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WASHINGTON - The Supreme Court kept alive hopes of cancer-stricken Vietnam veterans who want to recover damages for Agent Orange exposure, deadlocking Monday in a case that has implications for anyone who misses out on a settlement of a class-action lawsuit.
Businesses had anxiously awaited a clear-cut decision from the court on when — or how — old class-action settlements can be reopened.
Instead, justices deadlocked 4-4 on a case involving two veterans who blame Agent Orange for their cancer, but got sick too late to claim a piece of the $180 million settlement with makers of the chemical in 1984. The non-decision allows veterans to pursue lawsuits claiming they were wrongfully shut out of the settlement.
The ninth court member, Justice John Paul Stevens, did not give a reason for recusing himself, but his only son was a Vietnam veteran who apparently suffered from cancer before his death in 1996.
Tie votes are rare, though the court had another just six months ago on a major wetlands protection case. When ties occur, the ruling from the previous court that considered the case takes effect. Monday's tie left undisturbed a lower court ruling that found the veterans were not adequately represented in the Agent Orange settlement, which included no cash for people who got sick after 1994.
"A lot of veterans have been waiting for 10 years to hear this, their rights are vindicated," said Gerson Smoger of Oakland, Calif., the attorney for the two veterans.
New York attorney Andrew Frey, who represents Dow Chemical Co., said it's important for companies to have finality in class-action settlements or they may be wary about settling future cases out of court.
"It's very frustrating for the companies to lose it 4-4 and not know why they lost," said Frey, who predicts the issue will be back at the high court eventually.
Businesses also suffered a setback in another case Monday. The court overrode the Bush administration in a 9-0 ruling making it easier for people to sue their employers for discrimination.
Justices said that forklift operator Catharina Costa did not have to produce "direct evidence" of discrimination under a federal anti-discrimination law to place her type of claim before a jury. Direct evidence requires proof based on personal knowledge or observation, which can be difficult to produce.
Her employer, Caesars Palace in Las Vegas, contended it had a valid reason to fire her — discipline problems.
An employee "need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that `race, color, religion, sex, or national origin was a motivating factor for any employment practice,'" Justice Clarence Thomas wrote for the court.
Eric Schnapper, a University of Washington law school professor who represented Costa, said he hopes the defeat sends a message to the Bush administration, which wanted a stricter standard for lawsuits under the anti-discrimination law.
"Hopefully the more moderate people in the administration will take heart from this and press the government not to do this sort of thing again," he said. "This should make employers want to work harder at stopping discrimination."
Robert Stewart, spokesman for Park Place Entertainment, the parent company for Caesars, said the Supreme Court seemed to change the rules for lawsuits. "It appears that many employers accused of workplace discrimination will be considered guilty until they can prove themselves innocent," he said.
In the Agent Orange case, the court issued a brief, unsigned opinion. It ordered more consideration on the proper venue for claims of veteran Joe Isaacson, a vice principal in Irvington, N.J. Justices left undisturbed a decision allowing the lawsuit of Daniel Stephenson, a retired helicopter pilot living in Florida.
Both men claim their cancers are related to Agent Orange, used in the 1960s and 1970s to clear dense jungle foliage that provided cover for enemy forces.
Companies that made the herbicide Agent Orange thought their liability ended with the class-action settlement. Dow, Monsanto Co. and other companies tried to reach veterans with ads in local and national newspapers and magazines. They also dispute that illnesses reported by aging vets are related to the chemical.
Susan Koniak, a law professor at Boston University School, said challenges to class-actions are important to all people.
"There's almost no American who hasn't been in a class action, whether you know it or not," she said, "whether it's a computer you bought, or rental charges on your car, or an insurance policy."
She said that after-the-fact challenges should be allowed in some circumstances.
The case is Dow Chemical Co. v. Stephenson, 02-271.