Petition for Writ of Certiorari — Hartman v. Diamond Shamrock Chemicals Co.

Supreme Court, u.s

‘1 LED

93-1035 pre 15 1993

No. FC UF THE Cherny

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RONALD L. HARTMAN, KATHERINA H. HARTMAN, Individually

and as Next Friend to JEFFERY ALAN HARTMAN and ANGELA

MARIE HARTMAN, Both Minors; and LAURA JENKINS,

Individually amd as Representative of the Estate of Eddie Jenkins,

Deceased; PEGGY SANDS, Individually and as Representative of the

Estate of Martim Sands; EMILE ANNIBOLLI; EARL THOMPSON

and JUDY L. THOMPSON; VERDA WILSON, Individually and as

Representative of the Estate of ISAIAH WILSON, JR., Deceased,

Petitioners,

Vv.

DIAMOND SHAMROCK CHEMICALS COMPANY; DOW CHEMICAL

COMPANY; MONSANTO COMPANY ; UNIROYAL, INC.; HERCULES,

INC.; THOMPSON-HAYWARD CHEMICAL COMPANY; 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

BENTON MUSSLEWHITE

1250 Lyric Centre

440 Louisiana

Houston, Texas 77002

(713) 222-2288

(713) 222-0319 Fax

ATTORNEY FOR PETITIONERS

QUESTIONS PRESENTED

In 1984-5, Judge Jack B. Weinstein of the

Eastern District of New York approved a class

action settlement involving service-persons

injured by exposure to the herbicide Agent Orange

in Vietnam. At the time of such settlement the

plaintiffs in this case who had also served in

Vietnam and been exposed to Agent Orange, had

absolutely no manifestation, and were completely

unaware, of any injury due to such exposure

("future claimants"). These future claimants,

subsequent to manifesting Agent Orange-related

injuries several years later, filed the present

Suit in the Texas state court. The Suit, based

solely upon state-law negligence, product

liability, personal injury and wrongful death,

was brought against seven chemical companies, one

of which was an in-state defendant. Without any

legitimate basis for Original federal

jurisdiction, the defendants removed the case to

federal court and successfully urged the Judicial

Panel on Multi-District Litigation to quickly

transfer the case to Judge Weinstein’s court in

Brooklyn. Judge Weinstein denied plaintiffs

motion to remand and dismissed the case on res

judicata grounds. The Second Circuit Court of

Appeals affirmed the denial of remand on the sole

ground that the Yonkers doctrine — a rule crafted

by the Second Circuit which enables the federal

courts to utilize the All Writs Act as a basis

for the removal of otherwise unremovable cases —

justified the removal of this case. The Second

Circuit affirmed the dismissal by holding —- in

complete disregard of the class action collateral

attack doctrine and the uncontradicted evidence

of inadequate notice, inadequate representation,

absence of right to opt out and other due process

violations — that the claims of the future

claimants were negotiated away and abolished by

the unilateral action of the then presently

injured class representatives in the 1984 class

action settlement.

The judgment below presents the following

important questions:

a Whether the Yonkers doctrine — which

permits federal judges to circumvent the removal

Statutes simply by invoking the All Writs Act "to

agento\wnt ii

remove an otherwise unremovable state court

case", in the discretion of the judge, “when the

need arises" — can ever constitute a valid basis

for removal.

ae Whether, even if the Yonkers doctrine

is viable in some Situations, it can

constitutionally and/or properly be applied to

absentee future claimants who have the absolute

right, in a subsequent proceeding, to

collaterally attack — on grounds of inadequate

notice, inadequate representation, absence of an

opt out opportunity and other due process

violations — the class action consent decree upon

which the application of the Yonkers doctrine is

sought to be based?

. PF Whether, even if the Yonkers doctrine

is viable in some situations, it can ever be

applied to authorize removal where the removing

defendants did not clearly show, in their removal

papers, that there was “no possibility" that the

State court could find that the absentee future

Claimants did not receive, in the class action

proceedings made the basis of the application of

agenio\Wwnl iii

the Yonkers doctrine, adequate notice, adequate

representation, the opportunity to opt out or

other due process violations?

4. 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"?

De Whether a Rule 23(b) (3) class action

settlement can ever constitute complete res

judicata, thus justifying summary dismissal of a

subsequent action by absentee future claimants,

where the defendants have not conclusively

negated such potential fact issues as inadequate

notice, inadequate representation, absence of the

opportunity to opt out and other due process

violations?

agento\wnt iv

All of these questions are worthy of

certiorari intervention. As to most of them,

there are conflicts among the federal court

decisions which need resolving. The Yonkers

doctrine, dealing as it does with unprecedented

non-legislative expansion of federal judicial

jurisdiction and power, urgently needs the

attention of this Court. The evolving area of

law dealing with class actions involving future

claimants —- which are mushrooming around the

nation — is also in urgent need of this Court’s

attention.

agento\wnil Vv

INTERESTED PARTIES

RONALD lL. HARTMAN, KATHERINA H. HARTMAN,

Individually and as Next Friend to

JEFFERY ALAN HARTMAN ANGELA MARIE

HARTMAN, Both minors

Petitioners

LAURA JENKINS,

Individually and as Representative of

Eddie Jenkins, Deceased

Petitioner

PEGGY SANDS, Individually and as Representative

of the Estate of Martin Sands

Petitioner

EMILE ANNIBOLLI

Petitioner

EARL THOMPSON and JUDY L. THOMPSON

Petitioners

VERDA WILSON Individually and as Representative

of the Estate of ISAIAH WILSON, JR.,

Deceased

Petitioner

DIAMOND SHAMROCK CHEMICALS COMPANY

Respondent

DOW CHEMICAL COMPANY

Respondent

MONSANTO COMPANY

Respondent

agento\writ vi

UNIROYAL, INC.

Respondent

HERCULES, INC.

Respondent

THOMPSON-HAYWARD CHEMICAL COMPANY

Respondent

T H AGRICULTURE & NUTRITION COMPANY, INC.

Respondent

agento\wni vil

TABLE OF CONTENTS

QUESTIONS PRESENTED

INTERESTED PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

A.

Statement Concerning Related

Cases

General Statement.

Proceedings in Texas.

Proceedings in the District

Court.

Be The Earlier Agent oe

Litigation. o«

: # The District Court’s

Removal and Dismissal of

the Case.

Proceedings in the Second

Circuit.

REASONS FOR GRANTING THE WRIT

agenio\wnl

viii

viii

11

11

20

23

26

it.

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". a ee ae ee

A. The Yonkers Doctrine Is

Constitutionally -. Indefensible

and Should Be Repudiated in Its

Entirety. 7 ae ee eee

8. In View Of The Class Action

Collateral Attack Doctrine, The

Yonkers Doctrine Certainly

Cannot Provide The Basis For

Removal Of "Subsequent" State

Court Actions Wherein a Prior

Class Action Consent Decree May

Be Collaterally Attacked.

Cc. Even If the All Writs Act

Authorizes Lower Courts to

Remove an "Otherwise Unremovable

State Courts Case" in Some

Situations, This Court Should

Articulate Clear Limits on the

Use of That Power.

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. e 8

agento\writ ix

26

28

43

47

a2

TABLE OF AUTHORITIES

FEDERAL CASES

Adashunas v. Negley,

626 F.2d 600 (7th Cir. 1980)

Adickes v. S. H. Kress

and Co., 398 U.S. 144 (1970)

Alexander v. Yale University,

631 F.2d 178 (2nd Cir. 1978)

American Fire & Casualty Co.

v. Finn, 341 U.S. 6 (1951)

Armstrong v. Alabama Power Co.,

667 F.2d 1385 (llth Cir. 1982)

Atlantic Coast Line R.R. v.

Brotherhood of Locomotive

Engineers, 398 U.S. 281 (1970)

Barcelo v. Brown,

78 F.R.D. 531 (D.P.R. 1978)

Bi-Metallic Investment Co.

v. State Board of Equalization,

239 U.S. 441 (1915) "oe

Boyle v. United Technologies

Corp., 487 U.S. 500 (1988)

Bluefield Community Hospital

Inc. v. Anziulewicz,

737 F.2d 405 (4th Cir. 1984)

Brown v. Ticor Title

Ins. Co., 982 F.2d 386

(9th Cir. 1992) cert.

granted, No. 92-1988

Carlough v. Amchem Prods.,

Inc., No. 93-1429, 1993 U.S.

App. LEXIS 24930 (3d Cir. 1993)

ageno\wnl x

40, 65

57

.29

29

40

20

38

18, 62

54

EE

Caterpillar, Inc. v.

Williams, 482 U.S. 386 [See th 6 avs DS se

Chandler y. Judicial]

Conference of the Tenth

Circuit, 398 U.S. 74 (1970) he ee 34

Chick Kam Choo v. Exxon Corp.,

486 U.S. 140 (1988) . . - © © © ee wh ©)h| U6C3F, 646

City of Detroit v. Grinnell,

495 F.2d 448 (2nd Cir. 1974) ' s © + «+ «ws oe

Commercial Security Bank

V. Walker Bank & Trust Co.,

456 F.2d 1352 (10th Cir. i! | a re

Cooper v. Federal Reserve

Bank of Richmond, 467 U.s.

867 (1984) a ee ee Sk ee ee 44

Dante v. Dow Corning Corp.,

143 F.R.D. 136 (N.D. Ohio 1992) “he tors Flee 54

Donovan v. City of Dallas,

377 U.S. 408 Sees. 2.8 eel a Or oe e 38

Durousseau v. United States,

10 U.S. (6 Cranch) 307 | ee one: 33

East Texas Mack Sales v.

North American Acceptance

Corp., 819 F. 2d 116 (Sth Cir. 1987) of. « 52

Fisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) . . . co 8 6 © © ew ew fw 66061

Federated Dep’t Stores,

Inc. v. Moitie, 452 U.S.

394 (1981) je oe A et ee OY eee, ee ee 10

Flinn v. FMC Corp., 528 F.2d 1169

(7th Cir. 1971) 62

agento\wnl xi

ne

Franchise Tax Board

v. Construction Laborers

Vacation Trust, 463 U.S.

1 (1983) Pe ala ¢ « =. @) @ @8 °% 30, 35

Gonzales v. Cassidy,

ore Vi ae Gr (Sth Cae. A973) . w= ew wo we wh ow

Green v. Armerada Hess Corp.,

707 F.2d 201 (5th Cir. 1983) ne ae oe eee eT ae 52

Greenfield v. Villager

Industries, Inc., 483 F.2d 824

re ee ee eg me Oe lef 62

Gregory v. Ashcroft, lll

Pe: ee ee a oe oe ee > an 2 |

Hamilton v. Nakai,

453 F.2d 152 (9th Cir. 1972),

cert. denied, 406

rn Cee sia) 6 et Ue gg" aoe Ce. ee e's 27

Hansberry v. Lee, 311 U.S.

ee

Healy v. Ratta, 292 U.S.

263 (1934) NO oy ge kat a ea ee es ee ee ee ee 29, 33

Hoffmann-La Roche, Inc.

v. Sperling, 493, U.S. 165,

110 S.Ct. 482 (1989) Pe oa or ee er tae a7

Hornsby v. Hornsby’s Stores, Inc.

1991 WK 33672 (N.D. Ill. 1991) ...... 27

In Re “Agent Orange" Product

Liability Litigation, 635

F.2d 987 (2d Cir. 1980),

cert. denied, 454 U.S.

1128 (1981) 9

In Re “Agent Orange" Product

Liability Litigation,

S00 F.2¢ 14 (2d Cir. 19866) .. «© « «© se es 4

agenio\writ xii

i

In Re "Agent Orange"

Product Liability Litigation,

597 F. Supp. 740

DSM eMN ee BUEN Sy 6 es kt ee et elk passim

In Re "Agent Orange"

Product Liability Litigation,

818 F.2d 145 (2nd Cir. 1987) . 14, 17, 20, 46

In Re "Agent Orange"

Product Liability Litigation,

611 F. Supp. 1396 (E.D.N.Y.)

aff’d in part, rev’d in part,

818 F.2d 179 (2nd Cir. 1987) .... » « 4, 18

In Re "Agent Orange"

Product Liability Litigation,

818 F.2d 179 (2nd Cir. 1987),

cert. denied, 487 U.S. 1234 (1988) er oe ee

In Re "Agent Orange"

Product Liability Litigation,

611 F. Supp. 1223 (E.D.N.Y. 1985),

aff’d, 818 F.2d 187 (2nd Cir. 1987),

cert. denied, 487 U.S. 1234 ......,... 19

In Re "Agent Orange"

Product Liability Litigation,

100 F.R.D. 718 (E.D.N.Y. 1983),

aff’d, 818 F.2d 145

(2nd Cir. 1987), cert.

denied, 484 U.S. 1004 (1988) .... 13-14, 16

In Re Amatek, 755 F.2d 1034

Ce I 2 = ae

In Re Breast Implant Battie...

1992 U.S. Dist. Lexis 10080

(May 21, 1992, N.D. Mae fl 5g a 54

In Re Diamond Shamrock Chemica] CO.

725 F.2d 858 (2nd Cir. 1984) ee bes oe 13

agento\wn xiii

ee

In Re General Motors Corp.,

554 F.2d 1106 (7th Cir.), cert.

Genied,. $44 G.8. S70 (i979) . «© © © © © @ 2 62

In Re Real Estate Title and

Settlement Services Antitrust

Litigation, 869 F.2d 760

pos Ge tS | Pe 43

International Primate

Protection League v.

Administration of Tulane

Pueee,. 23a B:Gee B0Ce CaSeeh © « «& & we ee 10

Jeff D. v. Andrus,

899 F.2d 753 (9th Cir. 1989) \ a. « 6 -« 38

Kane v. Johns-Manville Corp.,

843 F.2d 636 (2nd Cir. 1988) a ee ee ee ee 63

Kentucky v. Powers,

ne ee Een ata) © eo gw Se Se eS Owe Ue 32

Kline v. Burke Const. Co.,

nae Wes Bee Sheet « «- «6 « © ew 0 6 ee 37

Local Number 93 v.

