CLARA FRATICELLI, ET AL., PETITIONERS V. DOW CHEMICAL COMPANY, ET
AL.

   No. 87-438

   In The Supreme Court Of The United States

   October Term, 1987

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Memorandum For The United States In Opposition

   In addition to raising several issues that only indirectly bear on
the potential liability of the United States, /1/ petitioners contend
(Pet. i, Question III) that the court of appeals erred in holding that
their claims against the federal government are barred by the
discretionary function exception to the Federal Tort Claims Act, 28
U.S.C. 2680(a).

   1. William Fraticelli, James Oshita, and Masao Takatsuki were
civilians employed by the University of Hawaii.  They contend that in
1966 and 1967 they were exposed to the herbicide "Agent Orange," which
was used as a defoliant in Vietnam, while it was being tested by the
University's Experimental Station for Tropical Agriculture pursuant to
a contract with the Defense Department.  Fraticelli died of cancer in
1981 and Oshita and Takatsuki have been treated for cancer, allegedly
resulting from their exposure to Agent Orange.  Pet. App. 622a-623a.
/2/ Petitioners complained that the United States failed to warn its
contractor of the dangers of Agent Orange and to instruct it
concerning how it should be handled.  C.A. App. 483-484.

   In granting summary judgment for all defendants, the district court
concluded, inter alia, that "there is no admissible evidence that
Agent Orange caused plaintiffs' illnesses" and entered summary
judgment in favor of the defendants (Pet. App. 629a).  It noted that
the record showed that Fraticelli, Oshita, and Takatsuki all regularly
smoked cigarettes and drank alcohol (id. at 623a), /3/ and that "(i)n
none of the extensive records of treating physicians and hospitals
supplied by plaintiffs' counsel could the court find any reference to
Agent Orange" (id. at 624a).

   The court of appeals affirmed the dismissal of petitioners' claims
against the United States on the basis of the discretionary function
exception, /4/ although that issue had not been addressed by the
district court.  /5/ The court stated:  "It cannot be seriously
contended that the decision to use Agent Orange as a defoliant was
anything but a discretionary act.  In pursuance of this decision, the
Government entered into a contract with the University of Hawaii to
perform field tests with the herbicide.  Plaintiffs, who claim to have
been injured during the course of those field tests, cannot remove
them from the category of discretionary functions by vague and
irrelevant allegations of negligent labeling, shipping, handling,
etc." Pet. App. 774a.

   2. The decision below is correct and does not conflict with any
decision of this Court or another court of appeals.  Accordingly,
review by this Court is not warranted.

   As the court of appeals concluded, the decision to use Agent Orange
in Vietnam was plainly a policy decision of the sort covered by the
discretionary function exception.  See Dalehite v. United States, 346
U.S. 15, 37 (1953).  And, as the court of appeals concluded in one of
the companion Agent Orange cases (Aguiar v. United States, 818 F.2d
194, 200 (2d Cir. 1987)), numerous courts have held that the exception
bars claims alleging failure to warn where the exercise of discretion
was involved.  Ford v. American Motors Corp., 770 F.2d 465, 467 (5th
Cir. 1985);  Cisco v. United States, 768 F.2d 788, 789 (7th Cir.
1985);  Begay v. United States, 768 F.2d 1059, 1066 (9th Cir. 1985);
Shuman v. United States, 765 F.2d 283, 291 (1st Cir. 1985);  General
Public Utilities Corp. v. United States, 745 F.2d 239, 243, 245 (3d
Cir. 1984), cert. denied, 469 U.S. 1228 (1985);  Green v. United
States, 629 F.2d 581, 585-586 (9th Cir. 1980).  Accordingly, the court
of appeals correctly concluded that the decisions petitioners
challenge, which relate to the testing of a chemical intended for use
in combat, are decisions "of the nature and quality that Congress
intended to shield from tort liability" by the discretionary function
exception.  United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).  Moreover, as
the court of appeals stated in a companion Agent Orange case (Aguiar,
818 F.2d at 201), the "paucity of proof concerning the possible
deleterious effects of Agent Orange made the decision" concerning
warnings or instructions "even more clearly an exercise of
discretion."

   Relying on Dalehite, petitioners contend that the court of appeals
erred because, in their view, "(t)he failure to instruct, warn, or
properly package a highly toxic substance is clearly not 'a policy
judgment or decision' within the meaning of Section 2680(a)" (Pet.
22).  However, contrary to petitioners, analysis of this Court's
decision in Dalehite leads to the opposite conclusion.  The Court
there concluded that decisions relating to the bagging and labeling of
explosive fertilizer were protected by the discretionary function
exception since they had been made "under the direction of a plan
developed at a high level under a direct delegation of plan-making
authority from the apex of the Executive Department" (346 U.S. at 40).
 Here, as the court of appeals noted in a companion case, "(t)he
ultimate policy decision to use Agent Orange was made by President
Kennedy" (Aguiar, 818 F.2d at 198).  It is therefore plain that
decisions relating to how to test Agent Orange for use in Vietnam were
clearly made pursuant to a plan developed at a high level of the
Executive Department and, under Dalehite, cannot form the basis of a
tort suit against the government.

