Arias v. Dyncorp

• Citation: 517 F.Supp.2d 221
• Decision Date: 21 May 2007
• Docket Number: Civil Action No. 01-1908 (RWR).
• Parties: Venancio Aguasanta ARIAS, et al., Plaintiffs, v. DYNCORP, et al., Defendants.
• Court: U.S. District Court — District of Columbia

517 F.Supp.2d 221

Venancio Aguasanta ARIAS, et al., Plaintiffs, v. DYNCORP, et al., Defendants.

Civil Action No. 01-1908 (RWR).

United States District Court, District of Columbia.

May 21, 2007.

John C. Bonifaz, Law Offices of Cristobal Bonifaz, Amherst, MA, Natacha H. Thys, Terry Collingsworth, International

Labor Rights Fund, Washington, DC, for Plaintiffs.

Eric Gordon Lasker, Iqnacia S. Moreno, Joe G. Hollingsworth, Katharine R. Latimer, Spriggs & Hollingsworth, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiffs, citizens and domiciliaries of Ecuador, brought an action under the Alien Torts Claims Act ("ATCA"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350, the common law of the United States, statutes and common law of the District of Columbia, and various international agreements and conventions, alleging physical harm and property damage stemming from defendants' contract with the U.S. government to spray pesticides in order to eradicate cocaine and heroin farms in Colombia. Defendants have moved to dismiss the action, or in the alternative, for summary judgment. Defendants have also moved to stay discovery pending the resolution of their motion to dismiss. Plaintiffs have moved to compel production of documents and answers to interrogatories. Because plaintiffs have presented a justiciable question of law under the ATCA, but have not stated a claim for violation of the TVPA, the defendants' motion to dismiss will be denied in part and granted in part and their motion to stay discovery will be denied as moot. Because the parties have yet to confer as required by Federal Rule of Civil Procedure 26, plaintiffs' motion to compel will be denied as premature.

BACKGROUND

Plaintiffs make the following factual claims. Defendants' business "consists of information technology and outsourcing professional and technical services primarily to the U.S. government." (Compl. ¶ 22; Pls.' Mem. in Opp'n to Mot. to Dismiss at 29.) Under a contract awarded on January 30, 1998, defendants provide support to the U.S. State Department's counternarcotics activities in Colombia. This contract was authorized and funded as part of "Plan Colombia," an initiative designed to interrupt the flow of illegal narcotics out of the country. Defendants' obligations include assisting in illicit drug crop eradication by spraying fumigates from airplanes onto cocaine and heroin poppy plantations in Colombia. Plaintiffs are citizens and domiciliaries of Ecuador who have no connection to the production of illegal drugs in Colombia.

In the course of defendants' fumigations, "heavy clouds of liquid spray dropped from the planes, shifted with the wind, and repeatedly fell on the home[s] and land of [p]laintiffs." (Compl. at 6.) Defendants used a fumigant that is harmful to humans, animals, and plants other than cocaine and opium poppies. While defendants claim that the U.S. government has declared that the fumigant used by defendants has a toxicity similar to that of common salt, this conclusion is based on incomplete ingestion tests carried out on laboratory animals using only one component of the fumigant, and not on inhalation toxicity tests for the entire compound that was used.

In June 2001, Dr. Adolfo Maldonado Campos conducted a comprehensive study of the health impact of the fumigants used in the region and found the fumigants to be extremely harmful to inhabitants living nearby.¹ The fumigations severely damaged the fauna and subsistence crops of the people in the fumigated area, and caused the deaths of numerous animals. The loss of crops and animals has forced local inhabitants to abandon their homes and flee the area.