City of Cleveland,

5, B® Ae | Se ee ee eee ee 44

Lockerty v. Phillips,

Bae Gelbe See CBUGet « 6 oe we et te ttt we ew ES

Logan v. Zimmerman Brush

Co., 455 U.S. 422 (1982) ar ea a ae ee ee ee

Lujan v. Defenders of Wildlife,

112 S. Ct. 2130 (1992) Saas ere ae ae 41, 56

M. Brittingham v. United

States Comm’r of Internal

Revenue, 451 F.2d 315

ts it BR) oy» | ee ee ee ee ee ee 27

agento\wnt xiv

McElhaney v. Eli Lilley & Co.,

93 F.R.D. 875 (D.C. S. Dak. 1982)

Mercy Hospital Ass‘n v. Miccio,

604 F.Supp. 1177 (E.D.N.Y. 1985)

Mistretta v. United States,

488 U.S. 361 (1988)

Morrison v. Olson,

487 U.S. 654 (1988)

Mullane v. Centra] Hanover

Bank & Trust Co., 339 U.S.

306 (1950)

New York v. United States,

112 S. Ct. 2408 (1992)

Nowling v. Aero Servs.

int’l, Inc., 734 F. Supp.

733 (E.D. La. 1990)

Pennsylvania Bureau of

Corrections v. United

States Marshal, 474 U.S.

34 (1985)

Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1 (1987)

Phillips Petroleum Co. v.

Shutts, 472 U.S. 797

(1985) poe on er oe a ee |

Polous v. Naas Foods,

959 F.2d 69 (7th Cir. 1992)

Ryan v. Dow Chemical Co.,

781 F.Supp. 934 (E.D.N.Y.

1992) ce. & ww “ete "e %

Salem v. United States

Lines Co., 370 U.S. 3] (1962)

agento\wnl XV

57

27

40

Sam Fox Publishing Co.

v. U.S., 366 U.S. 683

(1961) a ae a ee ee ee ee ee ee ee 44

Schweitzer v. Conrad,

758 F.2d 936 (3rd Cir. 1985) at ee 58, 63

Shamrock Oil & Gas

Corp. v. Sheets, 313

Uome 200 (295L) « + « 8 te Se OR eee eee

Sheldon v. Sill,

49 U.S. (8 How.) 441 (1850) .....-e @ « 32

Slaughter v. Levine,

5998 F. Supp. 1035 (D.C.

fens. 2U6GF + 0 & 6.8 6s © Soe eee 57

Southern California Petroleum

Corp. v. Harper, 273 F.2d 715

ioem Gal. 2aeer sé ise Se eos cea 38

Taunton Gardens Co v.

Hills, 557 F.2d 877 (lst

Cars >anerr 8 eo - ee e e Be eee 44

Ticor Title v. Brown,

BO. FS"2900 « ss es 6 6 es 2 8 et oe 8 eee eee oo

United States v. City

Of New York, 972 F.2d

464 (2d Cir. 1992) ee ee eee ee ee

United States v. FMC

Corp., 1963 U.S. LEXIS

een Capea! ss ea * «. © Gene nee 34

United States v. Hall,

583 F. Supp. 717

tens: Wake’ BOBO? « 0 Oe) Soe. 6S oe eee 28

United States v. Western

Electric Co., 900 F.2d 283

(D.C. Cir.) cert. denied,

See 0.8. B22 (i008) « + & eee See 38

agento\wnl xvi

———

United States ex rel.

Walker v. Gunn, 511

F.2d 1024 (9th C2e.),

cert. denied, 423 U.S.

849 (1975) Ce Gh glen o Nee 29

Urie v. Thompson,

337 U.S. 163 (1949) ,. . “ee a a ae 56

Westinghouse Elec. Corp.

V. Newman & Holtzinger,

992 F.2d 932 (9th Cir. 1993) a ae oe ee 27

Whitmore v. Arkansas,

495 U.S. 149 =< » « 6 «. oo 56

Willy v. Coastal Corp.,

855 F.2d 1160 (Sth Cir.

iss ss. ae A et et ee ea 27

Wilson v. Republic Steel,

311 U.S. 104 (1921) 52

Yonkers Racing Corp.

v. City of Yonkers,

858 F.2d 855 (2nd Cir.

1988), cert. denied,

489 U.S. 1077 (1989) ew ete.6-e -» » » passim

Zipfel v. Halliburton CO.,

832 F.2d 1477 (9th Cir. 1987),

cert. denied, 486 U.S. 1054

(1988), mod., 861 F.2d 565 (9th

PCTMMEES So 5 wick ec, : 42

CONSTITUTIONS AND STATUTES

U. S. Const. Art. Aide §$ ] ‘Se oe 32

28 U.S.C. 1254 (1) eg ee os,

28 U.S.C. §1651 (a) ee ee de 3- 21, 28, 33

28 U.S.C. §1331 9

agento\wnt XVii

28 U.S.C. §1441

28 U.S.C. §1441 (a)

28 U.S.C. $1441 (d)

28 U.S.C. $1442

28 U.S.C. §1442 (a)

28 U.S.C. §1443

28 U.S.C. $1444

28 U.S.C. $1452

28 U.S.C. $2283

rem. @. Gav: Pe Bea «ene 2,

Fed. R. Civ. P.

23(b) (3) a ae ee S. a2, A&G,

Fed. R. Civ. P. 23(c) (2)

Judiciary Act of 1789

Judiciary Act of 1875

Judiciary Act of 1887

OTHER

3B Moore’s Federal Practice

§23.01 [11.-3] 2334

3 Herbert B. Newberg & Alba Conte,

Newberg on Class Action §17.39

(3d ed. 1992) (ss.

Collateral Attack on the

Binding Effect of Class

Action Judgment,

87 Harv. L. Rev. 589 (1974)

agento\wnt xviii

10,

10,

28

28

28

28

28

28

28

28

45

65

60

13

31

30

30

45

60

45

Elizabeth R. Kaczynski,

The Inclusion of Future Members

in Rule 23(b) (2) Class Actions,

85 Colum. L. Rev. 397 (1985)

Paul M. Bator, The State Courts

and Federal Constitutional Litigation,

22 Wm & Mary L. Rev. 605, 625 (1981)

Arthur R. Miller & David Crump,

Jurisdiction and Choice of

Law in Multistate Class

Actions After Phillips

Petroleum Co. v. Shutts,

86 Yale L.J. 1 (1986)

Houston Post, December 1993

agento\wn xix

60

37

ea)

~

15

ee

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 both the

Ivy petition and the Hartman petition are styled

"A ot F The decision and order of the United

States District Court for the Eastern District of

New York, 781 F. Supp. 902, is reprinted as

Appendix B at A26.

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 with respect to the petitioners in

this case on September 16, 1993. See Appendix G,

at A722. The jurisdiction of this court is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

agento\wnit 1

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. §

l651(a), is reprinted as Appendix L, at A148.

Fed. R. Civ P. 23 is reprinted as Appendix E, at

A64.

STATEMENT OF THE CASE

A. Statement Concerning Related Cases

Though not mentioned in the Petition for

Writ of Certiorari recently filed in Ivy _v.

Diamond Shamrock, No. 93-860 ("Ivy Petition"),

there were two separate sets of plaintiffs

involved in the proceedings below. The first set

includes those named as petitioners in the Ivy

ageniowni 2

Petition and the second set includes those named

in this Petition ("Hartman Petition”). The

Hartman plaintiffs include the Hartmans and six

of the plaintiffs named in the Ivy petition. The

defendants, causes of action, procedural history,

rulings of the courts below and the essential

issues on appeal are the same for both sets of

plaintiffs. Because of the similarities between

these two related cases, and in order to simplify

the consideration of both by the Court, we have

liberally utilized substantial portions of the

Ivy Petition. We have advised Mr. Ken Cheseboro,

one of the counsel for petitioners in Ivy, of our

intention in this regard. We have been advised

that the Hartman petitioners are permitted to

utilize the Appendices to the Ivy Petition, which

we will do. There are additional documents from

the record that are relevant to the Hartman

Petition and they are contained in what will be

hereinafter referred to as the “Hartman

Appendices" and, for simplicity, we have

commenced numbering the Hartman Appendices at

p./72, in sequence from the Ivy Appendices,.?

B. General Statement.

The decision below is the third in a line

of cases from the Second Circuit, beginning in

1988, that embrace a radical new removal doctrine

and the first Squarely to present the issue to

The Court should know that the undersigned

counsel ("Musslewhite”), as one of the nine members of

the Agent Orange Plaintiffs Management Committee

("AOPMC") in the Original Agent Orange class action,

gave his approval of the May 7, 1984 tentative

settlement on the assurance that a Claims process (there

Was great uncertainty about the number cf Claims at that

time) would be completed and a distribution plan

formulated prior to the fairness hearings being

conducted and prior to any decision by Judge Weinstein

as to whether to approve the settlement. However, Judge

Weinstein did the opposite. He scheduled the fairness

hearings in August, 1984, see 597 F. Supp. 740, 764

(E.D.N.Y. 1984); approved the settlement in September

1984, id at 857 to 858; did not start the claims process

until after that; did not complete it until the Spring

of 1985; and did not establish a distribution plan until

May 28, 1985. See In Re Agent Oran e, 611 F. Supp. 1396

(E.D.N.Y.) aff’d in part, rev’d in part, 818 F.2d 179

(2nd Cir. 1987). After the claims process disclosed

that the claims exceeded 150,000 (in December of 1984 -

by early Spring of 1985 they approached 250,000),

Musslewhite withdrew his Support of the settlement,

urged the Court to rescind its approval and set the

cause for trial on the merits. The Court refused and

the other members of the AOPMC refused to withdraw their

Support of the settlement. Musslewhite resigned from

the AOPMC and he and his clients Opposed the settlement

On appeal. See In Re Agent Orange, 818 F.2d 179 (2nd

Cir. 1987) cert. denied in Pet. No. 87-620, 487 U.S.

1234 (1988). The AOPMC challenged Musslewhite’s right

to oppose the settlement on appeal, but the Second

Circuit held that he was not barred from doing so. In

Re Agent Orange, 800 F.2d 14 (2nd Cir. 1986).

agento\wnt 4

this Court. See notes 3 and 41, infra. In

conflict with decisions of this Court and several

courts of appeals, this doctrine permits federal

district judges to ignore Congress’ 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

el. at i6. The 21 States termed this radical

doctrine “a breach of the walls of comity and

federalism that have been erected by Congress and

agento\wnt 5

the Supreme Court to ensure the continued

vitality of our nation’s parallel state and

federal judicial System," and "an ill-advised

erosion of judicial federalism." Id. at 16-17.

Unfortunately, this concern for judicial

federalism was not heeded. Instead, the Second

Circuit reaffirmed its "All Writs removal"

doctrine (sometimes referred to hereafter as the

Yonkers doctrine). A8-AQ. This Court should

grant certiorari to address what the 21 States

correctly described as "an illegitimate judicial

amendment of Congress’s removal statute." Id. 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

agenio\wnit 6

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.’

Cc. Proceedings in Texas.

As the 21 States noted, "{t]his case

involves tort claims brought under Texas law in

* Those who had no manifestation of injury until

after the original class action was settled in 1984-5

will generally be referred to as "future claimants".

’ Indeed, Ticor Title is a case where, in a

"subsequent" action by absentee plaintiffs, the court

correctly assumed the duty to adjudicate the collateral

attack upon the prior class action settlement. However,

we doubt the validity of the portion of Ticor Title

wherein the Ninth Circuit stated that "we will not

second-guess a prior decision that counsel adequately

represented a class." Brown v. Ticor Title Ins. Co.,

982 F.2d 386, 390 (9th Cir. 1992) cert. granted. No. 92-

1988. See discussion of the principle that the court

that settles a class action “cannot predetermine” the

question of adequate notice, adequate representation,

opportunity to opt-out and due process, at pp. 45-48,

infra. In any event, Ticor Title does not involve

future claimants, does not involve the extraordinary

issues of removal/remand that are present in this case

and does not involve the spectacle of the court

virtually ignoring the collateral attack doctrine, as

the lower courts have done in this case.

agentoWwril 7

a Texas state court by Texas plaintiffs against

a Texas defendant and other defendants." Brief

Amici Curiae at 1. The Ivy case was filed in

1989 in the District Court of Orange County,

Texas and the Hartman petition was filed in 1990

in the District Court of Harris County, Texas.‘

Petitioners 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,

* Petitioners in both cases brought suit on their

own behalf, but also included class action allegations.

Ivy Original Petition at 16-18 (Joint Appendix ("JA"),

2d Cir. No. 92-7575, at 63-65) and see Original

Petition, Hartman case, A98 to A127. 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 to certify the class in this case prior to

removal nor was class certification addressed in the

district court. Thus, all that is currently before this

Court is petitioners’ claims seeking recovery for their

own injuries.

> Agent Orange was manufactured by respondents.

The petition alleges that Agent Orange “contained, as a

byproduct of the manufacturing process, one of the most

toxic chemicals known to man, @& 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." Ivy petition, JA at 55; Hartman

petition, Al08. Petitioners seek damages for deaths and

suffering from lymphomas, soft-tissue Sarcomas, and

other serious diseases that were Caused by the veterans’

egento\wril 8

“[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 federal court, citing two grounds for 28

U.S.C. § 1441 original jurisdiction removal,

neither of which was ultimately accepted.’ Both

exposure to Agent Orange in Vietnam; their family

members seek damages for resulting wrongful death, loss

of consortium, economic loss, and other harm. Ivy

petition, JA 59, 60; Hartman petition A116, 117. The

asserted causes of action arise 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. Ivy

petition, JA 55, 63; Hartman petition, A108, 109-114.

* 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).

7 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). See Hartman Remov. Pet. A136-137.

The district court accepted the “artful pleading"

agenio\writ 9

courts below upheld removal, however, on the

theory that the All Writs Act permits district

judges to remove otherwise non-removable cases

theory, see Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 397 n.2 (1981), as a ground for removal. AS4.

The Second Circuit reversed, however, holding that the

district court’s “artful pleading” analysis 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-Al0, 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 used 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." Id. 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. The court further noted

that remand was compatible with International Primate

Protection Leaque v. Administration of Tulane Fund, 111

S.Ct. 1700, 1709 (1991) and observed that “{f)]rom the

Standpoint of federalism, the mere assertion of a

nebulous federal procurement interest cannot, without

further specification, be a basis for removal." iIé. ot

951.

