ORDER CERTIFYING CLASS.
This matter comes before the Court on plaintiffs’ motion for class certification. On October 26, 1987, the Court held oral argument on plaintiffs’ motion. Having carefully considered the lengthy papers and oral arguments of counsel, the Court grants plaintiffs’ motion, as explained below.
I. Introduction
This lawsuit was filed by the named plaintiffs on February 2, 1987 as a class action on behalf of Vietnam veterans. These veterans have allegedly contracted diseases due to exposure to herbicides containing dioxin. Plaintiffs contend that the Veterans’ Administration (“VA”), the Veteran’s Advisory Committee on Environmental Hazards (“Committee”) and the Scientific Council of that advisory committee (“Council”) have improperly implemented the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act of 1984, 38 U.S.C. § 354, (“Dioxin Act”). The Dioxin Act empowers the Veterans’ Administration to determine what diseases are caused by exposure to dioxin and promulgate regulations to govern dioxin-related disability claims.
Following this enactment, defendants adopted such a regulation, 38 C.F.R. § 3.311a. That regulation, published in the Federal Register on August 26, 1985, (50 Fed.Reg. 34452), (“Dioxin Regulation” or “regulation”) provides that one skin disease, chloracne, arises from exposure to Dioxin. Under the regulation, chloracne
Plaintiffs allege that in making this decision, defendants failed to adequately review the pertinent scientific studies of dioxin-related diseases, failed to impose proper guidelines for the consideration of relevant evidence, and failed to apply the correct legal standard to determine which diseases are compensable. In addition, plaintiffs contend that the regulation contradicts the weight of scientific evidence and is therefore arbitrary and capricious. Thus, plaintiffs argue that the VA must enact new guidelines and void all compensation decisions made on the basis of the Dioxin Regulation.
By this motion, plaintiffs seek to certify a class consisting of:
all current or former service members, or their next of kin (a) who are eligible to apply to, who will become eligible to apply to, or who have an existing claim pending before the Veteran’s Administration for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin or (b) who have had a claim denied by the VA for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin”,
Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification (“Motion”) at 8.
II. Discussion
Under Federal Rule of Civil Procedure 23(a), plaintiffs must satisfy all of the following requirements before a class may be satisfied: 1) numerosity—the class must be so numerous that joinder of all its members is impracticable; 2) commonality—there must be questions of law or fact common to the class; 3) typicality—the claims or defenses of the named parties must be typical of the claims or defenses of the class; and 4) adequacy—the representative parties must fairly and adequately protect the interests of the class.
In addition to these prerequisites, plaintiffs must satisfy one of the elements of Rule 23(b). Here, plaintiffs seek to certify a class under Rule 23(b)(2), which requires plaintiffs to establish that the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole”, F.R.C.P. 23(b)(2).
Before addressing each of these requirements, an initial observation is appropriate. In determining whether to certify a class, this Court must only determine whether plaintiffs have satisfied the prerequisites of Rule 23. As the United States Supreme Court stated in Eisen v. Carlisle & Jacque-lin, 417 U.S. 156, 178,
In analyzing the propriety of certifying this class, the court will first examine the Rule 23 requirements, and then will turn to defendants’ four objections to class certification, none of which neatly fit the Rule’s compartments.
A. Requirements of Rule 23(a).
1. Numerosity.
The first prong under Rule 23(a) requires that the class be sufficiently numerous that joinder of all class members is impracticable.
The numerosity requirement is easily met here, since plaintiffs seek to certify a class of all Vietnam veterans who have been exposed to dioxin and either have filed or will file a claims for benefits. Defendants do not dispute that plaintiffs have met the numerosity requirement, and this class is similar, if not identical, to the class certified in In Re Agent Orange Product Liability Litigation,
2. Commonality.
The second requirement of Rule 23 is that the class members share common questions of law and fact. The commonality requirement is satisfied “where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated”, American Finance System, Inc. v. Harlow, 65 F.R.D. 94, 107 (D.Md.1974), citing, inter alia, Harris v. Palm Springs Alpine Estates, Inc.,
Plaintiffs argue that all the class members are linked by one common question: whether the defendants properly implemented the Dioxin Act in determining that chloracne alone is service-related and therefore compensable. Defendants, on the other hand, note that some of the named plaintiffs and purported class members have never submitted a claim under the Dioxin Regulation challenged by this lawsuit. Instead, these plaintiffs applied for benefits, and were denied, prior to the enactment of the Dioxin Regulation. Thus, defendants argue, this class is not linked by the same injury.
