818 F.

2d 179
7 Fed.R.Serv.3d 1078

In re "AGENT ORANGE" PRODUCT LIABILITY

LITIGATION MDL NO. 381.
Nos. 328, 306 and 329-331, Dockets 86-3039, 86-3042,
86-6171, 86-6173 and 86- 6174.

United States Court of Appeals,

Second Circuit.
Argued Oct. 1, 1986.
Decided April 21, 1987.

Neil R. Peterson, Philadelphia, Pa. (Greitzer and Locks, Philadelphia, Pa.,

Thomas W. Henderson, Henderson & Goldberg, Pittsburgh, Pa., of
counsel), for petitioner-appellant plaintiffs' Management Committee in
Nos. 86-3039 and 86-6173, for respondent-appellee in Nos. 86-3042 and
86-6171.
Kenneth R. Feinberg, Washington, D.C. (Kaye, Scholer, Fierman, Hays &
Handler, Washington, D.C., of counsel), as amicus curiae at the request of
the court.
Victor J. Yannacone, Jr., Patchogue, N.Y., for petitioners in No. 86-3042
and appellants in No. 86-6171.
Benton Musslewhite, Houston, Tex., for appellants in No. 86-6174.
Before VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.
WINTER, Circuit Judge:

This opinion addresses challenges by the Plaintiffs' Management Committee

("PMC") and by certain plaintiffs represented by Victor Yannacone to Chief
Judge Weinstein's adoption of a plan for the distribution of the fund established
as a result of the class settlement with the defendant chemical companies. See
In re "Agent Orange" Product Liability Litigation, 611 F.Supp. 1396
(E.D.N.Y.1985) ("Distribution Opinion "). Because no party to this litigation is

adverse to the PMC, we requested that Special Master Kenneth Feinberg

defend the district court's distribution order essentially in the role of an amicus
curiae. A detailed discussion of the development and selection of the
distribution plan appears in the first of this series of opinions, 818 F.2d 145,
familiarity with which is assumed.
2

Certain plaintiffs represented by Mr. Yannacone have also filed a petition for
writ of mandamus or prohibition to have the PMC removed as class counsel.
That issue is also addressed herein.

1. The Timeliness of the Pending Appeals

3

A party seeking to appeal a final decision of a district court in any case where,
as here, the United States is a party must file a notice of appeal within 60 days
after entry of the decision. Fed.R.App.P. 4(a)(1). The notice of appeal filed by
Mr. Yannacone is concededly untimely. That appeal is therefore dismissed.

The Special Master argues that the PMC's pending appeal is also untimely
because it was noticed on August 19, 1986, more than 60 days after the
distribution plan was adopted on May 28, 1985. However, important aspects of
the distribution plan remained to be decided as of the earlier date, including, for
example, the means of compensating veterans from Australia and New Zealand,
611 F.Supp. at 1443-45; the criteria for establishing a claimant's exposure to
Agent Orange, id. at 1417; and the entities that were to implement and
administer the individual payment program, id. at 1427. Moreover, Chief Judge
Weinstein apparently did not view the entire distribution plan as final until July
31, 1986, when he entered an order pursuant to Fed.R.Civ.P. 54(b) designed to
"constitute a final judgment upon this Court's Distribution Opinion of May 28,
1985."

We do not believe that appellants were faced with the choice of appealing from
the May 28 order or not at all. Whether that order was appealable is of great
doubt. It was not a collateral order that "did not make any step toward final
disposition of the merits of the case and will not be merged in final judgment,"
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221,
1225, 93 L.Ed. 1528 (1949). Unlike such a collateral order, the May 28 order
could be effectively reviewed as part of the final judgment. Id. See also
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57
L.Ed.2d 351 (1978); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-72, 94
S.Ct. 2140, 2149-50, 40 L.Ed.2d 732 (1974).