Thus, the sole removal issue before this Court

concerns the propriety of removal under the All Writs

Act.

agento\wril 10

whenever those judges deem it necessary to do so.

A8-A9, A54-A55.

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 Judge Jack B. Weinstein’s court in

the U.S. District Court for the Eastern District

Of New York.

D. 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 court’s decision

both to uphold removal and to dismiss all of

petitioners’ claims.

¥ 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

agento\writ 11

Ee

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 in that

proceeding 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, to have

unaccrued future claims, or to be “future

claimants". None of the representative

plaintiffs were future claimants, nor did any of

the members of the AOPMC represent any future

claimants.

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. No subclass was created for

future claimants and no special or separate

counsel was appointed to represent their

interests. In an attempt to comply with Rule

23(c) (2), the court sent out class notice. 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), aff’d, 818 F.2d 145

(2d Cir. 1987), cert. denied, 484 U.S. 1004

(1988) .° Consequently, individual notice was

directed, by first-class mail, to all persons

with a lawsuit pending in federal court, or who

. 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. In 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 the class

definition was proper and that adequate notice was given

to those who subjectively believed that they had been

injured by 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).

agento\writ 13

eS ea

had filed a complaint form with the Veteran’s

Administration Agent Orange Registry. Agent

Orange, 100 F.R.D. at 729.9 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." Id. at 734, Limited radio

and television notices were also required. Id.

Future claimants, unaccrued claims or

future legal claims were not mentioned in the

notices nor did the notices state that the class

was intended to cover those veterans who were

* The Veteran’s Administration had established the

Registry in 1978 to help "identify all Vietnam veterans

expressing a concern about the possible adverse health

affects 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 agencies. 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.

agento\wrt 14

exposed to Agent Orange but who had not yet

manifested any injury, or might manifest injury

in the future.*® As Mr. Hartman, one of the

lead plaintiffs in this case and a veteran who

was diagnosed as having non-Hodgkins disease

lymphoma in 1988, stated:

"But, as I said, I was in good health [in

1984] and had absolutely no reason to

Suspect that I might, four years later,

develop and manifest Non-Hodgkins Disease

Lymphoma. Therefore, regardless of what

the notice might have said, and even if it

had expressly mentioned future claims, I

Still would not have felt that I had

anything to worry about or any reason to

make a decision about opting-out of a

personal injury class that, I would have

reasonably thought then, would never ever

have any relevance to me whatsoever. Put

another way, it is impossible for me, when

I am not injured and have no reason to

‘© The Pentagon had records pertaining to every

American serviceperson who served in Vietnam.

Obviously, in order to give adequate notice t> all those

who were "at risk" — meaning those who had served in

Vietnam and who had been exposed or possibly exposed to

Agent Orange — each of those servicepersons who served

in Vietnam would have to be sent a personal notice of

the right to opt-out. See discussion at p. 61-63 infra.

A notice that was recently used in the asbestos class

action (appearing in the Houston Post, December 9, 1993)

is far better than the one employed in the Agent. Orange

class action because it expressly mentions the future

claimants and their rights. See Al4l1 to Al47. However,

even if the language employed in the asbestos litigation

had been used in the Agent Orange class action, it still

would have been inadequate. The real question is

whether any notice to future claimants is

constitutionally possible. See discussion at pp. 58-61

infra.

agenio\writ 33

suspect that I might later develop an

injury, to make an intelligent decision

about what I should do with regard to a

class action for those who are injured.

Until I became injured I just wouldn’t be

able to understand what’s really at stake,

what I should do about opting-out and what

action I should take. I probably would not

be able to get a lawyer at any time before

I manifested an injury, to take my case on

a contingent fee basis (since I would have

no injury for which damages could be

recovered out of which he could receive a

fee) and I could not have financially

afforded to pay a lawyer on any basis other

than a contingent fee.

A81 to 84."

The deadline for opting out of the Rule

23(b) (3) class was May 1, 1984. Six days later,

on May 7, 1984, the representative plaintiffs,

all of whom were persons already claiming injury,

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 entire affidavit of Mr. Hartman is Appendix

H, at A774 to 97. A full reading of his affidavit will

help place in proper perspective the constitutional

problems relative to future claimants. See discussion

pp. 57-58, infra.

agenio\wnt 16

|

the defendants for injuries from Agent Orange.’

However, the courts below ruled that 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

Currently had a claim). Rather, in the

settlement the parties unilaterally, and

subsequent to the opt out deadline, 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 9 8).

The settlement plan that was approved by

Judge Weinstein indisputably discriminated

against the future claimants. The plan fully

demonstrates what happens to a group who are not

‘2 The Settlement created a fund to benefit class

members and their families which, as administered,

eventually allotted an average of $3,200 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 “[c]laims against the

Fund shall be the exclusive remedy . . . and all members

of the Class are forever barred from instituting or

maintaining an action against any of the defendants.”

Agent Orange, 597 F.Supp. at 8 (Settlement Agreenent 4

a) e

agento\wnt 17

eee ea |

represented — such as the future claimants - and

the price they pay for the benefit of those who

were represented - the _ past and present

Claimants. A simple look at the chart on p. 1423

of 611 F. Supp., Agent Orange, 611 F. Supp. 1396,

reveals this fact. The average payments for the

present and past disability claimants will be

almost 400% higher than the average payments for

the future disability claimants and the average

payments for present and past death claimants are

a little over 300% higher than the average

payments for the future death claimants.?3

Again, these unilateral, post-opt actions

(settlement and adoption of distribution plan)

were taken without issuing any additional notices

directed specifically to the future Claimants;

without appointing the future claimants special

and separate counsel; without giving the future

‘? This of course is another factor distinguishing

this case from Ticor Title. As the Ninth Circuit noted:

"In Gonzales (Gonzales v. Cassidy, 474 F.2d 67 (Sth Cir.

1973) the class members collaterally attacked the

settlement, demonstrating the class representatives

secured a better monetary deal for himself than the rest

of the class . . . In the MDL 633 litigation, the

settlement was similar for each Class member". 982 F.2d

at 390.

agento\wnit 18

claimants any opportunity to opt out with respect

to the settlement (as is being done in the

asbestos litigation, see Al46) and without giving

them the right to opt out within a reasonable

time after the manifestation of their injuries in

the future, should that event occur.

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

‘* The district court noted that although “[i])t 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, a13 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). There is no doubt

that Judge Weinstein was wrong. Such “proof” has

developed and has developed rapidly enough “to affect”

the rights of numerous Vietnam veterans now suffering

from lymphomas, sarcomas and other cancers and maladies.

See e.g. Executive Summary, Veterans and e:

ealth Effects of Herbic Institute

cine, Committee to Rev Effects in

Vietnam Veterans of Exposure to Herbicides, National

Academy Press, Wash., D.C., 1993 (21 pages).

agenio\wnt 19

appeals affirmed. Agent Orange, 818 F.2d 145 (2d

Cis. 1967).™

2. 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

” The court of appeals based its decision to

uphold the settlement primarily upon its conclusion that

the military contractor defense would apply as a matter

of law. 818 F.2d at 173, 174. This holding was clearly

error. As this Court noted in Boyle v. United

Technologies Corp., 487 U.S. 500, 509 — 510 (1986) the

defense does not apply to those products that the

private manufacturers have in “stock” or where the

government purchases them "off-the-shelf". The

undersigned counsel, as a member of the AOPMC trial

team, was in charge of opposing the military contractor

defense at the impending trial and the evidence that

would have been introduced would have overwhelmingly

established that Agent Orange was purchased off-the-

shelf and was not manufactured in accordance with the

specifications (the specifications did not call for the

presence of dioxin). Therefore, the defendants would

have probably failed as to at least two of the three

elements of the defense. See discussion of the three

elements, 487 U.S. at 512. The failure as to any one of

the three elements precludes the application of the

defense. Thus, the entire foundation for the Second

Circuit’s approval of the settlement is now highly

questionable. This factor may become relevant in these

collateral attacks upon the settlement. One reason for

this is that a settlement for “nuisance value” had been

held to be inadequate where there is a prima facie case

on liability. See e.g. at of Detroit v. Grinnell, 495

F.2d 448, 455 (2d Cir. 1974). See discussion of the

factors that can be considered in a class action

collateral attack at pp. 43-48, infra.

agenioWwnil 20

validity of the settlement". that the named

plaintiffs had negotiated with defendants, and

which the court approved. aAé42.

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. 47-50, infra), holding that

the All Writs Act, 287 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." aA55.

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

agento\writ 21

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. The

district court held that this point was

"irrelevant" and that the parties to _ the

settlement had legitimately decided (with the

court’s approval), after the Rule 23(b) (3) opt

Out period had passed, to expand the class and

extinguish the unaccrued future Claims of

“persons who have not yet manifested injury."

AS5S5 (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

1¢ 6 The uncontradicted record shows that the first

symptoms of petitioners’ injuries manifested themselves

only after the opt-out deadline. See e.g. Hartman

affidavit, A77. 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", as of the date of the settlement. See entire

record and Hartman’s affidavit, A74 - A97.

agento\writ 22

aaa

setting "definitive limits on defendants’

liability.” A58.

E. Proceedings in the Second Circuit.

On appeal, the Second Circuit found no

basis for removing the case in the removal

Statutes enacted by Congress. Instead, the

Second Circuit reiterated its view that "a

district court, in exceptional circumstances, may

use its All Writs authority to remove an

Otherwise unremovable state court case." As.

The “exceptional circumstances" in this case

involved an undefined “deleterious effect" of

allowing “Agent Orange victims ... to maintain

separate actions in state court." AB. 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

agento\wn 23

a

court “guard[] the integrity of its rulings in

complex multidistrict litigation." ag.

Thus, for the third time (see pp. 47-50

infra), the Second Circuit employed the All Writs

Act to allow district judges to fashion their own

removal jurisdiction "‘when the need arises.’"

A9. Further, it made clear that whether or not

“exceptional circumstances" exist to create such

removal jurisdiction is a matter left to the

“proper exercise of judicial discretion." A9.

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 with no

manifested injury, as long as those persons are

not "known" — that is, no one (including them)

knows that they will be injured and might wish to

agenio\wnit 24

sue in the future. Al6.’’ 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, appointed

to represent the future claimants, should have

decided whether to extinguish the unaccrued

future claims of absent plaintiffs who had not

yet suffered injury. Al7 (quoting district

court). The court opined that a conflict "never

materialized" because all veterans became

‘” The court’s rationale for this holding was that,

in Phillips 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." Al16 (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 for money damages, before they even know

those claims exist. aAl6. Refusing to "extend" Shutts

to provide procedural guarantees to such persons, the

court opined:

"(Slociety’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.

([P])roviding individual notice and opt-out rights

to persons who are unaware of an injury would

probably do little good."

Al7. We certainly agree with that last statement to the

extent that there really is no constitutional way that

future claimants can be given adequate notice of the

right to opt out of a personal injury class action. See

pp. 58-60, infra and see Hartman’s Affidavit. A84 - A96.

agenio\writ 25

eligible for identical "nuisance value" payments

from the Fund. aA12™* This latter conclusion

ignored the indisputable fact that the settlement

discriminated against the future plaintiffs. See

pp. 18, supra.

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".

This case rakses 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.

‘* 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. AL7. Thus, the court refused tc

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 the settlement. AS58é.

agenw\wnt 26

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’ jurisdictional statutes can

authorize jurisdiction in a case.”°

‘8 Hornsby v. Hornsby’s Stores, Inc., 1991 WL 33672

(N.D. Ili. 1997) ("[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, 1736 (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 332" 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 (5th 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, aes (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 (5th Cir. 1971)

agenio\wnt 27

A. The Yonkers 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) §

1442(a) (removal by a member of armed forces);

(5S) § 1443 (removal in civil rights cases); (6)

S 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."

("(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,

983 F. Supp. 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").

agento\wnt 28

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

108-109 (1941).** Congress made it clear that,

7} 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

tria 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 34, infra). The

Court stated in Sheets:

"Not only does the language of the Act of

1887 evidence the Congressional purpose to

restrict the jurisdiction of the federal

courts on removal, but the policy of the

successive acts of Congress regulating the

jurisdiction of federal courts is one

calling for the strict construction of such

legislation. The power reserved to the

states under the Constitution to provide

for the determination of controversies in

their courts, may be restricted only by the

action of Congress in conformity to the

Judiciary Articles of the Constitution.”

313 U.S. at 108-109.

Many lower courts have emphasized the need to

narrowly construe the removal statute. See, e.g.,

United States ex rel. Walker v. Gunn, 511 F.2d 1024,

1 t Cir.) ("The right o 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); Armstrong v. Alabama Power

Co., 667 F.2d 1385, 1388 (llth Cir. 1982) ("Finally, it

strict construction of removal jurisdiction] preserves

the plaintiff’s right to choose a state forum. To serve

agento\writ 29

when the Judiciary Act of 1887 was adopted,

amending the Act of 1875, federal question

removals on the basis of federal "defenses" would

no longer be possible. See Franchise Tax Board

Vv. Construction Laborers Vacation Trust, 463 U.S.

1, 10 nte. 9 (1983) ,?

The Second Circuit, however, has not been

Satisfied to adhere to the jurisdictional

Structure of the 1887 Act, which allows much less

removal authority than existed under the 1875

Act. Rather, the Second Circuit has taken the

view that Congress’ choice in 1887 to restrict

the 1875 removal statute can be circumvented by

these purposes, the federal courts must carefully

scrutinize the bounds of removal jurisdiction, even to

the point of apparently impractical detail - for these

details in the given case eventually guarantee higher

goals in all cases"); Mercy Hosp. Ass’n y. Miccio, 604

F. Supp. 1177, 1179 (£.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 specific removal provision and

specific grant of Original jurisdiction").

“ 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. y. Williams, 482 U.S. 386, 393 (1987)

(emphasis in original) (citing Franchise Tax Board, 463

U.S. at 12).

agento\wnt 30

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,

the Act provides an independent source of

authority for subject-matter jurisdiction on

removal .** Despite an early dissent from the

court, it now appears well entrenched in the

Second Circuit.?”°

- The present version of the All Writs Act

Originated as § 14 of the Judiciary Act of 1789, 1 Stat.