Plaintiffs put forth two responses. First, they claim that the pre-1985 regulations have the identical effect of denying benefits to eligible claimants. Second, they argue that were the pre-1985 claimants to file a claim for benefits now, they would be denied under the challenged regulation.
Plaintiffs' “identical effect” argument does not demonstrate commonality. Plaintiffs claim that the 1985 regulation, and the procedures used to enact it, violate the Dioxin Act. Plaintiffs denied benefits prior to the regulation’s enactment lack standing to pose that legal challenge to their denial. See, e.g., Black Coalition v. Portland School District No. 1,
However, plaintiffs are correct that pre-1985 claimants share a threat of future harm with other class members. Plaintiffs allege that if any of the pre-1985 claimants seek benefits under the present Dioxin Regulation, defendants will apply the Dioxin Regulation to deny them benefits. Courts have frequently certified classes whose members share a common threat of future harm. See, e.g., Cleaver v. Wilcox,
Therefore, plaintiffs have demonstrated commonality under a theory of shared threats of future harm.
3. Typicality.
Under the third requirement of Rule 23(a), the named plaintiffs must present claims that are “typical” of those of the class. The requirement is satisfied if the “class representative[s] ... possess the same interest and suffer the same injury as the class members,” East Texas Motor Freight System, Inc. v. Rodriguez,
The Court holds that the named plaintiffs’ claims are typical of those of the class. Though some of the named plaintiffs were denied benefits prior to promulgation of the Dioxin Regulation, as noted previously, these pre-1985 plaintiffs share the threat of future harm with all other
4. Adequacy.
The fourth and final prerequisite of Rule 23(a) is that “the representative parties will fairly and adequately protect the interest of the class”. This requirement has been construed to have three components: 1) competence of plaintiffs’ counsel; 2) absence of collusion; and 3) absence of antagonistic interest between named plaintiffs and remaining class members, Eisen v. Carlisle and Jacquelin,
Defendants do not contest that plaintiffs have met the adequacy requirement. Plaintiffs are represented by experienced counsel, the record contains no evidence of collusion, and the interests of the named plaintiffs are coextensive, and not antagonistic, to the remaining class members.
Therefore, plaintiffs have met the four prerequisites of Rule 23(a).
B. Requirements of Rule 23(b).
In addition to satisfying the prerequisites of 23(a), plaintiffs must also qualify under Rule 23(b)(2). Rule 23(b)(2) requires that:
... the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Federal Rule of Civil Procedure 23(b)(2).
Plaintiffs have demonstrated that the party opposing the class, defendants, have acted on grounds applicable to the class, since defendants have denied, and will continue to deny, benefits to allegedly eligible veterans under the Dioxin Regulation.
Defendants argue, however, that injunc-tive relief on behalf of the class is not appropriate, since any relief gained by plaintiffs, such as the drafting of a new regulation, will necessarily benefit all future claimants, whether they are class members or not. Therefore, defendants argue, class certification is not “necessary” for the successful completion of this litigation.
This objection is the first of defendants’ four objections to class certification, to which the Court now turns.
1. The “Need Requirement”.
Defendants argue that the 9th Circuit has adopted a “need requirement” for certifying Rule 23(b)(2) class actions. The “requirement” arises when plaintiffs seek equitable relief, and the benefit of that relief will, as a practical matter, inevitably flow to non-class members. In these cases, class certification is often not necessary for plaintiffs to gain full relief, and some courts therefore deny certification.
Before turning directly to the facts of this case, the Court first notes that it is questionable whether the “need requirement” is good law in the 9th Circuit. Defendants cite two cases that purportedly establish such a requirement. The first, James v. Ball,
This brief discussion in James does not constitute an affirmance of this requirement. Moreover, the precedential value of James is limited not only because of the Supreme Court reversal but by later discussion of James in Zepeda v. INS,
Defendants also cite Officers for Justice v. Civil Service Commission C and C San Francisco,
Finally, there are strong policy reasons against rigidly employing a need requirement. Litigating complex claims by class actions is a favored procedure, not only because class actions efficiently resolve the disputes of numerous similarly situated individuals, but because they have other advantages. For example, the use of class actions allows a large number of plaintiffs to pool resources to hire attorneys capable of conducting complex litigation. Class actions require court approval of settlements, so that courts can ensure that the interests of a wide group of people have been protected and advanced. Class actions enable unidentified class members to enforce court orders with contempt proceedings, rather than relying on the res judicata in a subsequent lawsuit. Finally, class actions enable plaintiffs to avoid the mooting of important claims. See Murphy and Butter-foss, The “Need”Requirement: A Barrier to Class Actions under Rule 23(b)(2), 67 Georgetown Law Journal 1211, 1219 (1978-1979).
