENSEN;

CHESTER L. TALBERT; MRS. BRENDA

TALBERT; DAVID A. TAYLOR; RICHARD

D. TAYLOR; LESTER K. TAYLOR; JANET

L. THOMPSON; JOHN R. THORNE; CELIA

TIDMORE; LELAND TIDMORE; JIMMIE

D. TRIPLETT; JAMES TURNER; DAVID E.

TWEDEN; PATRICK VASSALLO; TERESA

J. VAUDA; GREGORY F. VAYDA; JAMES T.

VILLA; KARSTEN B. VOLLSTEDT; LINDA

WAGENMAKER; AARON S. WAGENMAK-

ER; LARNZO WALKER; BILLY R. WEIS-

SEND; MRS. ANN M. WHITE; WILLIAM

G. WHITE; MRS. PEGGY A. WIEBOLD:

ROGER L. WIEBOLD; GREGORY MEADE;

TIM A. MEHL; SYLVIA M. MEHL: ROBERT

MEYERS, JR.; JOHN A. MEZZANOTTE;

MRS. BRENDA MEZZANOTTE; ARLO W.

MICHEL; STEPHEN A. MICSAK; DONALD

MILLEDGE; JEFFREY MILLER: VICKI L.

MILLER; MICHAEL W. EDWARD A. MIL-

LER; MADELIN MILLER; ODELL R. MIL-

STEAD; LEONARD H. MINOR; CHARLES

D. MITCHELL; MRS. FLORENCE WIGGINS;

JAMES WIGGINS; KENNETH D. WIL-

LIAMS; MRS. LINDA L. WILLIAMS; JA-

COB WILLIAMS; JARRETT D. WILLIAMS;

MRS. CAROLYN A. WILLIAMS; KENNETH

C. WILSON; BARBARA WOLFE; HENRY

WOOLRIDGE; RICHARD O. WYANT: PAU-

LINE C. WYANT; LLOYD H. YARBROUGH;

ABEENE, JERRY E; ABEENE, JERRY E.

MRS.; ACKERMAN, RAYMOND; ACOSTA,

LEONARD; ANNABLE, ARNOLD, GUY L.;

LAKEY, HULON E.; MASTALSKI, JOHN J.;

MCCOY, THOMAS C.; MCINTYRE, LARRY;

MCKENNEY, JESSIE; MCKENNEY, SAM,

JR.; MCKIBBEN, CHARLES W.; MICHEL,

CARL F.; MITCHELL, ARTHUR; MURPHY,

EUGENE; ALDERMAN, JOE C.; ALDER-

MAN, JOEL P.; ALDERMAN, LINDA #£;

ALEXANDER, JOHN D.; ALEXANDER, SU-

SAN O.; ALICES, HARRY; ALLEN, LEON K.;

ALLEY, DONALD W.; ARNOLD, RONALD

L.; BACINA, JEANNETTE M.; BALAS, DON-

CCP CO? CO? (OP COR CO? CO? COR COP CO? CO? CO? CO? CO? CO? CO? CO? CO? CO? CO? CO? CO? CO? (0? (0? (02 (0? CO? CO? (OR CO? CO? 0? CO? C0? CO? COR CO? CO? 0? (0? (0? 0? CO? C0? C0? CO?

C.A.-1-85-6065

ALD W.; BALL, C.; BALL, JOHN J.; BALU-

KOFF, JEANINE; BALUKOFF, LOUIS;

BARAZ, LINDA; BARAZ, RODNEY H.;

BARRETT, GEORGE A.; BARRETT, GEORGE

A. MRS.; BARRON, DALTON E. L.; BAR-

TON, WALLACE 0.; BASS, BASS,

ANGELA; BASS, DALE M.; BASS, JERRY

W.; BAUER, EVELYN; BURCHETT,

GRAY R. MRS.; BURKE, BARRY J.;

BURKETT, RICHARD L.; BURTON, HENRY

D.; BURTON, LINDA; BURTON, RONALD

V.; BUSHINGER, GARY J.; BYRD,

DICKEY; BYRD, WINNIE; CAFFERTY,

THOMAS S.; CALLANDER, JOHN; CAL-

LANDER, JOHN MRS.; CAMPBELL, HARRI-

SON; CAMPBELL, MILDRED; CAMPBELL,

RICHARD L.; CAMPBELL, RICHARD L.;

CAMPBELL, RICHARD L., MRS.; CANADY,

DAVID; CANADY, JAMES A.; CAPARELLI,

HAROLD; CAPERS, CYNTHIA; CAPERS,

WILLARD; CARDARELLA, GEORGE D.;

CARNEY, JAMES T.; CARR, FRANCIS J.,

JR.; CARROLL, DAVID E.; CARTER, ALLEN

J.,; CARTER, DEBORAH; CARTER, JAMES

A.: CARTER, LAINA S.; CARTWRIGHT,

MARSHELLE; CARVAJAL, ARTHUR L.;

CARVAJAL, PHYLLIS; CASE, DON M.; CAS-

SELL, ZANE H.; CASSELL, ZANE H. MRS.;

CaSTAGNA, KATHLEEN; CASTAGNA, ROB-

ERT; CASTELLO, RICHARD A.; CASTILLO,

GEORGE E.; CECIL, DEBORAH; CECIL,

SAMUEL W.; CESSNA, MICHAEL J.; CHAD-

WICK, CONNIE; CHADWICK, JOHN L.;

CHALKER, WAYNE C.; CHASKIN, AR-

THUR; CHASKIN, JEANNE; CHEESMAN,

AMY L.; CHEESMAN, DONALD G.; CHEES-

MAN, DONALD G. MRS.; CHEESMAN, DON-

ALD J.; CHEEVES, HORACE; CHEVANNES,

LIDON D.; CHIODI, DIANE; CHIODI,

JOHN M.; CHISOLM, JOHN B.; CHISOLM,

ROZELLIN; CHIVERS, GWENDOLYN; CHI-

VERS, RICHARD D.; CHRISTENSEN, CARL-

TON R.; CHRISTEENSEN, GLORIA; CIC-

CARELLI, BARBARA, CICCARELLI, CIRO

N.; CICCARELLI, DONALD; CINGLIE,

JOAN, CLARE, T.K.; CLARK, GEORGE F.;

CLARK, GEORGE F. MRS.; CLARKE,

C.A.-1-85-6065

CO? CO? CO? CO? CO? CO? CO? GO? CO? CO? CO? CO? CO? CO? GO? CO? GO? (0? 60? GO? GO? CO? GO? CO? CO? GOs (0? COR COR CO? CO? GO? GO? GO? GO? CO? CO? 60? (0? GO? GO? GO? GO? CO? CO? CO? COR

LYNN; CLAY, DAVID L.; CLEMENTS,

ROBERT N.; CLEMONS, MICHAEL G.;

CLOVERS, RICK A.; COCKFIELD, ISAAC

R. JR.; COLVIN, ALEX JR.; CONNALLY,

JOSEPH F., II; CONNER, ERNEST, CON-

NOLLY: CONNOLLY, CHRISTINE; CON-

NOLLY, LAWRENCE S.; CONNOR, WAYNE

C.: CONRAD, EDWIN A. JR.; COOK, DON-

ALD B.; COOK, FRANK C.; COOK, KIM-

BERLY: COOK, RONALD G.; COOK, SHAR-

ON: COOPER, ALAN H.; COOPER DEBOR-

AH, COOPER, TOMMY L.; COPPOLA,

GEORGE L.; COPPOLA, GEORGE MRS.;

CORBETT, HAYES F.; CORBIN, JAMES F.;

CORNELIUS, NEIL; CORTEZ, CARLOS;

COUSINS, BRACE E.; COUSINS, KAREN,

COUSINS, COX, WILLIAM W.; CRAFT,

CAROLYN; CRAFT, RICHARD A.; CRAIG,

MICHAEL J.; CRAWFORD, ALICE; CRIS-

TOFARO, NESA A.; CRISTOFARO, RODNEY;

CRISWELL, DAVID; CRISWELL, LINDA;

CROSSLAND, DARRELL; CROSSLAND, JAY-

ANNA: CROWL, BETTY J.; CROWL, JOHN

W. III: CROWL, JOHN W. JR.; CROWLEY,

JAMES F.; CRUMMEL, SHERI; CRUMP,

WILLIAM J.; CRUSAN, CHARLES B.; CUM-

MINGS, WILLIE R.; CURTIS, CHARLES C.;

CURTIS, JAN L.; DALLER, DORIS H.; DAL-

LER, RAYMOND 0.; DALY, DEBORAH;

DALY, RAYMOND E.; DANIEL, JIMMY G.;

DANIEL, LYNN; DARE, DORIS; DARE,

RICHARD E.; DASH, HOWARD S.; DASH,

MRS.: DAVIDSON, CHARLES; DAVIDSON,

MRS.: DAVIS, GAYE; DAVIS, GERALD K.;

DAWSON, ALBERT L.; DAWSON, EVELYN

M.: DAWSON, HERBERT L.; DAWSON,

JANET F.; DEACY, JOHN J.; DEAN, MARIE;

DEAN, STEPHEN; DECKER, THEODORE;

