Vietnam, Victims of Agent Orange v. Dow Chemical

• Decision Date: 22 February 2008
• Docket Number: Docket No. 05-1953-cv.
• Citation: 517 F.3d 104
• Court: U.S. Court of Appeals — Second Circuit
• Parties: VIETNAM ASSOCIATION FOR VICTIMS OF AGENT ORANGE, Phan Thi Phi Phi, Nguyen Van Quy, Individually and as parent and natural guardian of Nguyen Quang Trung, Thuy Nguyen Thi Nga, His children, Duong Quynh Hoa, Individually and as administratrix of the estate of her deceased child, Huynh Trung Son, On behalf of themselves and others similarly situated, Nguyen Thang Loi, Tong Thi Tu, Nguyen Long Van, Nguyen Thi Thoi, Nguyen Minh Chau, Nguyen Thi Nham, Le Thi Vinh, Nguyen Thi Hoa, Individually and as parent and natural guardian of Vo Thanh Tuan Anh, her child, Vo Thanh Hai, Nguyen Thi, Thu, Individually and as parent, and natural guardian of Nguyen Son Linh and Nguyen Son Tra, Her children, Dang Thi. Hong Nhut, Nguyen Dinh Thanh, Nguyen Muoi, Ho Thi Le, Individually and as administratrix of the estate of her deceased husband Ho Xuan Bat, Ho Kan Hai, Individually and as parent and natural guardian of Nguyen Van Iloang, her child, and Vu Thi Loan, Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY, Monsanto Company, Monsanto Chemical Co., Hercules, Inc., Occidental Chemical Corporation, Thompson Hayward Chemical Co., Harcros Chemicals, Inc., Uniroyal Chemical Co, Inc., Uniroyal, Inc., Uniroyal Chemical Holding Company, Uniroyal Chemical Acquisition Corporation, C.D.U. Holding, Inc., Diamond Shamrock Agricultural Chemicals, Inc., Diamond Shamrock Chemical Company, also known as Diamond Shamrock Refining & Marketing Co., also known as Occidental Electra Chemical Corp., also known as Maxus Energy Corp., also known as Occidental Chemical Corp., also known as Diamond Shamrock, Diamond Shamrock' Chemical, also known as Diamond Shamrock Refining & Marketing Co., also known as Occidental Electro Chemical Corp., also known as Maxus Energy Corp., also known as Occidental Chemical Corp., also known as Diamond Shamrock, Diamond Shamrock Refining and Marketing Company, Occidental Electrochemicals Corporation, Hooker Chemical Corporation, Hooker Chemical Far East Corporation, Hooker Chemicals & Plastics Corp., Chemical Land Holdings, Inc., T-H Agriculture & Nutrition Co., Thompson Chemical Corporation, also known as Thompson Chemical Corp., Riverdale Chemical Company, Defendants-Appellees, Pharmacia Corp., formerly known as Monsanto Co., Ultramar Diamond Shamrock Corporation, Maxus Energy Corp., Diamond Alkali Company, Ansul Incorporated, American Home Products Corporation, formerly known as American Home Products, Wyeth, Inc., Hoffman-Taff Chemicals, Inc., Elementis Chemicals, Inc., United States Rubber Company, Inc., Syntex Agribusiness, Inc., ABC Chemical Companies 1-50, Syntex Laboratories, Inc., Valero Energy Corporation, doing business as Valero Marketing And Supply Company, Defendants.

517 F.3d 104

VIETNAM ASSOCIATION FOR VICTIMS OF AGENT ORANGE, Phan Thi Phi Phi, Nguyen Van Quy, Individually and as parent and natural guardian of Nguyen Quang Trung, Thuy Nguyen Thi Nga, His children, Duong Quynh Hoa, Individually and as administratrix of the estate of her deceased child, Huynh Trung Son, On behalf of themselves and others similarly situated, Nguyen Thang Loi, Tong Thi Tu, Nguyen Long Van, Nguyen Thi Thoi, Nguyen Minh Chau, Nguyen Thi Nham, Le Thi Vinh, Nguyen Thi Hoa, Individually and as parent and natural guardian of Vo Thanh Tuan Anh, her child, Vo Thanh Hai, Nguyen Thi, Thu, Individually and as parent, and natural guardian of Nguyen Son Linh and Nguyen Son Tra, Her children, Dang Thi. Hong Nhut, Nguyen Dinh Thanh, Nguyen Muoi, Ho Thi Le, Individually and as administratrix of the estate of her deceased husband Ho Xuan Bat, Ho Kan Hai, Individually and as parent and natural guardian of Nguyen Van Iloang, her child, and Vu Thi Loan, Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY, Monsanto Company, Monsanto Chemical Co., Hercules, Inc., Occidental Chemical Corporation, Thompson Hayward Chemical Co., Harcros Chemicals, Inc., Uniroyal Chemical Co, Inc., Uniroyal, Inc., Uniroyal Chemical Holding Company, Uniroyal Chemical Acquisition Corporation, C.D.U. Holding, Inc., Diamond Shamrock Agricultural Chemicals, Inc., Diamond Shamrock Chemical Company, also known as Diamond Shamrock Refining & Marketing Co., also known as Occidental Electra Chemical Corp., also known