The need requirement overlooks these procedural and substantive advantages by focusing solely on the nature of the relief sought by the would-be class action plaintiffs. Given these advantages, and the fact that the necessity requirement does not appear in the text of the rule,
Even if the Court were to impose that requirement, plaintiffs have demonstrated a need for class certification. While it is true that plaintiffs seek primarily equitable relief that would equally benefit parties and non-parties, they have also asked this Court to void all prior benefit denials made under the Dioxin regulation. As plaintiffs argue, if this Court were to void these decisions, parties to the action, including unidentified class members, could reaaply and use this Court’s decision to gain back benefits beginning from the time of their initially denied application. See, e.g., the settlement agreement reached in Gott v. Walters, published in 50 Fed.Reg. 45703-45704, ¶ 3 (November 1, 1985), in which all the joined parties gained back benefits dating from their first application to the VA. In contrast, plaintiffs claim that the applicable VA regulation, 38 C.F.R. § 3.114(a), would only provide benefits for non-parties back to the date of the Court’s decision, or a newly published regulation following the issuance of the Court’s decision. 38 C.F.R. § 3.114(a) states that “when compensation ... is awarded pursuant to a liberalizing law or a liberalizing Veteran’s Administration issue, approved by the Administrator ... the effective date of such an award ... shall not be earlier than the effective date of the act or administrative issue.”
Defendants argue that this regulation does not apply. They contend that the terms “liberalizing law” or “liberalizing Veteran’s Administration issue” do not encompass a judicial order requiring the VA to modify the Dioxin regulation. While those statutory terms may not include a judicial order, if plaintiffs prevail and the
Defendants also argue that a different regulation, 38 C.F.R. § 3.105(a) is the applicable one. That section states that an “adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision”. If this regulation were applied to nonparties, the nonparties would recover full back benefits.
The Court cannot assuredly predict which regulation the VA will follow, since both seem applicable. Given this uncertainty, the Court chooses to side with caution, and holds that there is an arguable “need” for class certification here.
Plaintiff also argues that certification is necessary here to provide adequate notice of a change in regulations to previously denied applicants. Without certification, plaintiffs contend that they could win the battle to change the Dioxin regulation, and lose the war to provide benefits to wrongly denied applicants.
In response, defendants first assert that certification is premature, since even if the Court were to invalidate the existing regulation, the VA might not liberalize its standards in a new regulation. While this argument is true, it is a non-sequitor. It is fully within the Court’s power to stay the issuance of notice until after the VA has issued a new regulation, and to dispense with notice altogether if the newly issued regulation does not materially alter the present regulations.
Second, defendants argue that “only” 31,000 veterans, a small percentage of all Vietnam veterans, have applied for and been denied benefits; only these veterans would be entitled to personal notice. Though this percentage may indeed be small, the fact that 31,000 veterans would be entitled to notice further attests to the necessity of class certification, and is therefore not a valid argument against it, even if some of these veterans would receive notice through alternative means.
Finally, defendants attest that it would be burdensome to personally notify 31,000 veterans, many of whom have undoubtedly changed addresses since their date of application for benefits. However, if plaintiffs are correct that the existing regulation is illegal, defendants can hardly claim that it is unfair for them to correct their error by notifying the veterans who have been harmed by the regulation. Moreover, notice may not be as burdensome as defendants suggest. See infra at 125. Alternatively, if defendants prevail, the Court could decertify the class and dispense with notice.
For all of these reasons, the Court holds that class certification is necessary in this case. If this circuit does indeed adhere to the need requirement developed by other circuits, plaintiffs have amply demonstrated a need for certification.