DEFREITAS, FRANCIS J. JR.; DEFREITAS,

GAIL; DEKOFF, ARTHUR D.; DEKOFF,

THELMA R.: DELDUON, ANTHONY M.;

DELDON, ANTHONY M. MRS.; DELLING-

ER, CHARLES; DEMERLE, RICHARD; DE-

SANDO, MICHAEL; DESANDO, MONA C.;

DEVASTO, RONALD P.; DEVAUGHN, AL-

FRED: DEVAUGHN, SUSIE B.; DILLARD,

GEORGE: DILLARD, G. MRS.; DINGLE,

C.A.-1-85-6065

JAMES; DISHAW, ANN C.; DISHAW, JAMES

P.; DIXON, DENNIS L.; DIXON, MRS.:

DLUBAC, PAUL J. III, MRS.; DOERING,

JOAN; DONALD, ROBERT C.; DOOLEY,

HOWARD JR.; DORWART, ROBERT: DOR-

WART, SUSAN; DOSSAT, BEATRICE: DOS-

SAT, RUSS L.; DOUCETTE, MILDRED:

DOUCETTE, ROBERT; DOUGLAS, DANA

A.; DOWNING, JAMES D. MRS.; DRONEY,

RICHARD T.; DUDLEY, DAVID L.; DUD-

LEY, MRS.; DUDLEY, RANDOLPH: DUD-

LEY, SUSAN; DUFFNEY, MRS.; DUFFNEY,

THOMAS; DUNCAN, BILLY C.; DUNCAN,

ROBERT; DUNCAN, WANDA; DUPREE,

ROBERT; DUPREE, TONI W.; DURBIN, DI-

ANA; DURBIN, MELVIN R.: EASTER-

BOOK, CURTIS D.; EASTERBOOK, MRS.:

EDWARDS, CHARLES N.; EDWARDS, MRS.:

EDWARDS, WEBSTER M.; ELLIS, KATH-

LEEN J.; ELLIS, RICHARD E.; EMERY,

JEFFREY R.; ERNST, ROBERT L.; ESTER,

ROBERT L.; ESTER, HAROLD F.: ESTER,

MRS.; ESTESS, CHRISTINE P.; ESTEES,

RUDOLPH H.; EVARTS, MARY E.: EV-

ARTS, ROBERT D.; FARRELL, JAMES E.:

FARRELL, JAMES E. MRS.; FAULKNER,

CAROL L.; FAUTH, DONALD W.; FAUTH,

LINDA S.; FEARS, ALFRED R.; FEARS,

SHARON; FERGUSON, VEARL; FRELUS,

KATHLEEN L.; FERLUS, NICHOLAS G.;

FERRICK, FRIEDA L.; FERRICK, JOHN P.:

FITZGERALD, DAVID J.; FOOTER, JOSEPH

A.; FOOTER, MARIE; FORT, WILLIAM T.:

FOSTER, BRUCE; FOSTER, MARIE; FOW-

LES, LEE A.; FOWLES, STEVEN L.; FOX,

JAMES M.; FOYE, JOHN L.; FOYE, MARY

R.; FRANOVICH, LEO; FULTZ, RAYMOND

D.; GADINO, ANTHONY; GALLAGHER,

JAMES P.; GANDENBERGER, GEORGE F.

III; GANDENBERGER, MRS.; GARLING,

STEVE H.; GARLING, VICENTA: GATES,

EUGENE; GAUDIOSO, MRS.; GAUDIOSO,

PHILIP R.; GEE, CHARLES R.: GELLER,

IRA A.; GELLER, MRS.; GIBBS, ESSIE M.:

GIBBS, MICHAEL C.; GIBSON, MRS.; GIF-

FORD, DEBRA; GIFFORD, JAMES P.: GIN-

SA, LEO L.; GOBIN, CLARENCE H. JR.;

OP HP LP LPR LP OR OP CP LP? CR CR COP COP COR OP COP COP OP COR COR COP CO? CO? CO? WOR COR CO? CO? CO) WO? CO? CO? CO? CO? CO? CO? WO? LO? CO? CO? LO? CO? CO? CO? CO? CO? CO?

C.A.-1-85-6065

GOBIN, MICHELLE; GODFREY, DAVID

M.; GODFREY, MRS.; GOLDMAN, DAVID

M.; GOMEZ, JOSE J. JR.; GONZALEZ, CAR-

LOS; GONZALEZ, FERDINAND; GORDY,

GARY G.; GORZOCH, MRS.; GORZOCH,

THOMAS; GOULET, GARRETT A.; GRAB-

BIE, THOMAS E.; GRADY, PAUL L.; GRA-

HAM, DONALD E.; GRAHAM, SHARON C.;

GRAVELIN, PATRICK; GRAY, WILLIM D.;

GRAYSON, ALLEN K.; GRAYSON, NANCY;

GREEN, ROBERT W.; GREEN, SUSAN, N.;

GREEN, WILLIE B.; GREENE, DAVID;

GREENE, DAVID, MRS.; GREGORY, FLOYD

E.; GREGORY, KATHY P.; GRENIER, ELI-

ZABETH; GRENIER, PAUL W.; GREY,

JAMES; GUBITOSI, MICHAEL A.; GULLEY,

OSCAR G. III; GULLO, GERALD R.; GUN-

DERSON, RICHARD G.; GUNSON, KATH-

LEEN; GUNSON, KATHLEEN S.; GUTH,

RICHARD F. JR.; GUTIERREZ, ARTHUR

J.; GUTKOWSKI, RICHARD; GUTTERREZ;

RITA; HAEHL, MARY S.; HAEHL, RICH-

ARD E.; HAGWOOD, ROGER R.; HAJEK,

HAREN; HAJEK, JAMES: HALE, JUDI:

HALE, KEITH R.; HALL, MICHAEL; HAL-

LETT, ROBERT C.; HALSTEAD, DANIEL

L.: HALSTEAD, SARAH T.; HAMMOND,

LAWRENCE A.; HAMMON, LINDA; HAN-

CHARICK, JOSEPH JR.; HANKINS, JAMES

N.; HARDEN, ELBERT E.; HARDEN,

NANCY: HARDIN, DEBRA JA; HARDIN,

LAWRENCE W.; HARDIN, TINA L.; HAR-

DIN, WADE; HARMON, CHARLES E.; HAR-

MON, JOHN; HARMON, LE T.; HARPER,

CHARLES M. III; HARPER, FRANK A.;

HARPER, JILL; HARPER, JUANA V.; HAR-

RIS, JOHN C.; HART, RICHARD N.; HAR-

TUNG, ALAN B.; HARTUNG, LYNN; HAR-

VEY, ERVIN E.; HASSELL, DANIEL L. JR.;

HASSERT, ROBERT W.; HASSLER, ROBERT

_A.; HAUCK, DAVID R.; HAVENS, LAW-

RENCE P.: HAVENS, VICKI; HAVICE, ANN

M.: HAVICE, BLAINE L. JR.; HAYES,

DAVID: HAYES, DON E.; HAYES, DONITA

R.; HAYES, MICHELLE L.; HECTOR,

GLORIA: HEDGESPETH, LAWRENCE; HEI-

DEL, LARRY G.; HELWIG, CAROL C.; HEL-

C.A.-1-85-6065

COR CO? (OP CO? CO? CO? C02 CO? CO? (0? CO? CO? (0? CO? CO? COR (0? CO? CO? CO? GO? CO? COR CO? CO? CO? CO? COP CO? CO? COR CO? CO? CO? CO? CO? COR (OR COR (CO? COR CO? CO? COR COR? COR? CO

10a

WIG, CHRISTIAN H. JR.; HENDRICKSON,

RAYMOND T.; HENRY, JERRY W.; HENRY

MRS. J.; HENS, ROBERT J.; HESS, CAN-

DINA A.; HESS, MICHAEL H.; HEYWARD,

JUANITA; W.; HEYWARD, MICHAEL E.;

HEYWARD, PERCELL E.; HEYWARD,

ROBIN M.; HICKS, KATHLEEN M.: HICKS,

WILLIE A.; HIGDON, MICHAEL A.; HILL

BENNIE D.; HILL CHARLES R.; HILL,

DAVID L.; HILL, MRS. C.; HILL, SHARON;

HINE, MICHAEL S.; HISE, KAREN D.;

HISSE, RICHARD A.; HOBACK, DENNIS,

G.; HOBACK, PEGGY J.; HOLLOWAY,

RONALD M.; HOLLOWAY, SONZIA F.:

HOLLOWAY, STEVEN D.; HOLMAN,

DAVID A.; HOLMAN, SHERI N.; HOLMES,

JACK; HOLMES, JAMES M.; HOLMES,

VICTOR A.; HOLT, DAISY S.; HOLT,

DELBERT R.; HOLT, GERALDINE;

HOLT, HIRAM B.; HOMICKI, FRANCES:

HOMICKI, JOHN J.; HOOPER, PHILLIP W.;

HOOPER, ROBERT L.; HORNE, GORDON

R.; HORNE, LOIS D.; HOSKINS, TERRY

L.; HOUSER, GARY R.; HUBBARD, ELANOR

A.: HUBERT, CURTIS L. JR.; HUBERT,

MRS. C.; HUERTAS, LOURDES; HUERTAS,

WILFREGDO; HUGHES, CHARLES R.;

HUGHES, GLENDA; HUGHES, GUS T.;

HUNDAGL, VICTOR A.; HUNYADY, PAM-

ELA J.; HUSSEY, BOBBY L.; HUTCHINS,

GAIL L.; HUTCHINS, HAROLD V.; HUX,

WILLIAM F.; HYATT, CLAUDE; IMES,

GEORGE T.; IMES, YONG A.; INGLE, AR-

THUR D.; IRLANDA, ANGEL N.; IRVIN,

ALAN M.; ISABELLA, DANIEL B.; ISA-

BELLA, VIRGINIA; JACK, LEONDUES E.

