Petition for Writ of Certiorari — Vietnam Association Association for Victims of Agent Orange v. Dow Chemical Co. (No. 08-470)

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1) CT) 08-47 0 Oct 6- 2008

NQFFICE OF THE

errr)

IN THE

Supreme Court of the United States

VIETNAM ASSOCIATION FOR VICTIMS OF AGENT

ORANGE, ET AL, PETITIONERS

DOW CHEMICAL COMPANY, ET AL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JONATHAN C. MOORE

Counsel of Record

Beldock Levine

& Hoffman LLP

99 Park Avenue - 16" Floor

New York, New York 10016

(212) 358-9587

Attorneys for Petitioners

CURRY & TAYLOR @ (202) 393-4141

IT.

(TT.

QUESTIONS PRESENTED

WHETHER AT THE TIME OF THE VIETNAM

WAR THE USE OF A HERBICIDE THAT

CONTAINED AN EXCESSIVE, AVOIDABLE

AND UNNECESSARY POISON VIOLATED

CUSTOMARY INTERNATIONAL LAW?

WHETHER THE DECISION BY THE COURT

OF APPEALS IN AFFIRMING THE GRANT

OF A MOTION TO DISMISS UNDER RULE

12(B)(6) OF THE FEDERAL RULES OF CIVIL

PROCEDURE WAS SUCH A DEPARTURE

FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDINGS AS

TO CALL FOR THE EXERCISE OF THIS

COURTS SUPERVISORY POWERS TO

REVERSE THE GRANTING OF THE MOTION

TO DISMISS IN THIS CASE?

WHETHER THE COURT OF APPEALS

UNWARRANTED EXPANSION OF BOYLE

INVOLVES A QUESTION OF EXCEPTIONAL

IMPORTANCE AND SHOULD BE

REVIEWED BY THIS COURT?

PARTIES TO THE PROCEEDING

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 THITU, 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 HAT,

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 HOANG, Her child, and VU

THI LOAN,

Petitioners

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

ELECTRO 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,

Respondents

WwW

TABLE OF CONTENTS

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APPENDIX

Circurt Court Opinion (05-1958) ..cccecccecceeseesecesees iesaieeoa la

Circuit Court Opinion (05-1509)........:.00.0.0cssscosscessssoonsseess 39a

District Court Opinion (MDL 381, CV 98-6383

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District Court Order (MDL 381, CV 98-6383

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District Court Opinion (MDL No. 381, 04-CV-400) ....... 175a

COPGEY EPO GENG TEONOOTOND occcncis sxcenssssvipsconasscnessvdixinntvinsnen 497a

TABLE OF AUTHORITIES

Page

CASES

Achtman v. Kirby, McInerney & Squire, LLP, 464

FF Se Sr vr ccenteecsagipncrienvicnsisnninmnacmvacsenbnninn 20

Arkansas v. Sullivan, 5382 U.S. 769, 771 (2001)... eee eeeeeee 23

Bell Atlantic Corporation v. Twombley, U.S. _,

Ee | ED 20

Boyle v. United Technology Corporation, 487 U.S.

i le aa passim

Conley v. Gibson 385 U.S. 334 (1957)........-....cccsessesserscconcssesses 20

Festa v. Local 3 International Bhd. Of Elec. Workers,

OS FB a, hr i CN eiieisnicicniccsintenonilachcohaicha 21

Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980)..... 10, 15

Gonzales v. Thomas, _ _ U.S. __, 126 S.Ct. 1613,

Ne Oe iii ktatihsivisihicindsaicesstchanastenddpnainibeaanialtiensneiadsinidakesnaieaan 23

Horn v. Banks, 536 U.S. 266, 267 (2002).................0cc-ecsecsereess 23

In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d

Fc wi scsscseoncsieeeibicttalarabael led cane tata ]

In Re: Agent Orange , 565 F. Supp. 1263, 1268-1270 ............. 27

In Re: Agent Orange Product Liability Litigation 818

In Re: Joint Eastern and Southern District New

York Asbestos Litigation, 897 F.2d 626, (2d. Cir.

Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164

LL SET TE NI 6 aN 20

Lewis v. Babcock and Wilcox, 985 F.2d 83 (2d Cir.

Sosa v. Alvarez-Machain, 542 U.S. 692, 719-725 (2004)

sheath tilapia itaaieiabaicaiaaa tea ane ee 7, 8,18

Still v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996) 0.0.0... 20

United States v. Smith, 18 U.S. (5 Wheat.) 153, 162

¢ RRR earch Es. 10

STATUTES

28 U.S.C. Sec. 1254(1)

28 U.S.C. Sec. 1850...

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OPINIONS BELOW

The opinions of the court of appeals are reported

at 517 F.3d 104 (2™ Cir. 2008) (Appendix 1a-38a,

hereinafter cited as “_a”) and 517 F.3d 76 (2™ Cir.

2008)(89a-90a). The opinions of the district court

dismissing the international and domestic law claims of

the petitioners are reported as In re Agent Orange

Prod. Liab: Litig., 373 F. Supp. 2d 7 (B.D.N.Y.

2005)(175a - 496a); 304 F. Supp. 2d 404 (E.D.N.Y. 2004)

(9la- 69a); 344 F.Supp. 2d 873 (E.D.N.Y. 2004) (170a-

174a). The decision of the court of appeals denying

petitioners’ petition for rehearing en banc is

unreported. (497a)

JURISDICTION

The judgment of the court of appeals was

entered on February 22, 2008. A timely petition for

rehearing en banc was denied on May 7, 2008. On July

22, 2008, Justice Ginzberg extended the time within

which to file a petition for a writ of certiorari to October

6, 2008. The jurisdiction of this Court is invoked under

28 U.S.C. Sec. 1254(1).

RELEVANT PROVISIONS INVOLVED

The Alien Tort Statute, 28 U.S.C. Sec. 1350,

provides, in relevant part, that

The district courts. shall have _ original

jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of

nations or a treaty of the United States.

The Hague Convention IV Respecting the Laws

and Customs of War on Land, Annex, Article 23(a), 36

Stat. 2277, 2301,provides, in relevant part, that

“[I]t is especially forbidden - a. To employ poison

or poisoned weapons.”

STATEMENT

In Sosa v. Alvarez-Machain, 542 U.S. 692, 719-

725 (2004), this Court re-affirmed that this country is

obligated to abide by and enforce norms of customary

international law. The courts below failec to abide by

these obligations in this case. This Court has an

obligation to grant a writ of certiorari to ensure that

the millions of Vietnamese victims of Agent Orange and

other poisonous chemicals do not go uncompensated.

For over ten years during the Vietnam War the

United States Government sprayed herbicides which

contained poisons (mainly dioxin) and which continue to

adversely effect the citizens of Vietnam, as well as U.S.

veterans. The question before this court is whether

the respondents, who manufactured and supplied these

chemicals to the government knowing they contained

unnecessary and excessively high levels of dioxin, may

avoid liability for their conduct.

The petitioners are citizens of Vietnam, and an

organization which represents them, who suffer from

their exposure to dioxin that is still present today in the

water they drink, the soil they walk on and the food

they eat. The respondents knew at the time that the

products they supplied contained excessive and

unnecessary quantities of dioxin. This case seeks to

hold these respondents accountable for their actions

under both international and domestic law when they

knew they were providing a poison to the United States

government which was to be sprayed on millions of

people and over vast areas of land in South Vietnam.

The Vietnamese petitioners, reliably estimated

to include between 4 and 5 million people of Vietnam,

were poisoned. They, and their off-spring, continue to

suffer from Agent Orange related disease and birth

defects. Large areas of Vietnam remain contaminated

with excessive amounts of dioxin in the land and in the

water. The law supports petitioners. Whether this

Court has the moral courage to rule in their favor

remains to be seen.

* KK KKK KK KK KOK

In an opinion and order filed on March 28, 2005

(175a - 496a), the Honorable Jack B. Weinstein, Senior

United States District Judge for the Eastern District of

New York, dismissed petitioners’ international law

claims. In related actions, (170a - 174a, 175a - 496a), the

district court also dismissed the petitioners’ domestic

product liability claims based on the application of the

government contract defense.

Characterizing the poison’ laced agents

manufactured by respondents only as herbicides, the

district court dismissed petitioners’ Alien Tort Statute

(“ATS”) claim. The district court reached this

conclusion on Rule 12(b)(6) consideration by ignoring

the allegations in the amended complaint, as well as the

scientific evidence, that Agent Orange, as it was

constituted, contained an excessive, dangerous and

unnecessary poison whose potential for human harm

was both known to the respondents and readily

preventable.!

The district court also held, this time on Rule 56

consideration, that petitioners had failed to adduce

evidence relating to their domestic tort law claims

sufficient to survive respondents’ assertion of the

government contractor defense, despite extensive

record evidence creating genuine issues of material fact

as to the elements of that defense. The district court

further held, without the benefit of any evidence, that

injunctive relief would be inappropriate.

The court of appeals affirmed the district court’s

dismissal of the petitioners’ amended complaint. The

1 Like the court of appeals, the district court improperly

substituted its own views about the facts in this case for those set

forth by the petitioners. Its legal analysis depends upon

characterizing Agent Orange as a mere “herbicide” or “defoliant”

and not a “poison” despite the factual allegations made in

petitioners’ amended complaint, that Agent Orange, contaminated

as it was with a known deadly toxin at extraordinarily high level,

was in fact a poison harmful to human health. (231la-233a) In doing

so, the district court ignored allegations and record evidence that

the respondents knew of the uses to which their product was being

put; knew of the presence and toxicity of dioxin in Agent Orange;

knew of the dangers to human health presented by dicexin

exposure; knew of the levels of dioxin contained in Agent Orange;

and knew that those levels were completely unnecessary in view of

existing technology, but delivered the highly contaminated product

to the government anyway. Without acknowledging or

mentioning the evidence that dioxin is highly toxic even at very

low concentration levels, the district court simply concluded,

without analysis and based solely on the ratio of herbicide to dioxin

in the mixtures sprayed in Viet Nam, that Agent Orange and the

other herbicides sprayed in Viet Nam “should be characterized as

herbicides and not as poisons.” (233a)

court acknowledged that it was reviewing petitioners’

international law claims brought pursuant to the Alien

Tort Statute, 28 U.S.C. Sec. 1850, under the standards

set out pursuant to Rule 12(b)(6). Yet, both the court of

appeals and the district court reached their conclusions

by radically departing from accepted jurisprudence

when evaluating a motion to dismiss, a feat they

accomplished by ignoring or mis-characterizing the

allegations in the amended complaint.

Although the court of appeals acknowledged that

the Vietnamese “Plaintiffs brought this action on behalf

of themselves and all other similarly situated who

sustained injuries as a result of their exposure to

dioxin,” (12a), one would not know from the rest of the

opinion what dioxin is or why the petitioners

characterized it as a poison for purposes of their

international law claims.

Choice of words in the decision by the court of

appeals is critical. By relegating dioxin to a “small”

compound and a mere “component” of 2,4,5,T the court

of appeals, much in the same way the district court did,

minimizes the significance of this highly toxic and

poisonous compound almost to the point that it is

removed as an issue from the case.

Having engaged in this legerdemain, the court of

appeals then framed the discussion of whether the use

of a herbicide, without reference to the poison

contained unnecessarily within, violated norms of

customary international law in existence at the time of

the Viet Nam War. That is, whether the Vietnamese

petitioners stated a claim for relief for injuries

allegedly caused “by their exposure to Agent Orange,

and other’ herbicides manufactured” by the

respondents. (la) The court repeated this formulation

numerous times throughout its opinion.’ This

formulation of the issue was absolutely improper. This

case is not and has never been about whether the

manufacture, supply and use of herbicides per se to

defoliate large areas of Viet Nam violated customary

international law. Rather, it is about whether the use

of herbicides which respondents knew contained

excessive and avoidabie amounts of poison (dioxin), and

which added nothing to the defoliation process, violated

customary international law.

Having redrafted petitioners amended

complaint to address a different question than posed by

* See., e.g, 3a (“... the Plaintiffs have failed to allege a violation of

international law because Agent Orange was used to protect

United States troops. . .”); 6a (“legality of the use by the United

States of herbicides in Victnam.”); 8a (“. .. claims arising out of the

use by the United States of herbicides, including Agent Orange.”);

12a (“. . . military’s use of Agent Orange violate international,

domestic, and Vietnamese law .. .”); 14a (“... neither the military’s

use of Agent Orange nor Defendants’ agreement to supply it to the

military violated a _ well-defined and universally accepted

international norm prohibiting the use of herbicides in war.”); 2la

(“. .. the deployment of Agent Orange violated customary norms

prohibiting use of “poisoned weapons” and the infliction of

unnecessary suffering.”); 24a (“In further support of their claim

that the use of herbicides as “poison” violated international law, .

.”); 25a (“The sources of international law relied on by Plaintiffs do

not support a universally-accepted norm prohibiting the wartime

use of Agent Orange that is defined with the degree of specificity

required by Sosa.”); 30a-31a (“Plaintiffs claim that the use of Agent

Orange violated the norm of proportionality and caused

unnecessary suffering .. .’’)

the complaint, the court of appeals was able to claim

petitioners had not made out an ATS claim that would

satisfy Sosa. That is, having framed the issue to suit

an outcome, the outcome was predictable.

In similar fashion the court of appeals affirmed

the district court’s grant of summary judgment

dismissing the remaining United States veterans’

claims based on, as we discuss infra, an unwarranted

and unprecedented expansion of the government

contractor defense

REASONS FOR GRANTING THE PETITION

The decision by the Second Circuit in refusing to

recognize a claim by the petitioners pursuant to the

Alien Tort Statute, 28 U.S.C. Sec. 1350, conflicts with

this Court’s decision in Sosa. In a decision that

gravely undermines the viability of future ATS

jurisprudence, the court of appeals ignored well

established treaty and customary international law

which pre-dated the Vietnam War. It did so contrary

to this Court’s admonition in Sosa that when customary

international law norms are well established, specific

and definite at the time the conduct took place, the

courts of this country have an obligation to enforce such

laws. Indeed, it is this very set of circumstances, the

use of a herbicide harmful to human beings because it

contained an excessive and avoidable amount of poison

(dioxin), whose dangers were known to the respondents

and whose presence in the herbicide was wholly

unrelated to the goal of defoliation, which the United

States government itself opined before and after the

Vietnam War would constitute a violation of customary

international law.

The court of appeals accomplished this result by

engaging in fact-finding and _ fact resolution

inappropriate to the procedural posture of the case.

The manner in which this case was disposed of by both

the courts below was such a departure from the

accepted and usual course of judicial proceedings as to

call for the exercise of this Court’s supervisory powers

to summarily reverse the granting of the motion to

dismiss the petitioners international law claims in this

case.

Finally, the decision by the Second Circuit

granting summary judgment to the respondents on

petitioners’ domestic tort claims based on the

government contractor defense conflicts with this

Court’s decision in Boyle v. United Technology

Corporation, 487 U.S. 500 (1988).

I. AT THE TIME OF THE VIETNAM WAR

THE USE OF A HERBICIDE THAT

CONTAINED AN EXCESSIVE,

AVOIDABLE AND UNNECESSARY

POISON VIOLATED CUSTOMARY

INTERNATIONAL LAW

The ban on the use of poison, the principal

customary international law norm at issue in this

litigation, 1s without question based on a “norm of

international character accepted by the civilized world

and defined with a degree of specificity comparable to

the 18'"-century paradigms.” See, Sosa, at 724. Indeed,

the court of appeals appeared to accept that proposition

when it stated that the petitioners have “alleged a

customary international norm_ proscribing the

purposeful use of poison as weapon against human

beings...” (32a)

A finding that petitioners have alleged such a

norm should have been dispositive. If the court of

appeals admits, as they must, that petitioners have

properly alleged the existence of this specific and

definitive norm, it should have found that petitioners

set forth a valid claim under the ATS. Inexplicably, the

court of appeals then concluded, improperly, that this

norm is inapplicable to this case. As we argue, 2nfra, it

achieves this result by improperly recasting the facts of

this case into one involving only the legality of the use

of a herbicide.

