Petition for Writ of Certiorari — Ivy v. Diamond Shamrock Chemicals Co.
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93-8 RIF PN
No. 6 0 NOV 2 4 1993
iN THE OFMIOE OF WE meas
Supreme Court of the United States
October Term, 1993
SHIRLEY IVY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF DONALD IVY, DECEASED; CHARLES JARDON AND
TONY K. JARDON, INDIVIDUALLY AND AS NEXT FRIEND OF CHARLES
JARDON, JR.; ROBIN JARDON, WARREN JARDON AND SHARON
JARDON; SHIRLEY ZALEWASKI, INDIVIDUALLY AND AS REPRE-
SENTATIVE OF THE ESTATE OF YEN ZALEWASKI, DECEASED; GARY
THOMAS; MARY LEE THOMAS; JAMES L. KENT; EMMA I. KENT;
DAWN MARIE INMAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF BOBBY JOE INMAN, DECEASED; JAMES DONALD DELOATCH;
JOYCE DELOATCH; URSULA MARGOT PARRY, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE OF JAMES D. PARRY, SR.,
DECEASED; JAMES D. PARRY, JR.; JAMES CHRISTOPHER PARRY,
Petitioners,
v.
DIAMOND SHAMROCK CHEMICALS COMPANY; DOW CHEM-
CAL COMPANY; MONSANTO COMPANY; UNIROYAL, INC.;
HERCULES, INC.; THOMPSON-HAYWARD CHEMICAL COM-
PANY; T H AGRICULTURE & NUTRITION COMPANY, INC.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
LAURENCE H. TRIBE ROBERT M: HAGER
KENNETH J. CHESEBRO Counsel of Record
JONATHAN S. MASSEY 2020 Pennsylvania Ave., N.W.
IRWIN R. GROSS Washington, D.C. 20006
1525 Massachusetts Avenue (202) 333-0099
Cambridge, MA 02138
(617) 495-1767
Counsel for Petitioners
November 24, 1993
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS
QUESTIONS PRESENTED
This case was brought under Texas law and filed in a Texas fae
state court by Texas plaintiffs against a Texas defendant and
other defendants, and could not have been brought originally in
federal court. It nonetheless was removed and transferred to a
New York federal court for disposition. The judgment below
presents the following questions:
1. Whether federal district judges may circumvent the
limitations Congress wrote into its seven removal statutes,
as the Second Circuit held below, simply by invoking the
All Writs Act "to remove an otherwise unremovable state
court case," in the discretion of the judge, "when the need
arises."
2. Whether, as the Second Circuit held below, already
injured named plaintiffs in Rule 23(b)(3) class actions are
free, despite the Due Process Clause, to negotiate away the
unaccrued future legal claims of absent persons without any
notice, without any right to opt out, and without separate
class representation, on the ground that such protections are
not essential for "unknown plaintiffs," because "providing
individual notice and opt-out rights to persons who are
unaware of an injury would probably do little good."
In addition to petitioners, the following persons appeared
as plaintiffs-appellants in the Second Circuit below:
VERDA WILSON, INDIVIDUALLY AND AS REPIRESENTATIVE OF
THE ESTATE OF ISAIAH WILSON, JR., DECEASED;
EARL THOMPSON; JUDY L. THOMPSON;
PEGGY SANDS, INDIVIDUALLY AND AS REPRESENTATIVE OF
THE ESTATE OF MARTIN SANDS, DECEASED;
EMILE ANNIBOLLI;
LAURA JENKINS, INDIVIDUALLY AND AS REPRESENTATIVE OF
THE ESTATE OF EDDIE JENKINS,_DECEASED:-RONALD-—L-
HARTMAN, KATHERINA H. HARTMAN, AND AS NEXT
FRIEND TO JEFFERY ALAN HARTMAN AND ANGELA
MARIE HARTMAN, BOTH MINORS INDIVIDUALLY AND AS
REPRESENTATIVE OF THOSE SIMILARLY SITUATED.
TABLE OF CONTENTS
TE oc 5b 5 63sec ss eos aces es
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os Es pe cedacsecssccnccace
2. Proceedings in the District Court ................
A. The Earlier Agent Orange Litigation ............
B. The District Court’s Removal and .
pameen-6t-he-Cae- initiaited
3. Proceedings in the Second Circuit ...............
REASONS FOR GRANTING THE WRIT ............
I. THIS COURT SHOULD DETERMINE WHETHER
FEDERAL DISTRICT JUDGES MAY USE
THE ALL WRITS ACT, IN THEIR DISCRETION,
TO REMOVE AN “OTHERWISE UNREMOVABLE
SS
A. The All Writs Removal Doctrine is
Constitutionally Indefensible and
Should Be Repudiated in Its Entirety ............
B. Even If the All Writs Act Authorizes
Lower Courts to Remove an "Otherwise
Unremovable State Court Case" in Some
Situations, This Court Should Articulate
Clear Limits on the Use of That Power ..........
Il. THIS COURT SHOULD PASS ON THE
ACCEPTIBILITY OF A QUASI-LEGISLATIVE
ANALYSIS FOR DETERMINING WHETHER
ALREADY INJURED NAMED PLAINTIFFS MAY
EXTINGUISH THE UNACCRUED FUTURE
CLAIMS OF ABSENT PERSONS ...............
et Ads 6 kg’ de aes b 0D & 8
Vv
TABLE OF AUTHORITIES
Cases: Page
Adams v. Aero Services Int’l, Inc.,
6357 F. Same. S19 GL. Va. 1967) 0 ww ee es 13
American Fire & Casualty Co. v. Finn,
RS ee ee ae re 12
Atlantic Coast Line R.R. v. Brotherhood of
Locomotive Engineers, 398 U.S. 281 (1970) ..... 13, 21
Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U.S. 441 (1915) ............. 30
Bluefield Community Hospital Inc. v. Anziulewicz,
737 F.2d 405 (4th Cir. 1984) ..... Lee ho ee ee 20
M. Brittingham v. United States Comm’r
of Internal Revenue,
ee Bt le eo) re ee eee 11
Carlough v. Amchem Prods., Inc., No. 93-1429,
1993 U.S. App. LEXIS 24930
(36 Cie. Beem A, FR no ke eee wes 25
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) .... 14
Chandler v. Judicial Conference of the
Tenth Circuit, 398 U.S. 74, reh’g denied,
Pee ee ee is od eb ee PR RS 17
Chick Kam Choo v. Exxon Corp.,
SD rs, ee ie a a ew ws 19
Commercial Security Bank v. Walker Bank &
Trust Co., 456 F.2d 1352 (10th Cir. 1972) ........ 11
C.P.C. v. Nosco Plastics, Inc.,
Meee FF ee Pe 18
Dante v. Dow Corning Corp., 143 F.R.D. 136
CEs: Se ee a os Se i Pe re Keane ed 25
Donovan v. City of Dallas, 377 U.S. 408, reh’g denied,
ee EE ok ai Bs ee a ee es 20
Durousseau v. United States,
Sp Se ee Bee CUO ge Ske ee oe 16
Federated Dep't Stores, Inc. v. Moitie,
oe Sis Se ks 6 ck oe sh ee eee 4
vi
TABLE OF AUTHORITIES (cont.)
Cases: Page
Franchise Tax Bd. of the State of California v.
Construction Laborers Vacation Trust.
ke Be ee 14, 18
Garcia v. San Antonio Transit Auth. ,
469 U.S. 528, reh'g denied, 471 U.S. 1049 (1985) ... 22
General Electric v. Byrne, 611 F.2d 670
UG. Gat, Tee 6 5 bb RS eos dss cee es ae 18
Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) ...... 12, 22
Hamilton v. Nakai, 453 F.2d 152
(9th Cir. 1972), cert. denied,
Ga Ue. Fae Caen 8.0 eid ot Rows sss cc OMe: 1]
Hansberry v. Lee, 311 U.S. 32 (1940) ......000... 28
Healy v. Ratta, 292 U.S. 263 (1934) ........... 12, 16
Hoffman-La Roche, Inc. v. Sperling,
SOD ©. Gay Gee ow a We 06's we ee woes 27
Hornsby v. Hornsby’s Stores, Inc..,
1991 WL 33672 (N.D. Ill. 1991) ..........00.. 11
In re “Agent Orange” Prod. Liab. Litig.,
100 F.R.D. 718, (E.D.N.Y.), aff'd,
818 F.2d 145 (2d Cir. 1987), cert. denied,
GOG-4J.5. IDC CHID 6 c.c.0 bee eee ese wes passim
In re “Agent Orange” Product Liability Litigation,
611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd,
818 F.2d 187 (2d Cir. 1987), cert. denied,
SST U.S. TX00 Cie 66s 0 cee ower Cees ou oe 7
In re “Agent Orange” Product Liability Litigation,
597 F. Supp. 740 (E.D.N.Y. 1984) ......... 6-7, 22
In re "Agent Orange” Product Liability Litigation,
635 F.2d 987 (2d Cir. 1980), cert. denied,
G34 U.S. LEAR CISD co aha cease ewe cen 3
In re Breast Implant Litig., 1992 U.S. Dist. Lexis 10080
(ley 21, 1958 WD. Gils OR ow ee ee ce 25
In re Diamond Shamrock Chemical Co. ,
125 F.20 G56 GG Chr. SERS s.5 50 heb ere en ees 5
In re Fibreboard Corp., 893 F.2d 706 (Sth Cir. 1990) .. 30
a
vii
TABLE OF AUTHORITIES (cont.)
Cases: Page
In re Ivy, 901 F.2d 7 (2d Cir. 1990) .............. 4
In re Virginia Elec. & Power Co.,
- | & & f Te A ee rrr 18
Jeff D. v. Andrus, 899 F.2d 753 (9th Cir. 1989) ...... 2c
Kentucky v. Powers, 201 U.S. 1 (1906) ........... 16
Kline v. Burke Const. Co., 260 U.S. 226 (1922) ...... 20
Lockerty v. Phillips, 319 U.S. 182 (1943) .......... 16
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .. 28
Lujan v. Defenders of Wildlife,
be eM 0 SA ee 27
Mercy Hosp. Ass'n v. Miccio,
604 F. Supp. 1177 (E.D.N.Y. 1985) ............ 13
Mistretta v. United States, 488 U.S. 361 (1988) ...... 19
Morrison v. Olson, 487 U.S. 654 (1988) ........... 29
Mullane v. Central Hanover Bank & Trust Co.,
ee ee a aa a be web 6 6b 066 008 28
New York V. United States, 112 S.Ct. 2406 (1992) .... 22
Nowling v. Aero Servs. Int'l, Inc.,
Fs PD bh eke ec cc es 11
Pennsylvania Bureau of Corrections v.
United States Marshals, 474 U.S. 34 (1985) ..... 15-17
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ...... 21
Phillips Petroleum Co. v. Shutts,
als a as 5 6 6-0) 6.60.6. 6080 9, 28-30
Ryan v. Dow Chemical Co.,
ee a Es BD nec esccees 4
Salem v. United States Lines Co., 370 U.S. 31,
reh’g denied, 370 U.S. 965 (1962) ............. 21
Shamrock Oil & Gas Corp. v. Sheets,
SS eS 12, 14
Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850) ........ 16
Southern California Petroleum Corp. v. Harper,
rex g oe by fe 0 ree 20
senna
Viii
TABLE OF AUTHORITIES (cont.)
Cases: Page
United States ex rel. Walker v. Gunn,
511 F.2d 1024 (9th Cir.), cert. denied,
Pec Q' * @ Yee ee 13
United States v. City of New York, 972 F2d 464
7) ee) ee 24
United States v. FMC Corp.,
1963 U.S. LEXIS 2449 (1963) ......----+5+55 17
United States v. Hall, 583 F.Supp. 717 (E.D. Va. 1984) . Il
United States v. Western Electric Co.,
900 F.2d 283 (D.C. Cir.), cert. denied,
Vee Ss fF), Ferrer eee ee 20
Urie v. Thompson, 337 U.S. 163 (1949) ......--.+--- 26
Westinghouse Elec. Corp. v. Newman & Holtzinger,
992 F.2d 932 (9th Cir. 1993) ......--2 2+ ee eee 11
Whitmore v. Arkansas, 493 U.S. 149 (1990) ........ 27
Willy v. Coastal Corp., 855 F.2d 1160 (Sth Cir. 1988) .. Il
Yonkers Racing Corp. v. City of Yonkers,
858 F.2d 855 (2d Cir. 1988), cert. denied,
499 U.S. 1077 (19GB) 0. wc ccc wc cenees 15, 23-24
Constitutional Provisions, Statutes and Rules:
i cae e ee eee eee eawe i
ee ed pon ee ba tee eee a eas 21
ee BD ote cc ene ees esares 2, 25
Fed.R.Civ.P. 23(b)(3) 2... 2. ee ee eee ee eee passim
Roe 2 Ap. ss ee eee ee ee ea 5
ST BOD <5 6.6 oo 0's 8:2 wow eee sree ines l
y £5 1 lll SE nwa ee ee eae eres 4
EE alk. ob 0 cen 00a 9 6h O a dae ee oo 2
y oo Vode fee ne ae 12, 14
OD ob no beeen etn er ens $e 68s 12
, Pl ef eer errr ere ee eee 12
, 2 Pee oP ee ee ee a 12
p RR ke Fo rrr ey fore re re 2 ee 12
, Ok eo rrr rr ee ee ee 12
ix
TABLE OF AUTHORITIES (cont.)
Constitutional Provisions, Statutes and Rules: Page
oe oo a ag oe 58 hak 3 4.3 heen
kg dg yg Ve a ee ee 8 8k passim
os ook a ae ea 6 Wd mck Be A 23
ee ae ere oer 13
BS a re 14-15
OE OE gg kc ch ae 6 ke ek 8 ke 14-15
Miscellaneous:
ALI, STUDY OF THE DIVISION OF JURISDICTION
BETWEEN STATE AND FEDERAL Courts, (1965) 18
Paul M. Bator, The State Courts and Federal
Constitutional Litigation,
22 WM. & MARY L. REV. 605 (1981) ........... 19
P. Bator, D. Meltser, P. Mishkin & D. Shapiro,
HART AND WECHSLER’S THE FEDERAL COURTS
AND THE FEDERAL SYSTEM (3d ed. 1988) ....... 13-14
Alexander Hamilton, The Federalist No. 82
a 13
Elizabeth R. Kaczynski, The Inclusion of Future
Members in Rule 23(b)(2) Class Actions,
Oe Gs ee Us PP CUD oo es 27
Arthur R. Miller & David Crump, Jurisdiction and
Choice of Law in Multistate Class Actions After
Phillips Petroleum Co. v. Shutts,
ar eee 28
"Multiparty, Multiforum Jurisdiction Act,"
H.R. 3406, 101st Cong. 2d Sess. (1990) ......... 19
3 Herbert B. Newberg & Alba Conte, Newberg on
Caaes Action | 17.39 GG eb. 1992) .............. 27
Marck C. Weber, Preclusion and Procedural Due
Process in Rule 23(b)(2) Class Actions,
21 J. OF L. REFORM 374 (1988) ............... 28
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Second Circuit, which affirmed both the district court’s refusal to
remand the case to state court and its dismissal of petitioners’
claims, is reported at 996 F.2d 1425, and is reprinted as Appendix
A, at Al. (Page references to the appendices bound with this
Petition are styled "A__"). The decision and order of the United
States District Court for the Eastern District of New York, 781 F.
Supp. 902, and an unpublished ancillary order, from which appeal
was taken are reprinted as Appendix B (A26) and Appendix C
(A60), respectively.
JURISDICTION
The decision of the court of appeals issued on June 24, 1993.
A timely petition for rehearing and suggestion for rehearing en banc
was denied on August 26, 1993. See Appendix D, at A63. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Fifth Amendment to the United States Constitution provides
in relevant part: "No person shall be . . . deprived of life, liberty
or property, without due process of law."
28 U.S.C. § 1441 provides in relevant part:
§ 1441. Actions removable generally
(a) [A]ny civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the
district court of the United States for the district and division
embracing the place where such action is pending.
The All Writs Act, codified at 28 U.S.C. § 1651(a), provides:
§ 1651. Writs
(a) The Supreme Court and all courts established by Act
of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.
Fed. R. Civ. P. 23 is reprinted as Appendix E, at A64.
2
STATEMENT OF THE CASE
The decision below is the third in a line of cases from the
Second Circuit beginning in 1988 that embraces a radical new
removal doctrine — and the first squarely to present the issue to this
Court. See note 32, infra. In conflict with decisions of this Court
and several courts of appeals, this doctrine permits federal district
judges to ignore Congress’s seven precise removal provisions and
to remove cases from state courts whenever they deem it necessary.
In the words of the Second Circuit, the All Writs Act permits
district judges "to remove an otherwise unremovable state court
case" in the discretion of the judge, "when the need arises." A8-A9.
in this extraordinary case, a total of 21 States appeared as amici
curiae to caution the Second Circuit that the failure to reverse the
district court would invite "every federal district court to circumvent
the removal statutes and other specific jurisdictional legislation and
to transform the All Writs Act into a general grant of federal
jurisdiction and a broad license to interfere with state court
proceedings.” Brief Amici Curiae of the State of Alabama, et al.,
at 16. The 21 States termed this radical doctrine "a breach of the
walls of comity and federalism that have been erected by Congress
and the Supreme Court to ensure the continued vitality of our
nation’s parallel state and federal judicial systems," and "an ill-
advised erosion of judicial federalism." /d. at 16-17.
Unfortunately, this concern for judicial federalism was not
heeded. Instead, the Second Circuit reaffirmed its "All Writs
removal" doctrine. A8-A9. This Court should grant certiorari to
address what the 21 States correctly described as "an illegitimate
judicial amendment of Congress’s removal statute." /d. at 18.
Even if federal removal jurisdiction somehow exists in this case,
there is a further question worthy of review by this Court: under
Fed. R. Civ. P. 23 and due process, in what circumstances (if any)
may already injured named plaintiffs, in a Rule 23(b)(3) class action
for money damages, contract to extinguish the unaccrued future
legal claims of absent persons? The binding effect of class actions
on absent persons is an important issue, as illustrated by this Court’s
current consideration of the issue in the context of non-opt out, Rule
23(b)(2) class actions, in Ticor Title v. Brown, No. 92-1988. This
petition presents fundamental aspects of the issue not present in
Ticor Title, which are worthy of this Court’s review regardless of
the disposition of that case.
aianeiaaaiaitaiiaitat iene
wr
1. Proceedings in Texas.
As the 21 States noted, "[t]his case involves tort Claims brought
under Texas law in a Texas state court by Texas plaintiffs against
a Texas defendant and other defendants." Brief Amici Curiae at 1.