JR.; JACK, PATRICIA; JACKSON, JOHN;

JAMES, RONNIE L.; JAMES, SHIRLEY;

JAMIESON, JAN; JAMIESON, ROBERT J.;

JENKINS, CARLINE; JENNINGS, JOSEPH

E.; JENSON, PAUL R.; JOHNSON, ETTA;

JOHNSON, MAUDIE; JOHNSON, MICHAEL

D.; JOHNSON, ROY L.; JONES, JEROME J.:

JONES, MONA; JONES, ULUS J.; JONES,

VERNON W.; JORDAN, ALBERTA; JOR-

DAN, ESSIC J.: JURNEY, LEE W.; JURNEY,

LINDA; KAGER, OTTILIE MRS.; KAGER,

C.A.-1-85-6065

OR CPR CNR CR LP COR CO? COP YOR LOR? LIP COP? GOP COP COR LP? G2 LP? GOP SO SO? LI? LI? GIP? GO? LOR LO? OP GOP COR COR LI. G2. LI? GI? LI GOR GOP LOR LI? G2 LH GI LI? LP? LO LP?

lla

ROY J. MRS.; KANTER, ROY J.; KEWA,

FRANK J.; KEAN, TEDDY B.; KEENE, AN-

DREW; KELLY, DEWEY JR.; KENDALL,

FLEMING M. JR.; KENDALL, LEANIE A.

JR.; KENNEDY, JAMES C.; KENT, JUDY;

KENT, PAUL J.; KEYES, CLEO J.; KEYES,

ROGER; KINANN, JEANNE; KINANN,

MIKE, KINCAID, WILLIE E. JR.; KINCAID,

WILLIE MRS.; KING, FLOYD R. JR.; KING,

FLOYD R. JR.; MRS.; KIPP, DENNIS W.;

KNAPP, RICHARD A.; KNIGHT, RICHARD

R.; KNIGHT, WILLIAM K.; KNOLL, TER-

RY E.; KNOLL, VICKI J.; KNORR, ALI-

SON J.; KONOPASEK, KENNETH; KONO-

SPASEK, EVA L.; KOSTUK, ALEXANDER

J.. KOSTUK, BONNIE M.; KOSZULINZKI,

JAN: KOTNER, HARVEY E.; KOZLOWSKI,

RALPH J.; KRAFT, KENNETH R.; KUBAT,

BRYAN E.; KUBAT, SONJA; KUHARCIK,

MRS.; KUHARCIK, ROBERT C.; KURILKO,

EVELYN N.; KURILKO, JAMES H.; KUTZ,

ANDREW J.; KUTZ, SUSAN; LAIL, THOMAS

E.; LAIL, THOMAS E. MRS.; LAKEY, DORIS;

LANE, CHRISTINE; LANE, MICHAEL J.;

LANGLEY, MARGARET; LAPIERRE, DAVID

C.: LAVERTY, JAMES D.; LAVERTY, JAMES

MRS.; LEAF, DOUGLAS W.; LEAF, JACQUE-

LINE; LEBLANC, CAROL; LEBLANC,

GEORGE B.; LEBLANC, ROBERT G.; LE-

BLANC, SUSAN; LEDBETTER, ALBERT R.

MRS.: LEDFORD, HAROLD J.; LEDFORD,

JEAN F.; LEE, BENSON E. JR.; LEE, GAR-

NELDENE; LEE, KATHLEEN; LEE, PAUL-

INE; LEE, RAYMOND L.; LEE, RICHARD

G.; LEE, WALTER; LEMMONS, ROBERT

D.: LESTER, JACK E.; LEWIS, DALE;

LEWIS, DONALD; LEWIS, LENORE; LEWIS,

SUSAN; LEWIS, WILLIAM C.; LINKER,

ADRIAN L.; LINKER, MARQUITTA A.;

LINT, RALPH A.; LISTER, EDWARD; LIT-

TLE, SAMUEL E.; LOVELL, EDNA R.; LUN-

DY, CARLIS L.; LUNDY, VELVA L.; MAN-

NING, DEBBIE M.; MANNING, JAMES A.

JR.; MANNING, MARVIN M.; MANNING,

MARVIN M. MRS.; MANNING, NEIL E.;

MARRA, ANTHONY, T.; MARSHALL, JOHN-

NY L.; MARTELL, ALBERT T. JR.; MARTIN

C.A.-1-85-6065

12a

ERNEST F. JR.; MARTIN, MRS. THOMAS:

MARTIN, THOMAS J.; MARTIN, WILLIAM;

MARTINEZ, LUZ C.; MATEJCEK, DIANE

F.; MATEJCEK, DONALD G.; MATOVIC,

GERALDINE E.; MATOVIC, ROBERT: MAT-

THEWS, DAVID G.; MATZ, BRADLEY R.:

MAYETTE, THERESA B.; MAYETTE, WIL-

LIAM E. JR.; MAYS, WILLIE L.; MAYS,

WILLIE L. MRS.; MCCALL, CYNTHIA S.;

MCCALL, TIMOTHY D.; MCCARTHY, GER-

ALD; MCCARTHY, HUGH L.; MCCORMICK,

CHARLES M.; MCCOY, JAMES C.: MC-

DOWELL, CHARLES P.; MCDOWELL, LIN-

DA S.; MCELVEEN, CLIFFORD D.: MCFAR-

LAND, DENNIS P.; MCINTOSH, ESLIE B.:

MCKINNEY, JACQUELINE; MCKINNEY,

REGINALD; MCLEOD, WILLIE JR.; MC-

MULLEN, DALLAS D.; MCMULLEN, JUDY;

MEACHAM, DANIEL A.; MEADE, GREG-

ORY L. MELENDEZ, JAIME: MELENDEZ,

JAIME MRS.; MELNYK, KASIMIR: MEL-

NYK, MARY L.; MESCIA NICHOLAS JR.;

MESCIA, SHARON E.; MESSETT, TIMOTHY

L.; METCALF, BERNARD E.; METCALF,

MARCEL; MEYERS, ROBERT JR.; MIDDLE-

TON, DAVID A.; MIDDLETON, VIRGINIA

A.; MIGLIORINO, CHARLES; MILES, JAMES

R.; MILES, JAMES R. MRS.; MILLEDGE,

DONALD; MILLEDGE, MRS.; MILLER,

BILLY E.; MILLER, BRENDA; MIMS, LE-

ROY R.; MITCH, ROBERT; MITCHELL,

MICKEY F.; MIZE, OLA L.; MOLLOY, ROB-

ERT F.; MONAGHAN, CYNTHIA: MOODY,

PAUL E.; MORIM, DALE L.; MORLEY,

GINGER; MORLEY, JOHN M.; MORRISON,

KAREN A.; MORROW, MARK; MORTEN-

SON, DAVID C.; MORTENSON, SANDRA;

NASH, JAMES; NASH, JAMES MRS.; NAY-

LOR, ERVIN E.; NEAL, ROBERT JR.; NEAL,

ROBERT JR. MRS.; NELSON, ERNEST W.:

NELSON, CAROLYN S.; NELSON, HOBERT

W.; NEUNER, OANH; NEUNER, RICHARD

D.; NEVADOMSKI, EDWARD JR.; NEVA-

DOMSKI, MARILYN; NEWMAN, GEORGE

M.; NICHOLS, CHARLES R.; NICHOLS,

JUDY G.; NOBLES, RICHARD A.; NOR-

BLOM, RICHARD W.; NORTH, DAVID A.;

CR LP SP CP LP? SP? GP? SP? SP SP SP SP SP SP SP? SP SP SP SP SP SP SP SS SS SP SP SP? SP 2 SP SP ST SPs SP SP AP SP SS SP SP SS SP SS 2 SS SP2 LS SS2 SH?