2. Failure to Exhaust Administrative Remedies.
Defendants also argue that class certification should be denied, since the named plaintiffs have failed to exhaust their administrative remedies. None of the named
Before applying the exhaustion doctrine to this case, the Court notes that “[ujnless application of the doctrine of exhaustion of remedies is statutorily mandated, its application rests within the sound discretion of the trial court”, Southeast Alaska Conservation Council v. Watson,
In the absence of a statutorily mandated exhaustion requirement, courts apply a balancing test to determine whether litigants may proceed directly in federal court. The policies and factors to be weighed include:
1) Allowing an agency to exercise its own expertise, Weinberger v. Salfi,422 U.S. 749 , 765,95 S.Ct. 2457 , 2466,45 L.Ed.2d 522 (1975);
2) Ensuring an adequate record for judicial review, Id. at 765,95 S.Ct. at 2466 ;
3) Preventing deliberate flouting of agency procedure, Montgomery, supra,572 F.2d at 253 ;
4) Giving the agency an opportunity to correct its own errors, Salfi, supra,422 U.S. at 765 ,95 S.Ct. at 2466 ;
5) Determining whether the agency has finally and firmly taken a position on the issues raised in the lawsuit, Atlantic Richfield Co. v. United States Department of Energy,769 F.2d 771 , 782 (D.C.Cir.1984), Lopez v. Heckler,725 F.2d 1489 , 1500 (9th Cir.1984);
6) Determining whether the class-based claims for relief are collateral to the merits of individual claims, Bowen v. City of New York,476 U.S. 467 ,106 S.Ct. 2022 , 2031,90 L.Ed.2d 462 ;
7) Determining whether the litigants are likely to suffer irreparable harm if not granted prompt judicial review; Mathews v. Eldridge,424 U.S. 319 ,96 S.Ct. 893 ,47 L.Ed.2d 18 , Liberty Alliance of the Blind v. Califano,568 F.2d 333 , 346 (3rd Cir.1975).
1. Agency Expertise.
The exhaustion of remedies doctrine is intended in part to allow an agency to apply their expertise. As noted, plaintiffs have alleged that the VA has committed procedural errors in determining that chloracne alone is dioxin-related. While the VA obviously has great expertise in making these scientific determinations, it does not possess particular expertise in determining what procedures adhere to the statutory mandate of the Dioxin Act and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. Courts frequently review agency rules to determine whether agencies have adequately examined the full range of relevant evidence, applied the correct legal standards in making their determinations, and faithfully adhered to the notice and comment requirements of the Administrative Procedure Act. See, for example, Motor Vehicle Mfrs. Ass’n v. State Farm Mut.,
2. The Need for an Adequate Record.
The exhaustion requirement also helps ensure that the agency makes a record “which is adequate for judicial review”, Salfi,
3. Preventing Deliberate Flouting of Agency Procedure.
This factor instructs courts to consider whether the early hearing of the plaintiff’s case will encourage future litigants to bypass the agency’s own procedures, Montgomery, supra,
This policy is not implicated here. The named plaintiffs have all submitted claims to the VA, and have been denied.
4. Allowing the Agency to Correct Its Own Errors.
This factor is best considered in conjunction with another factor—whether the agency has firmly and finally made a decision on the issues raised in the lawsuit, so that a remand would be futile.
There are strong separation of power reasons to avoid unnecessary constitutional or statutory litigation by allowing an agency to correct its own errors, Salfi, supra,
In Atlantic Richfield, plaintiff ARCO sought relief from the levy of discovery
Similarly, in Bowen v. City of New York,
This case is materially distinguishable from one in which a claimant sues in district court, alleging mere deviation from the applicable regulations in his particular administrative proceeding. In the normal course, such individual errors are fully correctable upon subsequent administrative review since the claimant on appeal will alert the agency to the alleged deviation ... [In this case, however] the District Court found a systematic, unrevealed policy that was inconsistent in critically important ways with established regulations ... [Since] the policy was being adhered to by state agencies due to pressure from SSA ... exhaustion would have been futile.
While the VA’s Dioxin Regulation may not be quite as firm and final as the DOE’s decision to adjudicate oil price control violations, it is similar to the SSA policy challenged in Bowen. Like the SSA policy in Bowen, the VA itself has adopted a system-wide policy; any errors committed in adopting the policy were made by the VA itself, not an individual fact-finder. Futh-ermore, the VA has adopted its position after completing a notice and comment procedure, while the SSA in Bowen had allegedly adopted an unpublished, clandestine policy. Moreover, during the VA’s notice and comment procedure, the VA received extensive commentaries from members of congress, government agencies, private groups, and health organizations. The VA rejected many of the arguments made by the plaintiffs in this lawsuit, such as the need to establish specific standards for evaluating scientific studies, 50 Federal Register at 34452-34453, and the causal connection between herbicide exposure and diseases other than chloracne, Id. at 34455. Therefore, the VA’s position is likely to be even firmer, and less susceptible to self-correction, than the SSA’s policy in Bowen.
Thus, while it may not be literally futile to require plaintiffs to petition the VA to rescind the Dioxin Regulation, the Court finds that the likelihood of plaintiffs gaming such relief is low.