Even if the May 28 order was appealable under Cohen, there is still no reason

Even if the May 28 order was appealable under Cohen, there is still no reason
to bar an appeal from the July 31 order, which was clearly intended by the
district court to be final. See 15 C. Wright, A. Miller & E. Cooper, Federal
Practice & Procedure Sec. 3909, at 452 n. 38 (1976) ("There is often little
reason to deny review on appeal from a clearly final judgment on the theory ...
that an earlier order that did not terminate the entire proceeding was
nonetheless so final as to have been appealable. Doctrines designed to facilitate
intermediate appeals to avoid hardship often do not serve any corresponding
interest in protecting opposing parties and the courts against delayed appeals.").
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 70 S.Ct. 322, 94
L.Ed. 299 (1950), is a rare case in which the Supreme Court dismissed an
appeal on the ground that it should have been filed prior to the entry of final
judgment. The instant case is distinguishable from Dickinson in at least two
respects, however. First, the order that would have been appealable in
Dickinson dismissed all claims raised by the appellant. The Court thus noted
that the appellant's interests "could not possibly have been affected" by any
action that remained to be taken by the district court. Id. at 515, 70 S.Ct. at 325.
In contrast, the plaintiffs here continued to have an active interest in the
litigation after the May 28 decision. Second, the Court recognized in Dickinson
that the case had arisen before the adoption of Rule 54(b), a provision with the
"obvious purpose" of "reduc[ing] as far as possible the uncertainty and the
hazard assumed by a litigant who either does or does not appeal from a
judgment of the character we have here." Id. at 512, 70 S.Ct. at 324. The Court
therefore expressly refused to "try to lay down rules to embrace any case but
this." Id.

Accordingly, we conclude that the PMC's appeal from the district court's
distribution plan was timely filed. We therefore need not consider the PMC's
petition for a writ of mandamus, which raises the same issues.

2. General Principles
8

District courts enjoy "broad supervisory powers over the administration of

class-action settlements to allocate the proceeds among the claiming class
members ... equitably." Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir.1978). In
reviewing allocations of class settlements, therefore, we will disturb the scheme
adopted by the district court only upon a showing of an abuse of discretion.

In the present case, a relatively modest settlement fund must be allocated

equitably among a large and diverse group of claimants. There are 240,000
claimants dispersed throughout the United States, Australia, and New Zealand.
They suffer from an immense variety of ailments and have different medical
and financial needs. Having pursued a number of often inconsistent goals in this

litigation, they are as sharply divided over the distribution of the settlement
fund as they are over its adequacy. The PMC seeks what it regards as a
conventional scheme for "tort-based" recovery by individuals; Mr. Yannacone's
clients want the fund devoted largely to establishing a foundation; the district
court adopted a compensation based scheme to distribute the bulk of the fund
with the remainder to be used to establish a foundation. See P. Schuck, Agent
Orange on Trial 211-13, 220 (1986).
10

The district court was not bound to choose among only those plans offered by
class members who spoke out. Rather, it had to "exercise its independent
judgment to protect the interests of class absentees, regardless of their apparent
indifference," In re Traffic Executive Association--Eastern Railroads, 627 F.2d
631, 634 (2d Cir.1980), as well as to protect the interests of more vocal
members of the class. The district judge therefore had discretion to adopt
whatever distribution plan he determined to be in the best interests of the class
as a whole notwithstanding the objections of class counsel, see, e.g.,
Distribution Opinion, 611 F.Supp. at 1409 (criticizing distribution plan
proposed by PMC on ground that "too great a share of the fund would go to
lawyers and medical experts"); Plummer v. Chemical Bank, 668 F.2d 654, 659
(2d Cir.1982) (district courts cannot rely solely on "the arguments and
recommendations of counsel" in evaluating propriety of class settlements), or of
a large number of class members. See TBK Partners, Ltd. v. Western Union
Corp., 675 F.2d 456, 462 (2d Cir.1982) (holding in shareholders' derivative suit
that even "majority opposition ... cannot serve as an automatic bar to a
settlement that a district judge after weighing all the strengths and weaknesses
of a case and the risks of litigation, determines to be manifestly reasonable").
See also Cotton v. Hinton, 559 F.2d 1326 (5th Cir.1977) (approving settlement
over objections of counsel purporting to represent almost 50 percent of class);
Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.) (approving
settlement over objections of almost 20 percent of class), cert. denied, 419 U.S.
900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974).

3. Choice of Law
11

In adopting a distribution plan that departed from traditional tort principles by

not requiring "a particularized showing of individual causation and injuries,"
611 F.Supp. at 1402, the district court held that such a plan would be consistent
with "the consensus of state law," id. at 1403, that figured in its certification of
a class action. In re "Agent Orange" Product Liability Litigation, 100 F.R.D.
718 (E.D.N.Y.1983).

