A Brooklyn Federal Court Dismisses a Class Action Suit By Vietnamese Victims of Agent Orange

Two weeks ago, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York dismissed a novel, potentially massive class action brought by the Vietnamese Association for Victims of Agent Orange/Dioxin (VAVAO).

VAVAO - whose members are Vietnamese -- had sued a number of corporations, including Dow Chemical and Monsanto. It alleged that the United States' use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971, and the South Vietnamese government's subsequent use of these herbicides until 1975, had harmed its members and their land.

In the 1980's, similar lawsuits had been brought by American veterans and their families. The litigation was a watershed in American law. Because it involved allegations that the U.S. government knowingly exposed its own troops to a toxic substance, it became a rallying point for veterans who felt abandoned by their own country. And because it alleged a mass tort involving a toxic substance, it became a template for other mass tort litigation to follow, such as those based on harms caused by asbestos, DES, and tobacco.

The first Agent Orange products liability class action had ended up before Judge Weinstein - who was praised for his creativity and discipline, and for his ability to force the parties to work together to produce an equitable solution. (Interestingly, the special master Judge Weinstein appointed for the case was a lawyer named Ken Feinberg--who later went on to become the architect of the 9/11 Victim Compensation Fund.)

Twenty years later, Agent Orange returned, once again, to Judge Weinstein's courtroom. Judge Weinstein's solution was to dismiss the suit, but he did so in a way that left the defendants wondering if they had really won. It seems likely that he wanted to make sure the military contractor defendants knew how close they came to being forced to go before a jury.

Judge Weinstein's Views on Agent Orange

The case Judge Weinstein dismissed two weeks ago differs from the first Agent Orange class action he confronted, in several ways. First, the victims are Vietnamese--some of whom fought against the United States and its allies.

Second, it is not a products liability suit. Instead, the plaintiffs' main legal claim is based on alleged international human rights violations. As I have explained in a prior column, the Alien Tort Claims Act (ATCA) allows foreign citizens to recover damages for torts that are also violations of international human rights. (As I also noted earlier, the ATCA has received an inordinate amount of attention from corporate America, who fear that American judges have begun to interpret it too liberally - and the State Department, who sided with the defendants in this case, takes the same view.)

Was Judge Weinstein a good judge for the VAVAO plaintiffs? On one hand, he has a well-deserved reputation of being very sympathetic to plaintiffs who have morally compelling cases. For instance, Judge Weinstein has cleverly found ways to allows suits to proceed against the tobacco industry and the handgun industry, even in the face of reversals from the Second Circuit.

On the other hand, Judge Weinstein has been skeptical of scientific evidence offered by the plaintiffs alleging a causal connection between Agent Orange and the various injuries named in the suit. After the first Agent Orange suit before him settled, a few plaintiffs were left - they had "opted out" of the settlement, as it was their right to do. Judge Weinstein, however, dismissed their claims on the grounds that they could not prove causation. His view was that Agent Orange, while a shameful episode in the history of the American government, did not effect a completed tort.

It turned out, however, that the VAVAO plaintiffs' fate turned on neither Judge Weinstein's sympathy for plaintiffs, nor his views on Agent Orange. Instead, his dismissal of the case rested on his interpretation of the ATCA - and the underlying international human rights law it incorporates.

The Arguments for Dismissal that Judge Weinstein Rejected

In addition to their successful argument, the defendants, and the State Department, raised a number of arguments for dismissal that did not succeed.

First, the defendants argued that the statute of limitations had expired. The ATCA itself has no explicit statute of limitations. Some courts have therefore "borrowed" for ATCA purposes the ten-year statute of limitations from the most closely analogous federal statute -- the Torture Victim Protection Act (TVPA).

But Judge Weinstein, instead, took the view that the ATCA has no statute of limitations; after all, he reasoned, the underlying crimes are heinous: War crimes or crimes against humanity.

