# Petition for Writ of Certiorari — Hartman v. Diamond Shamrock Chemicals Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1706%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1140 ## Text 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 ‘ a7 rT >| -) Ty r ern? lé ree were 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1706%3A1. Public record. Not legal advice.