Noteboom The Law Firm

Lack Of Jurisdiction Stops Agent Orange Case From Being Heard

Cases centering around Agent Orange were already being litigated as early as 1979. In many of those cases, The Agent Orange Program Guide, which is a specific Veterans Administration (VA) publication, had been repeatedly cited as support in denying disability claims resulting from veterans being exposed to Agent Orange. In 1979, one specific suit was filed challenging that publication. Last week, the Federal Circuit's U.S. Court of Appeals dismissed that case.

The Agent Orange Program Guide was published in 1978. The original complaint claimed this guide was being used as a substantive rule, and therefore violated the Administrate Procedure Act.

According to The Agent Orange Program Guide, the only condition associated with Agent Orange exposure for which disability could be awarded was chloracne. This was used to deny many Agent Orange-related disability claims, despite evidence that the chemicals were connected to numerous physical ailments.

Veterans, however, were claiming exposure to the herbicide caused:

• cancer;
• liver dysfunction;
• neurological dysfunction;
• psychiatric problems;
• joint pain;
• muscle spasms;
• chronic fatigue; and
• genetic damage.

The Federal Circuit held the 32-year-old case could not be heard because they did not have jurisdiction in the case. The reason for the dismissal was two-fold. First, the Federal Circuit had not been created in 1979. Second, no other court was statutorily available to "review VA regulations for compliance with the Administrative Procedure Act." This petition was filed with the Federal Circuit for review because the U.S. Court of Appeals for the D.C. Circuit previously held it did not have jurisdiction over the case.