The spraying of a known poison on a human

population is unambiguously a violation of both treaty,

e.g., the 1907 Hague Convention, as well as customary

international law (which was in fact codified in the

Hague’ regulations), regardless of how it is

administered. It makes no difference that the poison

here was administered as part of a herbicide. The

effect is the same whether the poison was simply

sprayed alone over Viet Nam or sprayed as part of a

herbicide. Article 23 of the 1907 Hague Convention

specifically states that it is “especially forbidden . . . to

employ poison or poisoned weapons,” in war. Even

when the court of appeals does discuss the term poison,

it mistakenly refers to petitioners’ claims as “the use of

herbicides as “poison”, which it is claimed violated

international law, instead of the use of herbicides which

contain excessive and unnecessary amounts of poison.

(24a)

The court of appeals’s assertion that the

prohibition against the use of poison is not specific and

definite enough to pass the Sosa test is simply wrong.

As set forth at length in petitioners’ briefs below,

customary international law has long recognized a ban

on the use of poison. Indeed, the ban on poison is every

bit as specific as the ban on torture, which the court in

Filartiga v. Pena-lrala, 630 F.2d 876 (2" Cir. 1980), a

case this Court cited approvingly in Sosa, noted to be a .

clear and specific violation of customary international

law, and with far greater specificity than one of the

18th century paradigms cited in Sosa, “piracy,” which

18th century international law defined with no more

specificity than “robbery upon the sea.” United States

v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820).

The same flawed legal analysis was applied to

the opinions of Cramer and Buzhardt, who were

specifically requested almost 30 years apart to opine on

the legality of herbicides. Although the court of

appeals gave lip service to the passages from Cramer

and Buzhardt which state clearly the illegality of

herbicides which are harmful to human beings, (28a),

the court of appeals never directly considered this

question because it framed the question as a challenge

to the use of a herbicide, per se, rather than the use a

herbicide with contained an excessive and avoidable

amount of dioxin.* The court of appeals ignored this

* This is, of course, an important factual distinction. Far from

being present in trace amounts as a result of an unintended error

in the manufacturing process, the petitioners have alleged that

these defendant deliberately and intentionally created a produce

that contained excessive and avoidable amounts of poison that has

caused untold suffering and misery for generations of US veterans

who were exposed to dioxin, as well as Vietnamese combatants

and non-comhatants alike, whose exposure level, it is undisputed,

distinction. Finding the proposed target of destruction,

enemy crop cultivation, “a legitimate one,” (27a), the

court of appeals concluded that the Cramer Opinion

endorsed the conduct of the respondents in this case.

However, the distinction employed by the court

of appeals to discount the impact of the Cramer Opinion

is not credible. The language of the Cramer Opinion

could not be any clearer:

the use of chemical agents . . . to destroy

cultivations [sic] or retard their growth, would

not violate any rule of international law

prohibiting poison gas; upon _ condition,

however, that such chemicals do not produce

poisonous effects upon enemy personnel,

either from direct contact, or indirectly from

ingestion of plants and vegetables which

have been exposed thereto.

(23a) 4

That is precisely what petitioners alleged in this

case, allegations which both the court of appeals and

the district court have seen fit to either not discuss or

dismiss without any factual or legal analysis.

was much greater than that experienced by the veterans. The

presence of dioxin, it is undisputed, had no military necessity, so

that the respondents cannot hide behind any argument that its use,

that is of dioxin, aided the war effort in any way. Rather, dioxin

was present in Agent Orange for the most pedestrian of reasons —

pure, unadulterated commercial greed.

* The Buzhardt Opinion sets forth the same precise conditions for

the use of chemical agents to destroy crops. (24a)

The Cramer and Buzhardt opinions, as well as

the 1956 Army Field Manual, (22a, 23a-24a), which itself

relies on Article 23 of the 1907 Hague Convention,

stand for the proposition that if the herbicides being

used to defoliate contain poison, such use would violate

customary international law.

The court of appeals erroneously accepted

respondents’ analysis that the Cramer opinion was

based on the proposition that any prohibition against

use of poison in war encompassed only substances

intentionally used to harm humans. (25a-26a) Because,

as the court of appeals erroneously concluded, the

“record” supports this conclusion, (82a), that Agent

Orange was used as a defoliant and: not as a poison

designed for targeting human populations, it therefore

felt free to conclude that no claim had been made by the

petitioners that would be actionable under Sosa.

However, neither Cramer, nor the other authorities

relied on by the petitioners, provide immunity in such a

circumstance. The fact that Cramer and Buzhardt

specifically limited the legal use of herbicides to

defoliate to those which were not harmful to man, or

poisonous when ingested, underscores this very point.

The court of appeals also cited to a lack of

consensus with respect to whether the proscription

against poison would apply to defoliants that had

possible “unintended” toxic side effects. (26a)

However, petitioners herein have not complained about

“unintended” toxic side effect from a defoliant. It is

petitioners claim that these respondents knew that a

very potent poison, which did not have to be present,

was in the agents provided to the government and that

they would be sprayed over vast populated areas.

From this knowledge, a court can easily infer an intent

to poison.

The position articulated by Cramer and

Buzhardt was that herbicides with such poison are not

permitted under the Hague regulations because of their

deleterious effect on human beings, irrespective of the

intent behind their use. Petitioners are not

complaining about an unintended toxic side effect from

a defoliant. Petitioners alleged that respondents knew

full well that a very potent poison, which did not have

to be present, and which provided no military benefit

whatsoever, was in the agents provided to the

government and respondents further knew they would

be sprayed over vast and populated areas. From their

knowledge, the court can infer intent to poison even

though specific intent is not required. The diseases and

birth defects suffered by the Vietnamese are direct

effects of exposure to the poisons contained in these

agents.

The court of appeals also reasoned that since

nations saw fit to violate the Hague prohibition on

poison it could not have been specific and universal

enough to have risen to the level of customary

international law at the time of the Viet Nam war.

(30a) However, as Filartiga demonstrates, violations of

a norm of customary international law does not

undercut the existence of the norm.

The question asked of and answered by Cramer,

Buzhardt, and the authors of the Field Manual was

under what circumstances would herbicide use for

wartime purposes be legally permissible under

prevailing international law norms, and the answer was

that it was legal only as long as the herbicides did not

“produce poisonous effects upon enemy personnel,

either from direct contact, or indirectly from ingestion

of plants and vegetables which have been exposed

thereto.” (23a) Far from the hyper-technical analysis

of treaty language relating to poisoned and chemical

weapons that respondents claim formed the basis of

their opinions, these top legal officials for the U.S.

military and the U.S. Department of Defense cited the

norm of proportionality as well as the poison

proscription.

These sources of international law support a

universally-accepted norm prohibiting the wartime use

of a poison laced herbicide which was then and is now

shown to be harmful to human beings, either directly or

indirectly. Whether poisoning humans was the intent

of the United States military in using these herbicides

is of little moment. It is enough if the respondents knew

that the herbicide they supplied contained a poison that

was harmful to human beings. That is a factual inquiry,

as Cramer suggested, that was improperly precluded

by the district court and the court of appeals’s opinion.

Did the respondents know that the product they

manufactured and sold to the government produced

poisonous effects because of the presence of dioxin?

That is a question which can only be answered after

discovery on this’ issue, discovery which,

notwithstanding the voluminous discovery in the Agent

Orange cases that precede this one, has not been

conducted. It was error for the Court of appeals to

preclude this discovery based on the specious argument

that customary international law at the time of the Viet

Nam war only precluded the use of Agent Orange laced

with a poison if the government “intended to harm

human beings.” (26a) Such a conclusion flies in the face

of the question which was settled before, during and

after the war — that the use of a herbicide that

contained a substance, dioxin, a known poison, which

“produced poisonous effects” was a clear violation of

customary international law.

The court of appeals also misapprehended the

reference to the ICJ opinion regarding nuclear weapons

which states that there is no definition of poison in

Hague and there are different interpretations of the

term. The court of appeals improperly extrapolated

from this dicta to find that the norm prohibiting the use

of poison or poisoned weapons is too indefinite to be

enforced. This is not true. Words in treaties just as in

legislation are to be interpreted with their plain

meaning. Poison is just as specific and unambiguous a

term as “torture” or “piracy.”

The Second Circuit in Filartiga v Pena-Irala,

630 F.2d 876, 880-81 (2nd Cir. 1980), cited approvingly

by this Court in Sosa, concluded “The prohibition [on

torture] is clear and unambiguous, and admits of no

distinction between treatment of aliens and citizens.”

This clear and unambiguous norm does not lose its

status as clear and unambiguous even if people may

differ over whether a particular act, such as

waterboarding, is torture.

In the ICJ, the issue was whether nuclear

weapons should be held to be illegal under 23(a) of the

Hague Convention or Geneva 1925. The court which

ultimately based it opinion that the first use of nuclear

weapons violated International Humanitarian Law, did

not find the Hague Regulations inherently ambiguous

and indefinite. Just as a disagreement whether water-

boarding is torture does not impact the universal

prohibition against torture, so would disagreement over

whether nuclear weapons are “poisonous weapons” for

purposes of Hague Regulation 23(a) not affect the

categorical proscription against use of poison or

poisoned weapons in war. As noted above, the Hague

ban on poison or poisoned weapons in war, codified in

treaty form the prior bans on the use of poison or

p isoned weapons in war from the Lieber Code, the St.

Petersburg Declaration of 1868, the Brussels

Declaration of 1874, and the Oxford Manual of the Laws

and Customs of War, of 1880.

The court of appeals also misrepresented the

history of the use of poison gas. It turned a clear

violation of the law of Hague into a claim that state

practice showed Hague did not outlaw poisonous gases.

The use of poison gases by Germany in World War I did

not mean that these weapons were not illegal under

Hague. It meant that they violated the Hague

regulations. Indeed, their use was condemned by

many as being a violation of the prohibition of the use of

poison. As one authoritative treatise has opined:

As early as March 1918, representatives of the

military authorities of the United States, France,

Great Britain, Belgium, Italy and Portugal had

informed the International Committee of the

Red Cross that they considered the use of toxic

and asphyxiating gases as being included in the

prohibition of poison, and also in the prohibition

of weapons, projectiles, or materials of a nature

to cause superfluous injury. From its origin, the

rule prohibiting modern types of chemical

warfare has been linked to the prohibition of

poison.

Stockholm International Peace Research Institute,

“The Problem of Chemical andBiological Warfare”

(Solna 1975), (hereinafter SIPRI) III SIPRI at 95.

Germany’s excuse for using the gases was that

the prohibition was against the parties using projectiles

rather than cylinders to diffuse the gas. This resort to

semantics was noted in United States v. Alfred Krupp,

et al., where the [MT at Nuremberg would later point

out, with disapproval, the German resort to semantics

to deny violations of the laws of war in initiating the use

of poison gas. Reprinted in Leon Friedman, “The Law

of War, A Documentary History” Vol 1 (Random

House 1972) at 1352.

After the war, the Allies appointed a

“Commission on the Responsibility of the Authors of

the War and on Enforcement of Penalties" to

investigate and recommend action on war crimes. The

Commission met in Versailles, the site of the Peace

Conference and the conclusion of the Treaty of Peace

with Germany on June 28, 1919. The Commission issued

its report on March 29, 1919, which recommended that a

"High Tribunal" be established to try enemy soldiers

who committed "violations of the laws and customs of

war and the laws of humanity," and that higher officials

who "ordered or abstained from preventing violations of

the laws or customs of war" were also to be tried. The

law to be applied was "the principles of the law of

nations as they result from the usages established

among civilized peoples, from the laws of humanity and

from the dictates of public conscience." Reprinted in

Friedman at 852-857.

Among the list of offenses to be prosecuted

were:. . (26) Use of deleterious and asphyxiating gases.

32) Poisoning of wells. The Commission

recommended prosecuting the Kaiser of Germany

himself, so as not to undermine the prosecutions against

subordinate leaders. Id. at 851-852. Far from being a

repudiation of Hague or a finding that state practice

meant the Hague regulations were mere aspirational

norms during World War I, the history shows that but

for “realpolitik” considerations of international

relations, the parties to the Versailles Treaty declared

the German first use of poison gases, which prompted

their retaliation, violated the Hague Regulations.

Finally, the court of appeals wrongly held that

petitioners’ claims regarding proportionality and

superfluous and unnecessary suffering were too

indefinite to satisfy the Sosu specificity requirement.

Professor Stefan Oeter has discussed the various

customs and laws of war which were designed to

promote limited warfare, so as to minimize the

suffering and destruction of war. Article 23(e) of the

Hague regulations prohibits the use of projectiles and

materials of war calculated to cause superfluous injury

or unnecessary suffering. Superfluous injury and

unnecessary suffering are caused by the use of weapons

and methods of combat whose foreseeable harm would

be clearly excessive in relation to the lawful military

advantage intended. Oeter states:

Injuries can only be “superfluous” either if they

are not justified by any military necessity, or if

the injuries normally caused by the weapon or

projectile are manifestly disproportionate to the

military advantage reasonably expected from

the use of the weapon. The first will only rarely

be the case, since the intended injuring effect

generally serves a military goal..... The second

condition will only be fulfilled if the weapon is at

least relatively superfluous — which requires a

comparative analyis as to how much suffering

various weapons cause and whether alternative

military means could achieve the same results

with less suffering.

Oerter, Stefan, “Methods and Means of Combat,” The

Handbook of Humanitarian Law in Armed Conflicts,

at 402.

The presence of the dioxin in Agent Orange

contributed nothing to the military use of the defoliant.

In this case, therefore, there was no military use for the

dioxin present in the herbicide the respondents

supplied to the military. This is one of the rare

instances where the presence of this potent poison in

the herbicide is not justified at all by any military

necessity. It was superfluous and the anti-plant

weapon in which it was present could have

accomplished the same result without the presence of

dioxin. There is nothing about this analysis which is

too indefinite for a court not to find in this case that the

use of the dioxin laced herbicide violated the norm of

superfluous injury and unnecessary suffering.

If. THE DECISION BY THE COURT OF

APPEALS IN AFFIRMING THE GRANT

OF A MOTION TO DISMISS UNDER

RULE 12(B)(6) OF THE FEDERAL

RULES OF CIVIL PROCEDURE WAS

SUCH A DEPARTURE FROM THE

ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS AS TO

CALL FOR THE EXERCISE OF THIS

COURT’S SUPERVISORY POWERS TO

REVERSE THE GRANTING OF THE

MOTION TO DISMISS IN THIS CASE.

The manner in which the courts below reached

their erroneous conclusions contravenes’ the

responsibility given to the federal courts in ruling on a

Rule 12(b)(6) motion to dismiss. That rule permits a

court to dismiss a complaint on its face only if the

plaintiff has failed to plead “enough facts to state a

claim to relief that is plausible on its face.” Bell

Atlantic Corporation v. Twombley, _ U.S. __, 127 8.Ct.

1955, 1974 (2007).

Regardless whether Twombley changed the

standard set forth in Conley v. Gibson 385 U.S. 334

(1957), it did not alter the long-established companion

principles that the court must assume the truth of the

well-pled factual allegations of the complaint and must

draw all reasonable inferences against the movant, see,

Leatherman v. Tarrant County Narcotics Intelligence

& Coordination Unit, 507 U.S. 163, 164 (1993);

Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d

328, 337 (2d Cir.2006); Stell v. DeBuono, 101 F.3d 888,

891 (2d Cir.1996), and that “the court’s function on a

motion to dismiss is not to weigh the evidence that

might be presented at a trial but merely to determine

whether the complaint itself is legally sufficient.” Festa

v. Local 3 International Bhd. Of Elec. Workers, 905

F.2d 35; 37 (2™ Cir. 1990).

The courts below violated these standards for

evaluating a motion under 12 (b)(6)._ Not only did the

court of appeals not accept the well-pled allegations in

the complaint, it substituted, as did the district court,

its own view of the facts for those of the petitioners.

The court of appeals has simply ignored the facts set

forth in great detail in petitioners’ briefs in the district

court and in the court of appeals. As noted above, the

word “dioxin” only appears in the court of appeals

decision as a descriptive term and not for any analytical

purpose.

The “facts” which the court of appeals relied on

to affirm the dismissal of petitioners’ claims make no

mention of the high levels of dioxin in the herbicides

manufactured by the respondents, nor of the harms

which the respondents knew or had reason to know

could be caused by them. The court of appeals made no

mention of the petitioners’ factual contention that

respondents consciously and deliberately used a

manufacturing process that insured: high levels of

dioxin was present in Agent Orange so as to increase

their profits, and no mention that the presence of dioxin

in the herbicide did nothing to aid the defoliation

process. The court of appeals made no mention that

dioxin was present in Agent Orange in excessive and

avoidable amounts and that the evidence is clear that

respondents’ knowing inclusion of this toxic substance

in the herbicides manufactured by the respondents has

resulted in a public health crisis in Vietnam of

mammoth proportions.