81-82. See Pennsylvania Bureau of Corrections v. United

States Marshals, 474 U.S. 34, 40-41 (1985).

** Yonkers Racing Corp. v. City of Yonkers, 858

F.2d 855, 865 (2d Cir. 1988), cert denied, 489 U.S. 1077

(1989). We will generally refer to the All Writs

removal doctrine as the "Yonkers" doctrine.

** Dissenting in Yonkers, Judge Mahoney castigated

the Second Circuit’s creation of an All Writs removal

doctrine to launch "a preemptive strike upon state

courts" 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

vote. Thus, the doctrine appears to be settled law in

the Second Circuit.

agento\wn 31

The Second Circuit’s Yonkers doctrine poses

a threat to two fundamental aspects of this

Court’s jurisprudence: Judicial restraint and

judicial federalism. 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 “[ajll 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 vy. 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 vy.

Powers, 201 U.S. 1, 24 (1906). In resolving such

an issue, of course, courts must “scrupulously

For a more detailed description of Yonkers and the

steadily increasing ambit of the Second Circuit’s All

Writs removal doctrine, see pp 48-52, infra.

agenioWwnit 32

confine their own jurisdiction to the precise

limits which the statute has defined." Healy v.

Ratta, 292 U.S. at 270; Shamrock Oil and Gas v.

Sheets, 313 U.S. at 108, 109.?*

The language of the All Writs 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. Ag.

This Court was quite clear in Pennsylvania

Bureau of Corrections v. United States Marshals,

474 U.S. 34, 43 (1985) that the All Writs Act

** Since the inception of our federal system, it

has been settled that "[c]ourts 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 expressly conferred, it is

assumed not to exist. See Durousseau v. United States,

10 U.S. (6 Cranch) 307 (1810).

agento\wnt 33

must be disregarded once Congress has spoken on

a subject:

"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,?’

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

*" 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. Chandler yv. Judicial Conference of the Tenth

Circuit, 398 Us. 14, 86 (1970) (holding 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 that review of Chandler’s claims

would "do[] violence to the constitutional requirement

that such review be appellate.”") and United States v.

PMC Corp., 1963 U.S. LEXIS 2449 (1963), (Goldberg,

Circuit Justice), (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.")

agento\wnt 34

en

the Settlement Agreement" barred petitioners’

lawsuit. A55. Even assuming that’ the

interpretation of the Settlement Agreement raised

any issue of federal law, at most the defendants

have a federal res judicata defense to suit in

the Texas state court. But more than a century

ago Congress barred any such theory for removal,

- and has so far rejected all proposals to water

down its stance.** The Second 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

** “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.” Id.

agenio\wrnil 35

NN ee

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

collateral attack and 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*’. State courts

apparently cannot be trusted to "guard[] the

integrity of [federal court] rulings in complex

litigation." Id.

#9 But see, discussion of the class action

collateral attack doctrine at Pp. 43-47, infra.

agento\wnt 36

iin eater iile

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 constitutional rights, then a

fortiori there is no basis for denying them

responsibility for adjudication of the preclusive

effect of a settlement and the issues arising

under the class action collateral attack

doctrine. 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

*° 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 competent

to resolve federal issues"). See also Paul M. Bator

The State Courts and Federal Constitutional Litigation,

22 Wm & Mary L. Rev. 605, 625 (1981). ("If we want

state judges to feel institutional responsibility for

vindicating federal rights, it is counterproductive to

be grudging in giving them the opportunity to do so.")

agenio\wnt 37

judgment is to be determined by the second

court"); Donovan v. City of Dallas, 377 U.S. 408,

412 (1964) .*

As 21 States firmly 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 State or

federal, has been raised as a bar to

litigation of a Claim, the issue has been

* These precedents comport with a fundamental

principle of our federal System, that "(a) state court

estoppel.” Southern California Petroleum Corp. y.

Harper, 273 F.2d 715, 719 (Sth Cir. 1960); accord

Bluefield Community Hospital Inc. yv. Anziulewicz, 737

F.2d 405, 408 (4th Cir. 1984).

Consistent with this Principle, in the area of

consent judgments it is quite improper 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 4H. Greene’s subsequent

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 vy. Western Electric Co., 900 F.2d 283,

293-94 (D.C. Cir.), cert. denied 498 U.S. 911 (1990).

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."

Id. at 294. See also Jeff D.v. Andrus, 899 F.2d 793,

759 (9th Cir. 1989).

agento\writ 38

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).** Indeed, when class action consent

decrees are involved, an even more forceful rule

applies: the court that enters the decree is

forbidden from predetermining the res judicata

effect of the decree; that task must be assumed

by a "subsequent court", the court in which the

absentee plaintiffs file their suit seeking

relief on the merits. See discussion of class

action collateral attack doctrine, at pp. 43-47,

infra.

The States further warned that "(t)o affirm

the decision below would be to invite every

federal district court to circumvent the removal

2 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. Id. (emphasis in original). They pointed

out that this theory is “contrary to comiuon 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.

agenio\wnl 39

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 at 16. Yet the

Second Circuit analyzed none of these federalism

concerns, failing to mention the States’

arguments even in passing.»

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 .°*4 Moreover, the district

” 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.’" AQ. 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). This

is contrary to fundamental removal law. See discussion

of “no possibility rule" at Pp. 51, 52 and nte. 42,

infra.

** 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. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281, 285 (1970). See also Pennzoil

Co. v. Texaco, Inc. 481 U.S. 1, 12-13 (1987) ("This

Court repeatedly has recognized that the States have

agenio\wnt 40

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. Aé49.

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.”

important interests 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. Id. at 2408. Cf. New York v. United

States, 112 S. Ct. 2408, 2428 (1992) (Tenth Amendment

prohibits federal statutes which are interpreted to

“infringle] 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.

” The settlement agreement provided that the

district court would retain jurisdiction only “over the

Fund pending its final disposition," In Re Agent Orange,

597 F. Supp. at 866 (Settlement Agreement @ 19), vite a

duty “to assure that the Fund shall earn the maximum

interest consistent with safety and that all

disbursements are properly made.” Id. at 864

agenio\wnt 41

rrr

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

(Settlement Agreement 4 4). Nothing about petitioners’

Texas lawsuit affects the 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, 44 of the Settlement Agreement expressly

provides that at this juncture respondents “have no

responsibility or obligation with respect to the Fund or

distributions therefrom." Id. at 864.

” Also see Zipfel v. Halliburton Co., 832 F.2d

1477, 1488 1987), 486 U.S. 1054

(9th Cir. cert. denied,

(1988), mod., 861 F.2d 565 (9th Cir. 1988), holding that

the aid to jurisdiction exception to the Anti-~Injunction

Act does not apply “where there is no jurisdiction to

protect”.

agenio\writ 42

power to disrupt state proceedings that Congress

has set out only in the context of injunctions,

would effectively rewrite Congress’s handiwork.

B. In View Of The Class Action Collateral

Attack Doctrine, The Yonkers Doctrine

Certainly Cannot Provide The Basis For

Removal Of "Subsequent" State Court Actions

Wherein a Prior Class Action Consent Decree

May Be Collaterally Attacked.

Hansberry v. Lee, 311 U.S. 32 (1940) is

this Court’s fountainhead decision with respect

to the class action collateral attack doctrine.

That doctrine is well articulated in In Re Real

Estate Title and Settlement Services Antitrust

Litigation, 869 F.2d 760, 764, nte. 1, 768, 769,

770, (3rd Cir. 1989):

"We do not agree with appellees’ dire

predictions. Ever since Hansberry v. Lee

was decided in 1940, collateral attacks

have been considered to be a necessary part

of the class action scheme. Rather than

threatening the vitality of the class

action mechanism, the fact that some

plaintiffs will be able to extricate

themselves from class action judgments if

subsequent courts find them to be

inadequately represented is integral to the

constitutionality of the class action

procedure. See Hansberry, 311 U.S. at 45,

61 S.Ct. at 120 (stating that it would

violate due process to bind an inadequately

represented absent party to a prior

judgment )

agento\wril 43

ne

Moreover, as the Court explains in Shutts,

it is partly up to the defendant to

safeguard the interest of the absent

Plaintiffs. See 472 u.s. at 810, 105 S.ct.

at 2973. If the defendant wishes to

achieve maximum preclusive effect it is up

to the defendant to ensure that the class

is appropriately certified, and the absent

members are adequately represented. Far

from wreaking havoc on the Class action

mechanism, we believe that our holding will

foster results that most fairly balance the

interests of absent class members and

defendants alike."

869 F.2d at pp. 769, 770. See also Sam Fox

Publishing Co., 366 U.S. 683, 691 (1961) (stating

that "the judgment in a class action will bind

only those members of the Class whose interests

have been adequately represented by existing

parties to the litigation"); Cooper v. Federal

Reserve Bank of Richmond, 467 U.S. 867 (1984);

Local Number 93 y. City of Cleveland, 478 U.S.

501 (1986); and Taunton Gardens Co v. Hills, 557

F.2d 877 (lst Cir. 1977) (holding that "the court

that certifies a class action ‘cannot

predetermine the res judicata effect of the

Judgment’, which can ‘be tested only in a

subsequent action’", citing Committee Note of

1966 to Rule 23 as Revised in 1966, and 3B

agento\wnt 44

Moore’s Federal Practice, Sec. 23.01 [{11.-3] at

2334.”

The Court in Yonkers made it clear that the

power to remove under the All Writs Act was

dependant upon the power to issue injunctions or

extraordinary orders “under the Anti-Injunction

Act and the All Writs Act to prevent the

prosecution of state proceedings .. ." 858 F.2d

at 865. It is inconceivable that an injunction

could issue in the face of the Anti-Injunction

Act (28 U.S.C. 2283) and under the All Writs Act

*” A good discussion of the class action/collateral

attack doctrine can be found in Note, Collateral Attack

on the Binding Effect of Class Action Judgments,

Harv. IL. Rev. 589 (1974). The Note discusses, with

citation of supportive authority, the matters which the

second court should review in determining whether a

class action judgment is binding upon the absentee

plaintiffs: [a] adequate notice, id. at 590, 591; [b]

adequate representation, id. [c] lack of subject matter

jurisdiction, id. at 593 [d] lack of personal

jurisdiction, id.; [e) due process and other

constitutional considerations, id. at 593; [f] whether

the first court was correct in certifying the class

initially, id. at 595; and [g] whether the right to opt

out was properly granted to absent class members, id. at

599.

The second court “must examine the (class)

representatives conduct of the entire suit to decide

whether the class representatives in fact have

adequately protected the interests of the class." id.

at 596; emphasis ours. The Harvard Law Review Note

makes two important additional observations: {i] the

res judicata effect of a class action judgment “can be

determined only in a subsequent action”, id. at p. 593

(emphasis ours); and [ii] that determination should be

made on a “de novo basis”. id. at 594.

agenio\Wwn 45

As+Glerai attack launched in

tate Jrt by tr © who, with regard t the

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rij I 2 1 ’ ere

ioDsentee Future Aalimant W1itTr iT ne inkling

nat they might 1eVELOD i 1sTies tne future

nese fut € Aaimant nad née absolute right to

ttack the i act nsent decree n the

Ind I igdequate notice, lnaagequate

epresentation, abse« e of PtC-Out and other due

pr ess gr nds. Tnose matters have never been

adcressed in the NMCext of a suUpDsequent merits

trial where issues are determined by a

preponderance of the evidence.** m reover, those

1SSsues could not, insofar 25 tnelr res uUadicata

ff CT ¢ r S nea ‘aha + or, ~-+ - Khu

Cit ect peal a eunoseque Jura Ciai =| a A /y

apsentee plaintiffs is -oncerned, have properly

peen predetermined Py vuage Weinstein. As noted

by this Court in Chick Kam sNOO _v. Exxon, 486

on Those issues were to some extent addressed

during the process for approving the 1984 settlement,

but then only in the context of Judge Weinstein’s

"discretion" to approve or disapprove the settlement.

They were never addressed vis-a-vis future claimants or

in a subsequent collateral attack context. See 818 F.2d

at 164.

agenio\Wwrit 4

Cy)

injunctions under the relitigation exception as

to all issues “not actually litigated". Since

there could be no injunction or extraordinary

relief, there could be no removal under the

Yonkers doctrine.

Cc. Even If the All Writs Act Authorizes Lower

Courts to Remove an "Otherwise Unremovable

State Courts 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

agenio\wnt 47

ee

(1989) .* 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.*°

Unlike the Second Circuit’s two 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

* 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 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." Id.

at 863.

** 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. Id. at 469.

agento\wnt 48

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

circumstances" - here, the courts’ view that the

Texas state courts might rule incorrectly on

whether the 1984 settlement precluded suit.

Certiorari was not sought in City of New

York, and the certiorari briefing in Yonkers

revealed an inappropriate vehicle for review."

This case thus represents the first real

Opportunity for scrutiny of the Second Circuit’s

*' The petition for certiorari in Yonkers 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 ?-15.

Indeed, Rex Lee appeared on behalf of the City of

Yonkers opposing certiorari, noted 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 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.” Id. at 13.

agenio\wnt 49

EE

radical new 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.

And should the Court, at the end of the

day, decide that some form of the Yonkers All

Writs removal doctrine is to be permitted, there

is an urgent need for the Court to articulate its

parameters. As noted above, the Yonkers court

indicated that unless an injunction against the

State court action would be appropriate, removal

would be inappropriate. Surely, if such a

radical new doctrine is going to be approved it

Should contain that limitation and the presence

of that limitation in this case would mean that

the removal was improper.

Moreover, the Court would need, we

respectfully submit, to address just how the

class action collateral action doctrine affects

the Yonkers doctrine. Neither Yonkers nor City

Of New York involved class actions. The Second

Circuit refused to directly address this issue in

this case; it finessed it by simply stating that

agento\wnit 50

"nothing in the Constitution or in our

jurisprudence demands that class members have an

unchallengeable choice of forums in which to

launch (a collateral attack upon a class action

consent decree). . ." All. We submit that, even

if the Court approves the Yonkers doctrine, it

should, because of the important constitutional

impact of the class action collateral attack

doctrine, consider whether the application of the

doctrine with respect to state court actions,

filed by absentee class members subsequent to a

federal class action consent decree, should be

precluded.