   Moreover, this case presents a stronger basis than Dalehite for
invocation of the discretionary function exception because it involves
military decisions directly affecting combat.  Agent Orange was used
"to defoliate areas in order to reduce the military advantage afforded
enemy forces by the jungle and to destroy enemy food supplies." In re
"Agent Orange" Product Liability Litigation, 818 F.2d 145, 148 (2d
Cir. 1987).  This Court has repeatedly held that courts should not
"second-guess military decisions." United States v. Shearer, 473 U.S.
52, 57 (1983);  see also Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 673 (1977).  Rather, military decisions are by
and large subject to the control of the Legislative and Executive
Branches, not the courts.  See Chappell v. Wallace, 462 U.S. 296, 301
(1983);  Gilligan v. Morgan, 413 U.S. 1, 10-11 (1973);  Orloff v.
Willoughby, 345 U.S. 83, 94 (1953).  Accordingly, it is particularly
appropriate that decisions relating to the testing of chemicals used
in fighting a foreign war should be immune from questioning by means
of tort suits under the discretionary function exception.  /6/

   Petitioners assert that review is warranted because the courts of
appeals are divided on how to apply the discretionary function
exception following this Court's decision in Varig Airlines.  However,
petitioners do not explain how the courts of appeals are in
disagreement, but instead merely cite in a footnote (Pet. 19-20 n.6)
some cases where courts have concluded that suit is barred by the
exception and other cases where courts have ruled that suit is not
barred.  Of course, the discretionary function exception does not bar
all tort claims against the government, and this Court noted in Varig
Airlines that it is not possible "to define with precision every
contour of the discretionary function exception" (467 U.S. at 813).
But decisions relating to the implementation of a program to test and
use chemicals in a foreign war are within the scope of the exception,
and petitioners cite no case where a court has permitted a comparable
claim to go forward.  /7/ Accordingly, there is no warrant for review
by this Court.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied insofar as petitioners seek review of
the dismissal of their claims against the United States.

   DONALD B. AYER

      Acting Solicitor General /8/

   DECEMBER 1987

   /1/ The claims of petitioners Fraticelli, Oshita, and Takatsuki
against the defendants other than the federal government were
dismissed as time-barred, and petitioners' arguments (Pet. 9-18)
challenging that action are not addressed here.  Likewise, we do not
discuss the contention of petitioner Hogan that his complaint (which
did not name the United States as a defendant) was improperly
dismissed under Fed. R. Civ. P. 37 as a sanction for refusing to
continue his deposition.  The United States did not participate in the
litigation of either of these issues in the courts below.

   /2/ The petitioners in Nos. 87-436, 87-437, and 87-438 filed a
single appendix.

   /3/ According to the district court, Fraticelli, who died of lung
and kidney cancer, "smoked over one pack of cigarettes per day" and
drank "2 to 3 shots of whiskey per day for many years" (Pet. App.
623a);  Oshita, who was treated for bladder cancer, in addition to
other ailments, smoked one to one-and-one-half packs of cigarettes per
day, regularly consumed alcohol at least until 1971, and had a family
history of cancer (ibid.);  Takatsuki, who was treated for mouth
cancer, "has a 60-80 pack per year history of smoking and also a
moderate alcohol intake" (ibid.).

   /4/ The court also noted that "it appears to be conceded that Mrs.
Fraticelli did not file a claim for her husband's death" as required
by 28 U.S.C. 2401(b), and that her claim is barred for that reason as
well (Pet. App. 773a).  Petitioners do not challenge that conclusion.

   /5/ Contrary to petitioners' claim (Pet. 7) that the court of
appeals "unilaterally undertook to dismiss the petitioners' claims * *
* on the basis of the 'discretionary function' exception," however,
the government had raised the argument in oral and written submissions
to the district court and in the government's brief on appeal.

   /6/ In addition to Dalehite, petitioners primarily rely (Pet. 22)
on this Court's decision in Indian Towing Co. v. United States, 350
U.S. 61 (1955).  That case is clearly inapposite.  The alleged
negligence there -- not keeping a lighthouse operational -- is simply
not comparable to decisions relating to how to conduct a war.
Moreover, the government did not allege that the discretionary
function exception barred the suit (id. at 64), so the exception was
not at issue in Indian Towing.

   /7/ Petitioners cite four cases where courts of appeals have held
that suit was not barred by the discretionary function exception.
None of those cases called into question any policy judgments relating
to the conduct of a war.  Aslakson v. United States, 790 F.2d 688, 693
(8th Cir. 1986) (failure to raise a power line over a lake);
Henderson v. United States, 784 F.2d 942, 943 (9th Cir. 1986) (injury
caused by contact with an exposed live electrical wire in a remote
area of a military base);  Collins v. United States, 783 F.2d 1225,
1230 (5th Cir. 1986) (failure to close a salt mine despite high
readings of methane gas);  Alabama Electric Cooperative, Inc. v.
United States, 769 F.2d 1523, 1525 (11th Cir. 1985) (erosion caused by
placement of dikes and jetties).

   /8/ The Solicitor General is disqualified in this case.