The court of appeals made the same error

concerning the issue of intent. The crux of the court of

appeal’s holding was that since the government’s intent

was not to spray a poison on humans, and that the

dioxin contamination was an “unintended” consequence

of spraying Agent Orange, there was not a sufficient

level of intent necessary to demonstrate a violation of

customary international law.° Petitioners allege

otherwise in their amended complaint, at least insofar

as the chemical company respondents are concerned.

Petitioners clearly: allege throughout the complaint that

the respondents had actual knowledge of both the

hazards and preventability of dioxin in Agent Orange

yet delivered it anyway, knowing how it would be

sprayed over vast inhabited areas. The court of

appeal’s error in this regard is made apparent when it

writes that “the record before us supports the

conclusion that Agent Orange was used as a defoliant

and not as a poison designed for or targeting human

populations.” (26a) (Emphasis supplied). There was, in

fact, no record before either the district court or the

court of appeals on Rule 12(b)(6) consideration. The

court of appeal’s language is that of a court resolving a

factual issue as a finder of fact, not that of a court

considering a motion to dismiss based upon the

allegations of the complaint.

> This is critical because the court of appeals acknowledged at the

oral argument that had the petitioners alleged that the

respondents, or the United States government, intended by the

use of these products to puison the Vietnamese, the petitioners

would have stated a claim for violation of customary international

law.

The customary international law norm

prohibiting the use of poison or poisoned weapons is a

norm that prohibits the use of poison because of its

effects. The norm is not limited solely to the

circumstance where poison is used with the specific

intent to l.arm human beings. It is sufficient that the

respondents knew, as the petitioners’ have alleged, that

dioxin was present in excessive and avoidable amounts,

that supplying a product to the United States

Government which contained this poison created a

substantial risk of harm to human beings, and that,

despite this knowledge, the respondents consciously

and deliberately chose to manufacture and supply the

government with a poisoned product.

This is one case where this Court is compelled to

act on the grounds that the courts below have radically

departed from the usual course of their judicial powers

and cases decided by the Supreme Court concerning

the proper role for a federal court in deciding motions

to dismiss filed pursuant to Rule 12(b)(6). Under the

circumstances, summary reversal is appropriate

because the decision of the court of appeals “directly

contravene[s]’ Supreme Court precedent. Horn v.

Banks, 536 U.S. 266, 267 (2002). See also, Gonzales v.

Thomas, __ U.S. __, 126 S.Ct. 1613, 1614 (2006);

Arkansas v. Sullivan, 5382 U.S. 769, 771 (2001)

(summary reversal appropriate where decision is “flatly

contrary to this Court’s controlling precedent”).

Ill. THE COURT OF APPEALS

UNWARRANTED EXPANSION OF

BOYLE INVOLVES A QUESTION OF

EXCEPTIONAL IMPORTANCE AND

SHOULD BE REVIEWED BY THIS

COURT

Petitioners’ domestic law claims were addressed

by the court of appeals in the companion cases filed by

United States veterans. (39a-90a) This decision

conflicts with and constitutes an unwarranted

expansion of the decision of this Court in Boyle v.

United Technologies Corp., 487 U.S. 500 (1988). The

impact of the court of appeal’s decision involves a

question of exceptional importance. By markedly

expanding the government contractor defense, not only

will victims of Agent Orange lose their rights but so

might thousands of others with valid claims against

government contractor’s who withhold important

information from the government.

Although the court of appeals’ technically

affirmed the district court’s ruling, it rejected all of its

key findings of fact. Once these factual findings were

reversed,’ Boyle required the court of appeals to hold

that summary judgment could not be granted on the

government contractor defense. Instead, the court of

appeals radically expanded the “government contractor

* For example, the district court found that the government knew

the respondents’ manufacturing processes were producing 2,4,5-T

with high levels of dioxin. The court of appeals found that the

government did not know what processes Respondents used to

manufacture 2,4,5-T. Compare 304 F. Supp. 2d at 438, 443 with

73a-Tda

defense,’ beyond recognition, adding new grounds

inconsistent with Boyle.

In Boyle at 511, the Supreme Court set forth a

three pronged test which a government contractor

must satisfy to benefit from the defense: reasonably

precise specifications, manufacturer conformity with

those specifications, and whether the United States

knew as much or more than the contractor about the

risks of dangers of the product being supplied. In at

least two respects, the decision by the court of appeals

constitutes an unwarranted extension of Boyle.

First, the court of appeals’ expressly found that

the evidence relating to whether the United States

knew as much or more than respondents did not

support summary judgment. For example, the court of

appeals held as follows:

We doubt that the defendants can establish as a

matter of law on the present record. . .that they

shared the knowledge of the dangers of which

they were aware with the government and that .-

the government had far more knowledge about

the dangers of Agent Orange in its planned use.

Each is intensely factual and hotly disputed. . . ..

(69a, see also, 76a, 88a-89a) Indeed, these findings

directly contradicted the district court’s ruling that the

government’s knowledge and information was at all

times greater than that of defendants. (139a-140a)

This should have ended the summary judgment

inquiry, as Boyle was intended to prevent contractors

from withholding potential health risks. The equal

knowledge requirement is imposed because,

in its absence the displacement of state tort law

would create some _ incentive for’ the

manufacturer to withhold knowledge of risks,

since conveying that knowledge might disrupt

the contract but withholding it would produce no

liability.’

(52a)

Instead, the court of appeals jettisoned Boyle’s

objective comparative knowledge determination, opting

for what amounts to a_ pre-Boyle _ subjective

determination of whether the undisclosed information

was “substantial enough to influence the military

decision” regarding the purchase and use of Agent

Orange. This constitutes a dangerous and unwarranted

expansion of Boyle.

Yet, even under this entirely new standard,

there is abundant evidence that the respondents

thought this undisclosed information would be highly

material to the government’s decision-making process.

As respondent Hercules wrote in summarizing a secret

meeting with respondent Dow, AS82, A56817:

They are aware that their competitors are

marketing 2,4,5-T acid which contains alarming

amounts of acnegen and if the government

learns of this the whole industry will suffer.

They are particularly fearful of a congressional

investigation and excessive restrictive

legislation. . .

" These cites are to the record in the U.S. Veterans appeal.

At the same time, without telling the

government, Dow developed a “test to determine

dioxin levels” and started to implement some

“techniques to reduce dioxin levels during the

manufacturing process” that it had long known about.

In Re: Agent Orange , 565 F. Supp. 1263, 1268-1270.

Based on this record, an earlier panel of the Second

Circuit had denied summary judgment on the very

basis the court of appeals granted it. See In Re: Agent

Orange Product Liability Litigation 818 F.2d 145 (24

Cir. 1987), cert denied, 484 U.S. 1004 (1988).

The court of appeal’s speculative conclusion that

full and complete disclosure would not have made a

difference cites no testimonial support. By contrast,

the evidence offered below was to the contrary, Wayne

Vandeventer, an Air Force officer responsible for

contract specifications for Agent Orange, testified that

he would have wanted to have known about dioxin and

expected the chemical companies to have told him

about its existence in 2,4,5-T. SR20, A6454-2. When

first informed of the presence of the toxic contaminant

dioxin in 1970, Dr. Robert Darrow, one of those

responsible for recommending 2,4,5-T, stated that he

and other relevant government personnel were

“surprised when we got the information” and that “the

feeling was there it should have been disclosed before.”

A6064-6065. Nor does the court of appeals explain why,

in direct response to this revelation, 2,4,5,-T use was

suspended in April 1970. RS84.

The court of appeals attempts to justify the vast

amount of information not disclosed to the government

about the “systemic problems” and the potential of

dioxin being a “potent carcinogen” by concluding that

these are “not enough to convince a reasonable fact-

finder that .. .the defendants knew that trace amounts

of dioxin in Agent Orange might prove to be a

carcinogen for those not involved in manufacturer or

direct handling.’® (89a) This attempt to justify the

respondents’ intentional secrecy goes beyond the scope

of Boyle and ignores the district court’s ruling that

foreseeability would neither be a part of the summary

judgment determination nor even a subject upon which

the petitioners would be allowed to conduct discovery.

On January 26, 2004, the district court stated: “I am not

going to address causation either on the motion to

remand or on the motion for summary judgment. . .”

(A11607)

Second, the court of appeals eviscerates the

Boyle requirement of reasonably precise specification.

As noted in the court of appeals decision, (52a-53a),

petitioners maintained that the exact contours of Agent

Orange were not considered by the Government

because: 1) the contracts included no specifications

regarding the toxic impurity dioxin; and 2) the defect

® Factually, this analysis suffers in several ways. First, the

suggestion that dioxin was only present in “trace” amounts is

wrong and demonstrates the court of appeals improper fact

finding. Second, many service personnel did directly and regularly

handle Agent Orange during the course of its widespread spraying

in Vietnam. Third, even if respondents did not know for certain

that dioxin caused cancer, they did know that dioxin’s toxicity was

positively scary: “one of the most toxic materials known,” and “the

most toxic chemical they have ever experienced.” AS 34, 41. It is

preposterous to rule, as a matter of law, that the government

contractor defense did not require them to tell this to the

government, or that, if the government had known, it would not

have acted differently..

was caused by the respondents’ chosen manufacturing

methods. (AB8, AS7). Petitioners were supported by

the unchallenged affidavits of two experts, Dr. Harry

Ensley, a chemical expert on the manufacture of 2,4,5-T

(A3241-3248, A3966, A147-48), and Ralph Nash, a

nationally renowned authority on government contracts

(A6989-A 7000, A10347-A10355, A146-47). The court of

appeals agreed entirely with petitioners.

(60a)

The defendants do not contest that the

government’s contractual specifications for

Agent Orange are silent regarding the method of

manufacturing or that the government harbored

no preference, expressed or _ otherwise,

regarding how the herbicides were to be

produced. ..

Indeed, they admit that they were under no

federal contractual duty to produce Agent

Orange using any particular manufacturing

process or with any particular reference to the

toxicity levels.

The court of appeals then concluded that this

would have made a difference.

[There is a] triable issue of fact as to whether the

defendants could have compled with their

contractual obligations to the government while

using what the plaintiffs contend was a process

that would have resulted in a defoliating agent

substantially less dangerous to military

personnel.

(62a) Again, this should have ended the inquiry.

Respondents failed to establish the necessary

“significant conflict” between contract specifications

and state law duties regarding design required by

Boyle.’ 487 US at 508-509. AS25.

Instead, the court of appeals disregarded both

its quotation of Boyle at 52a (“assure that the design

feature in question was considered by a Government

officer, and not merely by the contractor itself.”) and at

54a (government must have “made a discretionary

determination about the material it obtained that

related to the defective design feature at issue.”). It

held that because the government’s unsophisticated

testing of the product showed “no health hazard,” (65a),

even though their tests could not even detect dioxin”

and were not designed to show dioxin’s long term

health effects - the government somehow retroactively

implicitly approved “the design feature in question.”

(66a-68a) Thus, the court affirmed the grant of

summary judgment even though "defendants do not

rely on a contractual duty to demonstrate the required

* Petitioners, supported by the affidavit of Dr. Ensley, contended

that the respondents should have manufactured their 2,4,5-T with

lower temperatures and longer hold times, which would have

resulted in a far safer product. AS22, AS25, RS11, RS57-58,

A3953-A3966. Petitioners describe this as a manufacturing defect.

AB43-56. At 85a, the court of appeals redefines this as a “design

defect.” However it is described, the evidence is clear that it was

never considered by the government.

'0 All of the respondents regularly tested their products for the

level of dioxin contamination. The government by contrast did not

know even that such a test could be performed until 1970. AB37-

AB388, RS28.

conflict between federal interests and state law,” (87a),

and abandoned Boyle in holding that the government

contractor defense does not require “a conflicting

express contractual duty.” (66a) The court of appeals

concluded that the “reasonably precise specification”

prong could be jettisoned whenever the government

later reorders “the same product with knowledge of

its relevant defects,” because this “plays the identical

role in the defense as listing specific ingredients,

processes, or the like.” (66a) (Emphasis added).

Boyle says nothing of the kind. It concerned

itself with disclosure at the time the contract is formed.

Moreover, the court of appeals never explains what

“defect” the government supposedly retroactively

approved; indeed, the court of appeals stated that the

government approved the product precisely because 7t

did not find a defect. (65a) It is axiomatic that the

government cannot ratify a defect which it fails to

discover." Ruling that mere reordering without

knowledge of a defect, without requiring the contractor

to perpetuate the defect, as a “precise specification”

stretches Boyle beyond any conceivable breaking

point. Any government reorder of a defective product

would satisfy the government contractor defense, even

if the defect was not mandated by the contract and the

'' The court of appeals asserted defect ignores the court of appeal’s

own conclusion that the manufacturers never told the government

of the multiple health hazards of dioxin contamination in 2,4,5-T,

nor how the government’s conclusion that Agent Orange was

harmless resulted in part from the manufacturers’ blatant

misrepresentation that none of the workmen in their factories have

shown any ill effect.” Compare 73a-74a with A4624, AS438, RS73,

RS80.

government was ignorant of the defect, merely because

the product passed any inadequate government safety

test. This too constitutes a dangerous and

unprecedented extension of Boyle.

The court of appeals attempted to justify this

gross deviation from Boyle by relying on Lewis v.

Babcock and Wilcox, 985 F.2d 83 (2d Cir. 1993), which

held that once the government tests a chemical product

in any way for any harm, it immunizes_ the

manufacturer. This is a tortured reading of the word

“any” in the Lewis decision.

We hold that when the [glovernment reordered

the specific Babcock cable, with the knowledge

of its alleged design defect, the [glovernment

approved reasonably precise specifications for

that product such that the manufacturer

qualifies for the military contractor defense for

any defects in the design of the product.

985 F.2d at 89.

The word “any” in the quote above can only

mean “any design defect known to the government

when it reordered the product.” The facts in Lewis

makes this clear. That is, once the government

specifically ordered a part knowing the precise nature

of the design specification, and hence the “defect,”

Boyle was satisfied.

Even more significant, the court of appeal’s

conclusion is irreconcilable with In Re: Joint Eastern

and Southern District New York Asbestos Litigation,

897 F.2d 626, (2d. Cir. 1990) (“Grispo”). In Grispo, the

defendants, asbestos manufacturers, had a far stronger

defense than that offered here. The Navy was fully

aware of both the dangers posed by asbestos and that

the manufacturers provided no warnings on the

packaging, but it still independently decided not to

provide this information to the workers. 897 F.2d at

631-633. Indeed, when the asbestos manufacturers

offered to issue warnings on the packaging specified by

the contract, the Navy responded that “we do not

believe any specification changes are needed”. Id at

633. Nonetheless, the Grispo court ruled that the first

element of the government contractor defense,

requiring the government to approve “reasonably

precise specifications,” can only be invoked where the

government’s specifications limit “the contractor’s

ability to accommodate safety in a different fashion.”

Because the government did not “(stand) in the way of

manufacturers issuing warnings on their own,” they

were not entitled to summary judgment on the

government contractor defense. /d at 633.

Yet, the court of appeals here disregards the

exact same finding:

[There is a] “triable issue of fact as to whether

the defendants could have complied with their

contractual.obligations to the government while

using what the plaintiffs contend was a process

that would have resulted in a defoliating agent

substantially less dangerous to military

personnel.”

(62a)

Clearly, it is Grispo’s holding, not the court of

appeal’s, which is consistent with Boyle’s mandate that

the government contractor defense does not apply if

“the contractor could comply with both his contractual

obligations and the state prescribed duty of care.” 487

US at 509. This includes manufacturing methods, as

stated in Grispo at 631: “government contracts often

may focus upon product content and design while

leaving other safety-related decisions, such as the

method of product manufacture.” This is certainly true

here where the government did not even know how the

respondents manufactured their 2,4,5-T. Under

Grispo, this fact, on its own, would have been more than

sufficient to defeat summary judgment.

As the Grispo court held, “Boyle’s requirement

of ‘reasonably precise specifications’ mandates that the

federal duties be imposed upon the contractor. . ..