The case was filed in 1989 by petitioner Shirley Ivy and other
plaintiffs in the District Court of Orange County, Texas.' Petition-
ers are Vietnam veterans and members of their families. They
allege that they have suffered serious physical injuries as a result of
wartime exposure to the chemical herbicide "Agent Orange."? As
the court below acknowledged, "[t]here is no complete diversity of
citizenship, and no federal issue is apparent in the complaints,” A7,
so that a state court was the only forum available to petitioners >
The case could not have been filed in federal court.
Nevertheless, respondents removed the case to the U.S. District
Court for the Eastern District of Texas, citing two grounds for 28
U.S.C. § 1441 original jurisdiction removal, neither of which was
' Petitioners brought suit on their own behalf, but also sought certification
to proceed on behalf of a class of persons similarly situated. Original Petition
at 16-18 (Joint Appendix ("JA"), 2d Cir. No. 92-7575, at 63-65). Although
petitioners have vigorously represented the interests of the putative class since
1989, they do not assert that a class action is necessarily appropriate for other
than limited pretrial purposes. The Texas courts took no action in this case prior
to removal, so that all that is currently before this Court are petitioners’ claims
seeking recovery for their own injuries.
* Agent Orange was manufactured by respondents. The complaint alleges
that Agent Orange "contained, as a byproduct of the manufacturing process, one
of the most toxic chemicals known to man, a compound commonly referred to
as TCDD or ‘dioxin’" and that while in Vietnam petitioners “absorbed the deadly
chemical through the air, through the skin and. . . through water and food."
Original Petition at 8 (JA at 55). Petitioners seek damages for deaths and
suffering from lymphomas, soft-tissue sarcomas, and other serious diseases that
were caused by the veterans’ exposure to Agent Orange in Vietnam; their family
members seek damages for resulting wrongful death, loss of consortium,
economic loss, and other harms. /d. at 12-13 (JA 59-60). The complaint arises
under Texas statutes and common law, alleging defective design and
manufacture, breach of express and/or implied warranties, strict products
liability, negligence, failure to warn, breach of warranty, and deceptive trade
practices. /d. at 8-15 (JA 55-62).
* The Second Circuit earlier held that federal law provides no legal remedy
against respondents for injury as a result of the wartime use of Agent Orange.
In re "Agent Orange” Product Liability Litigation (hereinafter "Agent Orange"),
635 F.2d 987 (2d Cir. 1980), cert. denied, 454 U.S. 1128 (1981).
4
ultimately accepted.* Both courts below upheld removal, however,
on the theory that the All Writs Act permits district judges to
remove otherwise non-removable cases whenever those judges deem
it necessary to do so. A8-A9, A54-A5S.
Simultaneously with filing their answer and notice of removal,
respondents successfully urged the Judicial Panel on Multidistrict
Litigation, over petitioners’ objection, to transfer the case from
Texas to the U.S. District Court for the Eastern District of New
York. See In re Ivy, 901 F.2d 7 (2d Cir. 1990).
2. Proceedings in the District Court.
Once the case was in the Eastern District of New York, the
earlier Agent Orange litigation became the focus of the district
* As the district court below summarized: “[T]he defendants offered two
grounds for federal subject matter jurisdiction. First, the court was said to have
jurisdiction over this action ‘because most of the plaintiffs’ claims have already
been asserted and adjudicated in federal court and plaintiffs’ petition is merely
an artful pleading to avoid federal jurisdiction.’ Second, the court’s jurisdiction
was invoked ‘pursuant to 28 U.S.C. § 1331 based on the doctrine of complete
federal preemption.’" A45 (quoting Notice of Removal). The district court
accepted the “artful pleading" theory, see Federated Dep't Stores, Inc. v. Moitie,
452 U.S. 394, 397 n.2 (1981), as a ground for removal. A5S4. The Second
Circuit reversed, however, holding that the district court’s “artful pleading” anal-
ysis misread applicable precedent. A8. Respondents abandoned their "complete
preemption" theory.
Respondents belatedly moved in the district court “to amend their notice of
removal to assert removal pursuant to 28 U.S.C. § 1442(a)(1),” on the peculiar
theory that when they designed and marketed herbicides containing a deadly
poison (which the government ultimately bought for use in Vietnam), they were
somehow “persons” acting under a “federal officer" within the meaning of that
provision. A6. Although neither the district court nor the Second Circuit
addressed the theory in this case, A9-A10, the issue was resolved against
respondents in a companion case involving civilians exposed to Agent Orange.
See Ryan v. Dow Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992). The court
ruled that respondents’ challenged actions were not taken pursuant to federal
direction, because respondents were “being sued for formulating and producing
a product all of whose components were developed without direct government
control and all of whose methods of manufacture were determined by the
defendants." Jd. at 950. It also noted that "[t]he government sought only to buy
ready-to-order herbicides, not to cause, control, or prevent the production of the
unwanted byproduct, dioxin, which is the alleged cause of plaintiffs’ injuries."
Id.
Thus, the sole removal issue before this Court concerns the propriety of
removal under the All Writs Act.
|
A ee
5
court’s decision both to uphold removal and to dismiss all of
petitioners’ claims.
A. The Earlier Agent Orange Litigation
Beginning in 1978, thousands of Vietnam war veterans and their
families brought state-law tort actions against the present
respondents seeking monetary relief as a result of illnesses and other
injuries they believed they were suffering as a result of exposure to
Agent Orange. A3. These lawsuits were consolidated in the U.S.
District Court for the Eastern District of New York into a single
action known as In re "Agent Orange" Product Liability Litigation,
MDL No. 381. A3. The final complaint alleged that all the named
plaintiffs had been exposed to Agent Orange and "were thereby
caused to suffer severe and permanent disabling injuries, diseases,
physical disorders and disfigurement, and in some cases, death."
Supplemental Appendix, 2d Cir. No. 92-7537, 860, 878. None
claimed to be uninjured or to have unaccrued future claims.
On December 16, 1983, the district court certified a Rule
23(b)(3) class with opt-out rights in order to address the common
issues of general causation and the military contractor defense, and
set trial for six months later, on May 7, 1984. A3-A4.
As required by Rule 23(c)(2), the district court directed "to the
members of the class the best notice practicable under the circum-
stances, including individual notice to all members who can be
identified through reasonable effort." Over respondents’ objection,
the class was defined to consist of all veterans and their families
who had a "subjective" basis for claiming that Agent Orange had
harmed them. Agent Orange, 100 F.R.D. 718, 728-29 (E.D.N.Y.
1983).5 Consequently, individual, first-class mail notice was
* The district court held: "The defendants’ contention that the class as the
court has defined it is unworkable because it is subjective (‘all veterans who were
injured . . . by exposure to Agent Orange’) is a non Sequitur. Subjectiveness
does not affect the applicability of the class trial’s findings to members of the
class and it does not prejudice the defendants in any way. The class is,
therefore, adequately defined and Clearly ascertainable.” Agent Orange, 100
F.R.D. at 728-29 (citation omitted). The Second Circuit denied respondents’
mandamus petition to reverse certification of the class as so defined. Jn re
Diamond Shamrock Chemical Co., 725 F.2d 858, 860 (2d Cir. 1984).
On final merits review at the conclusion of the case, the Second Circuit
reiterated that this class definition had been proper and that adequate notice had
been given to those who subjectively believed that they had been injured by
6
directed to all persons with a lawsuit pending in federal court, or
who had filed a complaint form with the Veteran’s Administration’s
Agent Orange Registry. Agent Orange, 100 F.R.D. at 729. The
court also mandated notices in major newspapers and veterans’
publications alerting veterans that "[i]f you or anyone in your family
can claim injury, illness, death, or birth defect as a result of
exposure to ‘Agent Orange’ . . . you are a member of a class in an
action brought on your behalf in the United States District Court for
the Eastern District Court of New York, unless you take steps to
exclude yourself." /d. at 734. Limited radio and television notices
were also required. /d.
The deadline for opting out of the Rule 23(b)(3) class was May
1, 1984. Six days later, on May 7, 1984, the named plaintiffs
decided to settle the case rather than commence the trial as
scheduled. They received what the Second Circuit characterized as
"essentially a settlement at nuisance value," Agent Orange, 818 F.2d
at 171, in exchange for agreeing that all class members would be
forever barred from suing the defendants for injuries from Agent
Orange.’ However, as the courts below ruled, the parties agreed
to bind not just the persons identified in the class notice (who
subjectively believed that they had suffered injuries and that they
Agent Orange: “Anyone who believed that he or she had suffered injury as a
result of exposure to Agent Orange in Vietnam was on notice of the pendency of
a lawsuit and was thus alerted to seek advice from counsel.” Agent Orange, 818
F.2d 145, 169 (2d Cir. 1987).
* The Veteran’s Administration had established the Registry in 1978 to help
“identify all Vietnam veterans expressing a concern about the possible adverse
health effects of their exposure to Agent Orange." Agent Orange, 597 F. Supp.
740, 852 (E.D.N.Y. 1984). Notice was also directed to veterans who had
expressed concerns about injury to state authorities. The Governor of each State
was requested to refer the class notice "to any state organization created by the
executive or legislative branches dealing with the problems of Vietnam
veterans. 100 F.R.D. at 730-31.
7 The Settlement created a fund to benefit class members and their families
which, as administered, eventually allotted an average of $3200 for death and
total disability claims, and nothing for other claims. See A39. In exchange, the
named plaintiffs agreed that respondents would not be “subject to liability or
expense of any kind to any member of the Class" with respect to Agent Orange
and that "[cJlaims against the Fund shall be the exclusive remedy . . . and all
members of the Class are forever barred from instituting or maintaining any
action against any of the defendants." Agent Orange, 597 F. Supp. at 864
(Settlement Agreement { 5).
(i
>
currently had a claim). Rather, in the settlement the parties
expanded the class definition, stating: "The Class specifically
includes persons who have not yet manifested injury.” Agent
Orange, 597 F. Supp. at 865 (Settlement Agreement 4 8).*
The district court approved the settlement despite its modest
size, largely on the conclusion that the scientific evidence that
existed on dioxin made it “highly unlikely” that any plaintiff whose
claims were then pending in the courts could establish causation.
Agent Orange, 597 F. Supp. at 749. The court of appeals
affirmed. Agent Orange, 818 F.2d 145 (2d Cir. 1987).
B. The District Court’s Removal and Dismissal of the Case
Both the district court’s decision to permit removal and its
decision to dismiss petitioners’ case flowed from its view that the
instant action was “a direct challenge to the validity of the
settlement” that the named plaintiffs had negotiated with defendants,
and which the court approved. A42.
Thus, the district court ruled that "removal was proper because
the court . . . must enforce its bar on subsequent suits by class
members against the defendants." A48. The district court relied on
a removal doctrine articulated by two earlier Second Circuit
decisions (see pp. 23-24, infra), holding that the All Writs Act, 28
U.S.C. § 1651(a), “permits a federal court to remove state court
actions to federal court [even] in situations where specific Statutory
removal authority is absent." A55. Resort to the All Writs removal
doctrine was necessary, the court indicated, "[bJecause by bringing
new suits in state court, the plaintiffs challenge the binding effect of
the Settlement Agreement." AS5S5. Thus, it concluded, "[t]he
removal of these actions to this court is a mechanism for protecting
this court’s judgment and order." ASS.
* By accepting this finding of the lower courts for purposes of review in this
Court, petitioners do not waive their contract law objections to the lower courts’
ruling that this sentence was intended to bind absent future claimants.
* The district court noted that although [ijt is, of course, possible that in
a few years a sudden increase in diseases associated with Agent Orange will be
revealed . . . it appears unlikely that such proof will develop in time to affect this
litigation.” 597 F. Supp. at 795. See also Agent Orange, 611 F. Supp. 1223
(E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S.
1234 (1988) (granting summary judgment against opt-out plaintiffs based on
insufficiency of scientific proof).
8
The district court granted the motion to dismiss, finding that
"[t]he terms of the Settlement Agreement . . . bar plaintiffs from
proceeding with this action." A55. Petitioners argued that as of the
opt-out deadline they had been unaware of any injuries from Agent
Orange, and thus the named plaintiffs had no authority to bind
them." Under the 1984 class definition and class notice, of
course, only veterans and their families who had a subjective basis
for believing, as of May 1, 1984, that they were suffering injuries
from Agent Orange exposure were in the class and were required to
opt out to preserve their rights to future suit. See pp. 5-6 & note
5, supra.
The district court held that this point was “irrelevant” and that
the parties to the settlement had legitimately decided (with its
approval) after the Rule 23(b)(3) opt-out right had passed to expand
the class and extinguish the unaccrued future claims of "‘persons
who have not yet manifested injury.’" AS55 (quoting settlement).
Extinguishing such claims, the district court explained, advances
“the interests of presently injured plaintiffs as well as defendants in
achieving a settlement,” by setting "definitive limits on defendants’
liability." AS8.
3. Proceedings in the Second Circuit
On appeal, the Second Circuit rejected both petitioners’
objection to removal and their due process and other defenses to
reading the 1984 settlement as extinguishing their claims.
The court found no basis for removing the case in the removal
Statute enacted by Congress. Instead, the Second Circuit reiterated
" The uncontradicted record shows that the first symptoms of petitioners’
injuries manifested themselves only after the opt-out deadline. The complaint
specifically recites that "[t}he deaths occurred and the diseases and injuries were
manifested only after May 7, 1984, when other veterans’ actions against these
Defendants were settled." Original Petition at 12 (JA 59) (emphasis in original).
There is no evidence in the record that any of petitioners “believed that he or she
had suffered injury as a result of exposure to Agent Orange in Vietnam" (see
note 5, supra) or had any basis at that point for believing that he or she "can
claim injury, illness, disease death or birth defect" and thus should "take steps
to exclude yourself" from the class (see p. 6, supra). Indeed, there is no
evidence that any petitioners knew that they had been exposed to Agent Orange,
or that they had even heard of the Agent Orange litigation. See, e.g., A68-A69
(affidavit of Shirley Ivy). |
9
its view that "a district court, in exceptional circumstances, may use
its All Writs authority to remove an otherwise unremovable state
court case." A8. The “exceptional circumstances" in this case
involved an undefined "deleterious effect" of allowing "Agent
Orange victims . . . to maintain separate actions in state court."
A8. The court was concerned that such suits raised the prospect
that a state court would have to "decid[e] the scope of the Agent
Orange I class action and settlement," so that the task would not fall
to "[t]he court best situated to make this determination" — namely,
"the court that approved the settlement." A8-A9. Removal
jurisdiction was supposedly necessary to help the district court
"guard{] the integrity of its rulings in complex multidistrict
litigation." A9. The Second Circuit did not explain why an
ordinary state court judge could not be trusted to correctly decide
the meaning of the settlement negotiated by the parties, and the
extent to which Rule 23 and due process might limit its binding
effect.
Thus, for the third time (see pp. 23-24, infra), the Second
Circuit employed the All Writs Act to allow district judges to
fashion their own removal jurisdiction "‘when the need arises.’" A9
(citation omitted). Further, it made clear that whether or not
"exceptional circumstances" exist to create such jurisdiction is a
matter left to the "proper exercise of judicial discretion." A9
(citation omitted)."
After upholding removal, the Second Circuit rejected petitioners’
claim that to permit the parties to the 1984 settlement to extinguish
petitioners’ unaccrued future claims, without notice and opt-out
rights, violated Rule 23 and due process. The Second Circuit went
even further than the district court to hold that there is no due
process barrier at all preventing already injured plaintiffs from
negotiating away the legal claims of absent persons as long as those
persons are not "known" — that is, no one (including them) knows
that they will be injured and might wish to sue in the future. A16.
The court’s rationale for this holding was that in Phillips
'' As respondents’ brief below had noted in considerable detail, the Second
Circuit “reviews exercise[s] of authority under the All Writs Act for abuse of
discretion, and upholds the lower court’s order unless the findings on which it
is based were clearly erroneous." Brief for Defendants-Appellants, dated Nov.
16, 1992, at 60 (citations omitted).
10
Petroleum Co. v. Shutts, 472 U.S. 797 (1985), this Court addressed
only the ability of named plaintiffs “to bind known plaintiffs”
concerning money damages, and “intimate[d] no view concerning
other types of class actions." A16 (quoting 472 U.S. at 811 n.3)
(emphasis added). Rather than reading this statement as disclaiming
any holding about lawsuits for equitable relief (like the Ticor Title
case now before this Court), the Second Circuit believed that it
somehow would have “to extend Shutts” in order to prevent named
plaintiffs from extinguishing the unaccrued claims of absent persons
to money damages, before they even know those claims exist. Al6.
Refusing to “extend” Shutts to provide procedural guarantees to
such persons, the court opined:
[SJociety’s interest in the efficient and fair resolution of
large-scale litigation outweighs the gains from individual
notice and opt-out rights, whose benefits here are conjectural
at best. .. . [PJroviding individual notice and opt-out
rights to persons who are unaware of an injury would
probably do little good.
Al7. The Second Circuit was also unconcerned that “‘many
genuine conflicts of interest’ [can exist] in a situation such as this,”
so that separate class counsel should have decided whether to
extinguish the unaccrued future claims of absent plaintiffs who had
not yet suffered injury. A17 (quoting district court). It opined that
a conflict “never materialized" because all veterans became eligible
for identical “nuisance value” payments from the Fund. A18.”
" The Second Circuit suggested here that “ensuring that [persons unaware
of their injuries] receive vigorous and faithful vicarious representation” was a
constitutionally adequate substitute for the right to notice and to opt out. A17.
Thus, the court refused to require that uninjured absent persons unaware of their
rights have independent class counsel. Nor did the Second Circuit address the
inherent conflict revealed by the district court's own rationale for denying notice
or opt out: to advance the interests of presently injured plaintiffs and defendants
in settlement. AS8. Instead, the Second Circuit concluded from its own factual
review that “[t}he unique circumstances” of this case rendered separate class
counsel “unnecessary.” A21.