C.A.-1-85-6065

13a

NUNNERY, LESLIE; NUNNERY, SYBIL; §

OBERG, JAMES E.; OBERG, SUSAN M.;_ §

OCONNELL, DEBORAH; OCONNELL, THOM- §

AS E.; ODONNELL, JAMES E.; ODONNELL, §

ROSE M.; OGDEN, HEATHER A.; OGDEN, §

NANCY ANN; OGDEN, ORVILLE L.; OGLE §

LINDA SUE; OLD, DOUGLAS J.; OLD, MAR- §

CIA C.; OLD, MARILYN; OLIVERIA, PAT- §

RICK W.; OLIVERIA, TARLENE; OLSON, §

THOMAS M.; OLSON, THOMAS M. MRS.; §

OMARA, JUDITH; OMARA, RICHARD K.; §

ONEAL, JAMES MRS.; ONTIVEROS, §

GLORIA; ONTIVEROS, LUIS C.; OROURKE, §

JOHN; OROURKE, THERESA; ORTIZ, MI- §

QUEL JR.; ORTIZ, ROUEN; OSBORNE, HIL- §

LARD J.; OXENDINE, WILLIAM A.; PACK- §

ETT, PHILIP S.; PALUMBO, BONNIE; PA- §

LUMBO, DONATO; PANJARELLA, AN- g C.A.-1-85-6065

THONY J.; PARNELL, CAROLYN; PAR- §

NELL, CAROLYN; PARNELL, ROBERT L.; §

PARRISH, KARL A.; PARSLEY, JANIE; §

PARSLEY, RONNIE A.; PATE, CHARLES §

E.; PATTERSON, ARTHUR J.; PATTERSON, §

JAMES J.; PATTERSON, MRS. A.; PATTER- §

SON, MRS. J.: PATTON, DAVID D.; PAT- §

TON, SALLY; PATZER, GENE W.; PAULSON, §

ELOISA M.; PELLEGRINO, ROBERT; PES- §

TANA, CAROL; PESTANA, WILLIAM M.; §

PETERSON, BARBARA; PETERSON, STE- §

PHNE: PETTRBONE, CHARLES N.; PHIL- §

LIPS, BEVERLY; PHILLIPS, EUGENE L.; §

PHILLIPS, WAYNE H.; PHILLIPS, WAYNE §

H. MRS.: PIPPIN, TERRY D.; PITZYKOW- §

SKI, LUISA Q.; PLOTT, GUY A. JR.; POIN- §

TON, GEORGE E.; POLAKIEWICZ, LEORA; §

POPP, STEVE F. SR.; POSEY, ROBERT H.; §

POWERS, DEBRA A.; POWERS, JOHN M.;_— §

PRESSLEY, TAD W.; PREWITT, WILLIE D. §

JR.; PRICE, JOHN H.; PRICE, KENNETH §

W.: PRICE, LAILA L.; PRICE, LORRIANE §

Y.: PRICE, ROBERT P.; PRICE, VIRGINIA; §

PROCTOR, ROBERTA; PULSIPHER, ELWIN §

D.: PUTMAN, DAVID L.; PUTMAN, DAVID §

L. MRS.; QUILES, GEORGE L.; RAMIREZ, §

MIGUEL R.: RANCH, JOHN D.; RATHELL, §

JOAN L.; RAWLINGS, CHARLES E.; RAY- §

DER, JOSEPH P.; RAYDER, JOSEPH P. §

14a

MRS.; REARDON, BETH; REARDON,

JAMES J.; RECHT, DOUGLAS T. MRS.; RED-

CAY, MEREL, MRS.; REDCAY, MERLE:

RENEAU, JOHNIE J. JR.; RENEAU, JOHNIE

J. JR. MRS.; RHAMES, FREDDI T.; RICH-

ARDSON, JACK L.; RICKS, JAMES E.; RIE-

DEL, RONALD F.; RIELLY, TERRENCE P.:

RIGGIO, KENNETH W.; RIGGIO, SONJA A.;

RIGGS, GARY A.; RIORDAN, JOHN P.;

RIVERS, MARK J.; RIVERS, NANCY L.;

ROANE, JOHN R.; ROANE, JOHN R.; RO-

ANE, JOHN R. MRS.; ROBBINS, MARY

ROBBINS, MICHAEL W.; ROBERTS,

FRANKLIN: ROBERTS, MRS. JOHN; ROB-

ERTSON, DANIEL V.; ROBINSON, CARO-

LYN D.; ROBINSON, NAKITE L.: ROBIN-

SON, ONNIE B.; RODGERS, JAMES D.;

RODGERS, MRS. JAMES; ROTELLA, JOSEPH

M. JR.; ROWELL, ELSYE H.; RUBIO, AN-

THONY L.; RUBLE, LANCE H.; RUMLEY,

DEBRA T.; RUMLEY, DEBRA T.; RUMLEY,

ROGER C.; RUNION, CARL A.; RUNION,

CARL A. MRS.; RUPERT, DORENE; RUP-

ERT, FREDERICK J.; RUTLEDGE, HARRY

R.; RUTLEDGE, HELEN; RYAN, PAT-

RICK; SALAZAR, GREGORIO JR.; SAN-

CHEZ, JESSE JR.; SANCHEZ, JESSE L.

MRS.; SANDERS, JAMES H.; SANDERS,

JAMES H. MRS.; SAXBY, ANDRE; SAX-

TON, HAROLD E.; SAXTON, JUANITA;

SCHROEDER, BEATRIX; SCHROEDER,

MARTIN H.; SCHWARCHBER, ALEX;

SCORSESE, PAUL J.; SCOTT, LEONARD

H.; SCOTT, ROBERTA; SEIVERT,

CHARLES W.; SEXTON, JOHN; SHELL,

JAMES E.; SHELL, MARY L.; SHIRLEY,

JACK L.; SHOGREN, DEBORAH K.; SHO-

GREN, MICHAEL R.; SHREINER, MAN-

ETTE; SIMON, LAFAYE A.; SINGLETON,

DONALD; SINGLETON, LETHA; SKIBA,

FRANCES J.; SKLADANOWSKI, MARY;

SKLADONOWSKI, DAVID; SMITH, BECKY

L.; SMITH, BETTY J.; SMITH, DALE C.;

SMITH, DIANE; SMITH, EILEEN; SMITH,

GARY J., SR.; SMITH, GERALD W.; SMITH,

HOWARD H.; SMITH, KATHLEEN J.;

SMITH, ROBERT C. MRS.; SMITH, WIL-

C.A.-1-85-6065

0? Or LO? CR LP? LP LP? S72 LP? LP LP? LP LP? LP LP? SP LP? LI? LP? LI? LP? CO? LI? LP? LO? LI? LF? LI? LP? UP? LP CO? CO GOP LO? COR CO) COP. WO. WO? WO. CO? GOP? LO? GOP?

Or wor

15a

LIAM A.; SMITH, WILLIAM E. JR.; SMITH,

WILLIAM E. J. MRS.; SOUTHWARD, PA-

TRICIA A.; SOUZA, JENNIFER C.; SOUZA,

JOHN P.; SPANO, THOMAS A.; SPEDDING,

CLINTON A. JR.; SPEDDING, MRS. C.;

SPEIRER, KATHLEEN; SPEIRER, RONALD;

SPIGARELLI, DOROTHY; STANCIL, RAY-

MOND N.; STANTON, THOMAS W.; STEIN,

MARK; STEIN, MARK MRS.; STEPHENS,

THOMAS J.; STEPHENS, THOMAS J. MRS.;

STEVENS, CARL F. II; STEVENS, CARL F.;

STEVENS, MRS.; STORCEY, JAMES D.;

STORCEY, JAMES D. MRS.; STOVALL, LIN-

DA; STOVALL, ROBIN R.; STARCNER, LE-

ROY; MRS. STRACNER; STREET, STREET,

STEPHEN; STRICKLAND, GAIL; STROUSE,

WILLIAM H. JR.; STROUSE, WILLIAM H.

MRS.; STRUM, WARREN P.; SUBER, BILLY

R.; SUGGS, JOHNNY M. SUNDIN, BAR-

BARA; SUNDIN, ROBERT; SWEATT, THOM-

AS: SWENSON, WALTER A.; TALIAFERO,

JOE L.; TAMEZ, NOEI; TAMEZ, RENE R.;

TAYLOR, CAROL A.; TAYLOR, DAVID A.;

TAYLOR, JOSEPH F.; TAYLOR, LESTER K.;

TAYLOR, RICHARD D.; THAW, JANIS;

THAW, JOEL M.; THOMAS, EMILIA JR.