12

In the mandamus proceeding, we expressed "considerable skepticism" as to

whether such a consensus would emerge among the states with respect to the
legal rules applicable to the plaintiffs' claims. In re Diamond Shamrock
Chemicals Co., 725 F.2d 858, 861 (2d Cir.), cert. denied, 465 U.S. 1067, 104
S.Ct. 1417, 79 L.Ed.2d 743 (1984). In the first of this series of opinions we
have stated that the district court's conclusion as to the national consensus was
to be praised more for its analysis than for its utility as a predictor of what
various courts would do.
13

However, our disagreement with use of the national consensus in certifying a

class does not foreclose its use as a method of establishing criteria for
distributing a class settlement fund. As another Court of Appeals has observed
in the class action context, "the allocation of an inadequate fund among
competing complainants is a traditional equitable function, using 'equity' to
denote not a particular type of remedy, procedure, or jurisdiction but a mode of
judgment based on broad ethical principles rather than narrow rules." CurtissWright Corp. v. Helfand, 687 F.2d 171, 174 (7th Cir.1982) (citation omitted)
(citing Zients v. La Morte, 459 F.2d 628, 630 (2d Cir.1972)). Use of a single
national standard, regardless of what law various courts might have chosen in
Agent Orange cases, is a permissible method of disbursing the fund. An
individual claimant state-by-state approach would seriously deplete the portion
of the fund going directly to veterans by diverting a substantial amount to
lawyers and to the adjudicators necessary to implement the PMC's complex
scheme. The diversion might be so great as to reduce benefits for all claimants,
including those who would be subject to the most favorable state laws. We thus
agree with the approach of the district court on this question, although on a
different rationale.

4. Payments for Death or Disability of Exposed Veterans

14
15

The PMC contends that the district court abused its discretion in compensating
individual disabled veterans and families of deceased veterans without
requiring "a particularized showing of individual causation and injuries." 611
F.Supp. at 1402. The PMC argues that a portion of the settlement fund will
thereby be distributed to undeserving claimants whose injuries were not caused
by Agent Orange. Even if that outcome is the case, we do not believe that it is a
grounds for altering the distribution scheme.

16

Chief Judge Weinstein did not deem necessary proof that a veteran's death or
disability resulted from exposure to Agent Orange 1 because he found the
available evidence insufficient to establish which non-traumatic injuries could
have been caused by Agent Orange and which could not. In other words, as
between exposed veterans suffering from diseases for which the PMC would

provide compensation and exposed veterans suffering from other nontraumatic

diseases, the district court concluded that the former had no stronger claim for
benefits than the latter because "causation cannot be shown for either
individual claimants or individual diseases with any appropriate degree of
probability." 611 F.Supp. at 1409.
17

Chief Judge Weinstein did not abuse his discretion in adopting a distribution
plan that reflected this conclusion. He was not obligated to adopt a plan that
conformed to a theory of the relationship between Agent Orange and certain
diseases that has little or no scientific basis. Further, he could take into account
the very substantial countervailing evidence that Agent Orange was not harmful
to any personnel in Vietnam. See In re "Agent Orange" Product Liability
Litigation, 597 F.Supp. 740, 782-95 (E.D.N.Y.1984) ("Settlement Opinion ")
(reviewing scientific data on effects of Agent Orange and concluding that "all
that can be said is that persuasive evidence of causality has not been
produced"). He could also consider the substantial difficulty of proving that any
particular plaintiff was injured by Agent Orange in making an equitable
allocation of the limited settlement fund. See Curtiss-Wright Corp., 687 F.2d at
174-75 (equitable allocation of a class action settlement fund may be
accomplished over party's objection without "resolv[ing] trial-type issues of
liability" based on district court's independent "weigh[ing of] the relative
deservedness" of claimants). Moreover, he was correct in seeking a distribution
scheme governed by criteria that are relatively easy and inexpensive to apply.

18

Furthermore, as became clear at oral argument, the PMC itself would no longer
require proof that a veteran was actually exposed to Agent Orange in order to
qualify a claimant for benefits under its distribution plan. Thus, servicepersons
who spent their entire tour of duty far away from sprayed areas could receive
payments under the PMC plan merely by developing any of the 24 medical
conditions that the PMC claims are associated with Agent Orange. In contrast,
the district court's plan would require some evidence of exposure.2 Even if the
district court's distribution plan is overbroad with regard to ailments, that fact
hardly renders it less desirable than the PMC's plan, which is clearly overbroad
with regard to exposure.

