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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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.

i
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?

2
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

11

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

Page
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RELEVANT PROVISIONS INVOLVED .........cccscsscsssssssscccsssssessecees 1
I os oe eee z
REASONS FOR GRANTING THE PETITION ........ccccssceccsssescesscesees 7
I cect crea cela aa ea eae 35
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
Oi i SR ee gS 1! FS i: 4) Seren rea na eae Sla
District Court Order (MDL 381, CV 98-6383
CREE Oey GO BI Ge OD winavi ausenivevacscveccscncecccnceessecates 170a
District Court Opinion (MDL No. 381, 04-CV-400) ....... 175a

COPGEY EPO GENG TEONOOTOND occcncis sxcenssssvipsconasscnessvdixinntvinsnen 497a

v
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...
op. A. yy ee

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SCH HHH PH SHE HTOSU OOS OOO ESOT ESET ESET OSES ES ETE OES OEO RHEE SESE EEEOEOES

TOOTH OTST OTT THSHH DES OHOOSO SSE ES HEHE ESET EEEHEOH OEE OSE SEE EESEESESS

1
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.

2

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

3

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

4
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)

a

5
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,

6
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 .. .’’)

7

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.

8

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

9
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

10

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,

11
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)

12

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.

13

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

14

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

15
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

16

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

17

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

18

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:

19

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.

20

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

21

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

22

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.

23

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”).

24

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

25

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,

26

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.

27

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

28

\

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..

29

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.

30

(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.

31

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.

32
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

33

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)

34

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

35

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.

36
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

la

(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

2a

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.

3a

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.

4a

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,

5a

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

6a

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

Ta

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

8a

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.

9a

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;

(c) the general principles of law recognized by
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

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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 Distri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0746%3A1. Public record. Not legal advice.