as Maxus Energy Corp., also known as Occidental Chemical Corp., also known as Diamond Shamrock, Diamond Shamrock' Chemical, also known as Diamond Shamrock Refining & Marketing Co., also known as Occidental Electro Chemical Corp., also known as Maxus Energy Corp., also known as Occidental Chemical Corp., also known as Diamond Shamrock, Diamond Shamrock Refining and Marketing Company, Occidental Electrochemicals Corporation, Hooker Chemical Corporation, Hooker Chemical Far East Corporation, Hooker Chemicals & Plastics Corp., Chemical Land Holdings, Inc., T-H Agriculture & Nutrition Co., Thompson Chemical Corporation, also known as Thompson Chemical Corp., Riverdale Chemical Company, Defendants-Appellees,

Pharmacia Corp., formerly known as Monsanto Co., Ultramar Diamond Shamrock Corporation, Maxus Energy Corp., Diamond Alkali Company, Ansul Incorporated, American Home Products Corporation, formerly known as American Home Products, Wyeth, Inc., Hoffman-Taff Chemicals, Inc., Elementis Chemicals, Inc., United States Rubber Company, Inc., Syntex Agribusiness, Inc., ABC Chemical Companies 1-50, Syntex Laboratories, Inc., Valero Energy Corporation, doing business as Valero Marketing And Supply Company, Defendants.

Docket No. 05-1953-cv.

United States Court of Appeals, Second Circuit.

Argued: June 18, 2007.

Decided: February 22, 2008.

Jonathan C. Moore, Moore & Goodman LLP, New York, N.Y. (William H. Goodman and David Milton, Moore & Goodman LLP, New York, NY, Constantine P. Kokkoris, Esq., New York, NY, Frank Davis and Johnny Norris, Davis & Norris LLP,

Birmingham, AL, Robert Roden, Shelby Roden LLC, Birmingham, AL, Jonathan Cartee and R. Stan Morris, Cartee & Morris LLC, Birmingham, AL, and Kathleen Melez, Esq., Los Angeles, CA, on the brief), for Plaintiffs-Appellants.

Seth P. Waxman, Wilmer Cutler Pickering Hale & Dorr. LLP, Washington, DC (Paul R.Q. Wolfson and Leondra R. Kruger, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Joseph R. Guerra and Maria T. DiGiulian, Sidley Austin LLP, Washington, DC, Richard P. Bress and Matthew K. Roskoski, Latham & Watkins LLP, Washington, DC, James E. Tyrrell Jr., Latham & Watkins, Newark, NJ, and John C. Sabetta and Andrew T. Hahn, Seyfarth Shaw LLP, New York, NY, on the brief), for Defendants-Appellees Monsanto Co., Monsanto Chemical Co., and Pharmacia Corp.

Andrew L. Frey, Charles A. Rothfeld, and Lauren R. Goldman, Mayer Brown Rowe & Maw LLP, New York, NY, James L. Stengel, Laurie Strauch Weiss, and Adam Zimmerman, Orrick, Herrington & Sutcliffe LLP, New York, NY, and Steve Brock and James V. Aiosa, Rivkin Radler LLP, Uniondale, NY, for Defendant-Appellant Dow Chemical Co.

William A. Krohley and William C. Heck, Kelley Drye & Warren LLP, New York, NY, for Defendant-Appellee Hercules, Inc.

Michael M. Gordon, McKee Nelson, New York, NY, for Defendants-Appellants Occidental Chemical Corp., as successor to Diamond Shamrock Chemicals Co.; Maxus Energy Corp.; Tierra Solutions, Inc., f/k/a Chemical Land Holdings, Inc.; and Valero Energy Corp., as successor to Ultramar Diamond Shamrock Corp. Lawrence D'Aloise, Clark, Gagliardi & Miller, White Plains, NY; for Defendants-Appellants Harems Chemicals, Inc., T-H Agriculture & Nutrition Co., Thompson Chemical Corp., and Thompson Hayward Chemical Co.