1]
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD DETERMINE WHETHER
FEDERAL DISTRICT JUDGES MAY USE THE ALL
WRITS ACT, IN THEIR DISCRETION, TO REMOVE AN
“OTHERWISE UNREMOVABLE STATE COURT CASE"
The first question presented by this case is whether the Second
Circuit is correct in permitting federal district judges to use the All
Writs Act, as it put it, "to remove an otherwise unremovable state
court case .. . ‘when the need arises.’" A9-10 (citation omitted).
This case raises issues of judicial restraint and federalism so serious
that a total of 21 States appeared as amici below to protest what
they termed “an illegitimate judicial amendment of Congress’s
removal statute." Brief Amici Curiae at 18.
Whether removal can ever be effected by means other than the
pertinent statutes enacted by Congress is a question on which the
lower courts have divided, making review by this Court all the more
critical. The Second Circuit, and two district courts in other
circuits, have held that there is removal power under the All Writs
Act." Three circuits have disagreed, holding that only Congress’s
jurisdictional statutes can authorize jurisdiction in a case.“ Still
" Hornsby v. Hornsby's Stores, Inc., 1991 WL 33672 (N.D. Ill. 1991)
(“[s}tate claims precluded by the res judicata effect of a federal judgment may be
removed to federal court” even when there is no basis other than the All Writs
Act for removal); Nowling v. Aero Servs. Int'l, Inc., 734 F. Supp. 733, 738
(E.D. La. 1990) (“Other statutes vest federal courts with the authority to exercise
[removal] jurisdiction . . . for example, the All Writs Act”).
* See Westinghouse Elec. Corp. v. Newman & Holtzinger, 992 F.2d 932,
937 (9th Cir. 1993) (All Writs Act does not "“provide{] an independent source of
removal jurisdiction to the district court"); Willy v. Coastal Corp., 855 F.2d
1160, 1164 (Sth Cir. 1988) (“The right to remove a case from state to federal
court derives solely from the statutory grant of jurisdiction in 28 U.S.C.
§ 1441"); Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d
1352, 1355 (10th Cir. 1972) (“Section 1651(a) does not operate to confer
jurisdiction”); Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir. 1972), cert.
denied, 406 U.S. 945 (1972) (“This statutory provision does not confer original
jurisdiction, but rather, prescribes the scope of relief that may be granted when
jurisdiction otherwise exists"); M. Brittingham v. United States Comm'r of
Internal Revenue, 451 F.2d 315, 317 (Sth Cir. 1971) (*[The All Writs Act]
empowers [courts] to issue writs in aid of jurisdiction previously acquired on
some other independent ground"). See also United States v. Hall, 583 F. Supp.
12
other courts have construed their removal power so narrowly that
they have not even had occasion to reach the question decided by
the Second Circuit. See note 15, infra.
A. The All Writs Removal Doctrine Is Constitutionally
Indefensible and Should Be Repudiated in Its Entirety
The grounds for removal of cases from state court are simple
enough. They are set out at 28 U.S.C. §§ 1441 to 1452. Seven
distinct provisions exist:
(1) § 1441(a) (original jurisdiction removal);
(2) § 1441(d) (removal by a foreign state);
(3) § 1442 (removal by a federal officer or property
holder);
(4) § 1442a (removal by a member of armed forces);
(5) § 1443 (removal in civil rights cases);
(6) § 1444 (removal in foreclosure actions against
federal government); and
(7) § 1452 (removal of claims related to a bankruptcy
case).
This set of provisions is the product of congressional
deliberation about how much to restrict "[t]he power reserved to the
states under the Constitution to provide for the determination of
controversies in their courts." Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-109 (1941)."* The balance struck by
717, 718 (E.D. Va. 1984) ("[T]he All Writs Act is not a means by which a
district court may extend its authority in areas where it otherwise has no
jurisdiction").
'S The importance of deference to congressional choices in this area has led
this Court to caution that “[djue regard for the rightful independence of state
governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the statute has defined.”
Healy v. Ratta, 292 U.S. 263, 270 (1934). This Court has made the point in the
specific context of removal jurisdiction. See American Fire & Casualty Co. v.
Finn, 341 U.S. 6, 18 (1951) ("To permit a federal trial court to enter a judgment
in a case removed without right from a state court where the federal court could
not have original jurisdiction of the suit . . . would by act of the parties work a
wrongful extension of federal jurisdiction and give district courts power the
Congress denied them"). Cf. Gregory v. Ashcroft, 111 S. Ct. 2395 (1991)
(discussed in note 30, infra).
13
Congress has varied widely over time.
At one end of the spectrum, exhibiting maximum deference to
the States, the Judiciary Act of 1789, 1 Stat. 73, 79-80, granted no
federal question removal at all, and permitted removal in diversity
cases in only three limited categories, and then only where
substantial sums of money were at stake."*
In 1875, Congress went to the opposite extreme: its distrust of
the States’ judicial systems during the Reconstruction period was so
great that Congress “enormously broadened the removal as well as
the original jurisdiction," so that "virtually every case removable
under Article III was made removable by either a plaintiff or a
defendant." This regime was of particular benefit to defendants,
Many lower courts have emphasized the need narrowly to construe the
removal statute. See, e.g., United States ex rel. Walker v. Gunn, 511 F.2d 1024,
1027 (9th Cir.) ("The right of removal being in derogation of state sovereignty,
should not be enlarged beyond what is definite and free from ambiguity")
(internal quotations and citations omitted), cert. denied, 423 U.S. 849 (1975);
Adams v. Aero Services Int'l, Inc., 657 F. Supp. 519, 521 (E.D. Va. 1987)
("Removal of civil cases to federal court is an infringement on state sovereignty.
Consequently, the statutory provision regulating removal must be strictly
applied."); Mercy Hosp. Ass'n v. Miccio, 604 F. Supp. 1177, 1179 (E.D.N.Y.
1985) (Weinstein, C.J.) ("The right to removal is a statutory grant to be strictly
construed . . . . The defendant seeking removal must base the petition on a
specific removal provision and specific grant of original jurisdiction").
'© See P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, HART AND
WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1767 (3d ed.
1988) (hereinafter "HART AND WECHSLER") (noting that only an alien defendant,
an out-of-state defendant sued by a citizen of the forum state, or a party to
certain kinds of title disputes, could remove if at least $500 was in dispute).
Even original jurisdiction for federal question cases was extraordinarily limited
in the first Judiciary Act. See id. at 961.
The severely limited removal jurisdiction authorized by Congress in 1789 is
hardly surprising, given that "[m]Jany of the Framers of our Constitution felt that
separate federal courts were unnecessary and that the state courts could be
entrusted to protect both state and federal rights." Atlantic Coast Line R.R. v.
Brotherhood of Locomotive Engineers, 398 U.S. 281, 285 (1970). Easing
concern about federal courts encroaching on the judicial systems of the States, of
course, was an important aspect of the effort to ratify the Constitution. See, e.g.,
Alexander Hamilton, The Federalist No. 82 (Cc. Rossiter ed. 1961) 493
(explaining that “State courts will be deprived of no part of their primitive
jurisdiction further than may relate to an appeal; and . . . in every case in which
[state courts] were not expressly excluded” they will have "cognizance of the
causes" arising under federal law).
'" HART AND WECHSLER, supra note 16, at 961, 1052, 1767 (emphasis
added) (citing Act of March 3, 1875, 18 Stat. 470).
14
permitting them to remove merely by asserting a federal defense.
"[T]he answer as well as the complaint would be consulted before
a determination was made" on whether a federal issue existed, and
"the defendant’s petition for removal could furnish the necessary
guarantee that the case necessarily presented a substantial question
of federal law." Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1, 10 n.9 (1983).
Although the 1875 Act certainly constituted a "rational
jurisdictional system," 463 U.S. at 10 n.9, it also caused a "flood
of litigation" into the federal courts, leading Congress a decade later
to “pare down the federal question jurisdiction.""* Congress
addressed the overload problem through the enactment of the
Judiciary Act of 1887, which established the present pattern of
removal jurisdiction."* The "key element" of the 1887 Act "was
(and is) to tie removal jurisdiction to original jurisdiction," a
requirement now found in § 1441(a) and one that "has had a
profound impact on the jurisdictional structure. "”
In light of Congress’s "purpose [in the 1887 Act] to restrict the
jurisdiction of the federal courts on removal," coupled with "[t}he
power reserved to the states," this Court has given the Act a "strict
construction." Shamrock Oil & Gas Corp., 313 U.S. at 108.
Accordingly,
it is now settled law that a case may not be removed to
federal court on the basis of a federal defense, including the
defense of pre-emption, even if the defense is anticipated in
the plaintiff's complaint, and even if both parties concede
that the federal defense is the only question truly at issue.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) (emphasis
in original) (citing Franchise Tax Board, 463 U.S. at 12).
The Second Circuit, however, has not been satisfied to adhere
to the jurisdictional structure of the 1887 Act, narrowly construed,
which allows much less removal than existed under the 1875 Act.
'®S HART AND WECHSLER, supra note 16, at 963.
'? Id. at 1768 (citing Judiciary Act of March 3, 1887, 24 Stat. 552, corrected
by the Act of August 13, 1888, 25 Stat. 433).
* Id. at 1052-53.
15
Rather, the Second Circuit has taken the view that Congress’s
choice in 1887 to restrict the 1875 removal statute can be
circumvented by judges based on reference to a separate law: the
All Writs Act, of all things! That Act has remained substantially
unaltered since 1789," and has never been addressed by Congress
in setting removal policy during the past two centuries. Yet,
according to the Second Circuit, that Act provides an independent
source of authority for subject-matter jurisdiction on removal.
Thus, beginning in 1988, the Second Circuit has explicitly
permitted district judges to invoke the All Writs Act to justify
removal even without "an independent basis for the exercise of
jurisdiction under the federal removal statutes." Accordingly, the
district court below held that the All Writs.Act "permits a federal
court to remove state court actions to federal court in situations
where specific statutory removal authority is absent." AS55
(emphasis added). The Second Circuit confirmed that district judges
"may remove an otherwise unremovable state court case . . . ‘when
oo”
the need arises,’" and upheld removal in this case as "appropriate"
and "a proper exercise of judicial discretion." A8-A9 (emphasis
added) (citation omitted). Despite an early dissent from the
doctrine, it now appears well entrenched in the Second Circuit.”
The Second Circuit’s All Writs removal doctrine poses a threat
to two fundamental aspects of this Court’s jurisprudence: judiciai
restraint and judicial federalism:
*" The present version of the All Writs Act originated as § 14 of the
Judiciary Act of 1789, | Stat. 81-82. See Pennsylvania Bureau of Corrections
v. United States Marshals, 474 U.S. 34, 40-41 (1985).
22 Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 865 (2d Cir.
1988), cert. denied, 489 U.S. 1077 (1989).
+> Dissenting in Yonkers, Judge Mahoney castigated the Second Circuit's
creation of an All Writs removal doctrine to launch "a preemptive strike upon a
State court" as “novel and unwarranted," pointedly noting that, like federal
judges, state court judges are "sworn to support the Constitution of the United
States. Accordingly the state court was entitled to a presumption at the outset"
that it would proceed appropriately. 858 F.2d at 875 (Mahoney, J., dissenting).
No other Second Circuit judge has ever dissented from use of the doctrine,
however, and the suggestion below for rehearing en banc attracted no votes.
Thus, the doctrine appears to be settled law in the Second Circuit.
For a more detailed description of Yonkers and the steadily increasing ambit
of the Second Circuit’s All Writs removal doctrine, see pp. 23-24, infra.
16
"
First, the doctrine constitutes “an illegitimate judicial
amendment of Congress’s removal statute," Brief Amici Curiae of
the 21 States, at 18, that this Court should not permit to stand. It
is well settled that "[a]ll federal courts, other than the Supreme
Court, derive their jurisdiction wholly from the exercise of the
authority to ‘ordain and establish’ inferior courts, conferred on
Congress by Article III, § 1, of the Constitution." Lockerty v.
Phillips, 319 U.S. 182, 187 (1943). Thus, whenever an objection
is raised to removal, "[t]he fundamental question to be determined
is whether the removal . . . from the state court into the Federal
court was authorized by any statute of the United States." Kentucky
v. Powers, 201 U.S. 1, 24 (1906). In resolving such an issue, of
course, courts must "scrupulously confine their own jurisdiction to
the precise limits which the statute has defined." Healy v. Ratta,
292 U.S. 263, 270 (1934).™
Despite these principles, the Second Circuit nonetheless permits
a district court, in so-called "exceptional circumstances," to "use its
All Writs authority to remove an otherwise unremovable state court
case." A8. There are grave reasons to doubt this construction of
the All Writs Act.
The language of the Act hardly suggests that it grants judges the
power to create or define their own jurisdiction. Rather, it appears
to provide tools for judges to use in exercising whatever jurisdiction
they happen to possess — to “issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law." 28 U.S.C. § 1651(a) (emphasis
added). The Second Circuit below refused to accept this limit, even
as it quoted the express holding of this Court that the point of the
All Writs Act is to "‘empower[] federal courts to fashion
extraordinary remedies when the need arises.’"" A9 (quoting
Pennsylvania Bureau of Corrections v. United States Marshals , 474
U.S. 34, 43 (1985) (emphasis added)).
This Court was also quite clear in Pennsylvania Bureau that the
Act must be set aside once Congress has spoken on a subject:
% Since the inception of our federal system, it has been settled that "[c]Jourts
created by statute can have no jurisdiction but such as the statute confers,”
Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Where jurisdiction is not ex-
pressly conferred, it is assumed not to exist. See Durousseau v. United States,
10 U.S. (6 Cranch) 307 (1810). See also note 15, supra.
17
The All Writs Act is a residual source of authority to issue
writs that are not otherwise covered by statute. Where a
statute specifically addresses the particular issue at hand, it
is that authority, and not the All Writs Act, that is
controlling.
474 U.S. at 43.% Congress, of course, could hardly have been
more exacting in defining removal jurisdiction in 28 U.S.C. §§
1441 to 1452, and thus it is difficult to see why any judge should be
permitted to look beyond those carefully crafted provisions and infer
subject-matter jurisdiction in the "exercise of judicial discretion"
(A9) under the All Writs Act. Indeed, at least two decisions of this
Court have resisted far more modest arguments that the Act should
be used to supplement the structure of appellate jurisdiction and
procedure established for this Court by Congress.”
*S The facts of Pennsylvania Bureau illustrate the limits of judicial authority
even when fashioning remedies where jurisdiction itself is clear. This Court
refused to allow a federal district court to exercise its All Writs power to compel
federal Marshals to share in the financial burden of transporting state inmates to
federal courts for litigation in which the state is not involved, where the
Marshals’ obligations were regulated by a somewhat ambiguous federal statute.
474 U.S. at 37-38, 43. The arguments for permitting district courts to seize
“otherwise unremovable” state court cases contrary to a clear federal removal
Statute are obviously much weaker.
** In Chandler v. Judicial Conference of the Tenth Circuit, 398 U.S. 74
(1970), District Judge Chandler invoked the All Writs Act, asking this Court to
reverse the decision of the judges of the Tenth Circuit to strip him of his judicial
functions, in an alleged usurpation of the impeachment power. /d. at 75, 82.
The Tenth Circuit Judicial Council argued that Chandler was complaining of
“purely administrative action” that had "never been reviewed in any court and
cannot now be reviewed in an original proceeding under the All Writs Act." Id.
at 83. The Solicitor General argued that a finding of jurisdiction was proper
under the All Writs Act because the action of the Judicial Council could be
“analogized" to the Tenth Circuit sitting en banc, in an appellate function. Jd.
at 83-84. This Court rejected that argument, explaining-that the All Writs Act
“authority of this Court to issue a writ of prohibition or mandamus ‘can be
constitutionally exercised only insofar as such writs are in aid of its
jurisdiction,’" and holding that review of Chandler’s claims would "do[] violence
to the constitutional requirement that such review be appellate." Jd. at 86
(emphasis added) (citation omitted).
Similarly, in United States v. FMC Corp., 1963 U.S. LEXIS 2449 (1963),
(Goldberg, Circuit Justice), this Court rejected the Solicitor General’s argument
that the All Writs Act authorized immediate review in this Court of a district
judge’s refusal to issue a preliminary injunction against an imminent corporate
acquisition. The relevant statute permitted immediate appeal only from final
18
This case is especially suited for testing the outer limits of the
All Writs Act, for here the Second Circuit has sought to
countermand a considered policy judgment of Congress. The
district court upheld removal of petitioners’ Texas state court case
on the basis of defendants’ argument that "the binding effect of the
Settlement Agreement" barred petitioners’ lawsuit. A55. Even
assuming that the interpretation of the Settlement Agreement
(essentially, a contract negotiated in New York) raised any issue of
federal law, at most the defendants have a federal defense to suit in
Texas state court. But more than a century ago Congress barred
any such theory for removal, see pp. 13-14, supra, and has so far
rejected all proposals to water down its stance.” The Second
judgments, but the Solicitor General argued that appellate jurisdiction should be
found under the All Writs Act "to prevent irreparable change in the economic
status quo . . . [that would] frustrate effective public relief." /d. Despite these
exigencies, the Circuit Justice ruled that the All Writs Act "may not be employed
to evade the specific restrictions” of the jurisdictional statute, and that no writ
could issue "as a substitute for an authorized appeal."
The course taken by the Second Circuit — to use the All Writs Act to
remove state court cases that Congress chose to leave to the state courts — is far
more radical than the course suggested by the Solicitor General in either of these
cases. By contrast, other lower federal courts have refused to use the All Writs
Act even to review federal cases outside their direct line of review. See, e.g.,
In re Virginia Elec. & Power Co., 539 F.2d 357, 365 (4th Cir. 1976); General
Electric Co. v. Byrne, 611 F.2d 670, 672 (7th Cir. 1978) (per curiam) ("We are
aware of no statute or decision which would authorize us to issue a writ of
mandamus directed to a district judge sitting in another circuit"); C.P.C. v.
Nosco Plastics, Inc. , 719 F.2d 400, 401 (Fed. Cir. 1983) (All Writs Act does not
confer authority to review decisions of a district court over which the appellate
court does not have supervisory power).
77 “Commentators have repeatedly proposed that some mechanism be
established to permit removal of cases in which a federal defense may be
dispositive." Franchise Tax Board, 463 U.S. at 10 n.9 (citing proposals).