19

We further note that the distribution plan adopted by the district court does not
entirely disregard traditional tort principles of causation. For example, it
provides payments only to veterans who have become disabled from nontraumatic, non-accidental, non-self-inflicted causes and to the survivors of
veterans who have died from such causes. Consequently, a veteran who died or
became disabled as a result of an auto collision, a gunshot wound, or a narcotic
overdose, all causes clearly unrelated to Agent Orange exposure, would have no

claim to payments from the settlement fund.

20

In sum, given the inconclusive state of the scientific evidence as to what

injuries, if any, were caused by Agent Orange, the district court did not abuse
its discretion in holding that all exposed veterans who have suffered
nontraumatic death or disability have stated "colorable legal claims against
defendants ... [sufficient] to allow them to share in the settlement fund." In re
Chicken Antitrust Litigation American Poultry, 669 F.2d 228, 238 (5th
Cir.1982), quoted in Distribution Opinion, 611 F.Supp. at 1411.

21

We emphasize that the district court is free to alter the distribution plan in the
future to simplify it even more or to clarify standards as concrete issues arise.
We also ask the district court to review its procedures for establishing exposure
to Agent Orange in light of Attachments 2 and 3 to the PMC's reply brief and
recent news reports concerning the possible discovery of a biological
"fingerprint" left in veterans' blood by dioxin. See Researchers Report Finding
Telltale Sign of Agent Orange, N.Y. Times, Sept. 18, 1986, Sec. A at 28, col. 3
(late city final ed.).

5. Class Assistance Programs

22

We turn now to the district court's proposal to establish "a class assistance
foundation ... to fund projects and services that will benefit the entire class."
611 F.Supp. at 1432. The PMC contends that use of the settlement fund for
class assistance programs would contravene the decisions of this court in Eisen
v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir.1973), vacated and remanded on
other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (remedy
proposed before finding of liability in order to make class manageable; rejected
because it benefitted future odd-lot investors rather than past investors who had
suffered loss), and Van Gemert v. Boeing Co., 553 F.2d 812 (2d Cir.1977)
(rejecting proposal that would have permitted unclaimed portion of damage
award to be paid to class members who had already been made whole).

23

We do not believe that the district court was necessarily foreclosed by Eisen
and Van Gemert from using a portion of the settlement fund to provide
programs for the class as a whole. The instant case is, of course, distinguishable
from Eisen and Van Gemert in several important respects.

24

First, the class that will benefit from the district court's distribution plan is
essentially equivalent to the class that claims injury from Agent Orange. That
was not the case in either Eisen or Van Gemert. In Eisen, the proposed

recovery scheme would primarily have benefitted not the class of persons who
claimed injury from prior odd-lot transactions but instead a class of persons
who would engage in such transactions in the future. In Van Gemert, the
proposal at issue would have distributed the unclaimed portion of a damage
award to class members who had already recovered their losses in full, a group
the court characterized as a "next best class." 553 F.2d at 815. Hence, the
distribution plan adopted by Chief Judge Weinstein simply lacks the sort of
"fluidity" between the class claiming injury and the class receiving recovery
that existed in Eisen and Van Gemert.
25

Second, we were particularly concerned in Eisen that the availability of "fluid

class recovery" would have allowed plaintiffs to satisfy the manageability
requirements of Rule 23 where they otherwise could not. The damages to the
average class member in Eisen were estimated at no more than $3.90, see 479
F.2d at 1010, and, as counsel for the named plaintiff conceded, "[i]f each
[member] had to present his own personal claim for damages, the class, indeed,
would not be manageable." Id. at 1017. We foresaw that such an unwarranted
relaxation of the manageability requirements would have induced plaintiffs to
pursue "doubtful" class claims for "astronomical amounts" and thereby
"generate ... leverage and pressure on defendants to settle." Id. at 1019.
However, the instant case, unlike Eisen, was maintainable as a class action
regardless of the form of recovery available to the plaintiff class. Accordingly,
our concern in Eisen that the availability of a particular form of recovery would
vastly enlarge the number of class actions in the federal courts is not present in
the instant case.