Second, the State Department argued that the question of whether private corporations violated fundamental human rights was nonjusticiable - that is, not susceptible to resolution by the courts because the corporations, at the time, were acting under the direction of the President of the United States. This argument is based very loosely on a 1999 ruling in a Holocaust slave labor case, Burger-Fischer v. Degussa AG. There, a New Jersey-based U.S. District Judge held that the various treaties entered into between the United States and Germany after the Second World War made the resolution of private lawsuits relating to the Holocaust a "political question" - that is, one which the courts could not handle.

Again, Judge Weinstein differed - criticizing the Burger-Fischer decision. He held that even if the U.S. government is immune from suit, that is no reason why a court cannot adjudicate related issues with respect to private corporations. In other words, in his view, ATCA suits cannot be mooted by citing some version of executive privilege.

In addition, Judge Weinstein rejected the application, here, of the "government contractor defense" - which I discussed in an earlier column, and which holds that a private party acting under the U.S. government's direction is always immune from suit.

This defense is based on a U.S. Supreme Court case called Boyle v. United Technologies Corp. The case holds that private contractors are immune from products liability claims if they can show that they precisely followed the government's instructions when they fulfilled their contract. The defendants and the State Department contended that the government precisely controlled the manufacture of Agent Orange, and thus the defense should apply.

However, Judge Weinstein held that this defense - while applicable in products liability suits like Boyle - does not apply in ATCA suits. Again, he stressed the importance and heinousness of the war crimes and crimes against humanity upon which such suits are based. These crimes are so important, Weinstein reasoned, that if Congress wants to immunize private parties, it should do so explicitly - by amending the ATCA.

Is Judge Weinstein right to read Boyle as limited to the products liability context? It's not clear. But for now, Judge Weinstein's pro-plaintiff reading of the government contractor defense will likely stand. If the case is appealed, the issue on appeal may be limited to the ATCA issue on which the case was dismissed (although, if plaintiffs prevail on this issue, the appeals court might also choose to reach the government contractor defense issue as well).

Why Judge Weinstein Dismissed VAVAO's Agent Orange ATCA Suit

So why, in the end, did Judge Weinstein dismiss the Agent Orange suit - having rejected all these possible arguments for dismissal?

The reason he gave was simple: The random poisoning of a large number of people, if it is a side-effect of the deforestation of a battleground, is neither a crime against humanity, nor a violation of any treaty to which the U.S. was a signatory at the time the poisoning occurred.

Customary international law, Judge Weinstein reasoned, requires crimes against humanity to fit into one of a number of relatively narrow categories: genocide, enslavement, deportation or forcible transfer of population, torture, or forced pregnancy. But poisoning with Agent Orange (at least as it was done by the U.S.), he concluded, fit none of these categories.

Judge Weinstein's Dilemma: Be Consistent, But Warn Corporations

It seems Judge Weinstein was pulled in two opposite directions, and that his opinion is his best attempt as resolving a dilemma.

Judge Weinstein must have known that even if the VAVAO plaintiffs had not lost on this issue, they would have lost eventually. That's because he would have dismissed their claims based on lack of causation - just as he had done with the American Vietnam veterans' claims, years ago.

Yet Judge Weinstein - despite his views on causation -- has long believed that it is deeply wrong that the U.S. Government has so far escaped responsibility for its repugnant actions relating to Agent Orange. He must have been further disgusted by the State Department's attempts to extend its immunity to the corporations who did the government's bidding.

Judge Weinstein resolved the dilemma this way: He rejected the State Department's and the defendants' arguments for immunity - and did so in a way that may not be addressed on appeal, so that his ruling may stand as precedent. And while he dismissed the futile claims of the VAVAO plaintiffs, he also opened the way for future plaintiffs - who have suffered crimes that do fall into the right categories - to sue successfully.

How others will use Judge Weinstein's VAVAO opinion in future cases will be very interesting to see.