Stripped to its essentials, the military contractor’s

defense under Boyle is to claim ‘The government made

me do it.’”” Jd. At 630, 632. Here, the court of appeals

dispensed with what Grispo described as the essence of

the defense by granting judgment to the respondents

even though it acknowledged that there was an issue of

fact over whether the government “made them do it.”

Because the court of appeal’s ruling cannot be

reconciled with Grispo, asbestos manufacturers, and

other companies which supply defective products to the

government will now be shielded from liability whether

or not their contracts allow them to “accommodate

safety in a different fashion”.

Most importantly, the court of appeals held that

no reasonable factfinder could find that the respondents

had knowledge of a danger (e.g. chloracne or liver

damage) “that might have influenced the military's

conclusion that “operational use” of Agent Orange

posed “no health hazard ... to men or domestic animals,”

(75a)

This statement stands in stark contrast to

history. That is, the government ordered an end to the

use of agent orange in 1970, not on the basis of human

epidemiology or health effects in humans, but rather on

the evidence of teratogenicity in mice found (in the mid

1960's) by researchers at the Bionetics laboratory

which was commissioned by the National Cancer

Institute to study the health effects of these chemicals.

Evidence in the record shows Dow at least was aware

of and had conducted animal studies showing similar

information which was not disclosed. The Bionetics

Study was suppressed primarily by respondent Dow

until 1969. Given that the government stopped the use

of Agent Orange based on animal data, there is simply

no basis to support the court of appeal’s conclusion that

the government would have required more evidence of

toxicity in humans to have stopped its use.

CONCLUSION

The court of appeals decision in these cases are

plainly wrong and contribute to a jurisprudence of

impunity. This Court should grant the petition for

certiorari and either summarily reverse or set the case

for briefing and argument.

Respectfull y submitted,

Jonathan C. Moore

Counsel of Record

Beldock Levine & Hoffman LLP

99 Park Avenue - 16" Floor

New York, New York 10016

(212) 353-9587

Constantine Peter Kokkoris Db. Frank Davis

Constantine P. Kokkoris, John E. Norris

225 Broadway Davis & Norris, LLP

Suite 612 2151 Highland Ave

New York, NY, 10007 Suite 100

212-849-9340 Birmingham , AL, 35205

205-930-9900

Robert Bryan Roden.

Shelby Roden LLC Kathleen Anne Melez

2956 Rhodes Circle Law Office of Kathleen

Birmingham AL, 35205 A. Melez

205-933-8383 13101 Washington Blvd.

Suite 463

Jonathan Wayne Cartee Los Angeles, CA, 90066

Cartee & Morris, LLC 310-566-7452

1232 Blue Ridge Boulevard

Birmingham, AL, 35226

205-263-0333

(any footnotes trail end of each document)

Docket No. 05-1953-cev

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

VIETNAM ASSOCIATION FOR VICTIMS OF

AGENT ORANGE, et al, Plaintiffs-Appellants,

-V.-

DOW CHEMICAL COMPANY, et al, Defendants-

Appelllees

June 18, 2007, Argued

February 22, 2008, Decided

OPINION

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 Crange 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 Plaintifis, 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

Department of Defense recommended to President

Kennedy that the military initiate a defoliation

program. President Kennedy soon accepted that

recommendation and, in November 1961, approved the

launch of military herbicide operations in Vietnam.

Operation Trail Dust, as the entire herbicide operation

was called, included the United States Air Force

Program known as Operation Ranch Hand, which

commenced its defoliation spray missions in September

1962; missions targeting crops that sustained enemy

forces commenced in November of that same year.

Herbicides were effective in meeting important United

States and allied military objectives in Vietnam. As

Assistant Secretary of Defense William Lemos

explained: "[O]ne of the most difficult problems of

military operations in South Vietnam is the inability to

observe the enemy in the dense forest and jungle."

After summarizing the military's herbicide operations,

Admiral Lemos then concluded: "The result is that our

forces have been better able to accomplish their mission

with significantly reduced U.S. and Vietnamese

casualties." Another Assistant Secretary later

explained that the "use of... herbicides [in Vietnam]

was appropriate and had one purpose--to [slave the

lives of Americans and our allies." The record in this

case reveals that the policy of the Department of

Defense at that time was to "carefully select[{]" crop

destruction targets "so as to attack only those crops

known to be grown by or from the [Viet Cong] or

[North Vietnamese Army]," and the Department “ha[d]

issued instructions to the Joint Chiefs of Staff to

reemphasize the already existing policy that [chemical

herbicides] be utilized only in areas remote from

population." Admiral Lemos also stressed that the

military had instituted policies intended to ensure that

the herbicides were applied only to targets of military

significance.

The herbicide program nevertheless was controversial,

as decision-makers recognized it would be from the

outset. But despite concerns that Communist

propaganda would characterize the program as a form

of germ or chemical warfare, policymakers persisted in

the decision to use herbicides in light of their

substantial military benefits. They also consistently

concluded that the military's use of herbicides in

Vietnam was permissible under existing treaties and

customary international law. Secretary of State Dean

Rusk advised President Kennedy in 1961 that "the use

of defoliant does not violate any rule of international

law concerning the conduct of chemical warfare and is

an accepted tactic of war." In 1969, the United States

faced a move in the United Nations General Assembly

to resolve whether the 1925 Geneva Protocol, see

Geneva Protocol for the Prohibition of the Use in War

of Asphyxiating Poisonous or Other Gases and of

Bacteriological Methods of Warfare, June 17, 1925, 26

U.S.T. 571, 94 L.N.T.S. 65 (entered into force Feb. 8,

1928, for the United States, Apr. 10, 1975) (the "1925

Geneva Protocol"), banned at least some herbicide use

in warfare. The United States delegation rejected that

interpretation, claiming that "[c]hemical herbicides . . .

which were unknown in 1925, could not be included"

within the scope of the prohibitions. Thus, the United

States voted against the resolution. In 1970, when

President Nixon transmitted the 1925 Geneva Protocol

to the Senate for ratification, Secretary of State

William Pierce Rogers reiterated that "[ijt is the United

States’ understanding of the Protocol that it does not

prohibit the use in war of .. . chemical herbicides." And

in 1975, when President Ford issued Executive Order

11,850 renouncing, "as a matter of national policy, first

use of herbicides in war," his accompanying remarks

confirmed the consistent position of the United States

that "the [1925 Geneva] protocol does not cover...

chemical herbicides."

Congress was well aware of the herbicide program, and

while it denied funds for certain military initiatives in

Southeast Asia of which it disapproved, it never denied

funding for herbicides. Instead, it affirmatively ratified

herbicide use by appropriating funds specifically for

herbicide procurement, and attempts by members of

Congress to terminate or constrain the herbicide

program failed by wide margins. See S. Rep. No. 91-

1016, at 85-87 (1970). During the Senate debate over the

Military Procurement Authorization Act of 1971,

United States Senators Gaylord Nelson and Charles

Goodell introduced an amendment to prohibit the

expenditure of funds for any military application of

anti-plant chemicals or for the transfer of anti-plant

chemicals for use by other countries. The full Senate

rejected this measure by a vote of 62-22. Another

amendment sought to prohibit the expenditure of funds

for the use of chemicals for crop destruction, and that

amendment was rejected by a vote of 48-33. Thus, while

keenly aware of arguments against the military use of

herbicides in Vietnam, Congress continued _ to

appropriate the funds necessary to sustain the

program. See 116 Cong. Rec. 30,036-30,227 (1970).

Congress likewise was aware of the controversy over

the legality of the use by the United States of

herbicides in Vietnam. Indeed, a congressional report

observed that, although it was highly desirable that the

United States adhere to the 1925 Geneva Protocol, such

adherence could be difficult to attain if it would require

acceptance of the view that the use of herbicides would

violate international law, a position the United States

had consistently rejected. See REPORT OF THE

SUBCOMM. ON NATIONAL SECURITY, 91ST

CONG., CHEMICAL-BIOLOGICAL WARFARE:

U.S. POLICIES & INTERNATIONAL EFFECT 5-6,

9 (Comm. Print 1970). Even after the United States

terminated the use of herbicides, the government

continued to maintain that the 1925 Geneva Protocol

did not prohibit the use of herbicides in war. When

President Nixon submitted the Protocol to the Senate

for its advice and consent, Secretary of State Rogers

explained to the Senate that the United States had

decided not to enter a reservation that would preserve

its ability to use herbicides, precisely because the

United States' position remained that the Protocol did

not prohibit “the use in war of .. . chemical herbicides,"

Letter of Submittal from Secretary of State William P.

Rogers to the President (Aug. 11, 1970). See The

Geneva Protocol of 1925: Hearings Before the Sen.

Comm. on Foreign Relations, 92d Cong. 6-7 (1972).

Il. Post-War Adjustments with Vietnam

The Paris Peace Accords of January 19738 ended the

United States' participation in the Vietnam War. After

the fall of Saigon in 1975, the United States severed

relations with Vietnam and imposed a trade embargo

prohibiting most commercial transactions between

United States nationals and Vietnamese nationals. See

31 C.F.R. § 500.201. President Clinton partially lifted

the trade embargo in February 1994, and he fully lifted

it in March 1995. On January 28, 1995, the United

States and Vietnam agreed to a settlement of certain

outstanding claims between the countries. This 1995

Agreement covers all claims against either nation

arising out of "the nationalization, expropriation, or

taking of, or other measures directed against,

properties, rights, and interests" of the parties and

their citizens during and after the war. Significantly,

the 1995 Agreement makes no provision for reparations .

or restitution to settle claims arising out of the use by

the United States of herbicides, including Agent

Orange.

The United States and Vietnam continue to discuss

issues arising out of the war in the context of their

current diplomatic, economic, trade, aid, and security

relationships.! A 2002 Memorandum of Understanding

provides for scientists representing both governments

to work together to determine the effects, if any, of

Agent Orange on people and ecosystems, along with

methods and costs of treatment and environmental

remediation. But, to date, the United States never has

agreed that it has a legal duty to provide funds or

assistance to remediate harms allegedly caused by

Agent Orange.

Itl. Procurement of Agent Orange

The facts relevant to the manufacture and procurement

of Agent Orange are the principal focus of the appeals

in the veterans' cases (especially with regard to the

government-contractor defense) and are set forth in

this Court's opinion resolving the veterans’ claims

before this Court. With respect to the instant appeals

by Vietnamese nationals, a brief summary of the facts

surrounding the veterans' appeals and additional

relevant facts underlying the Vietnamese nationals'

claims follows.

The herbicidal properties of the components of Agent

Orange, 2,4-dicholoropheno-xyacetic acid (2,4-D) and

2,4,5-tricholorophenoxyacetic acid (2,4,5-T), were

identified in research conducted by the United States

military during the 1940s. In the 1950s, the military

conducted field tests to demonstrate the feasibility of

dispensing those substances from aircraft; these

dissemination trials, and work on aerial spray systems,

laid the groundwork for the defoliation systems used in

Vietnam. In 1961, the Advanced Research Projects

Agency of the Department of Defense evaluated the

feasibility of defoliating tropical vegetation in Vietnam

and recommended that appropriate formulations of 2,4-

D and 2,4,5-T be exploited for immediate use. In

January 1962, the United States Air Force began the

operational phase of the defoliation program in South

Vietnam, using a substance code-named Agent Purple.

Later in 1962, a research team concluded that a 50/50

mixture of 2,4-D and 2,4,5-T was most effective--that

formulation became known as Agent Orange. See

Isaacson v. Dow Chemical Co. (In re "Agent Orange"

Prod. Liab. Litig.), 304 F. Supp. 2d 404, 424-31

(E.D.N.Y. 2004).

Formal specifications for 2,4-D and 2,4,5-T were

prepared and promulgated by the military. These

specifications established the design and_ specific

characteristics of the mixture of 2,4-D and 2,4,5-T that

the government had requested. The same specifications

also were later used as the basis for the military's

procurement of Agent Orange. The yovernment

supplied manufacturers with copies of these

specifications and incorporated them into the

manufacturers’ Agent Orange contracts. The

government also strictly prescribed the markings that

10a

were to be placed on the drums of herbicides

manufactured by the Defendants. The names of the

various "Agents" (Agent Orange, Agent Purple, etc.)

refer to the three-inch color-coded band that the

government required on the outside of the drums

containing the relevant herbicide. Aside from that

colored band, the government generally prohibited the

manufacturers from including any language, markings,

or identification on the drums. /d.

In 1966, the government became concerned that the

pace of production of Agent Orange was insufficient to

meet its projected needs and decided instead to compel

production from the manufacturers. In so doing, the

government acted under the authority of the Defense

Production Act of 1950 ("DPA"), 50 U.S.C. App. §§ 2061-

2168 (1951 & Supp. 1983). Section 101 of the DPA

authorized the President to "require that performance

under contracts or orders ... which he deems necessary

or appropriate to promote the national defense shall

take priority over performance under any other

contract or order, and, for the purpose of assuring such

priority, to require acceptance and performance of such

contracts or orders in preference to other contracts or

orders." /d. § 2071. The President thereafter delegated

that authority to the Secretary of Commerce. 18 Fed.

Reg. 6503 (1953). In March 1967, the United States

Department of Commerce, expressly invoking Section

101 of the DPA, directed Defendants to accelerate the

delivery of existing orders for the defoliant Agent

Orange. This directive essentially commandeered all of

the Defendants' capacity to produce Agent Orange. Jn

re "Agent Orange" Prod. Liab. Litig., 304 F. Supp. 2d at

424-26.

lla

IV. E'nd of the Herbicide Program

In June 1966, a government study on the leng-term

health effects of pesticides, including 2,4,5-T (known as

the Bionetics Study), uncovered’ evidence of

teratogenicity (birth defects) in mice. The completed

Bionetics Study was delivered to the National Cancer

Institute (NCI), a component of the National! Institutes

of Health, in September 1968, although NCI personnel

previously had received progress reports concerning

the possible teratogenicity of 2,4,5-T. The government

undertook further extensive analyses of the Bionetics

Study's data in early 1969, but it did not restrict the

ongoing herbicide program in Vietnam. However, upon

the public release of the Study in October 1969, the

government restricted the use of 2,4,5-T both in the

United States (on food crops and around the home) and

in Vietnam, limiting its use to areas remote from human

populations. On April 15, 1970, the Department of

Defense suspended military use of Agent Orange upon

evidence of the toxicity of the dioxin component.

Subsequently, herbicide spraying for defoliation using

Agent White continued a short while, and crop

destruction using Agents White and Blue continued

through 1970. In January 1971, the last spray mission

took place.

V. Nature of the Complaint & Proceedings Below

Plaintiffs in the instant action include individual

Vietnamese nationals residing in both North and South

Vietnam, as well as the Vietnamese Association for

Victims of Agent Orange ("VAVAO"), a Vietnamese

non-profit, non-governmental organization

12a

representing persons who were exposed to Agent

Orange and other herbicides during the war and whose

purpose is to protect the interests of its members and

to raise funds for their care and treatment. Plaintiffs

brought this action on behalf of themselves and all

others similarly situated who sustained injuries as a

result of their exposure to dioxin. As the District Court

enumerated in extensive detail below, Plaintiffs' alleged

injuries included, among other things, miscarriages,

birth defects, breast cancer, ovarian tumors, lung

cancer, Hodgkins' Disease, and prostate tumors.

Plaintiffs alleged in their September 14, 2004 Amended

Complaint that the United States military's use of

Agent Orange violated international, domestic, and

Vietnamese law and that Defendants either aided and

abetted these violations or committed independent

violations by fulfilling the military's demand for

herbicides. With respect to their claims arising under

international law, Plaintiffs alleged that Defendants'

actions constituted torts that were cognizable under the

Alien Tort Statute ("ATS")? 28 U.S.C. § 13850, and

included war crimes, genocide, crimes against

humanity, and torture. With respect to their claims

arising under domestic and Vietnamese tort law,

Plaintiffs alleged that Defendants were liable for

assault and battery, intentional infliction of emotional

distress, negligent infliction of emotional distress,

negligence, wrongful death, and unjust enrichment

under the laws of the United States, Vietnam, and the

State of New York, and for strict product liability

under the laws of the United States and the State of

New York. Plaintiffs also sought equitable relief under

theories of public nuisance and unjust enrichment. In

their prayer for relief, Plaintiffs sought compensatory

13a

and punitive damages as well as injunctive relief

directing Defendants to provide’ environmental

remediation of the allegedly contaminated areas in

Vietnam and to disgorge profits gained from their

production and supply of herbicide.

