A Living Memorial to Vietnam Vets : Foundation Channels Benefits From Agent Orange Settlement

After years of trial-court delays, Vietnam War veterans and the manufacturers of Agent Orange agreed to a $180-million settlement of the class action between them. Now both the fairness of the overall settlement and the plan of distributing that fund are being challenged in federal appellate court.

While the settlement is the largest of its kind in American history, its size is dwarfed by the need. Assuming that the settlement itself is upheld, disbursing the $180 million plus interest presents profound difficulties. Of the 2.5 million veterans and family members who make up the class, nearly 10% have filed claims since the settlement. A pro-rata distribution to those claimants alone would give each less than $1,000--an unsatisfactory outcome.

The truth is that the settlement imposes on the federal courts a “Sophie’s Choice” of agonizing dimensions. To help one child with multiple birth defects would mean that hundreds of others could not be helped.

Recognizing the difficulty of such decisions, Chief Judge Jack B. Weinstein of the U.S. District Court in Brooklyn, N.Y., involved Vietnam veterans in making them. Thirty Vietnam veterans from around the country convened to help formulate the distribution plan. Veterans remain just as actively involved in implementing the plan’s payment program, which will administer the claims of individual class members, and the National Foundation for Vietnam Veterans and Their Families, which will make grants to serve the needs of the class .

As chairmen of these two distribution mechanisms, we are among hundreds of Vietnam veterans nationwide who, at the request of the trial court, have contributed substantial time without compensation in the struggle to make the best in a series of bad choices and who now stand behind those choices, knowing their limitations.

Years of further proceedings--and millions of dollars diverted to administrative costs--might enable the payment program to identify among the quarter of a million claims those with the most direct link to Agent Orange exposure, as some have suggested. We chose instead to act now by requiring claimants to show only exposure. There has been enough effort expended in this case in chasing the causation will-o’-the-wisp.

To make the awards a reasonable size, we chose to concentrate on those who have the worst problems--the totally disabled and the families of the deceased. That decision is now under challenge, but we believe that it reflects a fundamental fairness to a community that finally deserves cost-efficient and speedy attention.

It may seem like rough justice to seek only minimum indications of eligibility and to treat only the most compelling claims. But whatever principles govern the resolution of such a unique dispute, they at least require the provision of a remedy that ends controversy and helps the claimants get on with their lives.

The actuaries told us that even these tough choices (the choices that others want to pretend that they can avoid) left us with awards averaging under $10,000 each, spread over 10 long years of annual $1,000 payments.

And it left us knowing not only that we were unlikely to address effectively the needs of those who would receive payments but also that we would not even touch the lives of the remaining claimants and the millions of other Vietnam veterans and their families in the class.

So we stepped back and did something that is perhaps unusual, though not unprecedented. We conceived the foundation and gave it enough money to do a great thing--create a productive legacy out of the Vietnam War through programs whose benefits could indirectly extend to all of its veterans and the nation that they served with courage. The national foundation would symbolize in perpetuity the desire of Vietnam veterans, whose board would direct its activities, to help each other and to serve their local communities and their nation as they did once before in Vietnam.

Perhaps we overreached. Perhaps the only lives that deserve attention are those of individuals who filed lawsuits, followed the long course of litigation to the settlement and then made their claims. We think not.

For Agent Orange is more than a nickname for a defoliant. It is a metaphor of the Vietnam War that represents for many the unhappy aftermath of a period that divided Americans like nothing since the Civil War. It is the lightning rod at which are hurled the frustrations of people who were caught up at a young age in a maelstrom that the overwhelming majority weathered well but that hurt many, and left those many to heal themselves.

Consider the alternative to the foundation: a $180-million settlement plus interest, the largest sum of money that Vietnam veterans will ever see, disappears in small checks that leave no enduring contribution either in the lives of the claimants or their country.

If the Court of Appeals could triple the settlement, that would be wonderful. But if the settlement size is left untouched, we hope that the court will uphold the elements of what we think is a visionary distribution plan.

The hard-fought battle of yesterday for recognition of Vietnam veterans’ military service has been won. Our memorial in Washington will stand forever as its witness. The objective of today’s fight includes survival of the national foundation as a living memorial to give a healing voice to the spirit of service that persists in us all.