MRS.: THOMAS, HORACE F.; THOMAS,

WILLIAM E. JR.; THOMAS, WILLIE F.;

THOMPSON, DAVID; THOMPSON, LEON-

ARD B.; THOMPSON, ROBERT JR.;

THOMPSON, ROGER. D.; THURMOND,

TALMADGE M.; THURMOND, YVONNE H.;

TIGHE, JOAN; TIGHE, PETER; TORO, COR-

SINO, JR.; TORO, LUZ N.; TORRES, HEC-

TOR D.; TORRES, TERESA L.; TRAUTMAN,

MELVIN; TREDWAY, GARY L. SR.; BUCCI,

FRANK D.; TUCKER, RAYMOND, A.; TUR-

NER, DEAN E.; TURNER, JAMES L.; TUR-

NER, JESSIE M. TURNER, WANDA H.; UHL,

MICHAEL; URSEY, GRADY; VALERIO,

NANCY G.; VALERIO, ROBERT G.; VAN-

LEUVAN, EDWARD J.; VANLEUVEN, ED-

WARD, MRS.; VAUGHN, EDWARD J.; VENE-

DETTI, AUGUSTINE; VENTRIGLIA, MRS.;

VERNIER, DOUGLAS J.; VERVILLE, DAN-

IEL A.; VERVILLE, HELEN; VIDIELLA,

JOHN E.; VIDRINE, GEORGE A.; VIGNALE,

CO? CO? CO? CO? CO? CO? CO? COR WL? CO? WO? COP? COP? COR COR? LO? CO? WO? CO? C2? CO? COP? COP. COP COR CO? WO? COP? C2 LO? LP CO? COR COP? LP? COP LP? LP? C2 CO? LP LP? LP? LP C2 L2 LP

C.A.-1-85-6065

l6a

CAROLYN; VIGNALE, ROBERT P.; VIT-

KACS, EUGENE; VIVKSON, GILBERT; VOL-

GERSON, RON; WAGAMAN, DONALD W.;

WAGAMAN, FREDA; WAGAMAN, GREG-

ORY; WAGHELSTEIN, JOHN D.; WAID, ED-

WARD, D. JR.; WAID, KATHLEEN; WALK-

ER, CHARLES: WALKER, JACQUELINE:

WALKER, LARNZO; WALLACE, GEORGE

I’.; WALLACE, RUSSELL; WALTERS, LEO;

WALTERS, LINTON P.; WARD, HELGA;

WEINSTEIN, JACQUES W.; WEISSIND,

BILLY R.; WEISSIND, NANCY; WELLS,

EDWARD L.; WELLS, PAMELA; WEST, VI-

VIAN L.; WESTERFIELD, ELFREDA;

WHEELER, LARRY H.; WHEELER, LINDA

K.; WHITE, ATLAS; WHITE, ATLAS MRS.;

WICK, DONALD; WICK, GAYLEEN =:

WILBER, ROBERT E.; WILBER, SHARON

F.; WILGEN, JOSEPH P.; W ILLIAMS, AN-

DREW F.; WILLIAMS, CHARLIE W.; WIL-

LIAMS, CLARENCE C.; WILLIAMS, GLORIA

D.; WILLIAMS, JACOB W. JR.; WILLIAMS,

LOIS L.; WILLIAMS, ROSEMARIE: WIL-

LIAMSON, P. LANE; WILSON, DORELLE

F.; WILSON, KENNETH C.; WILSON, KEN-

NETH R.; WINTERS, EDWARD M.; WISE,

GARY B.; WOOD, DENNIS E.; WOODCOCK,

STEPHEN M.; WYSINGER, JOE; WYSINGER,

SHIRLEY; YATES, FAY A: YATES, JERRY.

ws YATES, ROBERT S.; YEAGLEY, JAMES

et YOUNG, ROBERT A.; ZASKEY, ALEX-

ANDER J.; ZIMMERMAN, GEORGE mB. JR;

ZIMMERMAN, KATHLEEN; ZIOLKOWSKI,

icici sali iaipiiaienenaiade biacuibiaesGaaiailaee iia tA Ra

C.A.-1-85-6065

ALFRED N.; ZIOLKOW SKI, ‘CATHY yea eee

dividually And For Those Similarly Situated.

Plaintiffs,

UNITED STATES OF AMERICA,

SECRETARY OF THE NAVY OF THE

UNITED STATES AND THE ATTORNEY

GENERAL OF THE UNITED STATES,

Defendants.

CPLR CNL SPR LP? LP? C2 LP? CL? LP? LP? LP?

17a

APPENDIX II

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MDL NO. 381

No. CV-86-376

IN RE “AGENT ORANGE”

PRODUCT LIABILITY LITIGATION

THOMAS ADAMS, et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM and ORDER

APPEARANCES:

Benton Musselwhite

Attorney for Plaintiffs

Robert C. Longstreth, Department of Justice,

Washington, D.C.

Attorney for Defendant United States

WEINSTEIN, Ch. J.:

This is an action brought by over one thousand three

hundred plaintiffs alleging injuries caused by the exposure

18a

to Agent Orange and other herbicides of those plaintiffs

who served in Vietnam. The case, originally filed in the

Southern District of Texas, was transferred to this court

by the Judicial Panel on Multidistrict Litigation. The de-

fendant United States government now moves for dis-

missal of the complaint or, in the alternative, for summary

judgment.

The complaint in this action is virtually identical to the

Eighth Amended Complaint filed July 23, 1984 in MDL

No. 381 by the Agent Orange Plaintiffs’ Management

Committee. The disposition of the claims made in that

complaint is reported in In re “Agent Orange” Product

Liability Litigation, 603 F. Supp. 239 (E.D.N.Y. 1985).

The court sees no reason to depart now from its earlier

conclusions. The government’s mwtion to dismiss the com-

plaint is granted as to the claims by veterans and the

derivative claims made by their wives and children. The

government’s motion for summary judgment is granted

as to the independent claims of veterans’ wives. The in-

dependent claims of veterans’ minor children are dismissed

without prejudice in the discretion of the court.

So ordered.

Dated: Brooklyn, New York

June 19, 1986

/s/ JACK B. WEINSTEIN

Chief Judge, U.S.D.C.

19a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MDL No. 381

No. CV-86-376

IN RE “AGENT ORANGE”

PRODUCT LIABILITY LITIGATION

THOMAS ADAMS, et al.,

Plaintiffs,

Vv.

UNITED STATES OF AMERICA,

Defendant.

FINAL JUDGMENT

APPEARANCES:

Benton Musselwhite

Attorney for Plaintiffs

Robert C. Longstreth, Department of Justice,

Washington, D.C.

Attorney for Defendant United States

WEINSTEIN, Ch. J.:

This matter having come before the court on the mo-

tion of the defendant United States of America, pursuant

to Rules 12(b)(1) and 12(b)(6) and Rule 56 of the

20a

Federal Rules of Civil Procedure, to dismiss this action,

or in the alternative for summary judgment; and the court

having considered the motion and supporting papers, and

having considered the plaintiffs’ response; and the court

having heard oral argument, for the reasons stated orally

on the record and by memorandum,

— IT IS ORDERED that the motion of the United States

of America to dismiss this action is granted, except as to

plaintiffs’ claims for birth defects and miscarriages; and

it is further

ORDERED that the motion of the United States of

America for summary judgment is granted as to the claims

of plaintiffs who are wives of veterans for birth defects

and miscarriages; and it is further

ORDERED that the claims of plaintiffs who are child-

ren of veterans for birth defects are dismissed without

prejudice in the discretion of the court.

This constitutes a final judgment.

So ordered.

Dated: Brooklyn, New York

June 18, 1986

/s/ JACK B. WEINSTEIN

Chief Judge, U.S.D.C.

2la

APPENDIX III

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 343—August Term, 1986

(Argued: October 1, 1986 Decided: April 21, 1987)

Docket No. 86-6127

In Re: “Agent Orange”

Propuct LIABILITY LITIGATION

THomas ADAMS, et al.,

Plaintiffs-A ppellants,

UNITED STATES OF AMERICA, et al.,

Defendants-A ppellees.

Before:

VAN GRAAFEILAND, WINTER. and MINER,

Circuit Judges.

Appeal from order and judgment of the United States

District Court for the- Eastern District of New York

(Weinstein, C.J.) dismissing post-settlement Agent Orange

claims. Judgment affirmed except as to the grant of

summary judgment dismissing the so-called direct claims

22a

of wives and children. Summary judgment as to said

direct claims vacated and these claims remitted to the

district court with instructions to dismiss them for lack

of jurisdiction.

BENTON MUSSLEWHITE, Houston, Texas, for

Plaintiffs-A ppellants.

ROBERT C. LONGSTRETH, Trial Attorney, Torts

Branch, Civil Division, Department of Justice,

Washington, D.C. (Richard K. Willard, Ass’t

Att’y Gen., Washington, D.C., Andrew J. Ma-

loney, United States Attorney for the Eastern

District of New York, and Joan M. Bernott,

Special Litigation Counsel, Washington, D.C.,

of counsel), for Defendant-Appellee United

States of America.

VAN GRAAFEILAND, Circuit Judge:

Our discussion of the background and procedural his-

tory of this litigation appears in Judge Winter’s lead

opinion, No. 84-6273.

Following settlement of the class action against the

chemical companies and the dismissal of all claims against

the Government, this action was commenced in the

United States District Court for the Southern District of

Texas. In January of 1986 it was transferred to the

Eastern District of New York by the Judicial Panel on

Multidistrict Litigation, and on June 19, 1986 the com-

plaint, like those that preceded it, was dismissed. The

claims of the veterans and the derivative claims of their

wives and children were dismissed for lack of jurisdiction.

23a

The direct claims of the wives and children were dis-

missed by way of summary judgment for lack of proof of

medical causal relation. We hold that the direct claims of

the wives and children, like those of the veterans them-

selves, should have been dismissed for lack of jurisdiction.

In companion Agent Orange opinions filed herewith,

we define the Government’s decision to use Agent Orange

as a military decision, a political decision and the exercise

of a discretionary function. These definitions were arrived

at by scrutinizing the nature of the governmental action,

not the identity of the person challenging it. “There are

twelve exceptions to the [Federal Tort Claims] Act, but

they relate to the cause of injury rather than to the char-

acter of a claimant who may seek to recover damages for

his injuries.” Feres v. United States, 177 F.2d 535, 536-

37 (2d Cir. 1949), aff'd, 340 U.S. 135 (1950). It would

be anomalous, for example, to characterize a governmental

decision as political or discretionary in an action brought

by a serviceman but as apolitical or mandatory in an

action brought by the serviceman’s wife or child. When a

challenged decision falls within all three of the above cate-

gories, military, political and discretionary, it is imperative

that a court look primarily to the “cause of injury rather

than to the character of a claimant.” However, even when

the decision properly may be placed in only one of the

three categories, a court should use great circumspection

in deciding whether it is the type of governmental action

that should be subjected to judicial second-guessing.