On November 2, 2004, Defendants filed several

dispositive motions. They first moved under Rule

12(b)(6) of the Federal Rules of Civil Procedure to

dismiss the Complaint for failure to state a claim under

the ATS. They further moved under Rule 56 for partial

summary judgment dismissing all claims as time-

barred. With respect to several threshold issues that

applied to all international and domestic law claims,

Defendants argued that Plaintiffs lacked standing to

bring this action and that Plaintiffs had raised claims

that were nonjusticiable under the political question

doctrine, were time-barred, and were precluded by the

government-contractor defense. On the _ merits,

Defendants contended that Plaintiffs failed to allege a

violation of international law under the ATS that would

meet the standard set forth in Sosa v. Alvarez-

Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d

718 (2004). Defendants also asserted that any award of

injunctive relief requiring remediation of the land in

Vietnam would be impracticable. On January 12, 2005,

the United States government filed a Statement of

Interest supporting Defendants’ motion to dismiss the

claims under the ATS as nonjusticiable, as barred by

the government-contractor defense, and as insufficient

to meet the Sosa standard.

At a hearing before the District Court, the parties

agreed that the court could consider the motion under

Rule 12(b)(6) as a motion for summary judgment

14a

against all of the domestic law claims but not against

the international law claims. They also agreed that the

extensive record assembled by both parties in the

related veterans' cases could be relied upon by the

court on the summary judgment motions. On March 10,

2005, the District Court issued an opinion and order,

which was amended on March 28, 2005. In re Agent

Orange Prod. Liab. Litig., 373 F. Supp. 2d 7 (E.D.N.Y.

2005). In its order, the District Court rejected

Defendants’ contentions and found in Plaintiffs' favor

on a number of issues. Initially, although the court cited

rulings denying associational standing to pursue

damages claims, it held that VAVAO had standing

because it also sought injunctive relief. /d. at 49-50. The

court next rejected Defendants’ position that Plaintiffs’

claims were nonjusticiable, zd. at 64-78, and it further

determined that Plaintiffs' ATS claims were not subject

to any statutes of limitation, id. at 59-64, or the

government-contractor defense, id. at 85-99. Moreover,

the court concluded that corporations could be liable in

a civil action brought under the ATS for a violation of

international law and that a claim for aiding and

abetting liability was cognizable under the statute. /d.

at 52-59.

Nevertheless, the District Court ultimately determined

that none of Plaintiffs’ claims could proceed. With

respect to the ATS claims, the court concluded that

Plaintiffs had failed to state a cause of action because

neither the military's use of Agent Orange nor

Defendants’ agreement to supply it to the military

violated a_ well-defined and_ universally-accepted

international norm prohibiting the use of herbicides in

war. See id. at 105-88 The court concluded that

Plaintiffs’ domestic and Vietnamese law claims were

15a

barred by the government-contractor defense for the

same reasons as set forth in the companion case

brought by the US. veterans, Isaacson v. Dow Chem.

Co., 304 F. Supp. 2d 404 (E.D.N.Y. 2004). See In re

Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d at 15-

17. The court also denied Plaintiffs' claims for injunctive

relief, concluding that implementing such relief would

be "wholly impracticable" and "could compromise

Vietnam's sovereignty.” See id. at 4546. Final

judgment dismissing the Complaint was entered on

March 25, 2005, and this timely appeal by Plaintiffs

followed.

ANALYSIS

Plaintiffs limit the scope of their appeal to three

primary claims. They first contend that the District

Court erred by dismissing their ATS claims, arguing

that Defendants violated customary international law

norms prohibiting the use of "poisoned weapons" and

the infliction of unnecessary suffering.’ Plaintiffs

further argue that the court erred by dismissing their

state law claims pursuant to the government-contractor

defense without conducting further discovery with

respect to Agents White and Blue, and incorporate by

reference the same substantive contentions raised in

the veterans' appeals. Finally, Plaintiffs assert that the

court prematurely dismissed their claims for injunctive

relief without the benefit of adequate discovery.

For their part, Defendants contend that Plaintiffs failed

to state a cognizable claim under the ATS because the

wartime use of herbicides solely for defoliation

purposes did not violate international law and that

prudential considerations counsel against the

16a

recognition of Plaintiffs’ claims. Defendants also argue

that the ATS claims present nonjusticiable political

questions because those claims require an inquiry into

executive and legislative judgments relating to the

prosecution of a war. In addition, Defendants assert

that there is no basis in international law for either

corporate liability or civil aiding and abetting liability,

and they argue that Plaintiffs’ ATS claims are barred

by both the government-contractor defense and the

statute of limitations. Defendants argue that Plaintiffs’

state law claims are preempted by the federal foreign

affairs power and the government-contractor defense,

and they incorporate by reference the same contentions

raised in the veterans’ cases. Defendants also argue

that the District Court properly denied injunctive relief

because it would be impracticable for the court to

supervise remediation of 5.5 million acres of distant

foreign land. Finally, Defendants argue that the

District Court acted within its discretion in denying

additional discovery on Plaintiffs' claims relating to

Agent White and Agent Blue, because these claims fail

for the same reasons as the claims based on Agent

Orange and _ because Plaintiffs had _ essentially

abandoned these claims in the District Court.

I. Standard of Review

We "review a district court's grant of a motion to

dismiss under Rule 12(b)(6) de novo." BF & L

Consulting, Ltd. v. Doman Indus. Ltd., 472 F.8d 23, 28

(2d Cir. 2006). "For the purposes of such review, this

Court must accept as true all allegations in the

complaint and draw all reasonable inferences in favor of

the non-moving party." Gorman v. Consol. Edison

Corp., 488 F.3d 586, 591-92 (2d Cir. 2007) (quoting

17a

Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.

2002)). We also "review de novo [a] district court's grant

of summary judgment, construing the facts in the light

most favorable to the non-moving party." Gorman, 488 .

F.3d at 595 (citing Cioffi v. Averill Park Cent. Sch.

Inst. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006)).

“Summary judgment is appropriate only where 'there is

no genuine issue as to any material fact and .. . the

moving party is entitled to a judgment as a matter of

law.'" Gorman, 488 F.3d at 595 (quoting Fed. R. Civ. P.

56(c)). Finally, we review denials of leave to conduct

discovery and of injunctive relief for abuse of

discretion, which may consist of a ruling based upon an

erroneous view of the law or a clearly erroneous

assessment of the evidence. See Bano v. Union Carbide

Corp., 361 F.8d 696, 716 (2d Cir. 2004), Paddington

Partners v. Bouchard, 34 F.3d 1132, 1187 (2d Cir. 1994).

See generally Zervos v. Verizon New York, Inc., 252

F.3d 163, 169-71 & n.5 (2d Cir. 2001) (explaining that

"[a] district court ‘'abuses' or 'exceeds' the discretion

accorded to it when (1) its decision rests on an error of

law (such as application of the wrong legal principle) or

a clearly erroneous factual finding or (2) its decision--

though not necessarily the product of a legal error or a

clearly erroneous factual finding--cannot be located

within the range of permissible decisions").

Il. Plaintiffs' International Law Claims

A. Alien Tort Statute and the Sosa Rule

The ATS provides that "[t]he district courts shall have

original jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations or

a treaty of the United States." 28 U.S.C. § 1350. The

18a

ATS confers federal subject matter jurisdiction when

three independent conditions are satisfied: (1) an alien

sues, (2) for a tort, (3) committed in violation of the law

of nations or a treaty ratified by the United States. See

Filartiga v. Pena-Irala, 630 F.2d 876, 887-88 (2d Cir.

1980). The Supreme Court has clarified that the ATS,

which originally was enacted as part of the Judiciary

Act of 1789, was jurisdictional in that it "gave the

district courts cognizance of certain [then existing]

causes of action.” Sosa, 542 U.S. at 718-14 (internal

quotation marks and citation omitted). The Court was

clear that the ATS did not create a statutory cause of

action, but the Court just as clearly rejected the notion

that "the ATS was stillborn because there could be no

claim for relief without a further statute expressly

authorizing adoption of causes of action." Jd. at 714.

In the broader context, the law of nations has become

synonymous with the term "customary international

law," which describes the body of rules that nations in

the international community “universally abide by, or

accede to, out of a sense of legal obligation and mutual

concern.” Flores v. S. Peru Copper Corp., 414 F.3d 233,

248 (2d Cir. 2008). In ascertaining whether a rule

constitutes a norm of customary international law,

courts have traditionally consulted "the works of

jurists, writing professedly on public law; or by the

general usage and practice of nations; or by judicial

decisions recognizing and enforcing that law." Filartiga,

630 I°.2d at 880 (quoting United States v. Smith, 18 US.

(5 Wheat.) 153, 160-61, 5 L. Ed. 57 (1820)). Sources of

international law generally include:

19a

(a) international conventions, whether general or

particular, establishing rules expressly

recognized by the contesting states;

(b) international custom, as evidence of a general

practice accepted as law;

civilized nations;

(d) ... judicial decisions and the teachings of the

most highly qualified publicists of the various

nations, as subsidiary means for the

determination of the rules of law.

Filartiga, 630 F.2d at 881 n.8 (citing Statute of the

International Court of Justice, art. 38(1), June 26, 1945,

59 Stat. 1055, 1060, 33 U.N.T.S. 993 (entered into force

Oct. 24, 1945)); United States v. Yousef, 327 F.3d 56,

100-01 (2d Cir. 2003) (same; also noting that scholarly

works are not included among the authoritative sources

of customary international law); see also Restatement

(Third) of the Foreign Relations Law of the United

States § 102 (1987). While not exhaustive, the list of

principles that may be said to have "ripened into

universally accepted norms of international law," Kadic

v. Karadzic, 70 F.3d 232, 248 n.8 (1995), includes the

proscriptions against piracy, slave trade, attacks on or

hijacking of aircraft, genocide, and war crimes, see

Restatement (Third) of the Foreign Relations Law of

the United States § 404 (1987). With respect to other

types of violations, because customary international law

"is created by the general customs and practices of

nations and therefore does not stem from any single,

definitive, readily-identifiable source," we have advised

district courts to exercise "extraordinary care and

restraint" in deciding whether an offense will violate a

customary norm. Flores, 414 F.3d at 248.

20a

In Sosa, the Supreme Court further cautioned courts to

be careful in deciding whether an alleged violation of

the law of nations could support an ATS claim. Mindful

of the legislative history, albeit sparse, of the ATS, the

Court limited the types of claims that could be

recognized under the statute to those bearing the same

character as the claims originally contemplated by

Congress at the time of drafting--tort claims alleging

violations of the law of nations of the sort that would

have been recognized within the common law at the

time of its enactment. 542 U.S. at 713-14. In the Court's

view, ‘the statute was intended as jurisdictional in the

sense of addressing the power of the courts to entertain

cases concerned with a certain subject," id. at 714, and

"[t]he jurisdictional grant is best read as having been

enacted on the understanding that the common law

would provide a cause of action for the modest number

of international law violations with a potential for

personal liability at the time," zd. at 724. In particular,

Sosa held that "courts should require any claim based

on the present-day law of nations to rest on a norm of

international character accepted by the civilized world

and defined with a specificity comparable to the

features of the 1&th-century paradigms" that informed

the legislation. Jd. at 725. Moreover, these "paradigms"

encompassed only "those torts corresponding to

Blackstone's three primary offenses: violation of safe

conducts, infringement of the rights of ambassadors,

and piracy." /d. at 724. Although the Court did not

circumscribe ATS claims to include only these offenses,

it concluded that any claim must reflect the same

degree of "definite content and acceptance among

civilized nations" as these historical antecedents. Jd. at

732. Whether an alleged norm of international law can

form the basis of an ATS claim will depend upon

Zla

whether it is (1) defined with a specificity comparable

to these familiar paradigms; and (2) based upon a norm

of international character accepted by the civilized

world. Id. at 725, 738.4 We accordingly begin our

evaluation of Plaintiffs’ ATS claims by considering

whether they have alleged the violation of an

international norm that is sufficiently clear in nature to

support subject matter jurisdiction under the ATS.

B. Plaintiffs' Sources of Customary International

Law

In support of their argument that the deployment of

Agent Orange violated customary norms prohibiting

use of “poisoned weapons" and the infliction of

unnecessary suffering, Plaintiffs cite to a number of

both domestic and international law sources. Primarily,

they rely upon the 1907. Hague Regulations, Annex to

the 1907 Hague Convention (IV) Respecting the Laws

and Customs of War on Land, October 18, 1907, 36 Stat.

2277, T.S. No. 589 (the "1907 Hague Regulations"); the

1925 Geneva Protocol; and the 1949 Fourth Geneva

Convention, The Fourth Geneva Convention relative to

the Protection of Civilian Persons in Time of War,

August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the

"Fourth Geneva Convention"), as well as other sources

derived from these documents. The 1907 Hague

Regulations, which the United States ratified in 1909,

address the range of military operations executed on

land and set forth the rules for conducting hostilities,

including the permissible and impermissible means and

methods of war, including poisonous weapons and the

prohibition of materials calculated to cause unnecessary

suffering. The 1907 Hague Regulations also form the

basis of much of the language in the naticnal military

22a

law handbooks of leading international states, including

those of the United States. See U.S. DEP'T OF THE

ARMY, FIELD MANUAL: THE LAW OF LAND

WARFARE (FM-27-10) 1956 (following the Hague

Regulations article by article). By contrast, the Fourth

Geneva Convention, which the United States ratified in

1955, principally addresses the treatment of

noncombatants in the hands of enemy forces. As such, it

is less relevant than the 1907 Hague Regulations.

Nevertheless, the parties do not dispute that these

treaties, with the exception of the 1925 Geneva

Protocol, were in force with respect to the United

States during the time frame alleged in the Complaint

and that they have achieved the status of customary

international law.

The United States did not ratify the 1925 Geneva

Protocol until 1975. Accordingly, the Protocol cannot be

said to have constituted "a treaty of the United States,"

28 U.S.C. § 1350, during the period relevant to this

appeal. Even at the time of ratification, the United

States and other states reserved the right to respond in

kind to a belligerent's first use of poisonous weapons

and further limited the treaty obligation to apply only

against other treaty parties. The Protocol provides:

"(T]he use in war of asphyxiating, poisonous or other

gases, and of all analogous liquids, materials or devices,

has been justly condemned by the general opinion of

the civilized world" and "shall be universally accepted

as part of International Law, binding alike the

conscience and the practice of nations." Given the

nature and scope of the reservations to ratification,

however, it would be an impermissible stretch to find

that the 1925 Geneva Protocol had acquired the status

23a

of binding customary international law during the

Vietnam conflict.

In support of their argument that they have stated a

claim cognizable under the ATS for a violation of the

proscription against the use of poisonous weapons,

Plaintiffs cite to the March 1945 letter opinion of Major

General Myron C. Cramer, Judge Advocate General

("Cramer Opinion"), issued during the Second World

War in response to a request from the Secretary of

War. In particular, Plaintiffs point to the opinion's

conclusion that

the use of chemical agents . . . to destroy

cultivations [sic] or retard their growth, would

not violate any rule of international law

prohibiting poison gas; upon condition, however,

that such chemicals do not produce poisonous

effects upon enemy personnel, either from direct

contact, or indirectly from ingestion of plants and

vegetables which have been exposed thereto.

[W]|hether [such herbicides] are toxic to such a

degree as to poison an individual's system, is a

question of fact which should be definitely

ascertained.

In addition, Plaintiffs cite to the April 5, 1971 letter

opinion of J. Fred Buzhardt ("Buzhardt Opinion") from

the Office of General Counsel for the Department of

Defense, in response to a request from Senator J.W.

Fulbright, Chairman of the Senate Foreign Relations

Committee. That opinion relates to the application of

Articles 23(a) and (e) of the Hague Regulations of 1907-

-which were incorporated into the Department of the

24a

Army Field Manual--to the destruction of crops

through chemical agents during the Vietnam War:

[Neither the Hague Regulations nor the rules of

customary international law applicable to the

conduct of war and to the weapons of war

prohibit the use of antiplant chemicals for

defoliation or the destruction of crops, provided

that their use against crops does not cause such

crops as food to be poisoned nor cause human

beings to be poisoned by direct contact, and such

use must not cause unnecessary destruction of

enemy property.