Unfortunately for defendants, of course, “those proposals have not been
adopted." /d. -
Notably, Congress has rejected some reform proposals a good bit narrower
than the course taken by the courts below. For example, in 1969, the American
Law Institute proposed that federal removal jurisdiction be expanded so as to
permit removal if "a substantial defense arising under the Constitution, laws, or
treaties of the United States [were] properly asserted." ALI, STUDY OF THE
DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL CourRTs, § 1312(a){2)
(1969). Even under the ALI plan, however, this case could not have been
removed from state court, because that proposal excluded from removal those
“actions in which the only ground for removal [would be a] claim that the suit
or relitigation of an issue in the suit is barred by an adjudication from another
19
Circuit’s attempt to serve, to borrow an apt phrase, as "a sort of
junior-varsity Congress," Mistretta v. United States, 488 U.S. 361,
427 (1988) (Scalia, J., dissenting), should be overturned.
Second, beyond the Second Circuit’s circumvention of well-
accepted principles of judicial restraint, certiorari is also warranted
because its blanket grant of permission to remove cases whenever
district judges find "exceptional circumstances" flouts this Court’s
teachings on judicial federalism and the respect due the coordinate
judicial systems of the States.
In explaining the “exceptional circumstances" supposedly
requiring that this case be removed, the Second Circuit made little
effort to mask its distrust of the abilities of.the Texas state courts.
Permitting the case to go forward in Texas would have a
"deleterious effect," according to the Second Circuit, because the
state court would have to "decid[e] the scope" of the 1984
settlement and the associated due process issues. A8-A9. The
Second Circuit thought it critical that the judge who "approved the
settlement" — the judge "best situated to make this determination"
— decide the preclusive effect of the prior settlement agreement.
A9 (emphasis added). State courts apparently cannot be trusted to
"guard[] the integrity of [federal court] rulings in complex
litigation." Jd.
Obviously, the Texas state courts in this case should have been
presumed competent to adjudicate the preclusive effect of the 1984
settlement.% If state courts are competent to determine federal
court that the Constitution or laws of the United States require the State court to
honor." /d. at § 1312(b)(9). See also "Multiparty, Multiforum Jurisdiction
Act,” H.R. 3406, 101st Cong. 2d Sess. (1990) (another proposed jurisdictional
expansion much more modest than the court’s holding in this case which was
rejected by Congress).
8 As one esteemed scholar of federal courts doctrine incisively observed,
there is "nothing more subversive to the judge’s inner sense of responsibility than
the notion that, to the greatest possible extent, all the important shots will be
called by someone else because we don’t believe in his or her competence and
sensitivity." Paul M. Bator, The State Courts and Federal Constitutional
Litigation, 22 WM. & MARY L. REV. 605, 624 (1981). As an essential feature
of comity, state courts are routinely entrusted with the adjudication of federal
rights, including federal constitutional rights. See, e.g., Chick Kam Choo v.
Exxon Corp., 486 U.S. 140, 150 (1988) ("Texas state courts . . . are presumed
20
constitutional rights, then a fortiori there is no basis for denying
them responsibility for adjudication of the preclusive effect of a
settlement. Indeed, one key feature of judicial federalism is that
federal and state courts alike are trusted to give appropriate effect
to the results of litigation in the other judicial system. See Kline v.
Burke Const. Co., 260 U.S. 226, 230 (1922) ("Whenever a
judgment is rendered in one of the courts [either federal or state]
and pleaded in the other, the effect of that judgment is to be
determined by" the second court"); Donovan v. City of Dallas, 377
U.S. 408, 412 (1964).”
As 21 States trenchantly observed in their amicus brief below:
For as long as there has been a common law . . . when a
prior judgment of a court in another jurisdiction, whether
competent to resolve federal issues"). See also Bator, at 625 ("If we want state
judge to feel institutional responsibility for vindicating federal rights, it is
counterproductive to be grudging in giving them the opportunity to do so").
29 These precedents comport with a fundamental principle of our federal
system, that "[a] state court is as well qualified as a federal court to protect a liti-
gant by the doctrines of res judicata and collateral estoppel." Southern California
Petroleum Corp. v. Harper, 273 F.2d 715, 719 (Sth Cir. 1960); accord Bluefield
Community Hospital Inc. v. Anziulewicz, 737 F.2d 405, 408 (4th Cir. 1984).
Consistent with this principle, in the area of consent judgments it is quite
unusual for a court to hold, as the Second Circuit below did, that the individual
judge who reviewed and approved a settlement has a special, subjective insight
into its meaning. For example, in one prominent case the D.C. Circuit refused
to defer to Judge Harold H. Greene’s subsequent interpretations of a consent
decree provision that he himself had drafted in the case that broke up the Bell
System, despite Judge Greene’s decade of intensive experience with that
enormously complicated case. See United States v. Western Electric Co., 900
F.2d 283, 293-94 (D.C. Cir.), cert. denied, 111 S. Ct. 283 (1990). The D.C.
Circuit ruled that although an appellate court should “take careful account of the
explanatory opinion issued by the district judge at the time the decree was
entered,” id. at 294 n.10, it had to "reject [any] suggestion” Judge Greene's later
view of the decree “should be afforded some ‘special’ deference,” even though
he had a major part in "draft[ing] the pivotal provision” and even though he “had
enormous experience overseeing the case and the decree since its inception.” /d.
at 294. See also Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (making
clear that "[a] district court’s interpretation of a consent judgment is a matter of
law and freely reviewable on appeal"). Obviously, if federal appellate courts
should not defer to the subjective views of district judges on the meaning of
settlements, then state courts need not defer — and cases should not be removed
from state courts in an effort to ensure that a particular individual rules on what
the parties appear to have intended by a certain settlement.
21
state or federal, has been raised as a bar to litigation of a
claim, the issue has been decided by the court at hand, not
referred back to the court that entered the original judgment.
Brief Amici Curiae at 3 (emphasis in original). The States objected
that the district court had "supplanted this time-tested rule with a
radical new one: when a federal class action judgment is involved,
only the court that handed down the original judgment is qualified
to decide” the preclusive effect of the prior settlement. /d.
(emphasis in original). They pointed out that this theory is
“contrary to common sense" and “destructive of judicial
federalism," id., and called the district court’s seizure of the case on
this theory an “unprecedented, unwarranted, and unwise . .
invasion of state judicial independence and an insult to state courts
throughout the nation, which are perfectly capable of deciding
whether a state law claim is barred by a prior federal judgment."
Id. at 18.
The States warned that "[t]o affirm the decision below would be
to invite every federal district court to circumvent the removal
Statutes and other specific jurisdictional legislation and to transform
the All Writs Act into a general grant of federal jurisdiction and a
broad license to interfere with state court proceedings.” Jd. at 16.
Yet the Second Circuit analyzed none of these federalism concerns,
failing to mention the States’ arguments even in passing. Indeed,
in the aspect of its opinion most dangerous for judicial federalism,
the court made clear that district judges are free to resort to All
Writs removal in the "exercise of judicial discretion" whenever they
believe "‘the need arises.’*" A9. Thus, ad hoc seizure of state court
jurisdiction is given no more appellate scrutiny than is afforded
garden-variety trial court evidentiary determinations. See, e.g.,
Salem v. United States Lines Co., 370 U.S. 31, 35 (1962)
(describing leniency of evidence review standard).
Finally, it should be noted that the Second Circuit’s expansive
view of removal jurisdiction under the All Writs Act, in derogation
of state courts, also contravenes the policies of the Tenth
Amendment.” Indeed, because what is at issue is a federal
* One of the “powers [reserved to the states under the Amendment] was the
maintenance of state judicial systems for the decision of legal controversies.”
Atlantic Coast Line R.R., 398 U.S. at 285. See also Pennzoil Co. v. Texaco,
22
judicial act, not subject to the "political checks" of federalism,
Garcia v. San Antonio Transit Auth. , 469 U.S. 528, 549-51 (1985),
this Court should be particularly sensitive to the Tenth Amendment
interests implicated here.
Certainly, the judgment below cannot be defended on the theory
that removal was necessary to protect the district court’s continuing
jurisdiction. First, a state court must be presumed to be competent
to adjudicate the settlement’s preclusive effect. See notes 28 & 29,
supra. A federal court obviously cannot assume, as the district
court did below, that a state court would incorrectly adjudicate this
question and would erroneously permit plaintiffs "to undermine a
settlement agreement and set aside a federal court’s judgment
through new state court suits." A54.
Second, in any event, the district court’s continuing jurisdiction
in this case could not have been threatened by petitioners’ Texas
action. Their case manifestly was not, despite the district court’s
assertion, a “challenge[]" to the settlement agreement. A49.
Rather, petitioners sought to pursue their own suit for money
damages, entirely separate from the settlement, on the ground that
they were not bound by it. The settlement agreement provided that
the district court would retain jurisdiction only “over the Fund
pending its final disposition,” Agent Orange, 597 F. Supp. at 866
(Settlement Agreement { 19), with a duty "to assure that the Fund
shall earn the maximum interest consistent with safety and that all
disbursements are properly made." /d. at 864 (Settlement Agree-
ment ¢ 4). Nothing about petitioners’ Texas lawsuit affects the
Inc., 481 U.S. 1, 12-13 (1987) ("This Court repeatedly has recognized that the
States have important interest in administering certain aspects of their judicial
systems.") Given that the integrity of an important state institution is at stake,
this Court should accord review to a judicial interpretation of the All Writs Act
that deprives state courts of their traditional authority to resolve the preclusive
effect of judgments of another sovereign. Accordingly, in Gregory v. Ashcroft,
111 S. Ct. 2395 (1991), this Court refused to read a federal statute, the Age
Discrimination in Employment Act, so as to constrain state judicial systems by
forbidding mandatory retirement of state court judges. /d. at 2408. Cf. New
York v. United States, 112 S. Ct. 2408, 2428 (1992) (Tenth Amendment prohibits
federal statutes which are interpreted to "infring[e] upon the core of state
sovereignty . . . a state’s ability to make and apply its own laws") (emphasis
added). Thus, in light of the Tenth Amendment, federal statutes should not be
construed to impinge on fundamental state institutions without a clear statement
of congressional intent requiring that outcome. No such clear statement appears
on the face or in the legislative history of the All Writs Act.
23
operation of the Fund. The prospect that respondents may have to
invoke, in a Texas forum, the supposedly preclusive effect of the
settlement clearly has no bearing on the Fund; on the contrary, { 4
of the Settlement Agreement expressly provides that at this juncture
respondents “have no responsibility or obligation with respect to the
Fund or distributions therefrom." Jd. at 864.
Finally, the availability of authority under the All Writs Act to
issue injunctions "in aid of . . . jurisdiction[]" indicates that there
is nO power to remove a state court action on that basis. Indeed,
Congress went so far as to enact an exception to the Anti-Injunction
Act using these same words. See 28 U.S.C. § 2283 (exception
"where necessary in aid of its jurisdiction"). Thus, Congress was
careful to vest the federal courts with targeted equitable powers even
against state courts; but it also made the deliberate decision not to
provide federal courts with sweeping removal authority. To ignore
the fundamental difference between the two, and to read into the
removal statute a power to disrupt state proceedings that Congress
has set out only in the context of injunctions, would effectively
rewrite Congress’s handiwork.
B. Even If the All Writs Act Authorizes Lower Courts
to Remove an "Otherwise Unremovable State Court
Case" in Some Situations, This Court Should
Articulate Clear Limits on the Use of That Power
Although All Writs removal is inappropriate in all
circumstances, certiorari would be warranted even if this Court
were inclined to reject that contention. At minimum, review should
be granted to check the Second Circuit’s spiraling pattern of
jurisdictional expansion and to clarify the boundary of lower courts’
authority under the All Writs Act.
As previously noted, the Second Circuit’s All Writs removal
doctrine originated in Yonkers Racing Corp. v. City of Yonkers, 858
F.2d 855 (2d Cir. 1988), cert. denied, 489 U.S. 1077 (1989). See
p. 15, supra. The City of Yonkers had pursued a policy of racial
segregation in allocating public housing and, as a result, had
violated minority housing residents’ federal constitutional and
statutory rights. Under the obligation of a federal court order, the
city sought to remedy this violation by initiating condemnation
proceedings in state court. Although the case was not otherwise
24
removable, the Second Circuit permitted removal under the All
Writs Act because the district court was confronted “both with the
need to vindicate the constitutional rights of those . . . who have
been denied fair housing and the very real possibility that the City
of Yonkers would be subjected to inconsistent orders from the state
court and the federal court." /d. at 863.
The Second Circuit substantially broadened the doctrine in
United States v. City of New York, 972 F.2d 464 (2d Cir. 1992),
this time upholding All Writs removal even absent the need to
vindicate federal constitutional rights. Faced with a state court suit
concerning the validity of procedures under a federally ordered
sewage disposal plan, the court held that the mere possibility that
New York might be subject to inconsistent federal and state decrees
alone was sufficient to justify removal. /d. at 469.
Unlike the Second Circuit’s earlier cases involving its novel
removal doctrine, however, this case presents no threats to
respondents’ or third parties’ constitutional rights, and no possibility
that respondents might be subject to conflicting state and federal
injunctive orders." In short, this case presents neither of the
rationales supporting the Yonkers or City of New York decisions.
The courts below nevertheless approved removal yet again, this time
of a quintessentially state-law case, finding the existence of
“exceptional circurnstances" — here, the courts’ view that the Texas
State courts might rule incorrectly on whether the 1984 settlement
precluded suit, whereas the district court here was “best situated" to
rule correctly. See pp. 9, 19, supra.
Certiorari was not sought in City of New York, and the certiorari
briefing in Yonkers revealed an inappropriate vehicle for review.”
* Petitioners’ claims seek monetary relief.
® Yonkers was the Second Circuit's initial use of the All Writs removal
theory, and the petition for certiorari presented the issue in nine pages as one
involving error on the facts of the case. Petition for Certiorari, Yonkers Racing
Corp. v. City of Yonkers, No. 88-1029, at 7-15. Indeed, Rex Lee appeared on
behalf of the City of Yonkers opposing certiorari, stating that “the decision is sui
generis” and that petitioner had “argue[d] only that the decision is ‘based upon
a misapplication of a recent decision of this Court."" Brief of Respondent City
of Yonkers in Opposition, No. 88-1029, at 12-13 (quoting petition). Finally,
although the City agreed that the Second Circuit had erred in using the All Writs
Act to remove the case, id., it nonetheless urged: “The error below is, in the
Ee
25
This case thus represents the first real opportunity for scrutiny of
the Second Circuit’s radical All Writs removal doctrine, and
certiorari is warranted to put an end to “an illegitimate judicial
amendment of Congress’s removal statute." Brief Amici Curiae at
18.
II. THIS COURT SHOULD PASS ON THE ACCEPTABILITY
OF A QUASI-LEGISLATIVE ANALYSIS FOR
DETERMINING WHETHER ALREADY INJURED
NAMED PLAINTIFFS MAY EXTINGUISH THE
UNACCRUED FUTURE CLAIMS OF ABSENT PERSONS
F ven if federal removal jurisdiction somehow existed in this case
(or if this Court were to decline to review that question), there
would be a further question worthy of certiorari: under Fed. R.
Civ. P. 23 and due process, in what circumstances (if any) may
already injured named plaintiffs, in a Rule 23(b)(3) class action for
money damages, contract to extinguish the unaccrued future claims
of absent persons? This Court is currently considering similar
issues in a related context, that of non-opt out, Rule 23(b)(2) class
actions, in Ticor Title v. Brown, No. 92-1988. But the issues in this
case merit review regardless of the outcome in Jicor Title.
As illustrated by Ticor Title and the several other major class
action cases this Court has reviewed, the procedural standards
governing the conduct of class actions are extremely important and
affect large numbers of litigants. The extent to which federal
settlements of Rule 23(b)(3) class actions may bind individuals who
are not even aware that they have suffered injury is an issue which
this Court has never addressed and which is now of significant and
growing importance.” This is particularly true in our complex
circumstances of this case, purely a procedural one. Because the district court
clearly was correct in its ultimate conclusion that the City should prevail in the
condemnation proceedings, any reversal now would merely delay the ultimate
implementation of the district court’s remedial orders.” /d. at 13.
*® See, e.g., Carlough v. Amchem Prods., Inc., No. 93-1429, 1993 U.S.
App. LEXIS 24930 (3d Cir. September 29, 1993) (discussing certification of
23(b)(3) class of future asbestos claimants); Dante v. Dow Corning Corp., 143
F.R.D. 136, at *4 (N.D. Ohio 1992) (conditionally certifying a nationwide
23(b)(3) class of future silicone breast implant claimants); Jn re Breast Implant
Litig., 1992 U.S. Dist. Lexis 10080, at *4 (May 21, 1992, N.D. Ohio)
26
technological society, in an era when tens of thousands of persons
may becomie injured by toxic substances or dangerous products, but
will not manifest observable harm until years later.
The concept of adjudicating or settling through a class action the
interests of persons who are completely unaware of any injury,
although they have been placed at risk in some manner by a
potential defendant, is quite controversial in itself. As the Advisory
Committee observed in an oft-quoted Note to the 1966 Amendments
to the Federal Rules of Civil Procedure, "[a] ‘mass accident’
resulting in injuries to numerous persons is ordinarily not
appropriate for a class action" because of the preponderance of
individualized issues involved. Although class actions in the mass
accident and even mass tort context have won increasing acceptance,
they have almost always been limited to class members who have
manifested some sort of perceptible injury, know that they may have
a legal interest, and thus are in a position intelligently to evaluate
whether to be part of a class action.
Binding persons to the results of a class action prosecuted by
others when they do not know they have been injured and at most
have a unaccrued future claim for injury is problematic on at least
three levels. First is a concern about basic fairness. In the statute-
of-limitations context, for example, this Court has been unwilling to
foreclose victims’ legal interests based on "blameless ignorance,"
refusing to permit rights to lapse on the theory that people should
be "charged with knowledge” of risks to which they have been
unknowingly exposed. Urie v. Thompson, 337 U.S. 163, 169-170
(1949). This concern is compounded by the unavoidable conflict of
interest between already injured plaintiffs and those who will
develop illnesses in the future. Even in the absence of venality or
corruption, the former group of plaintiffs, and their attorneys, have
a natural incentive to settle the claims of the /atter at relatively low
value, in order to make a settlement as likely as possible by making
the settlement package as attractive as possible for the defendant.