Some of the post-Feres cases brought by wives, widows

and children of servicemen have had their origin in States

where the plaintiffs’ claims are held to be ancillary or

derivative to those of the servicemen. Others have arisen

in States where the plaintiffs’ causes of action have been

24a

held to be independent of those of the servicemen. The

result in most cases is the same—the claims are held

barred by Feres and Stencel Aero Engineering Corp. v.

United States, 431 U.S. 666 (1977).

The following cases are typical of those arising in the

“ancillary or derivative claims” jurisdictions: Hinkie v.

Untied States, 715 F.2d 96 (3d Cir. 1983), cert. denied,

465 U.S. 1023 (1984); Mondelli v. United States, 711 F.

2d 567 (3d Cir. 1983), cert. denied, 465 U.S. 1021

(1984); Lombard v. United States, 690 F.2d 215 (D.C.

Cir. 1982), cert. denied, 462 U.S. 1118 (1983); Scales v.

United States, 685 F.2d 970 (5th Cir. 1982), cert. denied,

460 U.S. 1082 (1983); Laswell v. Brown, 683 F.2d 261

(8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983);

Monaco vy. United States, 661 F.2d 129 (9th Cir. 1981),

cert. denied, 456 U.S. 989 (1982): Harten v. Coons, 502

F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963

(1975). This Court is in accord. Kohn v. United States,

680 F.2d 922 (2d Cir. 1982). “As Stencel itself illus-

trates, civilian status alone is not sufficient to lift the bar

under Feres when a claim involves the same issues as if a

serviceman himself sued, for then the relevant policy con-

siderations apply with equal force.” Jd. at 926 (citing

Monaco, supra).

One of the cases in the “non-derivative or independent

claims” group, a case which moved through this Court,

was Harrison v. United States, 479 F. Supp. 529 (D.

Conn. 1979), aff'd without opinion, 622 F.2d 573 (2d

Cir.), cert. denied, 449 U.S. 828 (1980). This was a suit

for loss of consortium by a serviceman’s wife, who resided

in Michigan where her claim was considered to be sep-

arate and distinct from that of her husband. Applying the

25a

Feres rationale as reaffirmed and strengthened in Stencil,

supra, then Chief Judge Clarie held that it barred the

claim of the serviceman’s wife. He said:

There has been no suggestion in the legislative his-

tory of the Act that Congress was aware that the

Tort Claims Act might be interpreted in such an

anomalous manner that a serviceman-husband per-

forming his military duty would be denied recovery

against the Government whose employee’s negligence

may have caused him serious injury, while his spouse

is allowed recovery as a consequence of the same set

of facts.

479 F. Supp. at 535. The following cases from other “non-

derivative or independent claims” jurisdictions are in ac-

cord: Gaspard v. United States, 713 F.2d 1097 (Sth Cir.

1983), cert. denied, 466 U.S. 975 (1984); De Font v.

United States, 453 F.2d 1239 (1st Cir.), cert. denied, 407

U.S. 910 (1972); United States v. Lee, 400 F.2d 558

(9th Cir. 1968), cert. denied, 393 U.S. 1053 (1969); Van

Sickel v. United States, 285 F.2d 87 (9th Cir. 1960);

Sigler v. LeVan, 485 F. Supp. 185 (D. Md. 1930).

Of particular interest is an action brought in tne United

States District Court for the Eastern District of Pennsyl-

vania in 1982 by Louise Shearer, the mother of a deceased

serviceman. In Pennsylvania, a cause of action for wrong-

ful death, 42 Pa. C.S.A. § 8301, is possessec. by certain

specified relatives of the deceased, who recover in their

own behalf and not as beneficiaries of the deceased’s

estate. McClinton v. White, 285 Pa. Super. 271, 278

1981), vacated on other grounds, 497 Pa. 610 (1982).

With obvious reference to section 8301, the district court

held that “[t]he Feres doctrine applies in cases in which

26a

a personal representative brings an action under a state

death statute which is not derivative in nature, but is an

original and distinct cause of action granted to such indi-

viduals to recover damages sustained by them by reason

of the wrongful death of the decedent.” 576 F. Supp. 672,

673 n. 1. Finding that plaintiffs allegations of wrongdoing

“relate directly to decisions of military personnel made in

the course of the performance of their military duty,” id.

at 674, the court granted summary judgment dismissing

the complaint. The Court of Appeals for the Third Cir-

cuit reversed without discussing the Pennsylvania wrong-

ful death statute, 723 F.2d 1102 (3d Cir. 1983), but was

in turn reversed by the Supreme Court in United States v.

Shearer, 473 U.S. 52 (1985), a decision that is considered

to be a major reaffirmation of Feres and Stencel. The

Supreme Court stated that plaintiff's allegation of wrong-

doing “goes directly to the ‘management’ of the military”,

that it “would require Army officers ‘to testify in court as

to each other’s decisions and actions’”, and that “([t]o

permit this type of suit would mean that commanding

officers would have to stand prepared to convice a civil-

ian court of the wisdom of a wide range of military and

disciplinary decisions.” 105 S. Ct. at 3043-44.

These were simply restatements and affirmations of

language used time and again by the lower courts that

have denied recovery by family members. See, e.g., Hinkie,

715 F.2d at 98; Mondelli, 711 F.2d at 568-69; Lombard,

690 F.2d at 223-26; Monaco, 661 F.2d at 133-34; Scales,

685 F.2d at 970-74.

Where, as here, the military decision is of such a nature

that it properly may be termed a discretionary function,

denial of recovery by both military and nonmilitary per-

nel

27a

sonnel is doubly warranted. Abraham v. United States,

465 F.2d 881 (Sth Cir. 1972); Maynard v. United States,

430 F.2d 1264 (9th Cir. 1970). Like the Court of Ap-

peals for the District of Columbia, “[w]e will not permit

a suit for damages occasioned by activities that are not

meaningfully separable from a protected discretionary

function.” Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir.

1983), cert. denied, 465 U.S. 1100 (1984).

In a companion opinion filed herewith, 85-6153 et seq.,

we discuss the political nature of the President’s decision

to authorize the use of Agent Orange and point to that

factor as a third cogent reason why there should be no

second-guessing by the judiciary.

The judgment of the district court is affirmed except as

to that portion which dismisses the so-called direct claims

of the wives and children by way of summary judgment.

That portion of the judgment is vacated, and the wives’

and childrens’ so-called direct claims are remanded to the

district court with instructions to dismiss them for lack

of jurisdiction.

No costs to any party.

28a

APPENDIX IV

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1077, 1078, 1079—August Term, 1985

(Argued: April 10, 1986 Decided: April 21, 1987)

Docket Nos. 85-6091, -6093, -6095

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. DE RAPS; JAMES K. EFISHOFF; JUAN H. GON-

ZALES; CHARLES W. HALL; WILLIE N. HOWARD:

CLIFFORD N. HUCKABAY, individually and as guardi-

an ad litem for GINA MARIE HUCKABAY; RAY C.

JONES; GLEN J. MARTIN, JR.; TIMOTHY J. MC

CORMICK; MICHAEL J. MC TIGHE; 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;

29a

JOHN F. BISSELL; RUFUS DIAGLE; MERLE J.

FULBON-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. SOU-

ZA; 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 plaintiffs individually and as vepre-

sentative of all those similarly situated,

~ Plaintiffs-Appellants,

UNITED STATES OF AMERICA; JOSEPH MAX-

WELL CLELAND, Administrator, United States Veterans

Administration, and his successors, ROBERT E. NIMMO

and HARRY N. WALTERS; GUY MC MICHAEL,

General Counsel, United States Veterans Administration,

and his successor, JOHN MURPHY; DONALD CUSTIS,

Chief Medical Director, United States Veterans Adminis-

tration, and the Acting Chief, JOHN GRONVALL;

CHARLES PECKARSKY, Chief Benefits Director, United

States Veterans Administration, and his successor, DORO-

THY STARBUCK: and the VETERANS ADMINISTRA-

TION 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-A ppellees.

30a

DAN FORD, and his wife, CHRISTINA FORD; indi-

vidually, and as members and representatives of a class,

Plaintiffs-A ppellants,

UNITED STATES OF AMERICA, et al.,

Defendants-A ppellees.

DANIEL C. BATTS,

Plaintiff,

UNITED STATES OF AMERICA, et al.,

Defendants-A ppellees.

LOUGHERY, et al.,

Plaintiffs-A ppellants,

UNITED STATES OF AMERICA, et al.

Defendants.

Before:

VAN GRAAFEILAND, WINTER and MINER,

Circuit Judges.

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.