Finally, since the subsequent collateral

attack upon a class action consent decree will be

so fact-intensive ("de novo" determination of how

the entire prior class action was handled), we

respectfully suggest that the Court consider

whether, before the courts can approve removal on

the basis of the Yonkers doctrine, the removing

defendants must meet the heavy burden of "clearly

showing" in their removal papers that there is

"no possibility” that plaintiffs could succeed in

the state court with regard to at least one of

the grounds for collateral attack. Like the

burden applied in "fraudulent joinder" removals,

such a burden would be consistent with due

respect for federalism and the Strictness with

which removals should be permitted. See Wilson

v. Republic Steel, 311 U.S. 104 (1921); Green v.

Amerada Hess Corp., 707 F.2d 201 (5th Cir. 1983);

East Texas Mack Sales Vv. North American

Acceptance Corp., 819 F.2d 116 (Sth Cir. 1987);

and Polous v. Naas Foods, 959 F.2d 69, 73 (7th

Cir. 1992)?

** As noted in Green:

"The burden of proving a fraudulent joinder is a

heavy one. The removing party must prove that

there is absolutely no possibility that the

plaintiff will be able to establish a cause of

action against the in-state defendant in state

court”.

707 F.2d at p. 209. If the “no possibility” burden were

applied — and surely it should be the minimum burden

imposed upon the defendant if there is to be a Yonkers

doctrine — for the reasons Stated under II, infra, asa

matter of law there are, in this case, a multitude of

“possibilities” whereby the state court could find that

the collateral attack is justified.

agento\wnt 52

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.

Even if federal removal jurisdiction

somehow existed in the 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 Ticor 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.

agento\wril 53

ne

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 growing concern because of

the great potential of these settlements to wreak

havoc upon individual rights and due process,*

This is Particularly true in our complex

technological Society, in an era when tens of

thousands of persons may become 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

** See, @.g., Carlough v. Amchem Prods., Inc. No.

93-1429, 1993 U.s. App. LEXIS ( 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); In Re Breast Implant

Litig., 1992 U.S. Dist. Lexis 10080, at *4 (May 21,

1992, N.D. Ohio) (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"). See also Al4é1 - Al47, concerning the notice

of settlement in the asbestos litigation.

agento\wnt 54

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 an

unaccrued future claim for injury is problematic

on at least four levels. First is a concern

about basic fairness. In the statute-of-

limitations context, for example, this Court has

agentoWwnit 55

EE

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 vy. 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.“

second is the issue of Standing. Under

Article III of the Constitution, it may be

Jurisdictionally improper to include persons who

have manifested no perceptible injury in a

personal injury class action.‘

‘“* The former group of plaintiffs, and their

attorneys, have a natural incentive to settle the claims

of the latter at relatively low value, in order to make

the settlement package as attractive as possible for the

defendant. Indeed, this is precisely what happened in

the Agent Orange litigation. See pp. 18, 19, supra.

* A hypothetical Claim, like those of petitioners’

in 1984, 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

quctes and citations omitted). See also Phillips

Petroleum v. Shutts, 472 U.S. 797, 804, (1588)

("Generally stated, federal Standing requires an

agento\wnt 56

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.*

Fourth, the due process concerns involved

with including future claimants in a class

allegation of a present or immediate injury in fact. .

-"); Slaughter v. Levine, 98 F. Supp. 1035, 1040-1

(D.C. Minn. 1964) ("Each class member must have standing

to bring suit in his own right."); Alexander v. Yale

University, 631 F.2d 178, 183 (2nd Cir. 1978) ac é€ s+ @

party seeking relief must establish that he or she has

suffered ‘distinct and palpable injury’"); Adashunas v.

Negley, 626 F.2d 600, 604 (7th Cir. 1980) (it must

aleeriy appear that all class members have “an actual

case or controversy under Art. III of the

Constitution”); McElhaney v. Eli Lilley & Co., 93 F.R.D.

875, 878 (D.C. S. Dak. ) (DES cases; “The definition

of a class cannot be so broad as to include individuals

who are without standing to maintain the action on their

behalf"); and Barcelo y. a aL 76 F.R.D. 531, 534 (D.

P.R. 1978); ("the Court has serious doubts about its

power to entertain the claims of .. . yet-to-come

Plaintiffs", citing Art. III).

** An excellent benchmark for evaluating such a

role is provided by the dissent in Hoffman-La Roche

Inc. v. Sperling, 493 U.S. 165, 110 $.Ct. 482, 483 - 490

(1989) tteatio. J., joined by Rehnquist, C.J.). The

dissenters argued that case management of 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.” Id. at 489, 492.

agento\wnt 57

settlement are just too Overwhelming; in a

cost/benefit analysis, the "costs", in terms of

brutalizing individual rights, far exceeds the

Supposed "“benefit" in obtaining settlements,

particularly when that benefit is an undeserved

windfall for the defendant. Ronald Hartman’s

affidavit makes it clear why this is true. A74

to 97. In Schweitzer y. Conrad, 758 F.2d 936

(3rd Cir. 1985), involving an asbestos class

action, the court observed pertinently in

discussing the inclusion of future claimants:

"If mere exposure to asbestos were

Sufficient to give rise to 4 F.E.L.A. cause

of action, countless seemingly healthy

railroad workers, workers who might never

manifest injury, would have tort claims

cognizable in federal court. It is obvious

that proof of damages in such cases would

be highly speculative, likely resulting in

windfalls for those who never take ill and

insufficient compensation for those who do.

Requiring manifest injury as a necessary

element of an asbestos-related tort action

avoids these problems and best serves the

underlying Purpose of tort law: the

compensation of victims who have suffered.

It would be nearly as absurd under

Our facts to have expected plaintiffs, who

allegedly had manifested no injury at the

time of the reorganization proceedings, to

file claims for such injury in those

proceedings.

agento\Wwni 58

Finally, an interpretation of ‘interests’

that included plaintiffs’ future tort

actions would raise constitutional

questions. For example, the general rule

is that all known creditors must receive

personal notice. See, e@.g., Mullane v.

Central Hanover Bank & Tru , 339 U.S.

306, 318-20, 70 S.Ct. 652, 659-60, 94 L.Ed.

865 (1950). But if the contingent claims

were held to include possible future tort

claims, then every hypothetical chain of

future events leading to liability,

regardless of how likely or unlikely, might

be the basis for a contingent claim :

We believe that our interpretation, which

avoids such thorny constitutional issues,

is the proper view of Congressional

intent."*’

758 F.2d at 943, 944.

Such concerns have led a number of

commentators to argue that the difficulties

inherent in analyzing the interest of those who

do not yet know that they are injured, and

particularly in notifying them of their rights,

should preclude all class action settlements that

seek to bind such persons.** Such an outcome is

*’ See also In Re Amatek,755 F.2d 1034, 1043 (3rd

Cir. 1985) (holding that future claimants necessarily

have a conflict with already injured claimants; at the

very least the court must appoint an independent

separate counsel for the future claimants in order to

have any hope of attaining constitutional acceptance.)

** 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

agento\wnt 59

certainly one option for this Court’s

consideration, but the Principal attraction of

the instant case is that it provides an excellent

vehicle for any range of holdings - even a narrow

one - in this Court’s first consideration of the

problem of class action absentee plaintiffs who

lacked awareness of any injuries at the time of

the class action settlement.

The basic due process requirements on which

this Court has insisted for Rule 23(b) (3) class

actions for money damages are well known:

personal notice where possible, see Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 314-

15, 319 (1950) and Eisen V. Carlisle & Jacquelin,

417 U.S. 156, 174 = 177 (1974) (requiring notice

to all 2,250,000 members of that class because

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 and

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 Colum.

L. Rev. 397, 398 n.7 BELL (the “future members cannot

be included in (b) (3)

actions.")

agento\wni 60

their names and addresses were ascertainable) *’;

notice that would expressly inform the purported

class member that his or her status or situation

(e.g. those with no perceptible injury at that

time) was intended to be included within the

class (see Al41-Al47 for example of a better way

to give notice to the future Claimants); the

right to opt out at the time when that decision

has some meaning to the individual making the

decision, see Shutts and cases cited at pp. 57 -

61, supra (in other words, in a personal injury

class action, at a time when he or she has

actually manifested some injury)*°; and adequate

representation, which, at a minimum and among

other things, means by those who do not have a

™ Even if notice to every person who served in

Vietnam and who might have been exposed to Agent Orange

were not required in a class action involving only those

who presently manifested injury, it certainly would be

required under Eisen if the class purports to also

include those who where exposed but had not manifested

any injury.

” Such notice and opt-out rights are critical

because they “protect (each) claimant’s right to control

her litigation.” Arthur R. Miller 6&6 David Crump,

Jurisdiction and Choice of Law in Multistate Class

. YW, e

( ). . 4 . Co., 455

422, 428-33 (1982) (holding that the right to

adjudicative procedures is a species of property

protected by the due process clause).

agento\wnt 61

_- -*- were ee “ee wee

EEE

conflict of interest with those they seek to

represent.

On the record of this case, all these

procedural protections were denied the future

Claimants in the 1984 Agent Orange litigation.»

- It is academic that where the settlement

negotiations may have been affected by collusion, bad

faith, conflict of interest Or an unfair trade-off the

settlement is "impugned". Brown v. Ticor Title Ins.

Co., 982 F.2d at 390; In Re General Motors, 554 F.2d

(7th Cir.) cert. denied 44

1106, 1133-1134 4 U.S. 870

(1979); Flinn v. FMC Cor .» 528 F.2d 1169, 1173 (7th

Cir. 1971); and Greenfield v.§_ Villager Industries, Inc.,

483 F.2d 824, 832 (3rd Cir. 19 a) e

*? As discussed under the Statement of Case above,

the named plaintiffs to the 1984 Agent Orange litigation

who agreed to the ultimate settlement, all had already

suffered "severe and permanent disabling injuries." See

p- 12, 13, 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. As the district court

acknowledged, the interests of petitioners and others

who in 1984 were not suffering from any injury, were

directly adverse to “the interests of presently injured

plaintiffs as well as defendants in achieving a

settlement." A58. The named plaintiffs made no effort

to notify absent persons who were not suffering from

injury. Rather, over defendant’ s objection, they and

the district court defined, and directed notice to, a

class consisting only of persens who subjectively

believed that they were suffering compensable injuries

as a result of Agent Orange. Then, once the opt out

deadline had passed, the named plaintiffs vastly

expanded the class that would be bound, to include

anyone who might ever manifest any injury in the future.

See pp. 17 - 18, supra. Conceivably, the Settlement

Agreement might have expressly preserved the claims of

these future plaintiffs; 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

agenio\wnt 62

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

"(c)oncerned with the potential for new actions and

recogniz(ed) the need for finality.” A35. No notice

and opt out rights for the future claimants were even

considered.

” There are other potential due process

transgressions which will be relevant in that portion of

the merits - trial dealing with the collateral attack.

These would certainly include the failure of the class

counsel to have included, in the settlement agreement,

the right to opt out by the future claimants within a

reasonable period after they first manifest their

injuries. As noted in Schweitzer, "(i)t would be

absurd...to have expecte Plaintiffs, who ... had

manifested no injury at the time,...to file claims for

such injury...". 758 F.2d at 943, 944. The same is true

of filing an opt owt. Also see Kane v. Johns-Manville

Corp., 843 F.2d 636, 640, 644, 4 (2nd Cir. 1 )

(discussing settlement of future Claimants’ claims which

gave future claimants the right to a full trial after

they manifested their injuries.)

agento\writ 63

a

had candidly acknowledged, A58, the court below

dismissed any concern here, with the assertion

that harm from any conflict had "never

materialized." But in this case, it did

materialize and the consequences were clear. See

pp. 24 - 25, 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 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. vV._State Board of

Equalization, 239 U.S. 441, 444-45 (1915), -

Thus, at its root, the second question in

this case presents this Court with an Opportunity

to insist that the lower courts apply traditional

ageniownt 64

Rule 23 and due process analysis to the unaccrued

future claims of absent plaintiffs, and an

Opportunity to reject the sort of quasi-

legislative analysis relied upon by the Second

Circuit.

CONCLUSION

For all these reasons, certiorari should be

granted.

BENTON MUSSLEWHITE

TBA # 14752000

1250 Lyric Centre

440 Louisiana

Houston, Texas 77002

(713) 222-2288

(713) 222-0319 (Fax)

ATTORNEY FOR PETITIONERS

December 15, 1993

** The lower courts, in dealing with the dismissal

by Judge Weinstein, ignored summary judgment principles.

Indeed, Ronald Hartman’s uncontradicted affidavit and

the undisputed procedural facts in this case permit but

one reasonable conclusion and that is that inadequate

notice, inadequate representation and absence of opt-out

were all established as a matter of law with respect to

the future claimants. At the very least, fact issues

existed on those issues, thus mandating the denial of

the motion to dismiss (in reality a “summary judgment

motion"). See Adickes v. S. H. Kress and Co., 398 U.S.

144, 153-161 (1970).

agento\wnt 65

|

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RONALD L. HARTMAN, KATHERINA H. HARTMAN, and

as Next Friend to JEFFERY ALAN HARTMAN and

ANGELA MARIE HARTMAN, Both minors

individually; and LAURA JENKINS,

Individually and as Representative of Eddie

Jenkins, Deceased; PEGGY SANDS, Individual]

and as Representative of the Estate o

Martin Sands; EMILE ANNIBOLLI; EARL THOMPSON

and JUDY L. THOMPSON

Petitioners

Vv.