Myron Kalish, New York, NY, for Defendants-Appellees C.D.U. Holding, Inc., Uniroyal Chemical Acquisition, Uniroyal Chemical Co., Inc., Uniroyal Chemical Holding Co., and Uniroyal, Inc.

Anne E. Cohen and Anthea E. Roberts, Debevoise & Plimpton LLP, New York, NY, for Defendants-Appellees Hooker Chemical Entities.

Steven H. Hoeft, McDermott Will & Emery LLP, Chicago, IL, and Chryssa V. Valletta, McDermott Will & Emery LLP, New York, NY, for Defendant-Appellant Riverdale Chemical Co.

Jeffrey Sedgwick, Acting Assistant Attorney General, Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, Mark B. Stern, Sharon Swingle, Attorneys, Appellate Staff Civil Division, U.S. Department of Justice, John B. Bellinger III, Legal Advisor, Department of State, Daniel J. Dell'Orto, Principal Deputy General Counsel, Department of Defense, for Amicus Curiae the United States of America.

Paul R. Friedman, John Townsend Rich, William F. Sheehan, Goodwin Procter LLP, Washington, DC, Robin S. Conrad, Amax D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC, for Amicus, Curiae the Chamber of Commerce of the United States of America.

Daniel J. Popeo, Paul D. Kamenar, David Price, Washington Legal Foundation, Washington, DC, for Amicus Curiae Washington Legal Foundation.

Before: MINER, SACK, and HALL, Circuit Judges.

MINER, Circuit Judge:

This appeal challenges the District Court's dismissal of an action brought by a purported class of Vietnamese nationals ("Plaintiffs") on behalf of themselves and all others similarly situated for injuries allegedly sustained by their exposure to Agent Orange and other herbicides manufactured by defendants-appellees United States companies (collectively, "Defendants") and deployed by the United States military during the Vietnam War. Plaintiffs brought this action seeking relief under the Alien Tort Statute, 28 U.S.C. § 1350, which grants the district courts jurisdiction over any civil action by an alien claiming damages for a tort committed in violation of international law or a treaty of the United States. In their Complaint, Plaintiffs alleged that the United States government violated international law by spraying toxic herbicides in areas of South Vietnam from 1962 to 1970 and that Defendants either aided and abetted the government's violations by supplying it with Agent Orange or that they were directly liable in their corporate capacities. Plaintiffs also asserted claims grounded in' domestic tort law. In connection with their alleged injuries, Plaintiffs sought money damages as well as injunctive relief in the form of environmental abatement, clean-up, and disgorgement of profits.

Defendants moved to dismiss the Complaint for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In their motion, Defendants contended that the Complaint failed to state a claim under the Alien Tort Statute because it did not allege a violation of any well-defined and universally-accepted rule of international law as required by Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004): Defendants also argued that Plaintiffs lacked standing to bring suit, that their claims under the Alien Tort Statute were nonjusticiable under the political question doctrine, and that all of their claims were barred by the government-contractor defense. In addition, Defendants moved for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 to dismiss all claims as barred by the applicable statute of limitations. In the course of the proceedings below, the United States government submitted a Statement of Interest supporting Defendants' position with respect to the issues of international law and on the questions of justiciability and the government-contractor defense.

The District Court made several rulings that were favorable to Plaintiffs, but it ultimately determined that Plaintiffs had failed to allege a violation of international law because Agent Orange was used to protect United States troops against ambush and not as a weapon of war against human populations. The District Court also determined that Plaintiffs' domestic tort law claims were barred by the government-contractor defense, which the court previously had found to bar similar claims brought by United States veterans against some of the same defendants named as defendants-appellees in the companion appeal decided herewith. Accordingly, the court denied Plaintiffs' claims for relief under both international and domestic law and granted Defendants' motion dismissing the Complaint. Because we agree with the conclusions reached by the District Court in this case, we affirm the judgment for the reasons set forth in this Opinion.

BACKGROUND

I. United States Authorization of Herbicide Use in Vietnam

Early in the Vietnam conflict, the United States government began exploring the possibility of using herbicides to deprive enemy forces infiltrating South Vietnam of the benefit of vegetation that provided them with cover and sustenance. In late 1961, the United States Department of State and the ...