Second is the issue of standing: to the extent that resolution of
a class lawsuit depends on the adjudicatory power of an Article III
court, it may be illegitimate to include persons who have manifested
(amending class definition to include “persons who are likely to suffer or are at
an increased risk of suffering any adverse medical condition as a result ... of
having received a silicone gel breast implant").
os Seam ASY
PR eee IN. Mn Vk
eS ee
ET Pere SP i
FT 6 BP SRI ODP PDAS AOS Ft bw ON
27
no perceptible injury from a possible risk to which they may have
been exposed.*
Third, beyond the basic "case or controversy" question, the idea
that federal judges should supervise the negotiation and final
settlement of the substantive legal claims of absent persons before
these claims have even accrued strains traditional concepts of the
judicial role. An excellent benchmark for evaluating such a role is
provided by the dissent in Hoffman-La Roche, Inc. v. Sperling, 110
S. Ct. 482, 488 (1989) (Scalia, J., joined by Rehnquist, C.J.). That
case upheld somewhat novel "case management" techniques by a
district judge in an age discrimination case. The judge assisted the
main plaintiff in discovering the names of potential plaintiffs who
might wish to join the case, and supervised the notice they would
receive. The dissenters argued that even case management of such
future cases, involving known potential plaintiffs who would have
to opt in to be bound, was "an extraordinary application of the
federal judicial power,” at odds with "a system in which courts are
not inquisitors of justice but arbiters of adversarial claims." Jd. at
489, 492. Far more extraordinary, of course, is the practice of
judges empowering private parties in a case like this one to
extinguish the legal claims of absent persons before those claims
have accrued.
Such concerns have led a number of commentators to argue that
the difficulties inherent in analyzing the interests of those who do
not yet know that they are injured, and particularly in notifying
them of their rights, should preclude ail class action settlements that
seek to bind such persons.** Such an outcome is certainly one
* A hypothetical claim, like those of petitioners’ in 1984, see note 10,
supra, would appear not to have a “high degree of immediacy,” Lujan v.
Defenders of Wildlife, 112 S. Ct. 2130, 2138 (1992), nor to be “certainly
impending”; rather, such a claim seems merely "abstract" and too “conjectural!
or hypothetical" to confer standing. Whitmore v. Arkansas, 495 U.S. 149, 155
(1990) (internal quotes and citations omitted).
*§ See, e.g., 3 Herbert B. Newberg & Alba Conte, Newberg on Class Action
§ 17.39, at 17-119 (3d ed. 1992) ("Anytime a mass tort gives rise to injuries that
occur over a period of time . . . inevitably there will be claims that arise in the
future after an action for his mass tort has been permitted to be maintained an
adjudicated as a class action. Those unaccrued future claims will not and cannot
be bound by the class action litigation. Toxic torts giving rise to latent illnesses
and defective products with latent risks are two examples."); Elizabeth R.
Kaczynski, The Inclusion of Future Members in Rule 23(b)(2) Class Actions, 85
option for this Cour principal attraction of
the instant case | hicle for any range
of holdings this Court's first
consideration of | nsent plaintiffs who
lack present awar:
The basic dui hich this Court has
insisted for Rule 2 oney damages have
been adequate representation, ind a chance to opt out, This
Court has long held that, in general, “one is not bound by a
judgment in personam in a litigation in which he is not
as a party or to which he has not been made a party by service of
process." Hansberry vy fee, {11 US 32, 40 (1940), Tn elass
actions "the Due Process Clause of course requires that the named
plaintiff at all times adeguc he interests of the absent
class members h) by) (1. FOF
M12 (LORS) Cente
Additionally, a «| wii OF Abeer
Class members wri iecelvelal Monee
plus ah Opportunity to be | pale in the Titigation,"
Shutts, 472 U.S, at Al? & Hiphasis added), see dlyo Mullane \,
Central Hanover Bank & Trust Co,, 339 U.S, 3140315, 319 (1950)
(requiring "notice reasonably certain to feach most of those
interested in objecting"). Moreover, due process requires that each
absent plaintiff be permitted to opt out of the class. Shutts, 472
U.S. at 812.*
On the record of this case, all these procedural protections were
denied. The named plaintiffs to the 1984 Agent Orange litigation,
COLUM. L. REV. 397, 398 n.7 (1985) (the "future members cannot be included
in (b)(3) actions.") Of. Marck C
will ever have heard about the action, much less have had influence over its
litigation"),
“ Such notice and opt-out rights are critical because they “protect [each]
claimant's right to her litigation." Arthur R. Miller & David Crump,
Jurisdiction and Choice of Law in Multistate Class Actions After Phillips
Petroleum Co, v, Shutts, 96 YALE LJ. 1 (1986), Cf. Logan v, Zimmerman
Brush Co,, 455 U.S, 422, 428-33 (1982) (holding that the right to use
adjudicative procedures is a species of property protected by the due process
clause),
29
who agreed to the ultimate settlement, all had already suffered
"severe and permanent disabling injuries," See p, 5, supra, These
plaintiffs were obliged to sue prior to the expiration of the
applicable statute of limitations, despite the paucity of the scientific
evidence then available. See p. 7 & note 9, supra. As the district
court acknowledged, the interests of petitioners and others who in
1984 were not suffering from any injury, see note 10, supra, were
directly adverse to “the interests of presently injured plaintiffs as
well as defendants in achieving a settlement," AS8.,
The named plaintiffs made no effort to notify absent persons
who were not suffering from injury, Rather, over defendants’
objection, they and the district court defined, and directed notice to,
a class consisting only of persona who subjectively believed that
ihey were suffering compensable injuries as a freault of Agent
Orange, See pp, 46 & note 5, supra, Then, anee the apt-out
deadline had passed, the named plaintiffe vastly expanded the clase
that would be bound, to inelude anyone Whe Might ever manifest
any injury in the future, See pp, 67, tupra, Coneeivably, the
settlement agreement might have expressly preserved the elaiina of
these future plaintiff; instead, it abolished them, The district
court's explanation for the parties’ contractual agreement to
extinguish the rights of hundreds of thousands of people, none of
whom was at the bargaining table, was that the parties at the table
were "[cloncerned with the potential for mew actions and
recogniz[ed] the need for finality." A35. No notice and opt out
rights for the new class members were even considered.
Thus, petitioners were denied all of the bedrock requirements of
Rule 23 and due process at the hands of private parties who
negotiated to extinguish petitioners’ legal claims before they had
even accrued. This "might in another context be a bureaucratic
success story," but here it has “serious constitutional ramifications."
Morrison v. Olson, 487 U.S. 654, 684 (1988).
The Second Circuit was likewise unwilling to enforce the
minimum procedural guarantees applicable in the class action
context. Despite the conflict of interest that the district court had
candidly acknowledged, AS58, the court below dismissed any
concern here, with the assertion that harm from any conflict had
“never materialized." See p. 10, supra, And in a bizarre reading
of this Court's decision in Shutts, the court below opined that, as
long as absent plaintiffs are unknown, a court may dispense with
1
notice and opt-out rights entirely if it deems the benefits of these
core protections to be "conjectural" and outweighed by "society's
interest" in resolving complex litigation, See id.
The Second Circuit’s focus on "society’s interest" and its
disregard for individual procedural guarantees may be acceptable in
the legislative arena but cannot be squared with the functioning of
a life-tenured judiciary. Cf. Bi-Metallic Investment Co. v. State
Board of Equalization, 239 U.S. 441, 444-45 (1915) (“Gener
statutes within the state power are passed that affect the person o1
property of individuals, sometimes to the point of ruin, without
giving them a ie to be heard, Their rights are Page in the
only way that can be in a complex society, by their power,
inumediate or remote, aver those who make the rule"), As Judge
Hairick Higginbotham cautioned in a similar context, in invalidating
ai HnOVatIVe Quadleadminiatrative scheme for trying aabeatos cases:
“The Judieial Braneh ean offer the tral of lawauita, Te has ne power
vy competence to do more," /H re Mbreboard Corp, W04 F 2d 706,
712 (Sth Cle, 1900),
Thus, at ite root, the seeond question if this Gaxe presenta the
Court with af Hunity tO insist that the lower courts apply
traditional Rule 23 and due process analysis to the unacerued future
claims of absent plaintiffs, and an opportunity to reject the sort of
quasi-legislative analysis relied on by the Second Circuit.
CONCLUSION
For all these reasons, certiorari should be granted.
LAURENCE H. TRIBE ROBERT M. HAGER
KENNETH J. CHESEBRO Counsel of Record
JONATHAN S. MASSEY 2020 Pennsylvania Ave., N.W.
IRWIN R. GROSS Washington, DC 20006
1525 Massachusetts Ave. (202) 333-0099
Cambridge, MA 02138
(617) 495-1767
November 24, 1993
APPENDICES
APPENDIX A
Decision Of the United States Court of Appeals
he S€Cond Circuit, affirming the district court’s
‘| (O Femand the case and its dismissal of
peuulioners” claims, dated June 24, 1993............ Al
APPENDIX B
Decision Of the United States District Court for
the Masten District of New York, refusing remand
and dismissing petitioners’ claims, dated
NS sg as occ occ aks e sean A26
APPENDIX C
Decision of the District Court denying Rule 59
motion for reconsideration except in part, and
denying motion under 28 U.S.C. § 455(a),
mer 12, 1991 .. 0... wt te A60
APPENDIX D
Order of the Court of Appeals Denying Petition
for Rehearing and Suggestion for Rehearing
- En Banc, dated August 26, 1993 ................ A63
APPENDIX E
Text of Federal Rule of Civil Procedure 23 ......... A64
APPENDIX F
Affidavits of Shirley Ivy, dated February 22
EE IS I eee A68
Al
APPENDIX A
UNITED STATES COURT OF APPEALS
For the Second Circuit
Nos. 92-7537, 92-7573, 92-7575
IN RE “AGENT ORANGE” PRODUCT
LIABILITY LITIGATION,
SHIRLEY IVY, Individually and as Representative of the Estate
of Donald Ivy, Deceased; CHARLES JARDON and TONY K.
JARDON, Individually and as Next Friend of Charles Jardon,
Jr.,; ROBIN JARDON, WARREN JARDON and SHARON
JARDON; VERDA WILSON, Individually and as Representative
of the Estate of Isaiah Wilson, Jr., Deceased; SHIRLEY
ZALEWASKI, Individually and as Representative of the Estate
of Yen Zalewaski, Deceased; GARY THOMAS; MARY LEE
THOMAS; JAMES L. KENT; EMMA I. KENT: DAWN
MARIE INMAN, Individually and as Representative of the
Estate of Bobby Joe Inman, Deceased; EARL THOMPSON;
JUDY L. THOMPSON; JAMES DONALD DELOATCH:
JOYCE DELOATCH; PEGGY SANDS, Individually and as
Representative of the Estate of Martin Sands, Deceased; EMILE
ANNIBOLLI; URSULA MARGOT PARRY, Individually and as
Representative of the Estate of James D. Parry, Sr., Deceased:
JAMES D. PARRY, JR.; JAMES CHRISTOPHER PARRY:
LAURA JENKINS, Individually and as Representative of the
Estate of Eddie Jenkins, Deceased; RONALD L. HARTMAN ‘
KATHERINA H. HARTMAN, and as Next Friend to JEFFERY
ALAN HARTMAN and ANGELA MARIE HARTMAN, Both
minors individually and as Representative of those similarly
Situated,
Plaintiffs-Appellants,
A2
JAMES WHITE, Individually and as Representative of the Estate
of Clarence White, Deceased; CHARLES BROWN,
Plaintiffs-Appellants ,
v.
DIAMOND SHAMROCK CHEMICALS COMPANY, also
known as Diamond Shamrock Refining & Marketing Company,
also known as Occidental Electro Chemical Corporation, also
known as Maxus Energy Corp., also known as Occidental
Chemical Corporation, also known as Diamond Shamrock Co.;
DOW CHEMICAL COMPANY; MONSANTO COMPANY;
UNIROYAL, INC.; HERCULES, INC.; THOMPSON-HAY-
WARD CHEMICAL COMPANY; T.H. AGRICULTURE &
NUTRITION COMPANY, INC.,
Defendants-Appellees.
On Appeal from the United States District
Court for the Eastern District of New York
JUNE 24, 1993
Before: VAN GRAAFEILAND, KEARSE and
CARDAMONE,
Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Two groups of veterans and their family members, who sue
both individually and on behalf of others similarly situated,
appeal from a judgment of the United States District Court for
the Eastern District of New York (Weinstein, J.) dismissing their
tort claims against seven chemical companies which manufac-
tured the defoliant Agent Orange. Ryan v. Dow Chemical Co.,
781 F.Supp. 902 (E.D.N.Y. 1991). In addition to their claim of
A3
substantive error, appellants contend that the district judge erred
in refusing to remand their cases to the state court from which
they were removed and in denying their motion that he disqualify
himself for conflict of interest or appearance of partiality. For the
reasons that follow, we affirm.
These actions are an attempted revival of the massive tort
litigation (collectively “Agent Orange I”), which arose from the
United States Armed Services’ use of Agent Orange during the
Vietnam War. Because both the history of the litigation and the
background of the instant actions have been chronicled in the
opinion below, 781 F.Supp. at 904-14, a brief summary will
suffice for present purposes.
While serving in Vietnam, several hundred thousand
soldiers were exposed to Agent Orange, which contained traces
of the chemical 2,3,7,8-tetrachlorodibenzo-p-dioxin (“dioxin”).
Following their return home, many veterans complained of
illnesses, which they attributed to this exposure. In 1978, these
veterans began to seek redress through the courts, suing both the
United States and the manufacturers of Agent Orange.
In 1979, the Judicial Panel on Multidistrict Litigation
consolidated hundreds of the cases and transferred them to the
Eastern District of New York. Subject matter jurisdiction over
these cases originally was based on the asserted existence of a
question of federal common law, but, after we reversed on this
issue, 635 F.2d 987 (2d Cir. 1980), cert. denied, 454 U.S. 1128
(1981), jurisdiction was found to exist on the basis of diversity
of citizenship.
In December 1983, the district court certified a Rule
23(b)(3) “common question” class with opt-out rights in order
to address the common issues of general causation and the
military contractor defense, and a Rule 23(b)(1)(B) “limited
fund” class for punitive damage claims. 100 F.R.D. 718
(E.D.N.Y. 1983), mandamus denied, 725 F.2d 858 (2d Cir.),
cert. denied, 465 U.S. 1067 (1984). The Rule 23(b)(3) class was
defined as:
A4
those persons who were in the United States, New
Zealand or Australian Armed Forces at any time from
1961 to 1972 who were injured while in or near Viet-
nam by exposure to Agent Orange or other phenoxy
herbicides . . . The class also includes spouses, parents,
and children of the veterans born before January 1,
1984, directly or derivatively injured as a result of the
exposure.
Id. at 729. Notice was provided to class members by mail where
feasible and by advertisements in the print and broadcast media.
Id. at 729-30. The deadline to opt out of the Rule 23(b)(3) class
was May 1, 1984; 2,440 potential plaintiffs opted out by the
deadline, although all but 282 eventually opted back into the
Class.
A tentative settlement was reached on May 7, 1984, the day
the trial was scheduled to begin. The Settlement Agreement
provided for the establishment of a $180 million settlement fund
to cover all claims arising out of Agent Orange exposure, and a
claim against this fund was made the exclusive remedy for all
class members. A $10 million reserve was created to indemnify
the defendants for any state court judgments obtained by class
members. The Settlement Agreement stated that “[t]he Class
specifically includes persons who have not yet manifested
injury,” and it forever barred class members from instituting or
maintaining an action against defendants based on exposure to
Agent Orange. See 597 F.Supp. 740, 862-66 (E.D.N.Y. 1984)
(reprinting Settlement Agreement).
The settlement was approved on September 25, 1984 after
extensive, nationwide fairness hearings, see id. at 740-862, and
the approval was reaffirmed on January 7, 1985, see 611
F.Supp. 1296, 1347. On July 9, 1985, the district court granted
an order directing consummation of the settlement “in
accordance with its terms,” dismissing all class members’ claims,
permanently barring class members from _ instituting or
maintaining future actions arising from Agent Orange exposure,
and retaining jurisdiction over the maintenance, administration
AS
and distribution of the settlement fund. 618 F.Supp. 623, 624-25
(E.D.N.Y. 1985). The court also granted summary judgment
against the opt-out plaintiffs based on their failure to prove
causation and on the military contractor defense. 611 F.Supp.
1223 and 1267 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir.
1987), cert. denied, 487 U.S. 1234 (1988). We affirmed the
certification, maintenance and settlement of the class action in all
significant and relevant respects. 818 F.2d 145 (2d Cir. 1987),
cert. denied, 484 U.S. 1004 (1988).
The final distribution plan for the settlkement fund was
announced on July 5, 1988 following the termination of all
appeals. 689 F.Supp. 1250. Roughly three-fourths of the fund,
which by then had grown to approximately $240 million, was
allocated to the Agent Orange Veteran Payment Program. This
Program provides payments on the death or disability of class
members. By September 30, 1991, it had disbursed over $86
million and had processed more than fifty thousand claims.
Twenty-eight percent of the disability claims processed by the
fund were for disabilities manifesting themselves after May 7,
1984; more than half of the death claims were for deaths
occurring after May 7, 1984. 781 F.Supp. at 910. By September
30, 1992, the Payment Program had disbursed more than $146
million to disabled veterans or their survivors and had processed
more than sixty thousand claims. Report of the Special Master on
i the Distribution of the Agent Orange Settlement Fund, Fourth
; Annual Report, at 11-12.
Most of the remaining quarter of the settlement fund was
i allocated to the Agent Orange Class Assistance Program
(“AOCAP”), which made grants to agencies serving Vietnam
veterans and their families. Among the activities assisted by those
grants were veteran counselling, aiding the obtaining of Govern-
ment veterans’ benefits, and administering training programs for
agencies dealing with Vietnam veterans and their employees. As
of September 31, 1992, AOCAP had awarded roughly $33.6
million in grant funds, benefitting more than 101,000 veterans
and family members nationwide. See Fourth Annual Report,
supra, at exh. D. That portion of the $10 million indemnity
nee eae
A6
reserve that will not have been used to satisfy state court
judgments by 1994 will revert to this fund. Originally, the
district court provided for management of the AOCAP fund by
an independent foundation. We reversed on this point and
ordered that Judge Weinstein maintain direct oversight of the
Program. 818 F.2d 179, 184-86 (2d Cir. 1987). In managing
AOCAP, Judge Weinstein consults with an advisory board of
Vietnam veterans.