DIAMOND SHAMROCK CHEMICALS COMPANY; DOW

CHEMICAL COMPANY ; MONSANTO COMPANY ;

UNIROYAL, INC.; HERCULES, INC.; THOMPSON-

HAYWARD CHEMICAL COMPANY; T H AGRICULTURE &

NUTRITION COMPANY, INC.,

Respondents

eS

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

APPENDICES TO HARTMAN PETITION

FOR WRIT OF CERTIORARI

(PAGES 72 - 148)

BENTON MUSSLEWHITE

1250 Lyric Centre

440 Louisiana

Houston, Texas 77002

(713) 222-2288

(713) 222-0319 Fax

ATTORNEY FOR PETITIONERS

APPENDICES

TABLE OF CONTENTS

IVY APPENDICES (Submitted with Ivy

Petition)

APPENDIX A

Decision of the United States

Court of Appeals for the

Second Circuit, affirming the

district court’s refusal to

remand the case and its

dismissal of petitioners’

Claims, dated

PO Bes. SORE ches needa Al

APPENDIX B

Decision of the United States

District Court for the Eastern

District of New York, refusing

remand and dismissing

petitioners’ claims, dated

Gpeewer @, 3000 .ds5% seen 2 A26

APPENDIX C

Decision of the District Court

denying Rule 59 motion for

reconsideration except in part, a

and denying motion under

28, U.S.C. § 455(a), dated

DOVES 25, SOU bi tio oie A60

———————

APPENDIX D

Order of the Court of Appeals

in the Ivy case Denying

Petition for Rehearing and

Suggestion for Rehearing

En Banc, dated

AUGUST 26, 1993... cccccccccccee A63

APPENDIX E

Text of Federal Rule of Civil

DUTT Us ecccceunccccccecceces A64

APPENDIX F

Affidavits of Shirley Ivy,

dated February 22 and at,

ET UCSC Seb cebecesecescccccec A68

HARTMAN APPENDICES (Submitted with

Hartman Petition)

APPENDIX G

Order of the Court of Appeals

in the Hartman case Denying

Petition for Rehearing

and Suggestion for Rehearing

En Banc, dated

September 16, 1993.............. A72

APPENDIX H

Affidavit of Ronald L. Hartman,

dated March 5, 1991............. A74

APPENDIX I

Original Petition of Ronald L.

Hartman, et al filed in the

District Court of Harris

County Texas, 152nd Judicial

Ds 6s 6606 eb wedeeckéadseens

APPENDIX J

Notice of Removal filed by

the Defendants in the

HartmA€n CaSC...... cee eee eee eee

APPENDIX K

Excerpts from advertisement

in Houston Post, dated

December 5, 1993 pertaining

to class settlement and

notice of opt-out in the

asbestos Cases...........2.c eee

APPENDIX L

Text of 28 U.S.C. 165l(a).......

Oe

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

SHIRLEY Ivy, Individually and as

Representative of the Estate of DONALD

IVY, Deceased, et al.,

Plaintiffs-Appellants,

V.

DIAMOND SHAMROCK CHEMICALS COMPANY, also

known as Diamond Shamrock Refining &

Marketing Company, et al.,

Defendants-Appellees.

DOCKET NO.: 92-7537, 92-7573

92-7575

At a stated term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 16th day of September cne thousand

A72

nine hundred and ninety-three.

A petition for rehearing containing

& suggestion that the action be reheard

in banc having been filed herein by

plaintiffs-appellants, Ronald Hartman,

Katherina H. Hartman, et al.,

Upon consideration by the panel that

decided the appeal, it is

Ordered that said petition for

rehearing is DENIED.

It is further noted that the

suggestion for rehearing in banc has been

transmitted to the judges of the court in

regular active service and to any other

judge that heard the appeal and that no

such judge has requested that a vote be

taken thereon.

FOR THE COURT,

ELAINE B. GOLDSMITH, Clerk

By: Carolyn Clark Campbell

Chief Deputy Clerk

A73

APPENDIX H

STATE OF TEXAS ‘

COUNTY OF HARRIS s

BEFORE ME, the undersigned

authority, holding the position of Notary

Public in and for the State of Texas,

appeared RONALD L. HARTMAN, known to me,

and, after first being sworn, did upon

his oath, state, swear and affirm as

follows:

My name is RONALD L. HARTMAN, I

reside in Harris County, Texas. I am

over twenty-one (21) years of age, of

sound mind, and make this Sworn statement

on the basis of personal knowledge and of

my own free will and accord.

I hereby state, swear and affirm as

follows:

l. Neither I nor any member of my

A74

pinata

family ever received any letter or other

written notice, addressed to me or any

member of my family concerning the

existence of a class action involving the

VietNam veterans, and their exposure to

Agent Orange; nor was I or any member of

my family ever advised in writing of our

right to participate in such a class

action: nor did I or any member of my

family ever receive notice any right to

opt out of such a class action. I

understand that some written notices were

mailed out in the Spring of 1984

concerning such alleged class action,

including the notice of fright to

participate in such class action and/or

to opt-out of such class action and I

hereby state, swear and affirm that I did

not ever receive a copy of such notice or

notice of anything concerning such class

A75

ieeeactenenreenenemnemeinieineld

action.

Be Prior to 1988, neither I nor

any member of my family ever saw an

advertisement or received notice of any

kind whatsoever, verbal, written or

otherwise, from any source concerning the

Class action in Brooklyn, New York

involving the VietNam veterans and their

exposure to Agent Orange; I did not have

any notice from any source concerning the

existence of such class action, the right

of me or my family to participate in such

Class action, or the obligation of me and

my family to opt-out by a certain date or

otherwise be bound by said class action.

Ze I have recently been shown by

my attorney, the notice of class action

sent out by the Agent Orange Plaintiffs

Management Committee in MDL 381,

purporting to give notice of the

A76

existence of such class action and or the

potential rights of the members of the

Class, including the right to opt-out,

which was sent out in the Spring of 1984.

I can see that the definition of the

class in that notice specifically stated

that it included all those “injured” by

exposure to Agent Orange in VietNam and

did jeot say anything about the

manifestation of injuries in the future

or about those who at that time had no

manifestation of injury, but who might

manifest an injury in the future. Until

the Spring of 1988 I had not manifested

or experienced any ill effects of any

kind whatsoever that could possibly be

related to exposure to Agent Orange. I

made adequate grades in English and I

believe I understand the English language

as well as the average person. Even if I

A77

had received the notice of the class

action which was sent out in the Spring

of 1984, I would not have considered

myself as having been put on notice of

anything, or required to take any action

or to have to opt-out by a certain date

in order to be removed from the class

action, because the definition of the

Class made it clear that it applied only

to those who were “injured” at that time

and did not say anything about veterans

like myself who had served in VietNam and

had been exposed to Agent Orange, but who

had absolutely no injury, disorder,

disease or malady, or any manifestation

of such injury, disorder, disease or

malady, at that time. It is shocking to

me that the Chemical companies would now

contend that I and other veterans like

me, who served our Country faithfully in

A78

VietNam, and who were not “injured” in

the Spring of 1984, and who had no

earthly idea that we might develop, in

the future, some injury due to exposure

to Agent Orange, would now be bound by

what happened in a class action that all

took place before we ever developed any

manifestation of injury, and which class

action had as a definition for its

members one that referred only to those

veterans who were "injured" (no one can

deny that word is in the past tense) and

which definition of the class made no

reference to those who might manifest

injury in the distant future (like some

four years later, as in my case). I now

state, swear and affirm that the

definition of the class sent out in the

Spring of 1984, even if I had seen it,

would not have placed me upon notice that

A79

I was included within the Class or that I

was obligated to take some action, such

&8 opt-out, or be bound by such class. aA

copy of the Notice of the class, sent out

in the Spring of 1984 and now shown me by

my attorney is attached as Exhibit "A",

4. Furthermore, even if the

definition of the Class had expressly

mentioned future Claims, I don’t know how

anyone like myself, who, at that time,

had no manifestation of any injury,

disease or malady and was in good health

and had no inkling whatsoever that he

might develop some injury or disease in

the distant future, could make an

intelligent decision by May 1, 1984 as to

whether or not he should opt out. After

all, MDL 381 was a class action involving

Claims for personal injuries. If a

person like myself is not injured at the

A80

time he is forced to make a decision

about opting-out, how in the world can he

intelligently decide whether his injuries

and his case is one that he wants to have

tried individually or one that he wants

to have resolved within the class.

Obviously, if a person has nothing more

than a skin disorder, he is more likely

to stay in the class, than if he has a

serious disease such as Non-Hodgkins

Disease Lymphoma. Had I received notice

of a class in 1984, which I did not, and

had I had by then already manifested the

disease of Non-Hodgkins Disease Lymphoma,

I would have, in all probability, opted-

Out at that time. Because my disease is

s0 serious, I would have wanted my case

individually handled. But, as I said, I

was in good health and had absolutely no

reason to suspect that I might, four

A81

years later, develop and manifest Non-

Hodgkins Disease Lymphoma. Therefore,

regardless of what the notice might have

said, and even if it had expressly

mentioned future Claims, I still would

not have felt that I had anything to

worry about or any reason to make a

decision about opting-out of a personal

injury class that, I would have

reasonably thought then, would never ever

have any relevance to me whatsoever. Put

another way, it is impossible for me,

when I am not injured and have no reason

to suspect that I might later develop an

injury, to make an intelligent decision

about what I should do with regard to a

class action for those who are "injured".

Until I became injured I just wouldn’t be

able to understand whats’ really at

Stake, what I should do about opting-out

A82

ee

and what action I should take. I

probably would not be able to get a

lawyer at any time before I manifested an

injury, to take my case on a contingent

fee basis (since I would have no injury

for which damages could be recovered out

of which he could receive a fee) and I

could not have financially afforded to

pay a lawyer on any basis other than a

contingent fee. Therefore, I probably

would not in 1983-85, even if I had

received the notice of the Class, which I

did not, have been able to get a personal

lawyer to represent me and advise me

about what I should do. And I certainly

wouldn’t have wanted to rely upon the

class action lawyers, since the interests

of the other clients, the "injured"

VietNam veterans, was different from mine

and the other unmanifested injury

A83

veterans.

§. Also, prior to 1988, I never

received notice of a proposed class

settlement, either by mail or by any

other source. I understand that a

Proposed class settlement was sent out in

1984. I have recently been shown a copy

of that notice by my lawyer and, while it

does mention those who might be injured

in the future, since, in the Summer of

1984 when such notice was sent out, I was

in good health and had no Suspicion or

even thought that I might develop Non-

Hodgkins Disease Lymphoma four years

later, I still would not have had any

reasonable consideration that the

proposed personal injury class settlement

would in any way ever concern me.

Therefore, I reasonably would not have

even considered writing the Court or

A84

appearing in person at the fairness

hearings. In any event, since the notice

cr the proposed class settlement did not

state that any veteran who did not favor

the personal injury settlement could opt-

out at that time, and all any veteran

could do was to testify before the Court

at the fairness hearings, it seems to me

that the notice of proposed class

settlement, even if I had received it,

was really rather meaningless. This is

true because despite the fact that the

great majority of the VietNam veterans

who had already manifested injuries

opposed the settlement, the Court

nevertheless approved it. Surely, the

Court would not have paid much attention

to a veteran who was not even injured at

that time and had no reason to believe

that he might manifest an injury in the

A85

future. In any event, I can state, swear

and affirm that the notice of proposed

class settlement, had I received at,

would have had no reasonable meaning to

me because, at the time I would have

received it (I repeat, I did not receive

it or have any notice of it prior to

1988), I was in good health and had no

reason to believe that I would ever be

otherwise, insofar as my service in

VietNam was concerned. The notice of

proposed class settlement sent out in

1984, and personally shown to me by my

attorney is attached as Exhibit "B".

6. I have also been recently shown

by my attorney, a claim form that was

sent out to all those who wanted to make

claim against the settlement § fund.

Again, prior to 1988, neither I nor any

member of my family ever received a copy

A86

of that claim form, or ever saw one, or

was ever advised by any source about the

need to file such a claim form in order

to receive compensation out of the class

action settlement. Even if I _ had

received a copy of such claim form in

1984 or 1985, when I understand they were

sent out and by when I understand they

had to be filed, since I was not

"injured" at that time, and had no reason

to believe I would ever manifest an

injury by reason of my exposure to Agent

Orange, as a reasonable person I would

not have paid any attention to such claim

form because it obviously is concerned

with detailing the kind of injury that

the veteran then has, its effects upon

the veteran, whether it is totally

disabling or not, and other information

that essentially only applies to someone

A87

already suffering from an injury.

7. I was diagnosed as having Non-

Hodgkins Disease Lymphoma in March of

1988. Shortly thereafter I hired an

attorney on a contingent fee, who advised

me that theoretically, I had the right to

make a claim against the settlement fund

in MDL 381. That is the first time I

became aware of that potential right. I

was told about the maximum amount that I

might recover from the settlement fund

and it wasn’t even enough to pay even a

small amount of my medical bills and,

even then, it would not be paid in a lump

sum, but would be spread out over a

humber of years. In any event, I had,

and still have, absolutely no interest in

accepting the disgraceful amount which I

might be able to receive out of the

settlement fund and I not only refused to

A88

even file a claim for benefits under the

settlement fund, but I sent in my opt-out

notice, advising the Court that I wanted

to opt out of the entire class. That

notice cf opt out was sent in (by me)

within a reasonable time after I was

diagnosed in March of 1988, as having a

disease, Non-Hodgkins Disease Lymphoma,

which is probably caused by my exposure

to Agent Orange. I now understand that

the Chemical companies contend that I

don’t have a right to opt out of the

class within a reasonable time after I,

for the very first time, have found out

that I have an “injury” that was probably

caused by my exposure to Agent Orange.

As a citizen of the United States and a

veteran of the military conflict in

VietNam, it is shocking to me that I and

those veterans who have manifested injury

A89

Since May 1, 1984, den’‘t nave the same

rights as those veterans who knew they

were "injured" in May of 1984 - i.e. to

opt out of the class at a time when they

knew they were injured. I believe that

if the Chemical companies are right, my

constitutional rights have been violated

because I was stripped of my cause of

action at a time that I did not even know

I might have one.