26

Finally, the instant case, unlike Eisen and Van Gemert, arises out of a pretrial
settlement. As the Supreme Court has recognized, a district court may
"provide[ ] broader relief [in an action that is resolved before trial] than the
court could have awarded after a trial." Local Number 93, International
Association of Firefighters v. City of Cleveland, --- U.S. ----, 106 S.Ct. 3063,
3077, 92 L.Ed.2d 405 (1986). Indeed, we have previously recognized that some
"fluidity" is permissible in the distribution of settlement proceeds. See Beecher
v. Able, 575 F.2d at 1016 n. 3; West Virginia v. Chas. Pfizer & Co., Inc., 314
F.Supp. 710, 728 (S.D.N.Y.1970), aff'd, 440 F.2d 1079 (2d Cir.), cert. denied,
404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971).

27

We thus conclude that a district court may, in order to maximize "the beneficial
impact of the settlement fund on the needs of the class," 611 F.Supp. at 1431,
set aside a portion of the settlement proceeds for programs designed to assist
the class. However, we believe that the district court must in such
circumstances designate and supervise, perhaps through a special master, the

specific programs that will consume the settlement proceeds. The district court
failed to do so in the instant case. Instead, it provided that the board of directors
of a class assistance foundation would control, inter alia, "investment and
budget decisions, specific funding priorities, ... [and] the actual grant awards,"
id. at 1435, and that the court would retain only "[a] comparatively modest
supervisory role" in such decisionmaking. Id. at 1436.
28

We are unwilling for several reasons to permit the distribution of any

settlement proceeds to a largely independent foundation. First, while a district
court is permitted broad supervisory authority over the distribution of a class
settlement, see Beecher v. Able, 575 F.2d at 1016, there is no principle of law
authorizing such a broad delegation of judicial authority to private parties. We
perceive no assurance that the "self-governing and self-perpetuating" board of
directors of the class assistance foundation, or any other such body that might
be devised by the court, will possess the independent, disinterested judgment
required to allocate limited funds to benefit the class as a whole. One of the
district court's prime functions in distributing such a fund is to protect the less
vocal and less activist members of the class. The proposed foundation is not
well designed to perform that function. Moreover, given the very evident
discord among various veterans as to the use of the settlement fund, we see
great hazards in transferring that discord to a foundation having permanent
control over portions of that fund. There is a great danger that the fund would
be expended in ways that generate more controversy than benefits and would
create even more frustration among a group already frustrated enough by
perceived political and legal setbacks. However unique it may be, this is an
action for personal injuries, and we believe that only direct judicial supervision
can assure that the settlement fund is expended for appropriate purposes.

29

We acknowledge the strong sentiment among some veterans for the creation of
such a foundation. We also note, however, their great expectations for the
foundation are similar to the expectations that prompted this class action
litigation. Those latter expectations were frustrated when confronted with the
reality of legal proceedings. Great expectations underlying the foundation
proposal still exist because the concrete tasks to be undertaken by it remain
unclear, and the reality of hard and controversial choices concerning use of the
fund has not yet been confronted.

30

Moreover, we are concerned that the broad mandate given the class assistance
foundation, which must remain an arm of the court however loosely connected,
would permit settlement proceeds to be expended on activities inconsistent with
the judicial function. For example, activities to "help class member veterans
better obtain and utilize VA services" and to "increase public awareness of the

problems of the class," id. at 1440, might include political advocacy. We do not
believe that the proceeds of a court-administered settlement ought to be used
for such a purpose.
31

Finally, we are concerned that, even given the expressed intention to allow the
foundation great latitude, the district court and this court would repeatedly be
asked to intervene in foundation decisions alleged not to benefit the class. When
such claims are made, they call for greater scrutiny than is contemplated by the
district court's exercise of only a "modest supervisory role." In addition, endless
legal argument over the disbursement of the settlement fund would simply
prolong the suffering and frustrations of the class.

32

We explicitly note, however, that the district court may in the exercise of its
discretion and after consultation with veterans' groups undertake to use portions
of the fund for class assistance programs that are consistent with the nature of
the underlying action and with the judicial function. Accordingly, the district
court on remand may designate in detail such programs and provide for their
supervision. A reserve fund for as yet undefined programs may be established.
Alternatively, the court may reallocate any or all of the funds earmarked for the
class assistance foundation to augment the awards to individual class members.
The court may choose either to increase the awards to disabled veterans and the
survivors of deceased veterans or to provide awards to other class members
who have suffered less than total disability.