In 1989 and 1990, two overlapping class actions, /vy v.
Diamond Shamrock Chemicals Co. and Hartman v. Diamond
Shamrock Chemicals Co., were brought in Texas courts. Both
alleged that the named plaintiffs or their family members suffered
injury as a result of Agent Orange exposure and that the injuries
sustained by these plaintiffs did not manifest themselves or were
not discovered until after May 7, 1984, the Agent Orange I
settlement date. Both complaints sounded exclusively in state law
and explicitly abjured reliance on federal law. Defendants
removed the cases to the United States District Court for the
Eastern and Southern Districts of Texas, alleging “artful plead-
ing” of a federal claim or, alternatively, complete federal
preemption. The Judicial Panel on Multidistrict Litigation
transferred the cases to the Eastern District of New York.
On January 31, 1990, the /vy plaintiffs petitioned this court
for a writ of mandamus directing remand. On March 28, we
denied the motion, ruling that the question of subject matter
jurisdiction should be decided in the first instance by the district
court. In re Ivy , 901 F.2d 7, 10 (2d Cir. 1990). Plaintiffs then
moved in the district court for remand of both cases. The district
court heard oral argument on March 6, 1991, and scheduled an
additional hearing on the motion to remand and other motions for
May 6, 1991, to allow for further briefing. In the interim,
defendants moved to dismiss and to amend their notice of
removal to assert federal officer removai pursuant to 28 U.S.C.
§ 1442(a)(1).
The district court remanded the claims of two civilian
plaintiffs alleging injury, holding that they were not within the
EEE ev
A7
Agent Orange I class and that federal officer removal was
inapplicable. Ryan v. Dow Chemical Co., 781 F.Supp. 934
(E.D.N.Y. 1992). The court denied the motion to remand of the
veteran plaintiffs and their family members and dismissed their
claims as barred by the Agent Orange I settlement and the court’s
order enjoining future suits by class members. 781 F.Supp. 902,
918-20. Plaintiffs moved for reconsideration of the latter decision
and for disqualification of Judge Weinstein pursuant to 28
U.S.C. § 455. The court, in an unpublished order, denied both
motions and kept its original decision substantially intact.
FEDERAL JURISDICTION
As a general rule, a state case may be removed to federal
court only if federal jurisdiction is evident on the face of the
plaintiff's well-pleaded complaint. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). This rule is not satisfied
with respect to the complaints herein. There is no complete
diversity of citizenship, and no federal issue is apparent in the
complaints. Indeed, the complaints explicitly disclaim reliance on
federal law. Accordingly, in order to be removable, the /vy and
Hartman cases must fall within an exception to the
“well-pleaded complaint” rule. The district court asserted two
such exceptions -- plaintiffs’ “artful pleading” of a federal
question, and the court’s residual authority under the All Writs
Act to preserve its jurisdiction. We address these in order.
Ordinarily, a plaintiff is master of his complaint and may
elect to proceed solely under state law even if federal remedies
are available. See Caterpillar, supra, 482 U.S. at 392; The Fair
v. Kohler Die & Specialty Co., 228 U.S. 22, 25, (1913).
However, a complaint which appears to be grounded solely in
state law actually may be federal in nature, and thus removable,
if its true nature has been disguised by the plaintiff's artful
pleading. See generally 14A Charles A. Wright et al., Federal
Practice and Procedure § 3722, at 266-75 (2d ed. 1985).
Because state and federal laws have many overlapping or even
identical remedies and because generally we respect a plaintiff's
ee
A8
choice between state and federal forums, this exception to the
well-pleaded complaint rule is necessarily a narrow one.
The district court justified removal in the instant case on the
authority of Federated Dep't Stores, Inc. v. Moitie, 452 U.S.
394, 397 n.2, (1981), as interpreted by Travelers Indem. Co. v.
Sarkisian, 794 F.2d 754, 760 (2d Cir.), cert. denied, 479 U.S.
885, (1986). Under Sarkisian’s interpretation of Moitie, a state
law claim is an artfully-pleaded federal claim if (1) the plaintiff
previously had elected to proceed in federal court on a claim
expressly grounded on federal law and (2) the elements of the
subsequent state law claim are virtually identical to those of the
claim previously made. /d. However, the instant case was not
removable under the Sarkisian test, because the prior claim was
not expressly grounded on federal law but instead was a diversity
claim based on general tort law. The district court interpreted
Sarkisian to require only that “the elements of the [subsequent]
claim . . . be ‘virtually identical’ to those in the prior federal
action,” stating that “there is no indication that the Court of
Appeals intended to . . . limit its reach” to those cases where the
prior federal court action was based on federal question
jurisdiction. 781 F.Supp. at 917. This was a misreading of
Sarkisian, which explicitly requires that the prior claim be
“expressly grounded on federal law.” 794 F.2d at 760; see also
Ultramar America Ltd. v. Dwelle, 900 F.2d 1412, 1414-17 (9th
Cir. 1990).
Alternatively, the district court found authority for removal
in its power under the All Writs Act to issue writs “necessary
or appropriate” in aid of its jurisdiction. 28 U.S.C. § 1651.
Here, the district court was on sounder ground. A district court,
in exceptional circumstances, may use its All Writs authority to
remove an otherwise unremovable state court case in order to
“effectuate and prevent the frustration of orders it has previously
issued in its exercise of jurisdiction otherwise obtained.” United
States v. New York Tel. Co., 434 U.S. 159, 172 (1977).
If Agent Orange victims were allowed to maintain separate
actions in state court, the deleterious effect on the Agent Orange
ne
dG
A9
/ settlement mechanism would be substantial. The parties to the
settlement implicitly recognized this when they agreed that all
future suits by class members would be permanently barred. It
is difficult to conceive of any state court properly addressing a
victim’s tort claim without first deciding the scope of the Agent
Orange I class action and settlement. The court best situated to
make this determination is the court that approved the settlement
and entered the judgment enforcing it. Removal in the instant
case was an appropriate use of federal judicial power under 28
U.S.C. § 1651. See United States v. City of New York, 972 F.2d
464, 469 (2d Cir. 1992); Yonkers Racing Corp. v. City of
Yonkers, 858 F.2d 855, 863-64 (2d Cir. 1988), cert. denied, 489
U.S. 1077 (1989). In so holding, we are not unmindful of the
fact that the All Writs Act is not a jurisdictional blank check
which district courts may use whenever they deem it advisable.
“Although that Act empowers federal courts to fashion
extraordinary remedies when the need arises, it does not
authorize them to issue ad hoc writs whenever compliance with
Statutory procedures appears inconvenient or less appropriate.”
Pennsylvania Bureau of Correction v. United States Marshals
Serv., 474 U.S. 34, 43 (1985). Given the “exceptional
circumstances” surrounding the instant case, issuance was a
proper exercise of judicial discretion. The district court was not
determining simply the preclusive effect of a prior final judgment
on claims or issues expected to be raised in subsequent collateral
proceedings; it was enforcing an explicit, ongoing order against
relitigation of matters it already had decided, and guarding the
integrity of its rulings in complex multidistrict litigation over
which it had retained jurisdiction.
Appellees contend that the instant case was removable
pursuant to 28 U.S.C. § 1442(a), which in pertinent part allows
removal of actions against “[a]ny officer of the United States or
any agency thereof, or person acting under him, for any act
under color of such office.” Although appellees sought to amend
their notice of removal to assert this as an additional basis for
removal, the district court did not rule on their application to
AlQ
amend. Because our decision is supported on other grounds, we
too decline to reach this question.
Appellants’ additional arguments against the district court’s
assumption of jurisdiction are not persuasive. They contend, for
example, that removal in the instant case plates the
see 818 F, Md a at 184-86; 618 F.Supp, at 625, but also to ensure
that the Settlement Agreement as a whole is enforced according
to its terms, See Meetings & Expositions, Ine, v, Tandy Corp. ,
490 F.2d 714, 717 Qd Cir, 1974), “In a class action, the
district court has a duty to class members to see that any
settlement it approves is completed, and not merely to approve
a promise , , .” /n re Corrugated Container Antitrust Litig, , 752
F.2d 137, 141 (Sth Cir,), cert, denied, 473 U.S, 911 (1985).
Second, removal was needed “to protect or effectuate” the
district court’s Agent Orange I judgment. This exception in the
statute authorizes a federal court to proscribe state litigation of an
issue that actually has been previously presented to and decided
by the federal court. See Chick Kam Choo v. Exxon Corp., 486
U.S. 140, 147 (1988). A review of the arguments, orders and
judgment in Agent Orange I makes it crystal clear that the court
in fact did determine the central issue of class membership raised
here, i,¢,, that persons who had yet to manifest injury were class
members, See, ¢.g,, Settlement Agreement 4 8, 597 F.Supp, at
465 (“The Class specifically includes persons who have not yet
manifested injury,”)
All
\
:
3
Appellants contend that Younger v. Harris, 401 U.S. 37
(1971), and its progeny, particularly Pennzoil Co. v. Texaco
Inc., 481 U.S. 1 (1987), require that the district court abstain
from exercising jurisdiction in deference to the Texas state
courts. This argument stands the Younger doctrine on its head.
Younger teaches us to recognize the interest of the states in
prosecting the authority of their judicial syria so that their
and judgments are not rendered nugatory. Pennzc
.S. at 14 n.12 (quoting Juidice
iis result is not the sort of f 7 ni
in Younger and Pennzoil. See Town oer ,
for Community Action at the Local Level, Inc,, 430 U.S.
259, 264 n.8 (1977),
Appellants also assert that the district court did not have
personal jurisdiction over them, This argument is frivolous, See
818 F.2d at 163, Likewise, there is no merit in their argument
that removal in these cases interferes with their right to collater
ally attack the Agent Orange / judgment by denying them the
forum of their choice, Although appellants’ attack is founded on
their constitutional right to due process, nothing in the Constitu-
' tion or in our jurisprudence demands that class members have an
unchallengeable choice of forums in which to launch it. While
the law as a general rule permits a plaintiff to choose his forum,
) that freedom is not absolute, as the removal, venue and
/ multidistrict litigation statutes and the personal jurisdiction and
| forum non conveniens doctrines all demonstrate. It is obvious,
from what presently is occurring herein, that the removal and
multidistrict transfer in the instant case have not impinged unduly
upon appellants’ right of collateral attack,
CLASS MEMBERSHIP
Having resolved the preliminary jurisdictional questions, we
turn to the central question of appellants’ membership vel non in
the Agent Orange / class, The anawer to this question lies in the
Al2
meaning of the phrase “who were injured while in or near
Vietnam from exposure to Agent Orange.” Appellants contend
that persons are not “injured” until medical symptoms become
manifest. Appellees argue in response that injury occurs when a
deleterious substance enters a person’s body, even though its
adverse effects are not immediately apparent. In the instant case,
appellees’ definition is correct
st ” anc
limitation period is applied; i.e., the limitation runs either from
the time the “injury” occurs or the time the damage resulting
from the “injury” is discovered, In the strict legal sense
“‘Li}njury’ means a wrongful invasion of legal rights, and is not
concerned with the hurt or damage resulting from such invasion
-..." 439A CJS, Injury at 767; see alse Restatement (Second)
of Torts § 7,
In this respect, reference to the history of New York State's
limitation period governing suits for personal injuries is illumi-
nating. The traditional rule in New York is that the injury occurs
and the limitation period begins to run when there is a wrongful
invasion Of one’s personal rights, not when the damage allegedly
resulting from the invasion is discovered. See Schmidt v.
Merchants Despatch Transp. Co., 270 N.Y. 287, 300 (1936);
Thornton v. Roosevelt Hosp., 47 N.Y .2d 780, 781 (1979)(mem. ).
Recognizing the possible adverse effect this traditional rule
might have on veterans claiming injury from Agent Orange, the
New York Legislature, in 1981, decided that such claims
“should not be prohibited by the holding that a cause of action
accrues, and the statute of limitations commences to run from the
Al3
‘date of injury.’ ” See Legislative Findings: Victims of Herbicide
Agents, Section 1 of L. 1981, c. 266, eff. June 16, 1981,
reprinted in footnote to N.Y. Civ. Prac. L. & R. § 214-b
(McKinney 1990). The Legislature therefore provided in section
214-b that a veteran’s action to recover damages for “personal
injury” caused by contact with or exposure to Agent Orange
serving” in Indo-China between 1962 and 1975 may be
within two years from the date of discovery of
.” This enactment changed the onset of the limitation
did not change the meaning of the word “injury.”
the very outset of the litigation in Agent Orange I, the
adopted this meaning and urged it repeatedly upon the
. The initial class action complaint alleged that the
brought on behalf of, among others, “those
veterans manifesting no symptoms of illness and
Gis@ase At present, but at risk of genetic and somatic damage.”
In FeSpOnse to the defendants’ motion to dismiss the “at risk”
claims, plaintiffs argued in both the district court and this court:
The “injury” in the Agent Orange cases has already
occurred. The plaintiffs “at risk” have already been
Xposed to the toxic substance.
* * *
The at risk argument of the Defendant war contractors
obscures the fact that every individual Plaintiff has been
injured jn fact . . . We have asked the Court to
recOgnize that there is injury, in fact.
* * *
Judge, at the risk of delivering a short lecture on the
medicine in this case, the exposure to the toxicant
produced a physiological event, an injury within the
meaning of the word “injury” in the technical law of
torts,
Al4
The district court was fully aware of the New York
Legislature’s use of the term “personal injury” in section 214-b
and its legislative preamble. See 597 F.Supp. at 810-11. In
response to plaintiffs’ urging, it adopted and approved similar
usage in the Settkement Agreement and the judgment that
incorporated it. See id. at 879, 870. There thus can be no
question concerning the district court’s intent or that of the
parties to the Settlement Agreement. “At risk” veterans, i.e.,
victims with no visible symptoms, were included in the plaintiff
Class.
In our prior opinion affirming the class settlement, 818
F.2d 145, we recognized the propriety of this inclusion, because
the military contractor defense was common to all of the
plaintiffs’ cases and, if successfully interposed, “would have
precluded recovery by all plaintiffs, irrespective of the strengths,
weaknesses, or idiosyncracies of their claims.” /d. at 167.
Appellants’ arguments against class membership are no stronger
now than they were when made in 1987.
Appellants’ contention that they could not have been within
the Agent Orange I class at the time of settlement because they
did not have an “injury in fact,” suggests a different meaning of
that term than has been enunciated in numerous cases involving
liability insurance coverage for injuries such as those sustained
by appellants._Although the issue in the insurance cases is
liability rather than jurisdiction, the controversy over the
meaning of the term “injury in fact” is subject to judicial
resolution in much the same manner as it is in the instant case.
Thus, in American Home Prods. Corp. v. Liberty Mutual Ins.
Co., 748 F.2d 760 (2d Cir. 1984), we said that “[s]ome types
of injury to the body occur prior to the appearance of any
symptoms; thus, the manifestation of the injury may well occur
after the injury itself.” Jd. at 764. We rejected the argument
appellants now make that “injury in fact” means injury that is
manifest, diagnosable or compensable. Jd. at 764-65. See also
Aetna Casualty & Surety Co. v. Abbott Laboratories Inc., 636
F.Supp. 546, 548-49 (D. Conn. 1986).
Al5
In Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp. 1368
(E.D.N.Y. 1988), the issue before the court was whether
Uniroyal was entitled to reimbursement from Home for
Uniroyal’s contribution to the Agent Orange I settlement.
Apropos of the issue now before us, Judge Weinstein wrote:
In this case there can be no doubt when the injury must
be deemed to have taken place. The parties stipulated
that any injury from exposure to Agent Orange took
place “at or shortly after a serviceman’s exposure to
Agent Orange spraying.”
The force of the Olson Affidavit and the stipulation is
to determine, for the purposes of this insurance
litigation, that injury in fact took place within a week or
so of spraying.
Id. at 1389. Although this decision is not binding in the instant
case, its conclusion that plaintiffs sustained an “injury in fact”
is eminently correct. See Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 74 (1978).
Appellants’ argument that they could not have been
members of the Agent Orange I class because their claims did not
satisfy the $10,000 amount-in-controversy requirement of 28
U.S.C. § 1332 as it then existed, was rejected by this court on
the original Agent Orange I appeal, 818 F.2d at 163. We there
said, quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 288-89 (1938):
[U]Jnless the law gives a different rule, the sum claimed
by the plaintiff controls if the claim is apparently made
in good faith. It must appear to a legal certainty that the
claim is really for less than the jurisdictional amount to
justify dismissal.
We followed the same reasoning in /n re Joint E. and S. Dist.
Asbestos Litig., 982 F.2d 721, 734 (2d Cir. 1992), despite the
fact that the amount-in-controversy requirement had been raised
by then to $50,000. Further repetition of this rule is unnecessary.
Al6
We are satisfied that appellants’ Agent Orange / claims, made in
good faith, satisfied the monetary jurisdiction requirements.
Appellants next contend that they are not bound by the
Agent Orange I class action and settlement because the court did
not have personal jurisdiction over them. We rejected this
argument on the appeal in Agent Orange I, 818 F.2d at 163. We
there quoted the Judicial Panel on Multidistrict Litigation to the
effect that transfers under 28 U.S.C. § 1407, the multidistrict
litigation statute, “are simply not encumbered by considerations
of in personam jurisdiction and venue” and that the transferee
judge has all the pretrial jurisdiction the transferor judge would
have had if the transfer had not occurred. We then proceeded in
that opinion to discuss the adequacy of notice of the class action
and proposed settlement, id. at 167-70, and held that the notices
were adequate. Our view has not changed.
Appellants contend, as did appellants in Agent Orange I,
that all class members did not receive adequate notice of their
membership in the Agent Orange I action and the opportunity to
exclude themselves therefrom. This, appellants allege, was a due
process violation under the standards of Phillips Petroleum Co.
v. Shutts, 472 U.S. 797 (1985). Appellants misapprehend the
reach of Shutts. The Court’s decision in that case “is limited to
those class actions which seek to bind known plaintiffs
concerning claims wholly or predominantly for money
judgments,” and “intimates no view concerning other types of
class actions.” /d. at 811 n.3. As such, “Shutts does not apply
directly to classes of unknown plaintiffs.” See 1 Newberg on
Class Actions § 1.23, at 1-54 (3d ed. 1992). We distinguished
Shutts in Agent Orange I, pointing out that here “there was no
easily accessible list of veterans, as there must have beer of
royalty holders in [Shutts].” 818 F.2d at 169.