In further support of their claim that the use of

herbicides as "poison" violated international law,

Plaintiffs rely on the opinions of their experts,

Professors George P. Fletcher and Jordan Paust, as

well as the works of other international law scholars,

who generally contend that the use of chemical or

biological warfare violates international law.

In support of their claim that Defendants

violated the prohibition against unnecessary

suffering, Plaintiffs argue that the use of any

material object that may have collateral

consequences and is not necessary for military

purposes is universally prohibited. In short, they

contend that the use of Agent Orange was

disproportionate to military necessity because it

ceused unnecessary human _§ suffering. In

particular, Plaintiffs assert that Articles 146 and

147 of the Fourth Geneva Convention prohibit

‘extensive destruction and appropriation of

property, not justified by military necessity and

25a

carried out unlawfully and wantonly" if

committed against protected persons. or

property. In addition, they argue that Article 50

of that Convention lists as a "grave breach[]" the

act of "willfully causing great suffering or serious

injury to body or health." Plaintiffs further

contend that the 1945 Nuremberg Charter and

the 1951 Nuremberg Principles prohibit "war

crimes"--namely, violations of the laws and

customs of war, including "murder, ill-treatment

or deportation to slave labor or for any other

purpose of civilian population of or in occupied

territory, murder or ill-treatment of prisoners of

war or persons on the seas, killing of hostages,

plunder of public or private property, wanton

destruction of cities, towns or villages, or

devastation not justified by military necessity."

C. Whether Plaintiffs’ Claims Are Based on a

Universally-Accepted International Norm

1. Application of Sosa to Plaintiffs’

International Law Claims

The sources of international law relied on by Plaintiffs

do not support a universally-accepted norm prohibiting

the wartime use of Agent Orange that is defined with

the degree of specificity required by Sosa. Although the

herbicide campaign may have been controversial, the

record before us supports the conclusion that Agent

Orange was used as a defoliant and not as a poison

designed for or targeting human populations. Inasmuch

as Agent Orange was intended for defoliation and for

destruction of crops only, its use did not violate the

international norms relied upon here, since those norms

26a

would not necessarily prohibit the deployment of

materials that are only secondarily, and _ not

intentionally, harmful to humans. In this respect, it is

_ significant that Plaintiffs nowhere allege that the

government intended to harm human beings through

its use of Agent Orange. In their Amended Complaint,

Plaintiffs recognize that "[t]he stated purpose of the

[herbicide] spraying was twofold: (a) to defoliate forests

and mangroves to destroy the vegetative cover used by

the [Democratic Republic of Vietnam] and [National

Liberation Front] troops for concealment, and (b) to

destroy crops to deprive them of food." In addition,

Plaintiffs acknowledge that the herbicide defoliation

campaign "heavily targeted," among other things,

vegetative cover adjacent to U.S. military bases and

surrounding areas, making it all the more implausible

that the government intended to use the herbicide as a

poisonous weapon during war.

There is lack of a consensus in the international

community with respect to whether the proscription

against poison would apply to defoliants that had

possible unintended toxic side effects, as opposed to

chemicals intended to kill combatants. The prohibition

on the use of "poison or poisoned weapons" in Article

23(a) of the 1907 Hague Regulations is certainly

categorical, see 36 Stat. 2277, 2301, but its scope is

nevertheless undefined and has remained so for a

century. As the International Court of Justice ("ICJ")

has acknowledged in an authoritative interpretation of

Article 23(a), that provision nowhere defines the critical

term "poison," and "different interpretations exist on

the issue." Legality of the Threat or Use of Nuclear

Weapons, Advisory Opinion No. 95, 1996 I.C.J. 226, 248,

255 (July 8, 1996) ("Nuclear Weapons’ Advisory

27a

Opinion"). Indeed, Plaintiffs' own expert conceded that

"[t]he concept of ‘poison’ is not defined." Plaintiffs

themselves concede that the authorities "go[] both

ways' as to whether the use of herbicides in war,

"particularly to destroy crops not intended for use by

enemy forces, did violate established norms of

international law prior to 1975."

Plaintiffs ignore language from the Cramer Opinion

that would permit the use of Agent Orange under the

circumstances in which it was in fact used. Notably,

that Opinion recognizes that "[a] distinction exists

between the employment of poisonous and deleterious

gases against enemy human beings, and the use of

chemical agents to destroy property, such as natural

vegetation, crop cultivations, and the like." Moreover,

the Cramer Opinion concludes that "[tlhe preposed

target of destruction, enemy crop cultivations, is a

legitimate one, inasmuch as a belligerent is entitled to

deprive the enemy of food and water, and to destroy his

sources of supply whether in depots, in transit on land,

or growing in his fields." The Buzhardt Opinion, as it

relates to permissible uses of herbicides, notes that

"General Cramer's opinion clearly encompasses the

activities that have taken place in Vietnam and reflects

the same position which we have taken" in evaluating

the legality of the destruction of crops through chemical

agents and the application of the 1925 Geneva Protocol

and the 1907 Hague Convention.

According to the Buzhardt Opinion, the prohibition of

poisonous weapons "does not effect any prohibition on

the use of other weapons and, in particular, it does not

prohibit the use of chemical herbicides for depriving the

enemy of food and water." That Opinion interprets the

28a

1956 Army Field Manual relied upon by Plaintiffs to

permit "measures being taken . . . to destroy, through

chemical or bacterial agents harmless to man, crops

intended solely for consumption by the armed forces (if

that fact can be determined)” but it draws a distinction

between herbicides that are intended to destroy crops

belonging to enemy soldiers and crops belonging to

non-combatants. The Opinion further states as follows:

"The thrust of the phrase 'harmless to man’... draws

attention to Article 23(e) of the Hague Regulations of

1907, wherein combatants are forbidden to employ

weapons ‘calculated to cause unnecessary suffering."

In a further narrowing of the circumstances under

which crop destruction is impermissible, the Buzhardt

Opinion states:

Where it cannot be determined whether crops

were intended solely for consumption by the

enemy's armed forces, crop destruction would be

lawful if a reasonable inquiry indicated that the

intended destruction is justified by military

necessity under the principles of Hague

Regulation Article 23(g), and that the

devastation oceasioned is not disproportionate to

the military advantage gained.

The Opinion concludes that the decision to refrain from

using herbicides is a matter of United States policy and

‘is not compelled by the 1907 Hague Regulations, the

Geneva Protocol of 1925 or the rules of customary

international law." Accordingly, neither the Cramer

Opinion nor the Buzhardt Opinion recognizes a

universally-accepted prohibition on the use. of

herbicides.

29a

Plaintiffs’ reliance upon the trials at Nuremberg is

inapposite for the same reasons. As the District Court

correctly noted, the individuals who were found guilty

in those criminal proceedings were found to have

supplied poisonous Zyklon B gas in World War II

concentration camps when "the accused knew that the

gas was to be used for the purpose of killing human

beings." In re 4 yent Orange Prod. Liab. Litig., 373 F.

Supp. 2d at 94. Because Agent Orange was "not used as

[a] means of directly attacking enemy troops," it was

not prohibited by Article 23(e)'s proscription of the

calculated use of lethal substances against human

beings and its use is distinguishable from the context in

which Zyklon B gas was used in World War II.

Other sources of United States policy lend additional

Support to that conclusion. In 1961, the Secretary of

State wrote to President Kennedy to recommend the

use of herbicides in Vietnam because "successful plant-

killing ops in [Vietnam], carefully coordinated with and

incidental to larger ops, can be of substantial assistance

in the control and defeat of the [Vietcong]," and "[t]he

use of defoliant does not violate any rule of

international law concerning the conduct of chemical

warfare and is an accepted tactic of war." In 1969, the

United States objected to a proposed United Nations

resolution that would have "ma[dle a clear affirmation

that the prohibition contained in the Geneva Protocol

applied to the use in war of all chemical, bacteriological

and biological agents (including tear gas and other

harassing agents) which presently existed or which

might be developed in the future." The following year,

after the United States ceased its use of Agent Orange

upon a study revealing its deleterious effects on

humans, the Secretary of State wrote a letter to

30a

President Nixon recommending that the President

transmit to the Senate for advice and consent the

ratification of the 1925 Geneva Protoccl. In his letter,

the Secretary stated that "[i]t is the United States'

understanding of the Protocol that it does not prohibit

the use in war of riot-control agents and chemical

herbicides." When President Ford ratified the Geneva

Protocol in 1975, he clarified that "[aJlthough it is our

position that the [P]rotocol does not cover riot control

agents and chemical herbicides, I have decided that the

United States shall renounce their use in war as a

matter of national policy." Moreover, in ratifying the

1925 Geneva Protocol in 1975, the Senate made clear its

understanding that the United States' prior use of

herbicides in Vietnam had not violated that treaty and

that the government intended the Protocol to be only

prospective in effect. See Prohibition of Chemical and

Biological Weapons: Hearing on S. Res. 48 Before the

Senate Comm. on Foreign Relations, 98d Cong. 3

(1974) (statement of Senator Humphrey reassuring the

Executive Branch that Congress's adoption of the 1925

Geneva Protocol "would in no way reflect on our past

practice with regard to chemical agents. The manner in

which herbicides and riot control agents were used in

Vietnam was fully in accordance with the U.S. [sic]

prevailing interpretation of the protocol"). Although

Plaintiffs rely on the 1907 Hague Regulations instead of

the 1925 Geneva Protocol, it is significant that several

nations used poisonous gases during World War I and

the contracting parties to the Geneva Protocol found it

necessary to adopt such a resolution despite the 1907

Hague Regulations that were in effect.

Plaintiffs’ claims that the use of Agent Orange violated

the norm of proportionality and caused unnecessary

3la

suffering rely upon international agreements requiring

intentionality that Plaintiffs cannot establish. Article

23(e) prohibits the use of "arms, projectiles, or material

calculated to cause unnecessary suffering." Article 6 of

the Nuremberg Charter proscribes "wanton destruction

of cities, towns or villages, or devastation not justified

by military necessity." Agreement for the Prosecution

and Punishment of the Major War Criminals of the

European Axis Powers, Charter of the Int'l Military

Tribunal, Aug. 8, 1945, pt. II, art. 6, 59 stat. 1544, 1574,

82 U.N.T.S. 279 ("Nuremburg Charter"). Article 147 of

the Fourth Geneva Convention defines "grave

breaches" as "willfully causing great suffering or serious

injury to body or health," as well as “extensive

destruction and appropriation of property, not justified

by military necessity and carried out unlawfully and

wantonly." These norms are all simply too indefinite to

satisfy Sosa's specificity requirement. As Plaintiffs’

expert opined, "norms that depend on modifiers such as

‘disproportionate’ or 'unnecessary’ . . . invite a case-by-

case balancing of competing interests . . . [and] black-

letter rules become vague and easily manipulated. They

lose the definite and specific content that Sosa seems to

demand for recovery under the ATS." Defendants cite

to the Final Report of the International Criminal

Tribunal for the former Yugoslavia (the "ICTY")

Prosecutor on the NATO bombing in Kosovo:

The main problem with the principle of

proportionality is not whether or not it exists but

what it means and how it is to be applied. It is

relatively simple to state that there must be an

acceptable relation between the _ legitimate

destructive effect and undesirable collateral

effects .... It is much easier to formulate the

32a

principle of proportionality in gerieral terms than

it is to apply it to a particular set of

circumstances because the comparison is often

between unlike quantities and values.

Final Report to the Prosecutor by the Committee

Established to Review the Nato Bombing Campaign

Against the Federal Republic of Yugoslavia P48 (June

8, 2000), reprinted in 39 I.L.M. 1257, 1271 (2000). The

principle of proportionality implicates the element of

intent, e.g., "calculated to cause unnecessary suffering,"

"wanton destruction," "willfully causing great suffering,"

and "carried out unlawfully and wantonly." See 1907

Hague Regulations, art. 23(e). Because Plaintiffs do not

allege, nor could they on this record prove, the required

mens rea, they fail to make out a cognizable basis for

their ATS claim. The purpose behind spraying Agent

Orange was only to destroy crops and "to [slave the

lives of Americans and those of our allies," and not to

injure human populations.

Plaintiffs have, at best, alleged a customary

international norm proscribing the purposeful use of

poison as a weapon against human beings that is

inapplicable in this case. We hold that Plaintiffs’ claim

that "defendants manufacturled] and suppllied] a[n]

herbicide laced with poison" and used as a defoliant fails

to satisfy the standard set forth by the Supreme Court

in Sosa for recognition of a tort in violation of

international law and is, therefore, not cognizable under

the ATS. See, e.g., Alvarez-Machain v. United States,

331 F.3d 604, 620 (9th Cir. 2003) (dismissing cross-

border abduction claim, holding: "Because a human

rights norm recognizing an individual's right to be free

from transborder abductions hes not reached a status of

33a

international accord sufficient to render it 'oblig: ory

or ‘universal,’ it cannot qualify as an actionable norm

under the [ATS]. This is a case where aspiration has not

yet ripened into obligation."), rev'd sub nom Sosa, 542

U.S. at 692; Flores v. S. Peru Copper Corp., 343 F.3d

140, 160 (2d Cir. 2008) (holding that "the asserted 'right

to life' and 'right to health' are insufficiently definite to

constitute rules of customary international law... . [IJn

order to state a claim under the [ATS], we have

required that a plaintiff allege a violation of a ‘clear and

unambiguous’ rule of customary international law"),

Beanal v. Freeport-McMoran, 197 F.8d 161, 167 (5th

Cir. 1999) (stating that customary international law

cannot be established by reference to "abstract rights

and liberties devoid of articulable or discernable

standards and regulations"). Because we cannot find

that Plaintiffs have grounded their claims arising under

international law in a norm that was _ universally

accepted at the time of the events giving rise to the

injuries alleged, the courts are without jurisdiction

under the ATS to consider them. See Sosa, 542 U.S. at

725 ("[Cjourts should require any claim based on the

present-day law of nations to rest on a norm of

international character accepted by the civilized world

and defined with a specificity comparable to the

features of the 18th-century paradigms we have

recognized.").

Defendants have argued that "civil aiding-and-abetting

liability" may not be imposed on corporate entities for

violations of the law of war and that, in any event,

prudential considerations should preclude adjudication

of Plaintiffs’ claims. Because Plaintiffs' claims fail to

assert a violation of international law norms that are

universally accepted and as specific as the paradigmatic

o4a

norms identified in Sosa, thereby resulting in a failure

to establish a cognizable cause of action that gives rise

to jurisdiction under the ATS, we need not address

these secondary arguments. °

Ill. Plaintiffs' Claims Arising under Domestic Law

Plaintiffs argue that the District Court erred in

dismissing their state law claims based on the

government-contractor defense without discovery on

Agents White and Blue, and Plaintiffs incorporate by

reference the arguments of appellants United States

veterans in the companion case decided herewith. With

regard to discovery, Plaintiffs were granted access to

the discovery conducted in the companion case brought

by the veterans, and the record below shows that

additional discovery was conducted on Agents White

and Blue. Nevertheless, as set forth in the companion

case decided herewith, the government contractor

defense operates as a complete bar to Plaintiffs' state

law claims. See In re Agent Orange Prod. Liab. Litig.,

Nos. 05-1760-ev et al., F.3d (2d Cir. Nov. , 2007).

IV. Plaintiffs' Claims for Injunctive Relief

The District Court found that the extraterritorial

injunction Plaintiffs sought raised concerns over

Vietnam's sovereignty and was rendered "wholly

impracticable" by the difficulties involved in enforcing

an order of abatement and remediation of vast areas of

land over which it had no jurisdiction. In re Agent

Orange Prod. Liab. Litig., 373 F. Supp. 2d at 46.

Plaintiffs claim that they have adequately alleged an

irreparable injury that no legal remedy can address.

Plaintiffs further claim that any determination

35a

regarding the practicalities of enforcing an injunction is

premature at this stage in the litigation without further

evidentiary developments to guide the District Court in

fashioning a remedy. The facts relied on by the District

Court, however, in denying the requested injunctive

relief--notably Vietnam's sovereignty and the court's

lack of jurisdiction over the relevant territory--are

readily apparent, and Plaintiffs offer no argument as to

how further development of the record might guide the

District Court in fashioning a manageable and

enforceable injunctive remedy. In any event, we find no

abuse of discretion in the district court's decision to

deny injunctive relief for substantially the same

reasons given by the District Court.