Plaintiffs brought this action on behalf of themselves and all others similarly situated alleging that defendants sprayed the toxic herbicide at or near the border of Colombia and Ecuador without regard to the health impact on Ecuador's inhabitants. Plaintiffs further allege that defendants knew or acted in willful disregard of the fact that winds would carry the toxic spray to areas inhabited by plaintiffs and other members of the class. They assert claims based on violations of the ATCA, the TVPA, the common law of the United States, statutes and common law of the District of Columbia, and various international agreements and conventions.²

DISCUSSION

Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b), or in the alternative, for summary judgment pursuant to Rule 56. They allege that plaintiffs' claims would entangle the court in nonjusticiable issues regarding U.S. foreign and national security policy; plaintiffs' federal law claims that are based on alleged violations of international law fail because plaintiffs do not identify any actions that would violate international law; and plaintiffs' state common law claims are preempted by the federal government's exclusive authority over foreign policy and national security.

I. DISMISSAL

A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 55 n. 6, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). "To that end, the complaint is construed liberally in the plaintiffs' favor, and ... the plaintiffs [are granted] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

A. National security

Defendants assert that plaintiffs' claims are nonjusticiable because they are "[m]atters intimately related to foreign policy and national security [which] are rarely proper subjects for judicial intervention." Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). Defendants allege that plaintiffs' claims implicate foreign policy and national security because they would undermine U.S. national security by interfering with U.S. policies to stem the flow of illegal narcotics trafficking and to combat international terrorism, and they intrude upon U.S. foreign policy and diplomatic relations in the Andean region. (Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mot. to Dismiss") at 16.) Plaintiffs claim that they are not challenging the Plan Colombia program, but simply seek to hold defendants to the terms of Plan Colombia and the agreement with the U.S. State Department, both of which prohibit fumigation in Ecuador.

The Supreme Court has recognized " the generally accepted view that foreign policy was the province and responsibility of the Executive.'" Dep't of the Navy v. Egan, 484 U.S. 518, 529, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (quoting Haig, 453 U.S. at 293-94, 101 S.Ct. 2766). "Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." Id. at 530, 108 S.Ct. 818. However, a claim may be justiciable if it does "`not seek to litigate the political and social wisdom'" of the foreign policy decision. Bancoult v. McNamara, 445 F.3d 427, 435 (D.C.Cir.2006) (quoting DKT Mem'l Fund, Ltd. v. Agency for Ina Dev., 810 F.2d 1236, 1238 (D.C.Cir.1987) (finding implementation of an executive policy statement justiciable)).

Here, plaintiffs do not seek review of the foreign policy decisions of the executive branch because the legality of Plan Colombia is not in dispute. Further, the State Department's decisions regarding how Plan Colombia should have been implemented are not in question. Cf. Bancoult, 445 F.3d at 436-37 (refusing to review implementation of policy because it was "inextricably intertwined with the underlying strategy" of the political decision); Schneider v. Kissinger, 412 F.3d 190, 198 (D.C.Cir.2005) (refusing to review "executive's making of a policy decision and implementing that decision"). Plaintiffs' claims do not require that the court "second-guess," see Bancoult, 445 F.3d at 437, or "pass judgment" on the executive's strategic choices relating to how Plan. Colombia was implemented, see Schneider, 412 F.3d at 197, because plaintiffs allege that aerial spraying into Ecuador was not an "action[] taken in furtherance of a foreign policy objective. Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C.Cir. 2006) (refusing to review "actions taken in furtherance of foreign relations themselves"). Unlike in Gonzalez-Vera, Bancoult, and Schneider, the intended means of executing the policy in this case did not include the acts challenged here, which plaintiffs allege were specifically prohibited by the plan. Thus, adjudicating plaintiffs' claims will not "bind the executive's hands" either "directly — by restricting what may be done — or indirectly — by restricting how the executive may do it." Bancoult, 445 F.3d at 437.

B. TPVA claim

Defendants argue that plaintiffs' claims under the TVPA must be dismissed because plaintiffs fail to allege sufficient facts to support a finding of torture. The TVPA provides an explicit cause of action for U.S. citizens, as well as aliens, against lain individual who, under actual or apparent authority, or color of law, of any foreign nation," subjects an "individual to torture or extrajudicial killing. 28 U.S.C. § 1350, note, § 2; see also Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 168-69 (5th Cir. 1999). An extrajudicial killing is "a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court...." 28 U.S.C. § 1350, note, § 3(a). The TVPA defines torture as:

any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering ... whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from...