8. In addition to the fact that I

was never given any notice, and certainly

not meaningful notice, of the class

action, the right to opt-out, or of the

class settlement, I feel that I was not

represented at all in the MDL 381 class

action or, at the very least, I was not

adequately represented. So far as I

know, and I have certainly never been

told or noticed otherwise from the Court,

A90

the following is true: (a) the Court

never appointed an attorney(s) separate,

apart and independent from the members of

the Agent Orange Plaintiffs Management

Committee, who would have as his(their)

sole responsibility the duty to represent

the interests of the veterans who had not

yet manifested injury; (b) I now state

that it is obvious to me that the same

attorneys who represent those who have

already manifested injury, would have a

conflict of interest with respect to

representing those who had not yet

manifested injury because the claims of

those two groups are obviously in

conflict and are too different in nature;

therefore, it was essential in 1984 and

1985, when the settlement was being

negotiated, consummated and the

distribution plan adopted, for those of

A91

us who had not yet manifested injury, to

have an attorney(s) who represented

solely our interests; (c) such

independent attorney(s) should have been

given the responsibility for seeing to ‘t

that the unmanifested injury veterans

were treated fairly in the settlement

negotiations and in the distribution

plan, were given adequate notice of the

proposed settlement and distribution plan

(it is my understanding that no special

effort was made to send the notice of the

proposed settlement or distribution plan

hearings to unmanifested injury

veterans), and were given the same right

that the manifested injury veterans had,

namely to opt-out at a time when they

knew the kind and extent of their injury,

and such independent attorney(s) should

have been given any and all authority

A92

necessary to protect the rights and

interests of the unmanifested injury

veterans; (d) I have seen the

distribution plan decision and it is

obvious to me that the unmanifested

injury veterans did not get treated

equally or as well as the manifested

injury veterans were treated; (e) the

Agent Orange Plaintiffs Management

Committee did not bother to give the

unmanifested injury veterans any notice

of the class action, of the initial right

to opt-out of the class settlement, of

the fairness hearings, of the hearings on

the distribution plan, of the hearings on

the attorneys fees, or any other matter

relevant to the class proceedings and any

rights that the unmanifested injury

veterans might have in the class action

and under the proposed settlement; (f)

A93

most of all, the Agent Orange Plaintiffs

Management Committee did not bother to

arrange for the unmanifested injury

veterans to have the express right to

opt-out within a reasonable time after

each of us manifested an injury in the

future; (g) and I now state that the

Agent Orange Plaintiffs Management

Committee did not adequately represent

me, the unmanifested injury veteran, the

manifested injury veterans or any of the

VietNam veterans because; they agreed to

a settlement without knowing the number

of claims or having any earthly idea what

the number of claims were; after they

found out that the present claims were

over 245 thousand in number, the majority

of them failed to notify the Court that

they were terminating the settlement;

they agreed to an amount that was grossly

A94

inadequate when compared to the potential

total of the claims; and the prior

management committee negligently waived

elements 1 and 2 of the military

contractor defense, concerning which the

Plaintiffs could have, I am told by my

attorney, at least generated fact issues

and thus precluded the Court of Appeals

from finding that the settlement was fair

and reasonable only because the

Plaintiffs could not have recovered

anything in the face of the military

contractor defense.

For all of the foregoing reasons,

and for all others that might be

perceived from the record in MDL 381 to

date, the attorneys who represented the

class in MDL 381 did not adequately

represent the interests of the

unmanifested injury veterans, including

A95

Ce

atari ental

myself.

9. All I want - and I think I am

constitutionally entitled to it - is for

this Court to honor my right to opt-out,

which I exercised within a reasonable

time after I manifested an injury, so

that I can have my case individually

adjudicated in a Court of law. I also

want the Court to send my case back to

the state courts here in Texas where I

live and where I am being treated for my

cancer. In asking for these two things,

I do not believe I am asking too much. I

am only asking for what I am entitled to

under the Constitution of the United

States and our laws as an American

citizen and a veteran of the VietNam War.

SIGNED THIS the 5th day of March, 1991.

S/RONALD L. HARTMAN

RONALD L. HARTMAN

SWORN TO AND SUBSCRIBED before me, the

A96

undersigned authority,

March, 1991.

S/Lois M. Lande

on the 5th day of

Notary Public in and for the

State of Texas

My Commission expires:

A97

3/13/92

APPENDIX I

NO. 90-11853

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

152ND JUDICIAL DISTRICT

RONALD lL. HARTMAN and KATHERINA H.

HARTMAN and as Next Friend of JEFFERY

ALAN HARTMAN and ANGELA MARIE HARTMAN,

BOTH MINORS, Individually and as

Representatives of Those Similiarly

Situated,

PLAINTIFFS

vs.

DIAMOND SHAMROCK CHEMICALS COMPANY, a/k/a

DIAMOND SHAMROCK REFINING & MARKETING

COMPANY and a/k/a OCCIDENTAL ELECTRO

CHEMICAL CORPORATION and a/k/a MAXUS

ENERGY CORPORATION and a/k/a DIAMOND

SHAMROCK COMPANY; and THE DOW CHEMICAL

COMPANY; MONSANTO COMPANY, UNIROYAL INC.;

A98

HERCULES INC.; THOMPSON-MAYNARD CHEMICAL

COMPANY, a/k/a THOMPSON CHEMICAL

CORPORATION; and T.H. AGRICULTURE &

NUTRITION COMPANY, INC.,

DEFENDANTS.

PLAINTIFFS’ ORIGINAL PETITION

COMES NOW RONALD L. HARTMAN and

KATHERINA H. HARTMAN, Individually and as

Next Friend of JEFFERY ALAN HARTMAN and

ANGELA MARIE HARTMAN, BOTH MINORS,

hereinafter referred to as Plaintiffs,

complaining of DIAMOND SHAMROCK CHEMICALS

COMPANY a/k/a DIAMOND SHAMROCK REFINING &

MARKETING COMPANY and a/k/a OCCIDENTAL

ELECTRO CHEMICAL CORPORATION a/k/a MAXUS

ENERGY CORPORATION a/k/a OCCIDENTAL

CHEMCIAL CORPORATION and a/k/a DIAMOND

SHAMROCK COMPANY; THE DOW CHEMICAL

COMPANY ; MONSANTO COMPANY; UNIROYAL,

INC.; HERCULES, INC.; THOMPSON-HAYWARD

A99

CHEMICAL COMPANY a/k/a THOMPSON CHEMICALS

CORPORATION; and T.H. AGRICULTURE &

NUTRITION COMPANY, INC., hereinafter

referred to as "Defendant CHEMICAL

COMPANIES", and for cause of action would

respectfully show the Court as follows,

to-wit;

I.

Plaintiffs are resident citizens of

Harris County, Texas. The Defendants are

various chemical manufacturers and may be

served with process as follows:

A. Diamond Shamrock Chemicals

Company &/k/a Diamond Shamrock Refining &

Marketing Company (formerly Diamond

Shamrock Corporation) and a/k/a

Occidental-Electro Chemical Corporation

and a/k/a Occidental Chemical Corporation

and a/k/a Maxus Energy Corporation and

a/k/a Diamond Shamrock Refining and

A100

Marketing Company and a/k/a Diamond

Shamrock Company, will all be referred to

as the "DIAMOND SHAMROCK Defendants”.

Diamond Shamrock Chemicals Company was

the name of the company that manufactured

Agent Orange in the 1960's. That company

may have been absorbed by any one of the

following: Diamond Shamrock Refining &

Marketing Company, Diamond Shamrock

Company, Occidental-Electro Chemical

Corporation, Occidental Chemical

Corporation and/or Maxus Energy

Corporation. Plaintiffs would show that

all the above entities have their home

offices in Texas, as follows:

1. Occidental Chemical Corporation

World Headquarters

5008 LBJ Freeway

Dallas, Texas 75244

2. Occidental-Electro Chemical

Corporation

5008 LBJ Freeway

Dallas, Texas 75244

A101

ieee

Maxus Energy Corporation

717 Harwood St.

Dallas, Texas 75231

Diamond Shamrock Refining &

Marketing Company and Diamond

Shamrock Company

9830 Colonnade Blvd.

San Antonio, Texas 78230

All said entities may be served with

process as follows:

4.

Diamond Shamrock Chemicals

Company through Diamond Shamrock

Refining & Marketing Company

Company:

Mr. John Cottles

9830 Colonnade Blvd.

San Antonio, Texas 78230

(Agent For Service)

Diamond Shamrock Chemicals

Company through Occidental-

Electro Chemical Company:

C. T. Corp.

1601 Elm St.

Dallas, Texas 75201

(Agent For Service)

Diamend Shamrock Chemicals

Company through Occidental

Chemicals Company:

C. T. Corp.

1601 Elm St.

Dallas, Texas 75201

(Agent For Service)

A102

d. Diamond Shamrock Chemicals

Company through Maxus Energy

Corporation:

C. T. Corp.

1601 Elm St.

Dallas, Texas 75201

All said corporations do business in

Texas.

B. Dow Chemical Company is a

corporation with its principal place of

business in Midland, Michigan, but is

authorized to do business in Texas and

may be served with process by serving its

registered agent for service as follows:

C.T. Corporation

1601 Elm St.

Dallas, Texas 75201

Said Defendant, The Dow Chemical Company,

does business in Texas.

Cc. Monsanto Company has its

principal place of business in St. Louis,

Missouri but is authorized to do business

in Texas and may be served with process

A103

by serving its registered agent for

service as follows:

C. T. Corporation

1601 Elm St.

Dallas, Texas 75201

Said Defendant, Monsanto Company, does

business in Texas.

D. Uniroyal, Inc. has one of its

principal places of business out of

state, but is authorized to do business

in Texas and may be served with process

by serving its registered agent for

service as follows:

Prentice Hall Corp.

807 Brazos, Suite 102

Austin, Texas 78701

Said Defendant, Uniroyal, Inc., does

business in Texas.

E. Hercules, Inc. has its principal

place of business out of state and has no

office in Texas or official agent for

service in Texas but is doing business in

A104

Texas and may be served with process by

having the Secretary of State mail

process, Certified Mail, Return Receipt

Requested to its registered agent for

service: Hercules, Inc. c/o Ellen

Kensler, P. O. Box 631, Wilmington,

Delaware 19899. Defendant Hercules, Inc.

does business in Texas.

F. Thompson-Hayward Chemical

Company, a/k/a Thompson Chemicals

Corporation has one of its principal

places of business out of state but is

authorized to do business in Texas and

may be served with process by serving its

registered agent for service as follows:

C. T. Corporation

1620 Elm St.

Dallas, Texas 75201

Said Defendant, Thompson-Hayward Chemical

Company, a/k/a Thompson Chemicals

Corporation does business in Texas.

A105

G. T.H. Agriculture & Nutrition

Company, Inc., has no office and no agent

for service in Texas so far as we know,

but is doing business in the State of

Texas, and may be served with process

through the Long-Arm Statute, Chapter 17

of the Civil Practices and Remedies Code,

by having the Secretary of State mail

citation, Certified Mail, Return Receipt

Requested, to its home office address as

follows:

T.H. Agriculture & Nutrition

Company, Inc.

100 E. 42nd

New York, New York 10174

Bie

This suit involves serious injuries

to the Plaintiffs arising out of the

service of RONALD L. HARTMAN during the

Vietnam conflict. RONALD L. HARTMAN was

a member of the United States Air Force,

rank E-4, Sergeant, while he served in

A106

Vietnam between December, 1967 and

December, 1968. Starting about 1963 and

throughout the Vietnam conflict, and at

least to and through 1971, the United

States Armed Forces purchased from the

seven Defendants in this case, namely

DIAMOND SHAMROCK CHEMICALS COMPANY, THE

DOW CHEMICAL COMPANY, MONSANTO COMPANY,

UNIROYAL, INC., HERCULES, INC., THOMPSON

CHEMICALS CORPORATION, and T.H.

AGRICULTURE & NUTRITION COMPANY, INC.,

(hereinafter referred to as "Defendant

CHEMICAL COMPANIES"), chemical herbicides

for the primary purpose of destroying the

jungle which was being used by the Viet

Cong as cover for ambushing American

troops. In addition, the herbicide was

purchased and used for destroying the

food crops of the enemy in possible

violation of the Geneva Convention on the

A107

use of poisons. In any event, the

primary herbicide used was a herbicide

known as “Agent Orange", which was an

approximate 50-50 mixture of 2,4-D and

2,4,5-T. Tragically, such herbicide

contained, as a by-product of the

manufacturing process, one of the most

toxic chemicals known to man, a compound

commonly referred to as TCDO or “dioxin".

iit.

This suit is brought solely under

State law. Plaintiffs are suing under

state common law, state products law,

State Deceptive Trade Practices Act,

State actual damages and state punitive

damages. Plaintiffs do not assert any

rights or seek recovery under any federal

law.

IV.

RONALD L. HARTMAN and other

A108

servicemen and women were, during their

service in Vietnam, repeatedly exposed to

the Agent Orange. It was not only used

in combat areas but it was Sprayed and

disposed of in such a manner that it got

into the air, water systems and

waterways, the soil, food crops and

vegetation and its residual cans were

used to store gasoline sO that

automobiles and other vehicles traveling

in Vietnam gave off exhaust fumes

containing Agent Orange. RONALD lL.

HARTMAN and other American servicemen and

women absorbed the deadly chemical

through the air, through the skin and by

ingesting same through water and food.

V.

The Agent Orange to which the

Plaintiff RONALD L. HARTMAN was exposed

was defectively designed, formulated,

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iene

manufactured and marketed by the

Defendant CHEMICAL COMPANIES. As

designed, formulated, manufactured and

marketed, such product was unreasonably

dangerous and not fit for the purposes

intended. Plaintiffs invoke Sections

402(a) and 402(b) of the Restatement of

Torts and assert that the product in

question was defective and unreasonably

dangerous pursuant to such sections.

Moreover, the Defendant CHEMICAL

COMPANIES breached the express and/or

implied warranties running with the

fitness of such product, particularly

with respect to the design, formulation,

manufacturing and marketing of said

product. Plaintiffs hereby adopt the

doctrine of strict products liability.

Plaintiffs would show that the defective

and unreasonably dangerous nature of said

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products, and the breaches of warranties

with respect to the sale of said

products, were a producing and/or

proximate cause of the damages

hereinafter asserted.

VI.

Plaintiffs would further show that

the Defendant CHEMICAL COMPANIES violated

the provisions of Section 2.725 of the

Texas Business and Commerce Code

Annotated (Vernon 1968) by reason of the

breaches of warranty and merchantability

with regard to the design, formulation,

manufacture and sale of said Agent

Orange. The violation of such statute

was also a producing and/or proximate

cause of the damages and injuries

hereinafter asserted.

VII.

In addition, your Plaintiffs would

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show that the Defendant CHEMICAL

COMPANIES were guilty of negligence, as

that term is defined in state law, in the

manner in which they designed,

formulated, tested, manufactured and

marketed the Agent Orange in question.

