VINCENT C. LOMBARDI, ET AL., PETITIONERS V. DOW CHEMICAL COMPANY,
ET AL.

   No. 87-436

   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

   Petitioners are 287 Vietnam veterans who opted out of the class
action in the Agent Orange multidistrict litigation and independently
sued various manufacturers of the herbicide "Agent Orange." The United
States was named as a third-party defendant in the action (Pet. App.
492a, 581a).  /1/ Petitioners challenge the court of appeals'
conclusion that the military contractor defense bars their claims.

   The district court granted summary judgment in favor of the
manufacturers "on the alternative dispositive grounds that no opt-out
plaintiff could prove that a particular ailment was caused by Agent
Orange * * *, that no plaintiff could prove which defendant had
manufactured the Agent Orange that allegedly caused his or her injury
* * *, and that all the claims were barred by the military contractor
defense" (Pet. App. 753a).  The court of appeals did not address
either of the first two grounds, but affirmed "on the military
contractor defense" (id. at 754a).  The court of appeals added "a
further reason for affirming the grant of summary judgment based on
the military contractor defense," that "the weight of present
scientific evidence does not establish that Agent Orange injured
personnel in Vietnam," so that the manufacturers did not breach any
"duty to inform the government of hazards" (id. at 754a-755a).

   Petitioners primarily argue (Pet. 18-23) that the Court should
refuse to recognize a military contractor defense.  If it does
recognize the defense, petitioners contend (Pet. 23-24) that the Court
should adopt the version of the defense enunciated in Shaw v. Grumman
Aerospace Corp., 778 F.2d (11th Cir. 1985), petition for cert.
pending, No. 85-1529.  The questions whether the defense should be
recognized and, if so, what its contours are were both raised in No.
86-492, Boyle v. United Technologies Corp. (argued Oct. 13, 1987).  It
is plain that this case should be held for disposition in light of the
Court's decision in Boyle.  /2/

   The petition for a writ of certiorari should be held pending the
Court's decision in No. 86-492, Boyle v. United Technologies Corp.
(argued Oct. 13, 1987), and then disposed of as appropriate.

   Respectfully submitted,

   DONALD B. AYER

      Acting Solicitor General /3/

   DECEMBER 1987

   /1/ The petitioners in Nos. 87-436, 87-437, and 87-438 filed a
single appendix.

   /2/ Petitioners also contend (Pet. 25-29) that the court of appeals
erred in affirming the grant of summary judgment without specifically
discussing whether the defendants had met their burden of production
and without, in petitioners' view, adequately examining the evidence
in the record.  That portion of the petition plainly raises no
question warranting review by this court.

   /3/ The Solicitor General is disqualified in this case.