CONCLUSION

Because of our disposition on the issues of law in this

case, we need not address any of the parties’ cther

contentions on appeal. In accordance with the

foregoing, we affirm the judgment of the District Court.

Foonotes

‘News of the Vietnamese President's visit to the

United States in June 2007 confirmed that the United

States and Vietnam currently are engaged in

diplomatic efforts regarding the Agent Orange issue:

In the build-up to the hearing, a Vietnamese

delegation is touring the United States screening

documentaries of disfigurement and other health

problems caused by dioxin, a small compound

within the 'agent orange’ herbicide that is one of

the most toxic compounds known .... In the past

36a

year, the two countries have set a new tone in

dealing with cleaning up toxins from former U.S.

air bases where they were stored in barrels

marked with an orange stripe. Government

agencies and non-government organizations have

plans to start clean-up in the central city of

Danang this year. In late May, [President] Bush

signed a bill that provides $ 3 million toward

health and environment issues stemming from

dioxin.

Grant McCool, Vietnam Leader Visits U.S. for Trade,

Other Issues Weigh, Boston Globe, June 14, 2007.

“While our Court has over time referred variously to 28

U.S.C. § 1850 as the Alien Tort Statute, see, e.g.,

Filartiga v. Pena-Irala, 680 F.2d 876, 880 (2d Cir.

1980), the Alien Tort Act, see, e.g., Kadic v. Karadzic,

70 F.3d 2382, 236 (2d Cir. 1995) and the Alien Tort

Claims Act, see, e.g., Khulumani v. Barclay Nat'l Bank

Ltd., 504 F.8d 254, 258 (2d Cir. 2007), because the

Supreme Court has opted in Sosa to refer to § 1350 as

the Alien Tort Statute, we think it is preferable to

follow that designation.

’Plaintiffs do not appear to advance on appeal their

international law claims grounded in genocide, crimes

against humanity, and torture. Nor do they appear to

press any tort claims under Vietnamese law.

‘The plaintiff in Sosa was a Mexican national who had

been abducted, held overnight, and transported to the

United States to face prosecution on charges of the

murder and torture of an agent of the federal Drug

Enforcement Administration. 542 U.S. at 697-98.

37a

Defendant Sosa was a Mexican national who allegedly

had participated in the abduction. After being acquitted

on the charges against him, the plaintiff brought an

action under the ATS against Sosa, and others alleging

that his abduction constituted tortious conduct under

the ATS. See id. at 698-99. On appeal, the Supreme

Court considered whether the law of nations included "a

general prohibition of ‘arbitrary’ detention defined as

officially sanctioned action exceeding positive

authorization to detain under the domestic law of some

government, regardless of the circumstances." /d. at

736. Applying the standard set forth in its opinion, the

Court considered several sources of international law

and ultimately held that "a single illegal detention of

less than a day, followed by the transfer of custody to

lawful authorities and a prompt arraignment, violates

no norm of customary international law so well defined

as to support the creation of a federal remedy [under §

1350)." /d. at 738. Noting that the plaintiffs claim

advanced "an aspiration that exceeds any binding

customary rule having the specificity we require," the

Court concluded that ‘[cJreating a private cause of

action to further that aspiration would go beyond any

residual common law discretion we think it appropriate

to exercise." /d. at 738.

After the filing of briefs and oral argument in this

appeal, this Court addressed in a different case whether

a district court had subject matter jurisdiction over

ATS claims alleging that domestic and foreign

corporations aided and abetted the government of

apartheid South Africa in committing various violations

of customary international law. See Khulumani v

Barclay Nat'l Bank Ltd., 504 F.3d 254, 260 (2d Cir.

2007) (per curiam) (holding that "in this Circuit, a

38a

plaintiff may plead a theory of aiding and abetting

liability under the [ATS]")

39a

05-1509-ev, 05-1693-ev, 05-1694-ev, 05-1695-cev, 05-1696-

ev, 05-1698-cv, 05-1700-cev, 05-1737-cv, 05-1760-cv, 05-

1771-cv, 05-1810-cv, 05-1813-cv, 05-1817-cv, 05-1820-cv,

05-2450-cv, 05-2451-cev

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

In re "Agent Orange" Product Liability Litigation; J.

MICHAEL TWINAM, et al Plaintiffs-Appellants,

-V-

DOW CHEMICAL COMPANY, et al., Defendants-

Appellees.

June 18, 2007, Argued, Final Submission, August 3,

2007

February 22, 2008, Decided

As Corrected February 25, 2008.

JUDGES: Before: MINER, SACK, and HALL,

Circuit Judges. SACK, Circuit Judge.

OPINION

SACK, Circuit Judge:

More than thirty-five years ago, the United States

military stopped using Agent Orange and related

chemicals as defoliants to prosecute the war in

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Vietnam. This appeal is but the latest chapter in a

thirty-year struggle by the litigants, their counsel, and

judges of the United States District Court for the

Eastern District of New York and of this Court to bring

to just legal closure to the alleged consequences of that

use.

We explain below why these sixteen unconsolidated

appeals are now before us and why, in our view, the

government contractor defense applies to bar these

claims. In the course of doing so, we consider the

discovery limitations imposed by the district court and

that court's denial of the Stephenson plaintiffs' motion

to amend their complaint. By an opinion written by

Judge Hall also filed today, we decide that those of the

sixteen cases that were originally filed in state court

were properly removed by the defendants to federal

court. A third decision by the panel, written by Judge

Miner, addresses the separate issues related to the use

of Agent Orange raised on appeal in Vietnam Assoc. for

Victims of Agent Orange/Dioxin v. Dow Chemical Co.,

No. 05-1953-ev.

The plaintiffs pursuing this appeal are United States

military veterans or their relatives who allege that

myriad injuries, mostly forms of cancer, were caused by

the veterans’ exposure to the chemical defoliant "Agent

Orange" during service in Vietnam.' They assert that

the district court erred in concluding that the

government contractor defense -- which protects

government contractors from state tort liability under

certain circumstances when they provide defective

products to the government -- applied to bar the

plaintiffs’ claims. The plaintiffs contend further that the

district court abused its discretion by denying them

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discovery beyond what was available in files from prior

Agent Orange litigation. We disagree with the plaintiffs

on both counts.

We also conclude that it was error to deny the

Stephensons' motion to amend their complaint. In light

of our conclusion that the defendants are entitled to

invoke the government contractor defense, however,

we find the error to be harmless.

We therefore affirm the judgments of the district court

in all respects.

BACKGROUND

The cases concerning the United States military's

acquisition and use of Agent Orange during the

Vietnam War, of which these are but a relative few, and

their massive factual records, have been addressed in

so many different judicial opinions over the years that

we do not attempt even to list them here. See generally

In re "Agent Orange" Prod. Liab. Litig., 304 F. Supp. 2d

404, 410-14 (K.D.N. Y. 2004) ("Agent Orange ITI Gov.

Contractor Def. Op."). Neither do we undertake a

detailed retelling of the history of or facts underlying

this litigation. See id. at 407-22 (describing the history

of Agent Orange lawsuits brought by Vietnam

veterans).” Instead, we set forth below only what we

think necessary for an understanding of our resolution

of these appeals.

Agent Orange was one of several chemically similar

herbicides* used by the United States government

during the Vietnam War in connection with "Operation

Ranch Hand,’ the code name for the military's efforts to

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defoliate various areas in Vietnam. See In re Agent

Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 19

(E.D.N.Y. 2005) ("Between 1961 and 1971, herbicide

mixtures . . . were used by the United States and

Republic of Vietnam .. . forces to defoliate forests and

mangroves, to clear perimeters of military installations

and to destroy ‘unfriendly' crops, as a tactic for

decreasing enemy armed forces|['] protective cover and

food supplies."). The government purchased the

defoliants from the defendants-appellees in the instant

appeals pursuant to various government contracts.’ As

the defoliation campaign intensified, many of the

contracts were subjected to various government

directives entered pursuant to the Defense Production

Act of 1950, see 50 U.S.C. app. § 2061 et seq., and

regulations promulgated pursuant thereto. The

government characterized delivery of Agent Orange as

part of the prosecution of military action, which enabled

the defendants to procure otherwise scarce materials

and equipment necessary to produce it. /saacson v.

Dow Chemical Co. (In re "Agent Orange" Prod. Liab.

Litig.), 304 F. Supp. 2d at 424-25.

The Agent Orange delivered to the government was a

mixture of two different herbicides: 2,4-D (2,4-

Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5-

Trichlorophenoxyacetic acid). The contracts required

that the chemicals be nearly 100% pure and that they

be combined in roughly equal proportions.

The manufacture of 2.45-T produced, as a byproduct,

trace elements of the toxic chemical dioxin (2,3,7,8-

Tetrachlorodibenzo para dioxin (TCDD)). The plaintiffs

allege that it is dioxin that caused the injuries of which

they now complain.

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The amount of dioxin contained in a particular batch of

Agent Orange varied depending on the production

method used by its manufacturer. See In re "Agent

Orange" Prod. Liab. Litig., 818 F.2d 145, 150, 173 (2d

Cir. 1987) ("Agent Orange I Settlement Op."), cert.

denied, 484 U.S. 1004, 108 S. Ct. 695, 98 L. Ed. 2d 648

(1988); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d

187, 189 (2d Cir. 1987) ("Agent Orange I Opt-Out Op."),

cert. denied, 487 U.S. 1234, 108 S. Ct. 2898, 101 L. Ed.

2d 932 (1988). The defendants knew at the time they

were manufacturing Agent Orange that dioxin was a

byproduct and that it could cause certain kinds of harm

under certain conditions. Various government agencies

and officers assessed the toxicity of the defoliating

agents, including Agent Orange, being used in Vietnam...

Precisely what knowledge the government and the

defendants possessed and when they came to have it is

in dispute.

I. Overview of Agent Orange Litigation

The plaintiffs now before us on appeal represent a small

fraction of the many Americans who have pursued legal

claims arising out of the government's use of Agent

Orange to fight the Vietnam War. See generally Agent

Orange III Gov. Contractor Def. Op., 304 F. Supp. 2d at

410-14 (listing more than one hundred Agent-Orange-

related decisions); see also, e.g., id. at 407-23 (detailing

the history of Agent Orange litigation involving

Vietnam veterans). Their claims find their roots in the

"Agent Orange I" litigation, the veterans' class action

begun in the late 1970s and settled in 1984.

In those cases, the Judicial Panel on Multidistrict

Litigation designated the United States District Court

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for the Eastern District of New York as the

Multidistrict Litigation ("MDL") court for all federal

Agent Orange-related cases brought by military

veterans of various countries. Thereafter, first Judge

Pratt and then Judge Weinstein presided over

proceedings involving approximately 600 litigants,

hundreds of thousands of putative class members,

several years of motion practice (including motions for

class certification), and one appeal to this Court. On the

eve of trial of those cases, the defendants and class

representatives reached what was then thought by the

parties and the courts to be a final global settlement of

Agent Orange-related cases in the amount of $ 180

million. Agent Orange I Settlement Op., 818 F.2d at 152-

55.

Because of what we termed "formidable hurdles" to the

plaintiffs' claims, id. at 174, we affirmed the district

court's approval of the settlement at what -- even at a

total of $ 180 million -- we termed "nuisance value,"

equivalent to "at best only a small multiple of, at worst

less than, the fees the chemical companies would have

had to pay to their lawyers had they continued the

litigation." /d. at 171. The Plaintiffs in 287 cases opted

out of the class and thereby the settlement.

Thereafter, the district court granted the defendants'

motion for summary judgment in those opt-out actions

"on the alternative dispositive grounds that no opt-out

plaintiff could prove that a particular ailment was

caused by Agent Orange, that no plaintiff could prove

which defendant had manufactured the Agent Orange

that allegedly caused his or her injury, and that all the

claims were barred by the military contractor

defense."Agent Orange I Opt-Out Op., 818 F.2d at 189

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(internal citations omitted).

From 1987 through 1997, the settlement fund, which,

with interest and other augmentations, eventually grew

to about $ 330 million was distributed to, inter alios,

some 291,000 class members who filed claims prior to

the 1994 cutoff date. Agent Orange III Gov. Contractor

Def. Op., 304 F-. Supp. 2d at 421. Meanwhile, two sets of

plaintiffs who had been members of the original

plaintiff class and who were therefore entitled to

receive settlement payments, but whose injuries had

manifested after their opportunity to opt out of the

class action had expired, filed class actions on behalf of

themselves and other similarly situated veterans. The

district court decided that because the plaintiffs were

class members, their claims were barred, and we

affirmed. In re "Agent Orange" Prod. Liab. Litig., 996

F.2d 1425, 1489 (2d Cir. 1993) ("Agent Orange II"),

overruled in part on other grounds by Syngenta Crop

Protection, Inc. v. Henson, 537 U.S. 28, 34, 128 S. Ct.

366, 154 L. Ed. 2d 368 (2002).

Shortly after the settlement fund distributions were

completed, the third, and instant, series of lawsuits was

initiated. These were brought by two of the sixteen

plaintiffs now before us, the Isaacsons and

Stephensons, who had not been members of the original

plaintiff class. These veterans and their families alleged

injuries that resulted from exposure to Agent Orange

but did not manifest until after the 1994 cutoff date for

filing settlement claims in the original actions. In a 2001

opinion, we held that the district court had erred in

deciding that the plaintiffs' claims were barred by the

Agent Orange I settlement. Stephenson v. Dow Chem.

Co., 273 F.3d 249, 261 (2d Cir. 2001) ("Agent Orange

{

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ITI"). We concluded that a conflict existed between the

plaintiffs and the class representatives because the

representatives had permitted the settlement fund to

terminate without a provision for post-1994 claimants

such as these plaintiffs. Jd. at 260-61 (relying on Ortiz v.

Fibreboard Corp., 527 U.S. 815, 119 8S. Ct. 2295, 144 L.

Ed. 2d 715 (1999) and Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 117 S. Ct. 2231, 188 L. Ed. 2d 689 (1997)).

As a result, the plaintiffs were not adequately

represented by the class, and Agent Orange I did not

prevent them from pursuing their claims. /d. at 261.

IT. The Instant Appeals

On remand, the Stephensons and Isaacsons were

eventually joined by fourteen other sets of plaintiffs

alleging Agent Orange injuries first discovered after

the 1994 cutoff date. The cases were not consolidated,

but the district court conducted simultaneous

proceedings and applied rulings in the Stephenson and

Isaacson cases to each of the others. Together, the

plaintiffs raised three tort claims under various state

laws: design defect, failure to warn, and manufacturing

defect.

Six days after our mandate issued in Agent Orange III,

the defendants moved in the district court for summary

judgment against the Stephensons and Isaacsons.’ At

about the same time, the Stephensons moved to amend

their complaint.

On February 9, 2004, several days after receiving

voluminous submissions from the plaintiffs and two

weeks after oral argument, the district court issued

four decisions, two of which -- one granting the

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defendants’ motion for summary judgment and the

other denying the Stephensons' motion to amend -- are

now before us on appeal.’ Even though only the motions

for summary judgment in Stephenson and Isaacson

were before it, the district court considered all the

evidence put forth by the parties in Agent Orange I in

ruling on defendants' summary judgment motion.

Having done so, it concluded that the government

contractor defense barred both the design defect and

failure-to-warn claims. Agent Orange III Gov't

Cont, actor Def. Op., 304 F. Supp. 2d at 441-42. As to

plaintiffs' manufacturing defect claims, the court

concluded that they were barred because the

defendants' products conformed to the government's

specifications. Jd. at 442.

In granting the motion for summary judgment,

however, the district court noted that the plaintiffs had

complained of "difficulties in obtaining evidence for

their position," an "understandable" problem in light of

the passage of time between exposure and injury. /d.

"To ensure due process," 7d., therefore, Judge Weinstein

charted a distinctly unusual course -- he permitted

discovery, never undertaken by Agent Orange III

litigants in light of the timing of prior appeals and the

defendants' motion, to continue through August 10,

2004, and he set a motion schedule for an anticipated

motion for reconsideration based on the results of that

discovery. /d.