We again decline to extend the Shutts holding into situations
such as this. “Due process, the courts have often declared, ‘is
a flexible concept,’ intended to ensure ‘fundamental fairness.’”
In re A.H. Robins Co., 880 F.2d 709, 745 (4th Cir.) (quoting
Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305,
Al7
320 (1985) and Mathews v. Eldridge, 424 U.S. 319, 334 (1976)),
cert. denied, 493 U.S. 959 (1989). What process is due in a
given instance requires the balancing of a variety of interests. In
some cases, “the marginal gains from affording an additional
procedural safeguard . . . may be outweighed by the societal cost
of providing such a safeguard.” Walters, supra, 473 U.S. at
320-21.
In the instant case, society’s interest in the efficient and fair
resolution of large-scale litigation outweighs the gains from
individual notice and opt-out rights, whose benefits here are
conjectural at best. As appellants correctly note, providing
individual notice and opt-out rights to persons who are unaware
of an injury would probably do little good. Their rights are better
served, we think, by requiring that “fair and just recovery
procedures be[] made available to these claimants,” 1 Newberg,
supra, § 1.23, at 1-56, and by ensuring that they receive
vigorous and faithful vicarious representation.
It is axiomatic that a class action binds absent members only
so long as they were adequately represented therein. See
generally Hansberry v. Lee, 311 U.S. 32, 41 (1940). Our
decision in Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir.
1968), describes the requisites of adequate representation as
follews:
[A]n essential concomitant of adequate representation is
that the party’s attorney be qualified, experienced and
generally able to conduct the proposed litigation.
Additionally, it is necessary to eliminate so far as
possible the likelihood that the litigants are involved in
a collusive suit or that plaintiff has interests antagonistic
to those of the remainder of the class.
Id. at 562. Appellants do not challenge the qualifications of the
Agent Orange I class counsel. Moreover, their conflict-of-interest
claims are unpersuasive. Although, as the district court noted,
“[o]ne can imagine many genuine conflicts of interest” in a
Situation such as this, the court concluded that any potential
Al8
conflicts that might have infected Agent Orange I never
materialized:
In many cases the conflict between the interests of
present and future claimants is more imagined than real.
In the instant case, for example, the injustice wrought
upon the plaintiffs is nonexistent. These plaintiffs, like
all class members who suffer death or disability before
the end of 1994, are eligible for compensation from the
Agent Orange Payment Fund. The relevant latency
periods and the age of the veterans ensure that almost
all valid claims will be revealed before that time.
781 F.Supp. at 919.
We agree with the district court that designation of a
subclass of future claimants and appointment of a guardian to
represent their interests was unnecessary “because of the way
{the settlement] was structured to cover future claimants.” Jd. As
Judge Weinstein noted in one of the fairness hearings that he
conducted:
to appoint another attorney to represent that sub-group
would just, in my opinion, increase the amount of legal
fees, which is what all of us want to keep to a bare
minimum. There are lots of arguments and classes and
sub-classes, but if we appoint attorneys and guardians
ad litem for everybody who might have . . . somewhat
of a conflict of interest, there is hardly going to be any
money left for the veteran.
Appellants’ blanket allegation that the Agent Orange I
settlement was collusive is patently frivolous. When appellants’
counsel was pressed at oral argument to indicate some factual
support for the allegation, he was unable to do so. Indeed, when
one reads contemporaneous accounts of the settlement negotia-
tions, which we described as having been “dramatically arrived
at just before dawn on the day of trial after sleepless hours of
bargaining,” 818 F.2d at 166, it is impossible to envision any
collusion between plaintiffs and defendants. By all accounts, the
Al9
negotiations were arm’s-length and adversarial, even fierce. See
generally Peter H. Schuck, Agent Orange on Trial 143-67
(1986); Francis J. Flaherty & David Lauter, “Inside Agent
Orange: The 11th-Hour Talks that Almost Failed,” Nat’! L.J.,
May 21, 1984, at 1; Ralph Blumenthal, “How Judge Helped
Shape Agent Orange Pact,” N.Y. Times, May 11, 1984, § A at
&
Appellants mistakenly attempt to create an inference of
impropriety out of our characterization of the $180 million
. settlement as “essentially a settlement at nuisance value.” 818
F.2d at 171. Assuming the correctness of our characterization,
it is in no way indicative of any improper collaboration between
class representatives and the chemical company defendants. It
was instead a reflection of the “formidable hurdles” plaintiffs
faced. As we went on to conclude, plaintiffs’ counsel “had good
reason to view this case as having only nuisance value.” Jd.
Indeed, we note that, despite some intervening changes in
the law, serious obstacles to recovery remain. Thus, although the
scope of the government contract defense has been somewhat
limited by the Supreme Court’s decision in Boyle v. United
Technologies Corp., 487 U.S. 500, 512 (1988), under proper
circumstances the defense is still available to government
contractors. See Lewis v. Babcock Indus., Inc., 985 F.2d 83 (2d
: Cir. 1993); Stout v. Borg-Warner Corp., 933 F.2d 331 (Sth
Cir.), cert. denied, 112 S.Ct. 584 (1991); Maguire v. Hughes
Aircraft Corp., 912 F.2d 67 (3d Cir. 1990). There is more than
a mere possibility that such circumstances exist in the instant
case. It is clear from the chemical companies’ contracts with the
Government that the Government specified Agent Orange’s
ingredients in great detail. There also is documentary evidence
tending to show that the Government strictly prescribed the
markings on Agent Orange barrels, and prohibited all extraneous
label information, including warnings. Finally, there is evidence
that the Government’s knowledge of the hazards of Agent Orange
and dioxin was at least as great as that of the chemical
companies, making it unlikely that there were “dangers... that
were known to the supplier but not to the United States,” of
Cy Ne airchhe 1 Yn YR, @ Mead ’oo
SO INS a RING eA VEY bene i A +
A20
which the suppliers should have warned. Boyle, supra, 487 U.S.
at 512. In sum, although the availability of the government
contract defense might not be a foregone conclusion, there is a
reasonable probability that it would apply, barring any recovery
by the plaintiffs.
In addition, despite continuing research, the crucial issue of
“general causation,” i.e., whether any injuries are attributable to
Agent Orange, remains unsettled. As one 1992 commentator
noted, reviewing the scientific literature: “To date, there has
been no conclusive evidence that exposure to Agent Orange is
carcinogenic, mutagenic or teratogenic in humans. Furthermore,
no deaths attributable solely to exposure to Agent Orange and its
dioxin contaminant have been reported.” 13B Arthur L. Frank,
Courtroom Medicine: Cancer, § 25A.00, at 25A-4 (1992).
Indeed, it remains as difficult as ever to prove individual
levels of exposure to Agent Orange. For instance, a 1990 study
conducted under the auspices of the Environmental Protection
Agency and the Veterans Administration compared Vietnam
veterans to veterans not serving in Vietnam and civilian men, all
of like age, and concluded that:
with or without adjustment for several demographic
variables, the mean level of [dioxin] in the adipose
tissue of the 36 Vietnam veterans was not significantly
different from that of the 79 non-Vietnam veterans or
the 80 civilian men. . . . Furthermore, the results
showed no association between [dioxin] levels and any
estimate of Agent Orange exposure opportunity based
on military records. . . . The study results suggest that
heavy exposure to [dioxin] for most Vietnam veterans
was unlikely and that available military unit records
used in the study were inadequate in assessing exposure
to Agent Orange for those Vietnam veterans.
Han K. Kang et al., Dioxins and Dibenzofurans in Adipose
Tissue of U.S. Vietnam Veterans and Controls, at x (1990).
ee
A21
Even if appellants were to surmount the military contractor
defense, provide satisfactory epidemiological evidence on the
issue Of general causation, and demonstrate with sufficient
accuracy their levels of personal exposure to Agent Orange, they
still would face the difficult task of demonstrating individual
causation, i.e., that Agent Orange exposure caused the particular
illnesses upon which they base their claims. Unlike asbestos,
dioxin has not been recognized as the source of a distinctive
medical illness.
The lesson to be drawn from this discussion is that the
fundamental fairness of the Agent Orange I settlement remains
unshaken. Notwithstanding the legal and scientific developments
of the past nine years, the chances of recovery are nearly as
speculative today as they were at the time of settlement.
Appellants’ challenges to the adequacy of their representation
therefore must be rejected.
In so holding, we do not denigrate the importance of
qualified and faithful class representation. The quality and fidelity
of counsel are of paramount importance in class actions such as
the instant one which involve unknown claimants. Indeed, we
ordinarily would anticipate the appointment of a guardian to
represent the interests of absent claimants, particularly those with
questionable injuries. In the instant case, however, we are not
writing on a clean slate. The unique circumstances surrounding
Agent Orange I — in particular, the even-handed treatment of
both identified and unidentified legitimate claimants in the Agent
Orange I settlement and the dim prospects of success both then
and now — rendered additional protections unnecessary. The
representation in Agent Orange I was more than adequate to
protect appellants’ interests.
Once all of the foregoing issues are resolved in favor of
appellees, resolution of the case is relatively straightforward.
Both the Settlement Agreement, and the district court’s judgment
dismissing the cases, explicitly and permanently barred future
actions by class members against the defendants:
A22
All complaints in this class action, and all claims of
each and every plaintiff and member of the Rule
23(b)(3) class, are hereby dismissed on the merits, with
prejudice....
Each and every plaintiff and member of the Rule
23(b)(3) class is hereby forever barred from instituting
or maintaining any action against any of the defendants
. . . arising out of or relating to, or in the future arising
out of or relating to, the subject matter of any of the
complaints in this class action.
618 F.Supp. at 624.
Defendants . . . are not, and in the future shall not
be, subject to liability or expense of any kind to any
member of the Class in respect of any claim arising out
of the subject matter of the Complaint. . . . Claims
against the Fund shall be the exclusive remedy of all
Class members against the defendants . . . and ail
members of the Class are forever barred from
instituting or maintaining any action against any of the
defendants . . . arising out of or relating to, or in the
future arising out of or relating to, the subject matter of
the Complaint.
Settlement Agreement { 5, 597 F.Supp. at 864. Because
appellants are properly within the Agent Orange I class, these
provisions are binding on them, and their suits were properly
dismissed. The Agent Orange I settlement mechanism constitutes
appellants’ sole source of relief.
We are not persuaded by appellants’ argument that the $10
million indemnity provision for state law judgments evidences a
different intent. When the Settlement Agreement is read in its
entirety, it is apparent that the indemnity provision was intended
to protect the defendants against claims by those plaintiffs who
opted out of the class and could sue separately in state court.
|
ceeded
A23
Appellants’ final argument, raised for the first time after the
court’s initial decision below, is that Judge Weinstein should
have disqualified himself for conflict of interest or appearance of
partiality. Appellants contend that Judge Weinstein is a “fiducia-
ry” of AOCAP, and thus has a conflict of interest requiring
disqualification under 28 U.S.C. § 455(b)(4). In relevant part,
section 455(b)(4) requires a judge to disqualify himself if “he
knows that he, individually or as a fiduciary, . . . has a financial
interest in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding.” The statute defines
“fiduciary” as including “such relationships as executor,
administrator, trustee, and guardian.” 28 U.S.C. § 455(d)(3).
As principal support for their claim, appellants rely on
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847
(1988). In Liljeberg, the court held that disqualification was
required because the trial judge was trustee of a college that
stood to reap significant financial gains depending upon the
outcome of the lawsuit. Appellants read Liljeberg too broadly.
Although there are superficial similarities between Liljeberg and
the instant case, there is one crucial difference. The fiduciary
duty of the judge in Liljeberg was owed to a non-litigating entity,
while Judge Weinstein’s duty was part of his judicial obligation
to litigating class members. A judge in a class action is obligated
to protect the interests of absent class members. See Grant v.
Bethlehem Steel Corp., 823 F.2d 20, 23 (2d Cir. 1987).
Moreover, we specifically instructed Judge Weinstein to retain
direct oversight of the Class Assistance Program fund. See 818
F.2d at 185-86. His legally-imposed duties gua judge with regard
to the settlement funds are not a “fiduciary” obligation within the
meaning of section 455(b)(4), and do not mandate disqualification
from cases which may involve the fund. See Commissioner v.
Brown, 380 U.S. 563, 571 (1965) (“[T]he courts, in interpreting
a statute, have some ‘scope for adopting a restricted .. .
meaning of its words where acceptance of [a literal] meaning
would lead to absurd results... .’” (quoting Helvering v.
Hammel, 311 U.S. 504, 510 (1941)).
Ee
A24
In addition to basing their argument on section 455(b)(4),
appellants allege that Judge Weinstein’s “fiduciary” obligation
violates section 455(a), which requires disqualification whenever
a judge’s “impartiality might reasonably be questioned.” This
argument likewise lacks merit. Whether a judge has an appear-
ance of partiality is determined from the viewpoint of a reason-
able observer with knowledge of all surrounding circumstances.
Liljeberg, supra, 486 U.S. at 860-61. In the instant case, a
reasonable observer would not question the district court’s
impartiality. In managing AOCAP, Judge Weinstein-is merely
carrying out the supervisory duties assigned to him by the law of
class actions in general, and by the orders of this court in
particular.
Aiternatively, appellants argue that Judge Weinstein has
manifested an appearance of partiality mandating his disquaiifica-
tion under 28 U.S.C. § 455(a) based on his conduct in other
cases. In essence, appellants accuse Judge Weinstein of possess-
ing some traits of megalomania, of having a “systemic interest
in retaining excessive judicial powers over mass tort cases,” Br.
at 49, in order to effect a “systematic denial of rights to toxic
tort plaintiffs,” Br. at 58, to “circumvent” various legal
obstacles, Br. at 61, and to ensure that “other defendants . . .
make settlements by which enormous sums will be turned over
to the custody of the court for discretionary allocation,” Br. at
57. These allegations, verging on the slanderous, are patently
ridiculous and an affront to both the district court and this court.
Appellants overlook the fact that we affirmed in all significant
respects Judge Weinstein’s purported use of “excessive judicial
powers” in Agent Orange I. Moreover, we recently commended
Judge Weinstein for his “innovations” and “innovative
managerial skills” in such large-scale litigation. Jn re Brooklyn
Navy Yard Asbestos Litig., 971 F.2d 831, 836 n.1 (2d Cir.
1992).
Even if appellants’ section 455 arguments had some indicia
of merit, they were not raised in a timely fashion. “It is
well-settled that a party must raise its claim of a district court’s
disqualification at the earliest possible moment after obtaining
A25
knowledge of facts demonstrating the basis for such a claim.”
Apple v. Jewish Hosp. & Medical Ctr., 829 F.2d 326, 333 (2d
Cir. 1987). Apparently recognizing the problem created bv their
delay, appellants contend on appeal that Judge Weinstein’s lack
of qualifications were hidden until revealed by his decision now
being appealed. That argument is ridiculous. Judge Weinstein’s
highly-visible role in managing the Agent Orange I settlement
and his active participation in other mass tort actions have been
disclosed and discussed time and again in the media and in
publicly-available documents and cannot have come as a surprise
to appellants. See, e.g., Arnold H. Lubasch, “Jack Weinstein:
Creative U.S. Judge Who Disdains Robe and High Bench,” N. Y.
Times, May 28, 1991, at BS; Francis J. Flaherty & David
Lauter, “Judge’s Novel Rulings Spurred Settlement,” Nat’! L.J.,
May 21, 1984, at 41; Ralph Blumenthal, “How Judge Helped
Shape Agent Orange Pact,” N.Y. Times, May 11, 1984, at Al.
In conclusion we summarize our holdings as follows: (1)
the removal and transfer of these cases from Texas state court to
the United States District Court for the Eastern District of New
York was a proper exercise of federal judicial power under the
All Writs Act, 28 U.S.C. § 1651, and the multidistrict litigation
statute, 28 U.S.C. § 1407; (2) appellants are properly within the
class certified in Agent Orange I; (3) as members of the Agent
Orange I class, appellants are barred by the Agent Orange I
judgment from instituting and maintaining the instant litigation,
and the district court properly dismissed their claims; (4) Judge
Weinstein’s disqualification is not required.
The judgment of the district court is affirmed, and costs are
awarded to appellees.
EL ———
A26
APPENDIX B
UNITED STATES DISTRICT COURT
For the Eastern District of New York
Nos. 79 Civ. 747, No. 89 Civ. 3361,
90 Civ. 3928, and MDL No. 381
MICHAEL F. RYAN, et al.,
Plaintiffs,
-
DOW CHEMICAL COMPANY, MONSANTO COMPANY,
HERCULES INCORPORATED, T H AGRICULTURE &
NUTRITION COMPANY, INC., DIAMOND SHAMROCK
CHEMICALS COMPANY, UNIROYAL INC., and
THOMPSON CHEMICALS CORPORATION,
Defendants.
In re “AGENT ORANGE” Product Liability Litigation;
SHIRLEY IVY, et al.,
Plaintiffs ,
v.
DIAMOND SHAMROCK CHEMICALS COMPANY, et al.,
Defendants.
RONALD L. HARTMAN, et al.,
Plaintiffs ,
V.
DIAMOND SHAMROCK CHEMICALS
COMPANY, et al.,
Defendants.
OCTOBER 4, 1991
a
A27
JUDGE: Jack B. Weinstein, United States District Judge.
WEINSTEIN, District Judge:
TABLE OF CONTENTS
i EE ee eee [A28]
A. Agent Orange litigation. .............. [A28]
B. The Settlement Agreement ............. [A35]
C. Dismissal of Opt-Out Claims ........... [A36]
Oe ee [A36]
II OPERATION OF THE SETTLEMENT FUND... [A38]
A. Veteran Payment Program ............. [A38]
B. Class Assistance Program ............. [A40]
i. Tee Peer: CLASS ACTION .......... [A42]
a fea ve ee tees [A42]
SS eee ee [A43]
EE ee [A47]
A. Subject Matter Jurisdiction............. [A47]
1. Adequacy of Notice of Removal........ [A48]
2. Court’s Retained Jurisdiction.......... [A49]
3. Court’s Power to Enforce Its Injunction ... [A51]
4. Federal Nature of Plaintiffs’ Claim ...... [A52]
5. Court’s Power to Order Removal ....... [A54]
EDI eee eee [A55]
EN ee [A56]
Wamueees«w«j sw ww. ww... ee ‘. [A59]
EEE ee ee ee [omitted]
Plaintiffs consist of two groups: first, those veterans and
family members within the class covered by the Agent Orange
class action pending in this court, and second, civilians claiming
A28
injury from Agent Orange who were never members of the class.