3la

JOAN M. BERNOTT, Special Litigation Counsel,

Torts Branch, Civil Division, Department of Justice,

Washington, D.C. (Richard K. Willard, Ass’t Att’y

Gen., Arvin Maskin, U.S. Att’y, Washington, D.C.,

and Raymond J. Dearie, United States Attorney for

the Eastern District of New York, of Counsel), for

Defendant-Appellee United States of America.

NEIL R. PETERSON, Philadephia, Pa. (Gene Locks,

Greitzer and Locks, Philadelphia, Pa., of Counsel),

for Plaintiffs-A ppellants.

David W. Moyer and Philip E. Brown, Hoberg,

Finger, Brown, Cox & Molligan, San Francisco, Ca.,

of Counsel), for Plaintiffs-Appellants.

Thomas Henderson, Pittsburgh, Pa. (Henderson &

Goldberg, Pittsburgh, Pa., of Counsel), for Plaintiffs-

Appellants.

David J. Dean, Carle Place, N.Y. (Dean, Falanga

& Rose, Carle Place, N.Y., of Counsel), for Plaintiffs-

Appellants.

John O’Quinn, Houston, Texas (O’Quinn, Hagan &

Whitman, Houston, Texas, of Counsel), for Plaintiffs-

Appellants.

Stanley M. Chesley, Cincinnati, Ohio (Waite,

Schneider, Bayless & Chesley, Cincinnati, Ohio, of

Counsel), for Plaintiffs-Appellants.

Newton B. Schwartz, Houston, Texas, for Plaintiffs-

Appellants.

Stephen J. Schlegel, Chicago, Ill. (Schlegel & Trafelet,

Chicago, IIl., of Counsel), for Plaintiffs-Appellants.

32a

VAN GRAAFEILAND, Circuit Judge:

Our discussion of the background and procedural his-

tory of this litigation appears in Judge Winter’s lead opin-

ion, 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, con-

cerned 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. Cle-

land, 531 F. Supp. 724, 730-33 (E.D.N.Y. 1982); see

Chappell v. Wallace, 462 U.S. 296 (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 pos-

ture, familiarity with the administrative claim require-

ments of the FTCA is necessary for an understanding of

the discussion that follows. The administrative claim re-

quirements 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

33a

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 require-

ment 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 statu-

tory requirements. Jn re “Agent Orange” Product Liability

Litigation, 506 F. Supp. 757, 760-61 (E.D.N.Y. 1980).

As might have been expected, plaintiffs’ attorneys there-

after concentrated most of their fire on the chemical com-

panies. Fs

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 Viet-

nam during the hostilities from 1961 to 1972, who

claim injevy 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.

iieniaeinmanieimeiieail

34a

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. Jd. 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 iden-

tify itself as representing any of the individual plaintiffs-

appellants in this action against the Government.! The

caption of the second contained only the names of the

first group of plaintiffs-appellants above named, begin-

ning 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 conclud-

ing 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 certifica-

1. The Agent Orange Plaintiffs’ Management Committee is the

successor to a committee appointed in 1980 to represent a tentatively

certified plaintiffs’ class in an action against the chemical companies.

See In re “Agent Orange” Product Liability Litigation, supra, 506

F.Supp. at 788; 534 F.Supp. 1046, 1052-53, 611 F.Supp. 1452, 1454.

35a

tion was denied in the instant action and there is no indi-

vidual appellant. “Instead”, the Government argues, “this

appeal is brought by Committee counsel acting exclu-

sively as a pro bono fiduciary for a decidedly uncertified

class, many or most of whose numbers disavow the com-

plaint.” This, we think, misstates the legal issue which

the Management Committee’s unusual procedure has cre-

ated. The denial of class certification does not preclude

individuai plaintiffs properly before the court from press-

ing 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 certifi-

cation. United Airlines, Inc. v. McDonald, 432 U.S. 385,

393 (1977). The question, then, is not whether the indi-

vidual party-plaintiffs could make an effective decision to

appeal, but whether the Management Committee had the

authority to make this decision for them. See Massachu-

setts v. Feeney, 429 U.S. 66 (1976) (per curiam). Inso-

far as the first and third notices of appeal are concerned,

we think that the question must be answered in the nega-

tive. 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 at-

torneys claiming to represent all of the individual plain-

tiffs in the Aguiar group. However, counsel for the Man-

agement 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, repre-

sent the class, as opposed to any particular individ-

36a

uals 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). How-

ever, only class issues are here being raised on be-

half of those plaintiffs.

After some intervening explanatory paragraphs, the let-

ter concluded:

This explains why we are withdrawing the third issue

pertaining to wives’ independent claims for miscar-

riages. 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 con-

fined 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 (1983);

Lunsford v. United States, 570 F.2d 221, 224-27 (8th

Cir. 1977); Commonwealth of Pennsylvania v. National

Ass'n of Flood Insurers, 520 F.2d 11, 23-25 (3d Cir.

1975); Luria v. Civil Aeronautics Board, 473 F. Supp.

242 (S.D.N.Y. 1979); Kantor v. Kahn, 463 F. Supp.

1160, 1162-64. (S.D.N.Y. 1979); Founding Church of

Scientology v. Director, FBI, 459 F. Supp. 748, 754-56

(D.9.C. 1978).

37a

Assuming that the appeals herein were intended to, and

did, include the individual party-plaintiffs’ claims, we

nonetheless would have no jurisdiction to consider the

claims of those plaintiffs who had not met the adminis-

trative prerequisites of suit. Although we might remand

those cases to the district court for a determination as to

which, if any, of the plaintiffs in this group had complied

with the FTCA’s administrative claim requirements, we

see no purpose in doing this if the district court acted

correctly in dismissing the cases on the merits. We believe

that it did.

In an effort to allege a viable cause of action, plaintiffs’

counsel assign their claims of government wrongdoing to

three separate time periods—pre-induction, in-service, and

post-service. The pre-induction claims are based largely

upon an alleged failure to warn of the Agent Orange

health hazards to which the inductees would be exposed.

The in-service claims deal with the allegedly negligent

acts that led to and accompanied the actual exposure. The ~

post-service allegations deal with the Government’s failure

to warn plaintiffs of the health hazards they faced and to

treat or monitor the treatment for plaintiffs’ Agent Orange-

related illnesses. All of these claims were summarily re-

jected by the district court. 603 F. Supp. at 242-45.

The ultimate policy decision to use Agent Orange was

made by President Kennedy. 603 F. Supp. at 244. He, of

course, was Commander in Chief of the Armed Forces

with “decision-making responsibility in the area of mili-

tary operations.” DaCosta v. Laird, 471 F.2d 1146, 1154

(2d Cir. 1973). However, in making decisions of this

nature, the President does not act alone. Article I, section

8 of the Constitution empowers Congress to “raise and

38a

support Armies” and to “make Rules for the Government

and Regulation of the land and naval Forces.” See Rostker

v. Goldberg, 453 U.S. 57, 59 (1981). Pursuant to that

authority, Congress has designated the Department of

Defense as an Executive Department of the United States,

10 U.S.C. § 131, and has directed the Secretary of De-

fense; with the assistance of the Joint Chiefs of Staff

and advisory committees and panels, to make recommen-

dations and reports to Congress concerning existing and

proposed weapon systems, 10 U.S.C. §§ 139, 141, 174.

Congress also has created the office of Under Secretary of

Defense for Research and Engineering, whose duties in-

clude supervising all research and engineering activities

in the Department of Defense and advising the Secretary

on scientific and technical matters, 10 U.S.C. § 135.

Absent a substantial constitutional issue, the wisdom of

the decisions made by these concurrent branches of the

Government should not be subject to judicial review.

Orderly government requires that the judiciary be as

scrupulous not to interfere with legitimate Army mat-

ters as the Army must be scrupulous not to intervene

in judicial matters.

Chappell v. Wallace, supra, 462 U.S. at 301, quoting

Orloff v. Willoughby, 345 U.S. 83, 94 (1953).

In Gilligan v. Morgan, 413 U.S. 1 (1973), in which

the Court reversed a Circuit Court order directing a dis-

trict court to examine the “pattern of training, weaponry

and orders in the Ohio National Guard”, id. at 4, Chief

Justice Burger said:

It would be difficult to think of a clearer example

of the type of governmental action that was intended

39a

by the Constitution to be left to the political branches

directly responsible—as the Judicial Branch is not—

to the electoral process. Moreover, it is difficult to

conceive of an area of governmental activity in which

the courts have less competence. The complex, subtle,

and professional decisions as to the composition,

training, equipping, and control of a military force

are essentially professional military judgments, sub-

ject always to civilian control of the Legislative and

Executive Branches. The ultimate responsibility for

these decisions is appropriately vested in branches of

the government which are periodically subject to

electoral accountability. It is this power of oversight

and control of military force by elected representa-

tives and officials which underlies our entire consti-

tutional system; the majority opinion of the Court

of Appeals failed to give appropriate weight to this

separation of powers.

Id. at 10-11.

Two well-established doctrines make the foregoing

principles of restraint peculiarly applicable to the instant

FTCA actions, which ask the judiciary to pass judgment

upon the discretionary military decisions involving Agent

Orange. The first of these is the so-called “discretionary

function” exception to the Government’s waiver of im-

munity under the FTCA, 28 U.S.C. § 2680(a), which

we discuss in the Hogan v. Dow Chemical opinion, Nos.