6. Yannacone Petition for Writ of Mandamus/Prohibition

33
34

The petition for a writ of mandamus or prohibition filed by Mr. Yannacone

seeks the removal of the PMC as lead counsel. Mr. Yannacone contends that a
"conflict of interest" exists between the PMC and the plaintiff class, as
evidenced by the differences between the distribution plan submitted by the
PMC and the plan submitted by Mr. Yannacone. He also argues that the
plaintiffs are entitled to "a reasonable opportunity to be heard through counsel
of their own choosing who can and will speak independently on their behalf."
The petition is frivolous.

35

We note that Mr. Yannacone was among the attorneys who first sought class
certification and that he served for some time as the lead counsel for the class.
Nevertheless, his present petition reveals a fundamental misunderstanding of
the nature of a class action. A plaintiff who joins in a class action, as many
plaintiffs did through Mr. Yannacone, gives up his or her right to control the
litigation in return for the economies of scale available under Fed.R.Civ.P. 23.
In the related context of a shareholders' derivative suit, we have rejected any

notion that "each individual plaintiff and lawyer must be permitted to do what
he pleases in litigation as complex as this, and can behave in total disregard of
the interest of other litigants and of the class." Farber v. Riker-Maxson Corp.,
442 F.2d 457, 459 (2d Cir.1971) (per curiam).
36

The selection of lead counsel for the plaintiff class is left to the discretion of
the district court "guided by the best interests of [the class], not the
entrepreneurial initiative of the named plaintiffs' counsel." Cullen v. New York
State Civil Service Commission, 566 F.2d 846, 849 (2d Cir.1977). "Unless
there are exceptional circumstances, ... the exercise of discretion should be left
untouched by the appellate court." Id. See also Weight Watchers of
Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 775 (2d
Cir.1972) (" 'we do not--indeed may not--issue mandamus with respect to
orders resting in the district court's discretion, save in most extraordinary
circumstances' ") (quoting Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937
(2d Cir.1968)).

37

Mr. Yannacone has failed even to suggest, much less establish, any
"exceptional circumstances" that might warrant removal of the PMC as lead
counsel. Indeed, he has suggested nothing more than a difference of opinion
between the PMC and himself with respect to the appropriate distribution of the
settlement fund. Moreover, these differences were fully aired before the district
court, which thoroughly evaluated the merits of each plan in the course of its
distribution opinion. See 611 F.Supp. at 1403-10.

38

Finally, even if we were to order the removal of the PMC as lead counsel, we
have no reason whatsoever to expect the district court to appoint Mr.
Yannacone to take its place. We have even less than no reason to expect the
district court to abandon its own distribution plan in favor of the plan proposed
by Mr. Yannacone. Accordingly, the petition is denied.

39

Affirmed in part, reversed in part, and remanded for further proceedings in

accordance with this opinion.

The court adopted the Social Security Act's definition of "disability," namely an
"inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A) (1982). The
court provided that "[a]ny veteran claimant certified as disabled by the Social

Security Administration will be considered disabled for purposes of the

payment program, unless the disability was predominantly caused by a
traumatic, accidental or self-inflicted injury." 611 F.Supp. at 1413. A claimant
who has not been found disabled by the Social Security Administration may
still qualify for payments by submitting satisfactory medical evidence to the
disbursing authority; in such cases, "the payment program will take into
account, as evidence, a Social Security determination that the veteran is not
disabled, or certifications of disability from other entities such as the Veterans
Administration or private insurers." Id
2

The plan would require a claimant to make "[s]ome substantial showing of

exposure" to Agent Orange, 611 F.Supp. at 1415, by demonstrating that he held
a job involving direct handling or application of Agent Orange," id. at 1416, or
that he "was present in a sprayed area when the spraying occurred" or in or near
such an area within some specified period thereafter. Id. at 1417. The court
would rely primarily on the HERBS tape, a computerized record of herbicide
dissemination missions in Vietnam, to determine the exposure of ground troops
to Agent Orange. However, "[b]ecause the HERBS tape does not account for
all possible exposures," veterans who could not establish exposure on the basis
of the HERBS tape would be able to present alternative evidence of exposure to
"an independent board of review." Id