Among other acts of negligence, the

Defendant CHEMICAL COMPANIES were

negligent in failing to properly test the

Agent Orange for its long term effects

before placing such chemical agent upon

the market; in formulating and designing

& product which contained a highly toxic

by-product such as dioxin; in failing to

correct the manufacturing process so as

to be able to manufacture a suitable

herbicide without having the by-product

dioxin in it; in negligently

manufacturing Agent Orange so as to

create the deadly by-product dioxin; in

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marketing such product in such a manner

as to fail to warn the known users of

said product namely those who bravely

fought for our country in Vietnam, of the

dangers and hazards incident to exposure

to said product; in failing to adequately

warn the United States Government of all

the hazards and dangers of said product;

in failing to medically monitor those who

were exposed to said product and to

adequately warn the Plaintiffs of the

medical dangers after exposure; in

failing to warn about, and suggest the

use of, prophylactic and other protective

gear by those who were exposed to said

product in Vietnam; in failing to warn

and seek to bring about the spraying,

dispersal and use of said product in such

a manner as to render it as safe as

possible for those who might be exposed

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_

to it and to reduce the direct exposure

of the American service persons to such

products; in failing to use alternative

herbicides that did not contain the toxic

qualities that Agent Orange contained;

and said Defendant CHEMICAL COMPANIES

were negligent in many other respects

with respect to the design, formulation,

manufacturing, marketing, testing and use

of Agent Orange in Vietnan. All the

foregoing acts of negligence, both those

specifically alleged and any others that

may have been committed, were a proximate

cause of the injuries and damages

hereinafter alleged.

Vans

As @ proximate and producing result

of being exposed to Agent Orange in

Vietnam, the Plaintiff RONALD L. HARTMAN

carried in his body substantial and

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Significant quantities of dioxin and

other toxic chemicals found in Agent

Orange, particularly in his fatty

tissues. These deadly compounds have

wreaked tragic havoc upon RONALD L.

HARTMAN and his family. In the latter

part of March of 1988, the Plaintiff

RONALD L. HARTMAN was diagnosed as having

non-hodgkin’s disease lymphoma, a deadly

cancer known to be caused by exposure to

dioxin and other chemicals in the Agent

Orange. In connection with the disease

of lymphoma, Plaintiffs would show that a

recent study by the Veterans

Administration establishes that Vietnam

Veterans exposed to Agent Orange have a

110% higher incidence of lymphoma than

the non-exposed population. The

diagnosis of the lymphoma disease then

caused the Plaintiffs, in the exercise of

A115

reasonable diligence, to discover in the

latter part of March of 1988, that the

birth defects in their two children,

JEFFERY ALAN HARTMAN and ANGELA MARIE

HARTMAN, had been caused by RONALD L.

HARTMAN’s exposure to Agent Orange in

Vietnam. The Plaintiff KATHERINA H.

HARTMAN, the wife of RONALD L. HARTMAN

has been caused to suffer and Sustain, as

a result of her husband’s disabilities

and the tragic effects upon her children,

mental anguish, loss of consortium and

other damages. All of the foregoing

maladies have caused the Plaintiffs,

RONALD L. HARTMAN, KATHERINA H. HARTMAN,

JEFFERY ALAN HARTMAN and ANGELA MARIE

HARTMAN, to suffer and sustain extreme

mental anguish, physical pain,

disability, disfigurement, loss of

earnings, loss of earning capacity in the

A116

future, to incur medical expenses in the

past and in the future, to incur medical

expenses in the past and in the future

and to suffer other actual damages both

now and in the future. These damages are

substantial and, suffice it to say, they

far exceed the minimum jurisdiction of

this Court and amount to no less than

Fifteen Million ($15,000,000.00) Dollars

for the named Plaintiffs. However, your

Plaintiffs hereby sue for whatever emount

the jury and this Court may determine to

be the reasonable actual damages, which

were the proximate and producing result

of the defective Agent Orange product and

the negligence of the Defendant CHEMICAL

COMPANIES, all as alleged above.

IX.

In addition, your Plaintiffs are

entitled to penalty damages under the

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a

(at

Texas Deceptive Trade Practices Act,

Sect. 17.41 of the Texas Business and

Commerce Code. The Defendant CHEMICAL

COMPANIES made express and _ implied

representations, warranties and

assurances concerning the health and

safety of those exposed to Agent Orange.

The Defendant CHEMICAL COMPANIES breached

these warranties and other

representations and, in effect, made

deceptive representations to the United

States Government and the servicemen

exposed to Agent Orange in Vietnam

concerning the safety and quality of the

product in question. Those misleading

and deceptive representations constituted

deceptive trade practices as that term is

defined in the Texas Deceptive Trade

Practices Act and the perpetration of

such deceptive trade practices upon the

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United States Government and the Vietnam

Veterans and their families proximately

caused and produced serious and permanent

injuries to the Plaintiffs herein. By

reason of the violation of the Texas

Deceptive Trade Practices Act your

Plaintiffs are entitled to treble and

other penalty damages, an amount of

reasonable attorneys fees, said amount

being no less than Five Hundred Thousand

($500,000.00) Dollars; costs of court;

and other penalties provided for by the

said Texas Deceptive Trade Practices Act.

Plaintiffs agree to abate these

proceedings for sufficient time as may be

necessary to satisfy the procedural

requirements of the Deceptive Trade

Practices Act.

X.

Moreover, your Plaintiffs sue for

A119

punitive and exemplary damages in this

case. There has never been a situation

in the annals of the judicial history of

this country that is more deserving of

the imposition of punitive and exemplary

damages than this case. This case

involves brave men and women who served

Our country in an unpopular war and,

despite the unpopularity of the war,

answered the call of our country to do

their duty. When the Defendant CHEMICAL

COMPANIES sold Agent Orange to the United

States Government, as the evidence will

Show, they knew that it contained a

deadly contaminant known as dioxin. They

knew that exposure to Agent Orange and

such contaminant by servicepersons would

cause them serious injuries, illnesses,

birth defects in their children and such

deadly diseases as cancer. Despite

A120

knowing this, early in the Vietnam War

the Defendant CHEMICAL COMPANIES met at

Midland, Michigan and conspired to keep

such information from the United States

Government for the expressed reasons that

they feared Congressional investigations

and that they might lose the sales of the

product to the United States Government

and thus the tremendous profits they were

making off the taxpayers. They entered

into this willful conspiracy in calloused

and complete indifference to the safety

of those people who bravely served our

country in Vietnam. Their conduct was

reckless, willful, malicious, calloused,

indifferent to the safety of human

beings, and is the kind of conduct that

deserves to be punished and punished

severely. Plaintiffs come now and sue

for the maximum amount of punitive

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damages they could possibly be awarded

under the law of this state against the

Defendant CHEMICAL COMPANIES. Moreover,

substantial exemplary damages should be

awarded in order to deter similar conduct

on the part of other chemical companies

in the future. The amount of punitive

damages should be whatever the Jury and

this Court deem appropriate, but

certainly should be no less than Fifty

Million ($50,000,000.00) Dollars for the

named Plaintiffs.

XI.

Plaintiffs hereby invoke the terms

and provisions of Rule 42 of the Texas

Rules of Civil Procedure. Plaintiffs

hereby request the Court to certify a

class action which shall be defined as

follows:

"All those Vietnam Veterans and

members of their family who either:

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(1) after May 1, 1984, maifested

symptoms of injuries, diseases or

other maladies which were at least

in part caused by the Vietnam

Veterans’ exposure to Agent Orange

in Vietnam or (2) those who, despite

the exercise of reasonable

diligence, did not discover that

injuries, diseases or other

maladies, which existed prior to May

1, 1984, had in fact been caused or

contributed to by the Vietnam

Veterans’ exposure to Agent Orange

in Vietnam. This class does not

include any injuries, diseases or

maladies which the Vietnam Veterans

or members of such veterans’

families had before May 1, 1984 and

which were, in the exercise of

ordinary diligence, discovered to

have been caused by the Vietnam

Veterans’ exposure to Agent Orange

in Vietnam before May 1, 1984.

Plaintiffs would show that all

prerequisites of Rule 42 are and have

been met; that the Plaintiffs are

sufficient, competent and acceptable for

representing the class so defined; that

the class action will protect those

servicepersons who might otherwise fall

victim to the Statute of Limitations;

A123

iii ail aiia etl

that the class action is the most

manageable way of handling the litigation

at this juncture in the history of all

the Agent Orange litigation; your

Plaintiffs now generally assert that all

elements and criteria with respect to

class action treatment of this litigation

have been satisfied and/or can be met.

The class members have suffered actual

and punitive damages in excess of the

minimum jurisdiction of the Court and the

amount thereof will be specified at an

approximate time in the future.

XII.

Your Plaintiffs would show that all

procedural requirements of all phases of

this suit, including the Deceptive Trade

Practices Act, as well as class action

allegations, have been met in full.

XIII.

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| lila i

Moreover, your Plaintiffs come now

and sue for pre-judgment interest as

provided for by the law of the State of

Texas.

XIV.

In addition, your Plaintiffs’ class,

once certified, requests the Court to

create an adequate fund, paid for by the

Defendants, to be used to medically

monitor for the next twenty years all

Vietnam Veterans who were exposed to

Agent Orange. It is requested by

Plaintiffs that this fund be created and

controlled by a Master appointed by this

Court to administer such funds; that the

Master, with the assistance of the

parties, create a protocol for the

monitoring of the Vietnam Veterans to try

to determine, at the earliest possible

date, the existence of any other

A125

Symptoms, maladies, diseases, injuries or

deaths that might have resulted from

exposure to Agent Orange and to assist in

bringing about immediate treatment of

those diseases, maladies and injuries;

and to generally use such funds to pay

the costs for such monitoring expenses.

Plaintiffs would show that the Court has

the power in equity and law to create

such a fund; that absent the creation of

such a fund the Vietnam Veterans will

have no adequate remedy at law and will

suffer irreparable harm.

WHEREFORE, PREMISES CONSIDERED, your

Plaintiffs pray for all of the actual

damages asserted above; penalty damages

as provided for under the Deceptive Trade

Practices Act; punitive and exemplary

damages; attorneys fees; pre-judgment

interest; costs of court; class action

A126

treatment; the creation of a medical

monitoring fund; and such other and

further relief to which they may show

themselves justly entitled to receive.

Respectfully submitted,

S/__KELLY L. NEWMAN

By: KELLY L. NEWMAN

Attorney-at-Law

SBOT No. 1461000

350 North Belt

Houston, Texas 77060

713/448-1173

A127

APPENDIX J

Civil Action No. H-90-1571

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF TEXAS,

HOUSTON DIVISION

RONALD L. HARTMAN and KATHERINA H.

HARTMAN and as Next Friend of JEFFERY

ALAN HARTMAN and ANGELA MARIE HARTMAN,

BOTH MINORS Individually and as

Representatives of Those Similarly

Situated Plaintiffs

i vs.

DIAMOND SHAMROCK CHEMICALS COMPANY,

a/k/a DIAMOND SHAMROCK REFINING &

MARKETING COMPANY AND a/k/a/ OCCIDENTAL

ELECTRO CHEMICAL CORPORATION and a/k/a

MAXUS ENERGY CORPORATION and a/k/a

OCCIDENTAL CHEMICAL CORPORATION; and

Pees ee ee .

&/k/a DIAMOND SHAMROCK COMPANY; and THE

DOW CHEMICAL COMPANY; MONSANTO COMPANY;

A128

UNIROYAL INC.; HERCULES INC.; THOMPSON-

HAYWARD CHEMICAL COMPANY, a/k/a THOMPSON

CHEMICALS CORPORATION; and T. H.

AGRICULTURE & NUTRITION COMPANY, INC.

Defendants

NOTICE OF REMOVAL

Defendants Diamond Shamrock

Chemicals Company (referred to in the

plaintiffs’ petition as a/k/a Diamond

Shamrock Refining & Marketing Company,

a/k/a Occidental Electro Chemical

Corporation, a/k/a Maxus Energy

Corporation, a/k/a Occidental Chemical

Corporation, a/k/a Diamond Shamrock

Company); The Dow Chemical Company;

Monsanto Company; Uniroyal Inc.; Hercules

Inc.; Thompson Chemicals Corporation;

Thompson-Hayward Chemical Company; and

T.H. Agriculture & Nutrition Company,

Inc., for their Notice of Removal allege

A129

as follows:

I.

On Or about March 12, 1990,

plaintiffs filed a petition in the

District Court of Harris County, Texas

entitled Ronald L. Hartman et al. vy.

Diamond Shamrock Chemicals Company et

al., No. 90-11853. A copy of the

petition is attached hereto as Exhibit A.

In this action, plaintiff Ronald L.

Hartman alleges that while serving in the

United States armed forces in Vietnam he

was exposed to chemical herbicides used

by the armed forces to defoliate portions

of the jungle, and that the principal

herbicide, known as Agent Orange, was

manufactured by the defendants and has

caused serious injury to plaintiff, his

family and the class of persons similarly

situated.

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—w—,, i,

II.

Plaintiffs’ petition is virtually

identical to a petition filed by the same

plaintiffs against the same defendants in

June 1988 in the District Court of

Jefferson County, Texas. A copy of

plaintiffs’ 1988 petition is attached

hereto as Exhibit B. That action was

removed to federal court and transferred

to the Eastern District of New York by

the Judicial Panel on Multidistrict

Litigation. A copy of the Judicial

Panel’s transfer order is attached hereto

as Exhibit "“C". Plaintiffs thereafter

requested that the action be dismissed

and the action was accordingly dismissed

without prejudice by the Honorable Jack

B. Weinstein, the multidistrict

transferee judge assigned to all Agent

Orange matters under M.D.L. No. 381. A

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copy of plaintiffs’ letter request for

dismissal without prejudice and Judge

Weinstein’s endorsed order thereon is

attached hereto as Exhibit "D".

III.

In June 1989, an action entitled

Shirley Ivy et al. v. Diamond Shamrock

Chemicals Co. et al. was instituted in

the District Court of Jefferson County,

Texas. That action is virtually

identical to the Hartman action. It

purports to be a class action on behalf

of those individuals whose alleged injury

due to exposure to Agent Orange

manifested itself after May 1, 1984 and

alleges the same causes of action against

the

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