Defendants are the same as those in the class action.
The current suits began as state court actions in Texas. They
were removed to the federal court in Texas and then transferred
by the Multidistrict Panel to the Eastern District of New York.
Plaintiffs now seek to remand their actions to Texas state court
for lack of federal subject matter jurisdiction. Defendants move
to dismiss plaintiffs’ claims or for an injunction prohibiting
plaintiffs from continuing their actions.
As explained in this memorandum, the plaintiffs who are
members of the Agent Orange class must have their suits
dismissed; they are free to share in the proceeds of the class
action settlement to the extent they can demonstrate entitlement
under the distribution plans being administered by the court. As
it pertains to the civilian plaintiffs — who are not members of
the class — the plaintiffs’ motion to remand raises issues
concerning the scope of 28 U.S.C. § 1442(a)(1) that require
further consideration. These issues will be addressed in a
separate memorandum.
I. INTRODUCTION
A. Agent Orange Litigation: 1979-1984
The current controversy is part of a continuing litigation
whose first phase ended in settlement after six years of effort by
scores of lawyers and many court officers -- special masters,
magistrates, and judges. Among the hundreds of published and
unpublished decisions, see In re “Agent Orange” Prod. Liab.
Litig., 475 F.Supp. -928 (E.D.N.Y. 1979) (dismissing federal
constitutional and statutory claims, reserving possible federal
common law claims, denying motion to limit communications to
third parties); In re “Agent Orange” Prod. Liab. Litig., 506
F.Supp. 737 (E.D.N.Y. 1979) (finding subject matter jurisdiction
on basis of federal common law issues), rev'd, 635 F.2d 981 (2d
Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980 (1981);
In re “Agent Orange” Prod. Liab. Litig., 28 Fed. R. Serv. 2d
A29
(Callaghan) 993 (E.D.N.Y. 1980) (granting motion of terminally
ill plaintiff to videotape his own deposition); In re “Agent
Orange” Prod. Liab. Litig., 506 F.Supp. 750 (E.D.N.Y. 1980)
(ordering government to refrain from destruction of documents
pursuant to internal procedure); In re “Agent Orange” Prod.
Liab. Litig., 506 F.Supp. 753 (E.D.N.Y. 1980) (various orders
concerning modification of complaint and answers); In re “Agent
Orange” Prod. Liab. Litig., 506 F.Supp. 754 (E.D.N.Y. 1980)
(ordering videotaped deposition); In re “Agent Orange” Prod.
Liab. Litig., 506 F.Supp. 756 (E.D.N.Y. 1980) (establishing
agenda for status conference); Jn re “Agent Orange” Prod. Liab.
Litig., 506 F.Supp. 757 (E.D.N.Y. 1980) (requiring plaintiffs to
file individual notices to retain right to bring actions against
federal government); In re “Agent Orange” Prod. Liab. Litig.,
506 F.Supp. 762 (E.D.N.Y. 1980) (dismissing claims against
government as third-party defendant, establishing case
management plan, conditionally certifying Rule 23(b)(3) class,
and denying defendants’ motion for summary judgment); Jn re
“Agent Orange” Prod. Liab. Litig., 91 F.R.D. 616 (E.D.N.Y.
1981) (establishing committee to review procedures for
videotaped depositions); Jn re “Agent Orange” Prod. Liab.
Litig., 91 F.R.D. 618 (E.D.N.Y. 1981) (allowing motion to
amend caption, denying motion to amend complaint, denying
defendants’ motion for summary judgment on “government
contractor” defense); In re “Agent Orange” Prod. Liab. Litig.,
93 F.R.D. 514 (E.D.N.Y. 1982) (allowing defendant to proceed
with scheduled destruction of documents); Jn re “Agent Orange”
Prod. Liab. Litig., 534 F.Supp. 1046 (E.D.N.Y. 1982) (denying
reargument on dismissal of government as third-party defendant,
denying interlocutory appeal, provisionally dismissing claims
against non-manufacturer defendants, denying motion to form
steering committee for plaintiffs’ counsel, denying motion for
decertification of class, deferring decision on statute of
limitations issues, and establishing elements of government
contractor defense); Jn re “Agent Orange” Prod. Liab. Litig.,
537 F.Supp. 977 (E.D.N.Y. 1982) (provisionally dismissing
claims against non-manufacturer defendant); In re “Agent
Orange” Prod. Liab. Litig., 94 F.R.D. 173 (E.D.N.Y. 1982)
A30
(appointing special master to supervise discovery); In re “Agent
Orange” Prod. Liab. Litig., 544 F.Supp. 808 (E.D.N.Y. 1982)
(denying motion to disqualify defense attorneys; provisionally
dismissing claims against certain non-manufacturer defendants,
and denying motion to implead suppliers); Jn re “Agent Orange”
Prod. Liab. Litig., 95 F.R.D. 191 (E.D.N.Y. 1982) (clarifying
that denial of motion to implead suppliers was without prejudice);
In re “Agent Orange” Prod. Liab. Litig., 95 F.R.D. 192
(E.D.N.Y. 1982) (affirming special master’s ruling as to location
of depositions); In re “Agent Orange” Prod. Liab. Litig., 96
F.R.D. 578 (E.D.N.Y. 1983) (adopting special master’s
protective order for discovery of government documents); /n re
“Agent Orange” Prod. Liab. Litig., 96 F.R.D. 582 (E.D.N.Y.
1983) (rejecting first amendment challenge to protective order);
In re “Agent Orange” Prod. Liab. Litig., 96 F.R.D. 587
(E.D.N.Y. 1983) (adopting with modifications special master’s
order regarding videotaped depositions); Jn re “Agent Orange”
’ Prod. Liab. Litig., 97 F.R.D. 424 (E.D.N.Y. 1983) (adopting
protective order); In re “Agent Orange” Prod. Liab. Litig., 97
F.R.D. 424 (E.D.N.Y. 1983) (adopting special master’s
protective order for Department of Agriculture documents); /n re
“Agent Orange” Prod. Liab. Litig., 97 F.R.D. 427 (E.D.N.Y.
1983) (adopting special master’s procedures for discovery of
documents possibly subject to executive privilege); Jn re “Agent
Orange” Prod. Liab. Litig., 97 F.R.D. 541 (E.D.N.Y. 1983)
(denying interlocutory appeal of decision deferring certification
of class and determination of appropriate notice); Jn re “Agent
Orange” Prod. Liab. Litig., 97 F.R.D. 542 (E.D.N.Y. 1983)
(affirming special master’s denial of discovery request); Jn re
“Agent Orange” Prod. Liab. citig., 565 F.Supp. 1263
(E.D.N.Y. 1983) (granting summary judgment for four
defendants on government contractor defense; denying summary
judgment for other defendants); In re “Agent Orange” Prod.
Liab. Litig., 98 F.R.D. 522 (E.D.N.Y. 1983) (adopting order of
special master concerning discovery of government documents);
In re “Agent Orange” Prod. Liab. Litizg., 98 F.R.D. 539
(E.D.N.Y. 1983) (adopting special master’s order to unseal
documents in connection with summary judgment motions); Jn re
A31
“Agent Orange” Prod. Liab. Litig., 98 F.R.D. 554 (E.D.N.Y.
1983) (denying request for reconsideration of order to unseal
documents); In re “Agent Orange” Prod. Liab. Litig., 98 F.R.D.
557 (E.D.N.Y. 1983) (ordering special master to review
discovery decisions in light of court’s decision to try causality
and liability issues); In re “Agent Orange” Prod. Liab. Litig., 98
F.R.D. 558 (E.D.N.Y. 1983) (approving special master’s order
of additional discovery to clarify circumstances surrounding
document destruction); In re “Agent Orange” Prod. Liab. Litig.,
570 F.Supp. 693 (E.D.N.Y. 1983) (clarifying program for
discovery); In re “Agent Orange” Prod. Liab. Litig., 571
F.Supp. 481 (E.D.N.Y. 1983) (granting motion of law firm to
be relieved as lead counsel for plaintiffs and appointing new
plaintiffs’ management committee); In re “Agent Orange” Prod.
Liab. Litig., 99 F.R.D. 338 (E.D.N.Y. 1983) (approving
discovery recommendations of special master); In re “Agent
Orange” Prod. Liab. Litig., 99 F.R.D. 645 (E.D.N.Y. 1983)
(lifting prior protective order applying to government documents
obtained during discovery); In re “Agent Orange” Prod. Liab.
Litig., 100 F.R.D. 718 (E.D.N.Y.) (certifying Rule 23(b)(3) and
Rule 23(b)(1)(B) classes), appeal denied, 100 F.R.D. 735
(E.D.N.Y. 1983), mandamus denied, 725 F.2d 858 (2d Cir.
1984), aff'd, 818 F.2d 145 (2d Cir. 1987), cert. denied, 484
U.S. 1004, 108 S.Ct. 695 (1988); In re “Agent Orange” Prod.
Liab. Litig., 100 F.R.D. 778 (E.D.N.Y. 1984) (denying motion
to implead suppliers of chemical components); Jn re “Agent —
Orange” Prod. Liab. Litig., 580 F.Supp. 690 (E.D.N.Y. 1984)
(finding national consensus law on issues of liability, government
contractor defense and punitive damages); Jn re “Agent Orange”
Prod. Liab. Litig., 580 F.Supp. 1242 (E.D.N.Y.) (reinstating
third-party plaintiffs’ claim for indemnity against government
with respect to claims of veterans’ wives and children),
mandamus denied, 733 F.2d 10 (2d Cir.), appeal denied, 745
F.2d 161 (2d Cir.), cert. denied, 465 U.S. 1067 (1984); In re
“Agent Orange” Prod. Liab. Litig., 101 F.R.D. 97 (E.D.N.Y.
1984) (ordering in camera disclosure of names of scientists
deleted from government report); Jn re “Agent Crange” Prod.
Liab. Litig., 597 F.Supp. 740 (E.D.N.Y. 1984) (approving
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settlement of ciass action subject to fairness hearings); Jn re
“Agent Orange” Prod. Liab. Litig., 603 F.Supp. 239 (E.D.N.Y.
1985) (dismissing claims of veterans’ wives and children against
government), aff’d in part, vacated in part, 818 F.2d 201 (2d
Cir. 1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695 (1988);
In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559
(E.D.N.Y. 1985) (modifying protective orders); Jn re “Agent
Orange” Prod. Liab. Litig., 105 F.R.D. 577 (E.D.N.Y. 1985)
(affirming with modification magistrate’s order that defendants
in two non-settled cases produce deponents); In re “Agent
Orange” Prod. Liab. Litig., 611 F.Supp. 1221 (E.D.N.Y. 1985)
(dismissing defendants’ claim for indemnity from government for
settlement payments to veterans’ families), aff'd, 818 F.2d 204
(2d Cir. 1987); In re “Agent Orange” Prod. Liab. Litig., 611
F.Supp. 1223 (E.D.N.Y. 1985) (ruling as to admissibility of
opt-out plaintiffs’ scientific evidence and expert testimony and
granting summary judgment in favor of defendants for plaintiffs’
failure to establish causation), aff'd, 818 F.2d 187 (2d Cir.
1987), cert. denied, 487 U.S. 1234 (1988); In re “Agent
Orange” Prod. Liab. Litig., 611 F.Supp. 1267 (E.D.N.Y. 1985)
(same), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487
U.S. 1234 (1988); In re “Agent Orange” Prod. Liab. Litig., 611
F.Supp. 1285 (E.D.N.Y. 1985) (dismissing action brought by
Hawaiian civilians), aff'd in part, vacated in part, 818 F.2d 210
(2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988); In re “Agent
Orange” Prod. Liab. Litig., 611 F.Supp. 1290 (E.D.N.Y. 1985)
(dismissing claim of civilian physician for failure to demonstrate
exposure to herbicides), aff’d in part, vacated in part, 818 F.2d
210 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988); In re
“Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296
(E.D.N.Y. 1985) (determining class-action plaintiffs’ attorney
fees and reaffirming settlement); aff’d in part, rev'd in part, 818
F.2d 226 (2d Cir. 1987); In re “Agent Orange” Prod. Liab.
Litig., 611 F.Supp. 1396 (E.D.N.Y. 1985) (establishing plan for
disbursement of settlement fund pending appeals), aff'd in part,
rev'd in part, 818 F.2d 179 (2d Cir. 1987); In re “Agent
Orange” Prod. Liab. Litig., 611 F.Supp. 1452 (E.D.N.Y. 1985)
(denying motion to set aside attorney fee-sharing arrangement),
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rev'd in part, 818 F.2d 216 (2d Cir.), cert. denied, 484 U.S.
926 (1987); In re “Agent Orange” Prod. Liab. Litig., 618
F.Supp. 623 (E.D.N.Y. 1985) (approving settlement of class
action and dismissing with prejudice claims of class members);
In re “Agent Orange” Prod. Liab. Litig., 618 F.Supp. 625
(E.D.N.Y 1985) (approving plan for Australia and New
Zealand); In re “Agent Orange” Prod. Liab. Litig., 787 F.2d
822 (2d Cir. 1986) (dismissing claims of non-class plaintiffs
against defendant not named in complaints); In re “Agent
Orange” Prod. Liab. Litig., 800 F.2d 14 (2d Cir. 1986) (denying
motion to disqualify plaintiffs’ attorneys from appealing
settlement); In re “Agent Orange” Prod. Liab. Litig., 804 F.2d
19 (2d Cir. 1986) (denying repeal of stay on settlement funds
pending appeal); In re “Agent Orange” Prod. Liab. Litig., 689
F.Supp. 1250 (E.D.N.Y. 1988) (modifying class assistance
program as required by 818 F.2d 179 and granting opt-out
plaintiffs opportunity to opt into class for purposes of benefiting
from settlement fund).
Narratives of these events are in print. See, e.g., In re
“Agent Orange” Prod. Liab. Litig., 818 F.2d 145, 148-61 (2d
Cir. 1987), cert. denied, 484 U.S. 1004 (1988). Nevertheless, a
brief recapitulation of certain aspects of this history is desirable
as background to the current phase of the Agent Orange litigation
Saga.
While in the service of their country, hundreds of thousands
of military service personnel were exposed to the defoliant Agent
Orange, which contained trace elements of dioxin. Lawsuits on
behalf of veterans proliferated throughout the country starting in
1978. The suits — as much a demand for compensation as a
political protest of the treatment of Vietnam veterans by the
government and public at large — were brought against the
various manufacturers of defoliants, who in turn impleaded the
federal government. Between two and three million members of
the armed forces who served in or near Vietnam as well as their
families were potential plaintiffs.
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In 1979, the Judicial Panel on Multidistrict Litigation
transferred as MDL 381 over 600 cases involving about 15,000
plaintiffs to the Eastern District of New York for coordinated and
consolidated pretrial proceedings. In the initial proceedings of
MDL-381, the court denied defendants’ motion to dismiss for
lack of subject matter jurisdiction because the complaint raised
questions of federal common law. See 506 F.Supp. at 737. When
the Second Circuit Court of Appeals reversed this ruling, see Jn
re “Agent Orange” Prod. Liab. Litig., 635 F.2d 987 (2d Cir.
1980), cert. denied, 454 U.S. 1128 (1981), the litigation became
a Suit predicated on diversity jurisdiction.
In December of 1980, the court granted the federal
government’s motion to be dismissed as a third-party defendant
on the basis of sovereign immunity. 506 F.Supp. at 762. It also
denied plaintiffs’ motion to create a “limited fund” class action
under Federal Rule of Civil Procedure 23(b)(1)(B), and instead
indicated that it planned to certify a “common question” class
under Rule 23(b)(3). /d. In addition, the court denied the
defendants’ motion to dismiss on the ground that the production
of defoliants was ordered by, and met the specifications of, the
federal government (the “military contractor defense”). The court
indicated the defendants could later attempt to prove the
applicability of the defense. /d. Following discovery, the court
granted, but did not enter, summary judgment on the military
contractor defense for some but not all defendants. 565 F.Supp.
at 1263.
In December of 1983, the court certified two classes of
plaintiffs and scheduled a trial to commence in May of 1984. A
Rule 23(b)(3) class with opt-out rights was created to try the
fundamental common question of the causal relationship between
dioxin and plaintiffs’ injuries. 100 F.R.D. at 718. In addition, a
Rule 23(b)(1)(B) limited fund class without opt-out rights was
created to cover plaintiffs’ punitive damage claims. /d. The
23(b)(3) class was defined as
those persons who were in the United States, New
Zealand or Australian Armed Forces at any time from
iil
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1961 to 1972 who were injured while in or near
Vietnam by exposure to Agent Orange or other phenoxy
herbicides . . . . The class also includes spouses,
parents, and children of the veterans born before
January 1, 1984, directly or derivatively injured as a
result of the exposure.
Id. at 729. Pursuant to Rule 23(c)(2), the court ordered plaintiffs’
counsel to notify class members by mail where possible, and by
radio, television, magazine, and newspaper announcements
throughout this country, Australia, and New Zealand. The
mailings and announcements informed class members that they
would be bound by the class action unless they forwarded a
written request for exclusion to the clerk of the court by May 1,
1984. Id. at 732. Fewer than 2,500 servicepersons filed opt-out
requests. See 597 F.Supp. at 756.
B. The Settlement Agreement
On May 7, 1984, a tentative settlement was forged. Accord-
ing to its terms, the defendants agreed to pay the class $180
million in final settlement of all claims arising out of exposure to
Agent Orange then or in the future. Concerned with the potential
for new actions and recognizing the need for finality, the
Settlement Agreement expressly stated that “[tJhe class
specifically includes persons who have not yet manifested
injury.” 597 F.Supp. at 865.
The Settlement Agreement provided that the $180 million be
paid into a Settlement Fund to be established, maintained, and
administered by the court. The agreement also required the court
to retain jurisdiction over the Settlement Fund pending its final
disposition. /d. at 866. The exclusive remedy provided for all
class members was a claim against the Settlement Fund. Under
the Settlement Agreement, class members were forever barred
from instituting or maintaining an
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