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Federal Officer Removal Jurisdiction Upheld in Agent Orange Cases
In late February, the U.S. Court of Appeals for the Second Circuit issued a trio of opinions in a series of cases arising out of the use of chemical herbicides during the Vietnam War. These decisions constitute the latest chapter in the Agent Orange litigations that have been part of the American legal landscape since the late 1970s and that are commonly considered to be among the seminal mass tort cases. These latest cases involve the claims of U.S. veterans who were not bound by the original class settlement because the settlement fund had been exhausted prior to the alleged manifestation of their injuries, and of an association of Vietnamese nationals, the Vietnam Association for Victims of Agent Orange ('VAVAO').
In the recent decisions, the Second Circuit, affirming the rulings of U.S. District Judge Jack Weinstein, held that: 1) the federal court had subject matter jurisdiction over the U.S. veterans' claims based on the federal officer removal statute, Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir. 2008); 2) the 'government contractor defense' precluded plaintiffs' claims, i.e., the manufacturers were not liable because the herbicide products were made in accordance with the government's specifications, In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (2d Cir. 2008); and 3) the chemical companies' manufacture and supply of the chemical herbicides did not violate customary international law norms proscribing the use of chemical weapons and, thus, did not form the basis of a claim under the Alien Tort Statute, Vietnam Association for Victims of Agent Orange v. Dow Chem Co., 517 F.3d 104 (2d Cir. 2008). (By orders dated May 7, 2008, the Second Circuit denied petitions for rehearing and rehearing en banc of these decisions.)
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