5. The extent to which class-based claims for relief are collateral to the merits of individual adjudications.
Courts are more likely to waive the exhaustion requirement when the class-based constitutional or statutory challenge to the agency action is collateral to, or independent of, the individual class member’s entitlement to benefits. In Rodrigues v. Donovan,
Similarly, in Bowen, supra, the Supreme Court waived the exhaustion requirement in part because the plaintiffs’ “claims in this lawsuit are collateral to the claims for benefits that class members had presented administratively”,
This case is similar to both Rodrigues and Bowen. Plaintiffs’ claim that the VA committed procedural and substantive errors in adopting the VA regulation is collateral to the types of issues the individual litigants would ordinarily raise before the VA, such as whether they had been exposed to dioxin and whether they suffer from a disabling disease. Though the class claims and individual claims overlap to the extent that both the class and the individuals are asserting that their diseases were caused by exposure to dioxin, the class attack on the VA’s procedural irregularities is distinct from any individual’s attack on their denial of benefits.
6. The Need for Prompt Judicial Review.
A final factor to weigh is the extent to which plaintiffs will suffer irreparable harm if required to present their claims to the administrative agency.
In Bowen, supra, the Supreme Court recognized that the plaintiffs would suffer irreparable harm if required to exhaust their administrative remedies. The Court noted that “ ‘the ordeal of having to go through the administrative appeal process may trigger a severe medical setback’ ”,
Similarly, in Liberty Alliance of the Blind v. Califano,
In this case, many of the plaintiff’s allege that they are suffering from serious disabling diseases. Therefore, though plaintiffs may not suffer quite the degree of harm as the Bowen or Liberty plaintiffs if required to present their claim to the VA, the Court holds that imposing that substantial burden upon them is not justified, especially in light of the other factors already discussed.
Accordingly, the Court rejects defendants’ exhaustion argument against class certification.
3. Ambiguity.
Defendants’ third argument against class certification is that the class is not sufficiently well-defined.
In contrast, the class members here are readily identifiable, since they will identify themselves by filing claims for benefits. Moreover, all have suffered the same kind of harm—denial of benefits due to the Dioxin Regulation or threat of such denial.
In addition, the Court notes that two different district courts have certified an almost identical class of plaintiffs. In In Re “Agent Orange”Product Liability Litigation,
The Court recognizes that Judge Wein-stein has great expertise in adjudicating the problem of Vietnam Veteran’s exposure to dioxin, See Peter H. Schuck, Agent Orange on Trial: mass toxic disasters in the courts (1986). The Court will defer to his determination that litigation by Agent Orange victims may proceed as a class action.
4. Notice.
Defendants’ finally object that it will be impossible to adequately notify all class members about this litigation. Once again, Judge Weinstein’s decision in In Re Agent Orange is instructive. To solve the problem of notifying the members of such a large class, the court ordered mailings to all persons on the VA’s “Agent Orange Registry”, broadcasts on television and radio, publication in major newspapers, and the establishment of a toll-free telephone line to provide relevant information.
Without intimating that any of these methods will be necessary at later stages of this litigation, defendants have not provided the Court with any reasons why these or similar methods of providing notice could not be adopted for this case.
Therefore, the Court rejects this objection to class certification.
CONCLUSION.
For all the foregoing reasons, plaintiffs’ motion for class certification is granted.
IT IS SO ORDERED.
Notes
. In discussing James, the Zepeda court was not reviewing a class certification motion. Instead, the court was explaining that in the absence of a certified class, a District Court may not order relief on behalf of individuals not named as plaintiffs in the lawsuit,
. Some commentators have suggested that a focus on the need for class-wide relief is implied by the word "appropriate" in Rule 23(b)(2). See 3B A Moore's Federal Practice § 23.40[3], n. 10. If so, then the need requirement is not a test to be rigidly applied, but instead should be treated as one of many factors to be considered in making class certification determinations.
. The Court also notes that plaintiffs have offered to forego certification if the VA agreed to provide full back benefits to all previously denied applicants, should plaintiffs prevail. The VA has not assented to this offer, suggesting that it would not choose to apply the more generous regulation.
. This order should not be interpreted as a ruling on which side would be required to bear the expense of notifying class members.
. Defendants cite Traynor v. Walters,
. Defendants assert that only two of the named plaintiffs have had benefit claims denied under the Dioxin regulation; plaintiffs allege that four plaintiffs have had their claims denied under the regulation. The other seven plaintiffs have had their claims denied under a pre-Dioxin regulation that is allegedly identical to the Dioxin regulation. The time for appeal for those seven plaintiffs has apparently expired, making their judgements final.
. Defendants cite Herron v. Heckler,
. In this section of defendants’ brief, defendants also argue that commonality and typicality are lacking. The Court rejects those contentions, supra at 117-118. Defendants also argue that the Vietnam Veterans of America lacks standing to pursue this litigation. However, the WA meets the requirements for associational standing established in Hunt v. Washington Apple Advertising Comm'n,