85-6223, 85-6341, filed herewith. There, we hold that the

Government was performing a discretionary function

while field-testing Agent Orange in Hawaii. The second is

the so-called “Feres doctrine”, originating in the seminal

case of Feres v. United States, 340 U.S. 135 (1950),

which prohibits the judiciary from imposing liability upon

the United States for injuries to servicemen that “arise out

of or are in the course of activity incident to service.” Jd.

—

40a

at 146. There is little difference between these doctrines as

they relate to the facts of the instant case. Both apply to

discretionary military decisions. Perkins v. Rumsfeid, 577

F.2d 366, 368 (6th Cir. 1978); Builders Corp. of America

v. United States, 320 F.2d 425 (9th Cir. 1963), cert.

denied, 376 U.S. 906 (1964). Both preclude judicial

“second guessing” in FTCA litigation of discretionary leg-

islative and executive decisions such as those that were

made concerning Agent Orange. See United States v. S.A.

Empresa De Viacao Aerea Rio Grandense (Varig Air-

lines), 467 U.S. 797, 814 (1984) (the discretionary func-

tion exception) and United States v. Shearer, 473 U.S.

52, 57-59 (1985) (the Feres doctrine).

Appellants have concentrated their attack on Feres

which, they say, consists of “perversely overstretched

trappings of sovereign immunity”, “warped logic”, and

“balderdash”. Confronted with the affirmaton of the Feres

holding in United States v. Shearer, supra, which fol-

lowed the filing of appellants’ original brief, appellants

assert in their reply brief that Chief Justice Burger, who

wrote Shearer, “rambled into Feres as dictum.” Although

Feres has not been without its properly less caustic critics,

see, e.g., Bozeman v. United States, 780 F.2d 198, 200 (2d

Cir. 1985), it remains the law of the land and is binding

on this Court. Jd. at 202. See also Chappell v. Wallace,

supra, 462 U.S. 296, and Stencel Aero Engineering Corp.

v. United States, 431 U.S. 666, 673-74 (1977).

The recovery which the veterans seek for pre-induction

negligence is dependent upon and inseparably intertwined

with the injuries they allegedly sustained while in service.

In a situation such as this, overwhelming authority holds

that Feres bars recovery. See, e.g., Healy v. United States,

192 F. Supp. 325 (S.D.N.Y.), aff'd on opinion below, 295

4la

F.2d 958 (2d Cir. 1961); Satterfield v. United States, 788

F.2d 395, 399 n.3 (6th Cir. 1986); Joseph v. United

States, 505 F.2d 525 (7th Cir. 1974); Glorioso v. United

States, 331 F. Supp. 1 (N.D. Miss. 1971); Redmond vy.

United States, 331 F. Supp. 1222 (N.D. Ill. 1971).

Application of the discretionary function rule leads

ineluctably to the same result. Dalehite v. United States,

346 U.S. 15 (1953), the leading case in this field, in-

volved, among other things, a failure to warn. Id. at 42,

46-47. Lower courts which follow Dalehite have reached

the same result. See Ford v. American Motors Corp., 770

F.2d 465 (Sth Cir. 1985); Cisco v. United States, 768

F.2d 788, 789 (7th Cir. 1985); Begay v. United States,

768 F.2d 1059, 1066 (9th Cir. 1985); Shuman v. United

States, 765 F.2d 283, 291 (ist Cir. 1985); General

Public Utilities Corp. v. United States, 745 F.2d 239,

243, 245 (3d Cir. 1984), cert. denied, 469 U.S. 1228

(1985); Green v. United States, 629 F.2d 521, 585-86

(9th Cir. 1980).

If the Feres doctrine is to have any meaning at ail, the

claim for in-service injuries is a classic case for its appli-

cation. At issue is a decision of the veterans’ highest mili-

tary superiors that was designed to help the veterans in

fighting the armed conflict in which they were engaged.

“Here, the parties do not dispute that the government's

motives in using Agent Orange in southeast Asia were

valid military objectives: defoliate jungle growth to de-

prive enemy forces of ground cover and destroy enemy

crops to restrict enemy’s food supplies.” 506 F. Supp. at

779: see also 603 F. Supp. at 244. We find no merit

whatever in appellants’ argument that the Government

should be estopped from relying on Feres because, in

subsequently opposing certain veterans’ claims for bene-

————

42a

fits, the Government argued that their injuries were not

service related, while it contends here that the same in-

juries were “incident to service.” This is a distortion of

the Government’s position, which is that, if the veterans’

injuries were caused by exposure to Agent Orange, a con-

tention which the Government consistently has rejected,

they were “incident to service”. See also Henninger v.

United States, 473 F.2d 814, 816 (9th Cir.), cert. denied,

414 U.S. 819 (1973), regarding the inapplicability of the

doctrine of estoppel in FTCA cases.

In Dalehite v. United States, supra, 346 U.S. at 37, the

Court said, “That the cabinet-level decision to institute

the fertilizer export program was a discretionary act is not

seriously disputed.” The same statement may be made

with regard to Agent Orange. The discretionary function

exception clearly is applicable to the veterans’ in-service

injuries.

We agree with both Judge Pratt and Chief Judge Wein-

stein that the veterans’ claims for post-service injuries are

inseparably entwined with and directly related to their

military service. See 506 F. Supp. at 779 and 603 F. Supp.

at 244-45. The majority of other Circuits would rule simi-

larly. See, e.g., Heilman v. United States, 731 F.2d 1104,

1108 (3d Cir. 1984); Gaspard v. United States, 713 F.2d

1097, 1100-01 (Sth Cir. 1983), cert. denied, 466 U.S.

975 (1984); Lombard v. United States, 690 F.2d 215,

220-23 (D.C. Cir. 1982), cert. denied, 462 U.S. 1118

(1983); Laswell v. Brown, 683 F.2d 261, 264-67 (8th

Cir. 1982), cert. denied, 459 U.S. 1210 (1983). See also

Kosak y. United States, 465 U.S. 848, 854 (1984).

We are not persuaded by plaintiffs’ attempts to frame

a theory of independent post-service wrongdoing to bring

43a

their claims within the ambit of United States v. Brown,

348 U.S. 110 (1954), and cases such as Broudy v. United

States, 661 F.2d 125 (9th Cir. 1981), and Stanley v.

United States, 786 F.2d 1490 (11th Cir.), cert. granted,

107 S. Ct. 642 (1986), which follow Brown. The district

court did not simply reject plaintiffs’ 373-paragraph com-

plaint as an inadequate pleading; the Government’s mo-

tion was in the alternative, i.e., for dismissal or sum-

mary judgment, 603 F. Supp. at 241, and the district court

granted summary judgment, id. at 248. If anything is

clear after reviewing an appellate record of over 16,000

pages, reading hundreds of pages of briefs, and listening

to two full days of oral argument, it is that the weight of

present scientific evidence does not establish that Agent

Orange injured military personnel in Vietnam. Plaintiffs

cannot disguise this fact by what the district court termed

“ ‘inventive presentation or artful pleading.’ ” 603 F. Supp.

at 245.

The very paucity of proof concerning the possible dele-

terious effects of Agent Orange made the decision whether

to issue a nationwide health warning even more clearly an

exercise of discretion. The reasoning of the discretionary

function cases cited in connection with our discussion of

pre-induction failure to warn is equally applicable here.

See In re Consolidated U.S. Atmospheric Testing Litiga-

tion, 616 F. Supp. 759, 774-77 (N.D. Cal. 1985). In con-

sidering the discretionary function exception, we are not

bound to apply common law tort rules concerning the

duty to warn as they may differ from State to State. Since

the discretionary function exception of the FTCA does

not exist in private tort litigation, “state tort standards

cannot adequately control those governmental decisions

in which. to be effective, the decision-maker must look to

44a

considerations of public policy and not merely to estab-

lished professional standards or to standards of general

reasonableness.” Hendry v. United States, 418 F.2d 774,

783 (2d Cir. 1969). See Mitchell v. United States, 787

F.2d 466, 468 (9th Cir. 1986).’

CONCLUSION

Insofar as the appeals purport to be taken on behalf of

a class, they are dismissed. Insofar as the appeals purport

to be taken on behalf of individuals, the judgment ap-

pealed from is affirmed. No costs to the Government on

the appeals.

2. Insofar as appellants’ post-service claims allege failure of the

Veterans Administration to provide adequate medical treatment, we

agree with Judge Pratt that appellants seek precisely the type of

judicial review that Congress, in enacting 38 U.S.C. § 211(a), ex-

pressly prohibited. See Ryan v. Cleland, 531 F.Supp. 724, 731 (E.D.

N.Y. 1982); See also Papanikoloaou v. Administrator of the Veterans

Admin., 762 F.2d 8 (2d Cir.) (per curiam), cert. denied, 106 S. Ct.

150 (1985); Hartmann v. United States, 645 F.Supp. 446, 448-50

(E.D. N.Y. 1985); H.R. No. 91-1166, 91st Cong., 2d Sess. (1970),

reprinted in 1970 U.S. Code Cong. & Ad. News 3723, 3729-31.

wih

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