Thereafter, the district court ordered that all files

relating to Agent Orange sent to the National Archives

pursuant to court order following Agent Orange I be

returned to the district court and made available to the

plaintiffs for their review. The magistrate judge

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assigned to the case then denied all requests for

additional non-MDL discovery, although the district

court subsequently granted the plaintiffs access to "up

to six complete deposition transcripts utilized in non-

MDL 381 cases claimed by plaintiffs to shed light on

relevant knowledge of defendants."

On November 3, 2004, the plaintiffs in Stephenson and

Isaacson, as anticipated, filed a motion for

reconsideration of the district court's order granting

summary judgment. On November 16, 2004, the district

court, without awaiting response from the defendants,

denied the plaintiffs’ motion. In re "Agent Orange"

Prod. Liab. Litig., 344 F. Supp. 2d 878, 874-75

(E.D.N.Y. 2004). It further ordered the defendants to

"submit a specific judgment in favor of each named

defendant against each named plaintiff whose claims

arise from service in the Armed Forces of the United

States," thereby rendering the court's judgment in

Stephenson and Isaacson applicable to each of the

fourteen additional plaintiffs now before us on appeal.

Id. at 875.

Following a motion by the Bauer plaintiffs, who argued

that granting the motion for summary judgment was

inappropriate because, inter alia, the procedural

posture of their case had rendered them unable to

respond to the defendants’ motion, all plaintiffs were

ultimately given until February 28, 2005, to submit

additional papers supporting their position that

summary judgment should not have been granted. Oral

argument was held on February 28. On March 2, 2005,

the district court sumimarily reaffirmed its November

16, 2004 Order. In re "Agent Orange" Prod. Liab. Litig.,

No. 79 MD 381, 2005 US. Dist. LEXIS 16154, 2005 WL

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483416, at *1 (E.D.N.Y. Mar. 2, 2005). Separate

judgments of dismissal in each action were then filed.

More than a year before, in February 2004, the district

court had denied the Stephensons' motion to amend

their complaint to add adu:tional defendants and

several new causes of action. Stephenson v. Dow Chem.

Co., 220 F.R.D. 22, 25-26 (E.D.N.Y. 2004). Although the

defendants had never answered the Stephensons'

original complaint, filed pro se in the Western District

of Louisiana, the motion to amend was denied on a

variety of grounds. Id.

The plaintiffs appeal. Before us are challenges to (1) the

district court's grant of the motion for summary

judgment as to their design claim only;? (2) the denial of

their requests for additional discovery; and (3) the

denial of the Stephensons' motion to amend.”

DISCUSSION

I, Summary Judgment

A. Standard of Review

We review the district court's grant of summary

judgment de novo, "construing the evidence in the light

most favorable to the non-moving party and drawing all

reasonable inferences in its favor." Allianz Ins. Co. v.

Lerner, 416 F.3d 109, 118 (2d Cir. 2005). "We will affirm

the judgment only if there is no genuine issue as to any

material fact, and if the moving party is entitled to a

judgment as a matter of law." /d. (citing Fed. R. Civ. P.

56(c)).

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B. The Government Contractor Defense

Almost twenty years ago, in Boyle v. United

Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L.

Ed. 2d 442 (1988), the Supreme Court recognized the

government contractor defense, a federal common! law

doctrine. The Court concluded that the “uniquely

federal interest[]" of "getting the Government's work

done" requires that, under some circumstances,

independent contractors be protected from tort lability

associated with their performance of government

procurement contracts. Jd. at 504-05.

The Court looked to the Federal Tort Claims Act, 28

U.S.C. § 2671 et seq. ("FTCA"), for guidance. Jd. at 509-

12. Under the FTCA, Congress waived sovereign

immunity for the government insofar as Congress

"authorized damages to be recovered against the

United States for harm caused by the negligent or

wrongful conduct of Government employees, to the

extent that a private person would be liable under the

law of the place where the conduct occurred." /d. at 511

(citing 28 U.S.C. § 1346(b)). The Act's discretionary

function exception, however, carves out from that

authorization "'[a]ny claim . . . based upon the exercise

or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or

not the discretion involved be abused.” /d. (quoting 28

U.S.C. § 2680(a))(brackets in original).

The Boyle Court concluded that the protection for

discretionary action taken by federal agencies and

employees implies some measure of similar protection

for government contractors even though they are

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themselves non-governmental entities. The Court

noted that the exercise of government discretion is

inherent to military contracting:

We think that the selection of the appropriate

design for military equipment to be used by our

Armed Forces is assuredly a discretionary

function within the meaning of this provision. It

often involves not merely engineering analysis

but judgment as to the balancing of many

technical, military, and even social

considerations, including specifically the trade-

off between greater safety and greater combat

effectiveness.

Id. Accordingly, the Court said,

permitting "second-guessing" of these judgments

through state tort suits against contractors

would produce the same effect sought to be

avoided by the FTCA exemption. ... To put the

point differently: It makes little sense to insulate

the Government against financial liability for the

judgment that a particular feature of military

equipment is necessary when the Government

produces the equipment itself, but not when it

contracts for the production.

Id. at 511-12 (citation omitted). The defense thus

protects government contractors from the specter of

liability when the operation of state tort law would

significantly conflict with the government's contracting

interest. Jd. at 507.

Adopting the reasoning employed in several previous

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court of appeals decisions, the Court limited "the scope

of [state law] displacement” to instances in which "(1)

the United States approved reasonably precise

specifications [for the allegedly defectively designed

equipment]; (2) the equipment conformed to those

specifications; and (3) the [contractor who supplied the

equipment] warned the United States about the

dangers in the use of the equipment that were known to

the supplier but not to the United States." Jd. at 512.

The first two requirements "assure that the suit [from

which protection is sought] is within the area where the

policy of the ‘discretionary function’ would be

frustrated -- i.e., they assure that the design feature in

question was considered by a Government officer, and

not merely by the contractor itself." Jd. The third

requirement is imposed because "in its absence, the

displacement of state tort law would create some

incentive for the manufacturer to withhold knowledge

of risks, since conveying that knowledge might disrupt

the contract but withholding it would produce no

liability." Jd. The Court therefore "adopt{ed] this

provision lest [its] effort to protect discretionary

functions perversely impede them by cutting off

information highly relevant to the discretionary

decision." /d. at 512-138.

The plaintiffs here contend that the defendants cannot,

at least as a matter of law at the summary judgment

stage, satisfy any one of the three requirements.

1. Reasonably Precise Specifications.

The plaintiffs argue that the defendants have not

established the first Boyle requirement -- that "the

United States approve{] reasonably precise

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specifications," 487 U.S. at 512 -- because: (1) Agent

Orange procurement’ contracts contained no

specifications regarding the defective feature, dioxin;

(2) there is at least a genuine issue of material fact

regarding whether Agent Orange was a commercially

available product whose specifications were created by

the defendants rather than the government, whose

involvement was minimal; and (3) the alleged defect

was unrelated to the contractual specifications for 2,4,5-

T because it was the defendants' chosen manufacturing

processes -- with which the government was not

involved and which were not integral to contract

compliance -- that caused dioxin to be present.”

The first argument concerns the proper conception of

the complained-of defect and can readily be resolved.

The second and third arguments are, in distinct ways,

about how the government exercised its discretionary

authority: The second argument asks whether the

government was involved in the contractual process to

the extent that Boyle requires; while the third asks us

to determine in what context the government must

exercise its discretion for the government contractor

defense to apply. To conduct this third inquiry, we must

determine the source of the "conflict" between the

government's interests and state tort law that is

required for the defense to apply.

a. The complained-of defect

The plaintiffs assert that because the contracts at issue

contain no specifications whatsoever with regard to the

dioxin, the government exercised no discretionary

authority over that which is the subject of their state

tort litigations, as a successful defense based on Boyle

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requires. Their argument misconceives the nature of

what the contracts in question were about and defines

the alleged defective design too narrowly.

The contracts at issue provided for the defendants to

supply Agent Orange. The Agent Orange was allegedly .

defective because it contained excessive trace amounts

of dioxin, which were present as a result of the

manufacture of a specified Agent Orange component,

2,4,5-T. The dioxin -- while a defect of 2,4,5-T -- was not

itself defective, nor did it exist within Agent Orange

apart from the 2,4,5-T therein.” It was therefore the

2,4,5-T that was alleged to be defective, not the dioxin.

b. The government approved specifications for a

uniquely tailored product

The plaintiffs contend that the defendants cannot

demonstrate that the government exercised its

discretionary authority to create the Agent Orange

specifications that are contained in the contracts. The

government contractor defense protects federal

contractors solely as a means of protecting the

government's discretionary authority over areas of

significant federal interest such as_ military

procurement. Defendants asserting the defense must

demonstrate that the government made a discretionary

determination about the material it obtained that

relates to the defective design feature at issue. Where

the government "merely rubber stamps a design, .. . or

where the [g]overnment merely orders a product from

stock without a significant interest in the alleged design

defect," the government has not made a discretionary

decision in need of protection and the defense is

therefore inapplicable. Lewis ». Babcock Indus., Inc.,

ood

985 F.2d 83, 87 (2d Cir.) (citing Trevino v. Gen.

Dynamics Corp., 865 F.2d 1474, 1480, 1486 (5th Cir.),

cert. denied, 493 U.S. 935, 110 S. Ct. 327, 107 L. Ed. 2d

317 (1989), and Boyle, 487 U.S. at 509) (internal

quotation marks omitted), cert. denied, 509 U.S. 924,

113 S. Ct. 3041, 125 L. Ed. 2d 727 (1993). If the

government buys a product "off-the-shelf" -- "as-is" --

the seller of that product cannot be heard to assert that

it is protected from the tort-law consequences of the

product's defects. Where the government is merely an

incidental purchaser, the seller was not following the

government's discretionary procurement decisions.

Here, the plaintiffs contend that the government

rubber-stamped its approval of the defendants'

suggested specifications, which, in turn, were simply

combinations of off-the-shelf, commercially available

herbicides. They say that Dow Chemical owned the

patents for certain aspects of the herbicides' component

parts and that many different defendants manufactured

and sold 2,4,5-T and 2,4-D in various combinations as

early as 1948, with some of the formulations including

the same 50% mixture as Agent Orange. As a result,

the plaintiffs assert, there are at least triable issues of

fact as to whether (1) Agent Orange and related

herbicides were "stock" products, rather than products

tailored to the government's needs; and (2) even if the

herbicides were not commercially available products,

Agent Orange's components were devised by the

defendants without the significant government input

necessary to meet the first Boyle requirement.

As to the former, the plaintiffs do not dispute the

defendants’ assertions that 2,4,5-T and 2,4-D were not

commercially available at the same high concentrations

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as that contained in Agent Orange. The Stephensons,

for example, concede that 2,4,5-T was not commercially

available in concentrations greater than 55%. See Final

Reply Br. for Pl.-Appellants, 05-1760-cv, at 67-68.

Agent Orange, by contrast, contained 2,4,5-T at greater

than 90% purity levels. See, e.g., Aff. of William A.

Krohley, counsel for defendant Hercules Inc., Oct. 27,

2004 ("Krohley Aff."), Exh. 11 (July 19, 1963 military

specification).

Moreover, as the Fifth Circuit aptiy noted in unrelated

Agent Orange litigation, the fact that a product

supplied to the government comprises commercially

available component parts says nothing about whether

the finished product resulted from the exercise of

governmental discretion as to its design. "[A]ll products

can eventually be broken down into various off-the-

shelf components." Miller v. Diamond Shamrock Co.,

275 F.3d 414, 420 (5th Cir. 2001); see also In re Joint

astern and Southern Dist. New York Asbestos Litig.,

897 F.2d 626, 638 (2d Cir. 1990) ("Grispo") (Miner, J.,

concurring) ("[T]he [glovernment prescription of how

[stock] items should be combined and packaged [is] the

key to the military contractor defense... .").

As to the latter argument -- the plaintiffs’ contention

that there was no significant government input -- the

plaintiffs misperceive the nature of the government

involvement necessary to invoke the contractor

defense. That the component chemicals were not

developed for military use in the first instance, that

some aspects of their composition were patented, and

that the defendants may have proposed certain

specifications to the government, are _ not

determinative. Boyle explicitly contemplated

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government reliance on manufacturers’ expertise in

making a fully informed decision as to what to order.

See Boyle, 487 U.S. at 518. "[I]t is necessary only that

the government approve, rather than create, the

specifications ... ." Carley v. Wheeled Coach, 991 F.2d

1117, 1125, 28 V.I. 310 (8d Cir.), cert. denied, 510 US.

868, 114 S. Ct. 191, 126 L. Ed. 2d 150 (1993); see also

Boyle, 487 U.S. at 513 ("The design ultimately selected

may well reflect a significant policy judgment by

[glovernment officials whether or not the contractor

rather than those officials developed the design.").

The extent of the defendants’ involvement in

suggesting specifications or the defendants' reliance on

previously attained industry expertise in doing so is

thus not conclusive. The government exercises

adequate discretion over the contract specifications to

invoke the defense if it independently and meaningfully

reviews the specifications such that the government

remains the "agent[{] of decision." Grispo, 897 F.2d at

630; see also Stout v. Borg-Warner Corp., 933 F.2d 331,

336 (5th Cir.) (government issued reasonably precise

specifications when it reviewed contractor's detailed

drawings several times and evaluated test models),

cert. denied, 502 U.S. 981, 112 S. Ct. 584, 116 L. Ed. 2d

609 (1991); Harduvel v. Gen. Dynamics Corp., 878 F.2d

1311, 13820 (11th Cir. 1989) (government issued

reasonably precise specifications for F-16 fighter

aircraft having approved its. design following

“eontinuous back and forth" with contractor), cert.

denied, 494 U.S. 1030, 110 S. Ct. 1479, 108 L. Ed. 2d 615

(1990).

With respect to Agent Orange, the record contains, for

example, a memorandum dated February 22, 1968,

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regarding "Ester Specifications for U.S. Army

Biological Laboratories," written by an employee of one

of the defendants, that discussed a February 8, 1963,

meeting called "to satisfy the U.S. Army about

specifications and typical physical properties on the

next type of blend they [sic] will be purchasing." Mem.

from I.F. Hortman to, inter alios, S.D. Daniels and

W.A. Kuhn (Feb. 22, 1963), at 1. It indicated that an

effort to permit use of a different n-butyl ester from

2,4,5-T was "impossible at this time because the Army

had studied only the normal esters," and that, therefore,

the chemical company would have to present the

proposed change directly to “the commanding officer,

U.S. Army Biological Laboratories and Dr. Charles

Minarick, Chief of Crops Division" for approval. Jd. And

notes from a 1968 meeting between government

officials and representatives of several of the

defendants indicate that the government insisted on a

test for chemical composition despite "much resistance

to this added requirement on the part of the Industry

[sic]" as well as on a 98% purity level for the 2,4,5-T

ester. Memorandum of R.A. Guidi, Diamond Alkali Co.

(Feb. 20, 1968), at 1-2.

We conclude, based on the evidence in the extensive

record that has been brought to our attention,“ that no

reasonable jury could find that the government did not

exercise sufficient discretion for it to have been said to

have "approved" specifications for the herbicides. The

government was plainly the "agent[] of decision,"

Grispo, 897 F.2d at 630, with respect to Agent Orange's

contractually specified composition.

c. The government made a discretionary determination

regarding Agent Orange's toxicity

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The next question, and we think it to be a more difficult

one, is whether the government made a discretionary

determination that created the conflict between the

federal government's interests and the defendant's

state law duties that is necessary to invoke the

government contractor defense. The plaintiffs argue

that the defendants could have manufactured Agent

Orange that produced either dioxin-free or nearly

dioxin-free 2,4,5-T by employing the lower-temperature

manufacturing process developed and used by a

(;erman manufacturer, C.H. Boehringer Sohn. This

process, the plaintiffs say, would have permitted the

defendants to compiy with their federal contractual

duties and deliver a less toxic defoliating agent, albeit

at a somewhat slower rate. As a result, the plaintiffs

argue, the defendants could have met both their federal

duties and their state tort-law duties; the direct conflict

contemplated by Boyle is absent; and the first

requirement for the contractor defense therefore

cannot be established."

(i) Analysis. In determining whether the government

made a discretionary decision that would create the

type of conflict between tort law and government

interests contemplated by Boyle, we are not called upon

to assess the merits of the alleged state tort law

violation." We are tasked only with determining

whether the government's

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