Hmong Exiles Reach End of Road in Suit Against Laos

SAN FRANCISCO (CN) – The Ninth Circuit on Monday tossed a Hmong woman’s proposed class action accusing Laos and several of its highest-ranking government officials of trying to exterminate Hmong people who fought in the Vietnam War as part of the CIA’s “secret army.”

In an unsigned memorandum, the three-judge panel affirmed findings that the unidentified woman failed to establish subject-matter jurisdiction under the Alien Tort Statute because her allegations weren’t connected with events in the United States.

“Because plaintiff does not allege facts sufficient to establish federal jurisdiction, the district court could not have granted her default judgment,” the 4-page memorandum.

The plaintiff, who lives in an unspecified location in Southeast Asia, sued Laos, its then-president Choummaly Sayasone and several government ministers in November 2015 following the killing of her husband in what she called “the official campaign in Laos to terminate Hmong people.”

According to the complaint, Laos’ communist government launched a campaign immediately after the end of the Vietnam War to “exterminate to their last root” Hmong people in Laos who had helped the CIA fight Vietcong guerillas on the border between Laos and Vietnam as part of a CIA-backed “secret army.”

The Laotian government “then proceeded to do exactly that and sent the full force of their firepower into the jungles of Laos where hundreds of thousands of Hmong veterans of the ‘Secret War’ and their descendants were located, killed, maimed, tortured, raped, and poisoned both the Hmong people and the jungle/their environment [including poisoning of the water systems and food systems],” the woman claimed in her lawsuit.

She said this “official military campaigning” constituted “an act of war against the Hmong people in complete defiance” of a February 1973 ceasefire agreement between Laos’ warring royalist and communist factions, in violation of the 1962 Geneva Convention and the 1966 United Nations International Covenant on Civil and Political Rights.

In August 2017, U.S. District Judge Troy Nunley in Sacramento denied the woman’s motion for a default judgment, holding that none of the alleged atrocities were connected to the United States – a necessary requirement for establishing federal jurisdiction under the Alien Tort Statute.

Nunley noted the woman’s attorney only alleged conduct connected with the United States in a hearing on his client’s motion for default judgment, making it ineligible for consideration in his review of the motion.

In that hearing, the attorney said the United States breached an “oral treaty” between U.S. President Dwight D. Eisenhower and the “King of Laos,” and that this breach occurred in the United States. Under this alleged treaty, the Hmong people would help the United States fight Laos’ Pathet Lao communist party in the Vietnam War, and the United States would protect the Hmong after the war. But the United States, the lawyer said, “had no intention of honoring the treaty, even at the moment that agreement was reached,” according to Nunley’s recap of the proceedings.

“It is not at all clear that such allegations, even if they appeared in the complaint, would suffice to allow this court to exercise jurisdiction over this case,” Nunley concluded. “However, since these allegations do not even appear in the complaint, they cannot be used to justify the entry of a default judgment.”

The Ninth Circuit agreed Monday, finding no connection between the allegations and the United States sufficient to establish federal jurisdiction under the Alien Tort Statute.

Further, the panel found Nunley did not abuse his discretion in denying the plaintiff permission to file an amended complaint, “because the additional allegations in the proposed amended complaint are insufficient to establish jurisdiction.”

“While the proposed amended complaint includes allegations of domestic conduct, these allegations are not relevant to the alleged claims under the ATS,” the panel said.

U.S. Circuit Judges John Owens and Richard Paez, and U.S. Circuit Judge Danny Boggs, sitting by designation from the Sixth Circuit Court of Appeals, made up the panel.

The plaintiff was represented by Herman Franck of Franck & Associates in Sacramento, who had no immediate comment Monday.

Joseph Fruech of the U.S. Justice Department represented the CIA and the U.S. federal government, who were movants in the case.

The Justice Department also had no immediate comment.

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