REVISED

United States Court of Appeals

for the Fifth Circuit

No. 19-40899

William J. Adams; Ray Aikens, Sr.; Kathleen J. Aikens; 

Linda Pearl Akridge; Ronald W. Akridge; et al, 

Intervenor Plaintiffs—Appellants,

versus

Alcolac, Incorporated; Rhodia Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:18-CV-185

Before King, Stewart, and Southwick, Circuit Judges.

Per Curiam:

The plaintiffs are primarily former U.S. military personnel who were 

injured by Saddam Hussein’s use of mustard gas during the Gulf War. The 

plaintiffs seek to hold Alcolac, Inc. liable for these injuries because, they

allege, it illegally provided the government of Iraq with thiodiglycol, which 

was then used to create mustard gas. Previous litigation has already 

foreclosed all of the plaintiffs’ claims except two: (1) a claim under the Justice 

Against Sponsors of Terrorism Act and (2) a civil-conspiracy claim under 

United States Court of Appeals

Fifth Circuit

FILED

September 8, 2020

Lyle W. Cayce

Clerk

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Texas law. We hold that the first claim fails because the statute does not 

provide a cause of action for injuries caused by acts of war, and the second

fails because the plaintiffs have not demonstrated that Alcolac or anyone else 

committed a tort in furtherance of the alleged conspiracy. Accordingly, we 

AFFIRM the district court’s grant of summary judgment to Alcolac.

I.

A.

Thiodiglycol (TDG) is a chemical with a variety of uses. It is used in 

the textile industry and to manufacture ink, but it can also be used to produce 

mustard gas. In the 1980s, Alcolac, an American chemical manufacturer, 

produced TDG and, through a wholly owned subsidiary, exported it.1

Because of TDG’s potential for misuse, its exportation to Iraq was legally 

prohibited.

As relevant here, in 1987 and 1988, Alcolac sold 538 tons of TDG that 

its subsidiary then exported to Belgium and the Netherlands in four 

shipments.Although the buyer said that the TDG would be used in the textile 

industry in Western Europe, the TDG was subsequently transshipped to 

Jordan, and then to Iraq. According to the plaintiffs, Alcolac “knew or had 

reason to know that these massive shipments of TDG were likely bound for 

a prohibited destination.”

In 1991, U.S. troops, including the plaintiffs, entered Iraq as part of 

Operation Desert Storm. There, the plaintiffs allege that they were exposed 

to, and injured by, mustard gas. 

1 Alcolac disputes the extent to which it, rather than its subsidiary, can be held 

liable. Because we affirm on other grounds, we do not reach this issue. 

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B.

The plaintiffs filed this case in Texas state court in 1994, seeking to 

hold Alcolac liable for their mustard-gas-related injuries via products-liability 

and negligence claims. See Alarcon v. Alcolac Inc., 488 S.W.3d 813, 816 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied). In 2011, Alcolac chose one 

plaintiff as a bellwether and sought summary judgment against him. See id.

The trial court granted the motion, and the Texas Court of Appeals affirmed. 

Id. at 816-17, 829. The basis for the ruling was causation: the plaintiff had

failed to present sufficient evidence that the mustard gas to which he was 

allegedly exposed “was manufactured with TDG supplied by Alcolac.” Id. at

818.

Before Alcolac could move for summary judgment against the rest of 

the plaintiffs, they amended their complaint, adding two new claims. First,

they alleged that “Alcolac and agents of the Iraqi government conspired with 

each other to knowingly violate provisions of the Export Administration Act 

. . . to accomplish the unlawful sale and shipment of large quantities of TDG 

to Iraq.” Second, they alleged that “Alcolac knowingly and/or recklessly 

sold large quantities of TDG to agents of the government of Iraq” in violation 

of the Justice Against Sponsors of Terrorism Act (JASTA). 

With a federal cause of action now in play, Alcolac removed the case 

to federal district court. Alcolac indicated that it would again seek summary 

judgment, and the district court obtained stipulations from the plaintiffs that 

their original products-liability and negligence claims were no longer viable 

in light of the Texas Court of Appeals’ decision. Accordingly, only the two 

new claims, plus a derivative claim under the Texas Uniform Fraudulent 

Transfer Act (TUFTA), remained to be decided. 

The magistrate judge recommended granting Alcolac’s motion for 

summary judgment. First, the magistrate judge observed that JASTA does 

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not allow claims “for injury or loss by reason of an act of war,” 18 U.S.C. 

§ 2336(a), which would include the plaintiffs’ Gulf War injuries. Second, the 

magistrate judge concluded that the civil-conspiracy claim was not viable 

because, under Texas law, such a claim must be based on the defendant’s 

participation in actionable conduct, and the plaintiffs had merely alleged a 

violation of the Export Administration Act, which does not give rise to a 

private cause of action.

2 The district court adopted the magistrate judge’s 

report and recommendation in full and granted the motion for summary 

judgment, and this appeal followed. 

II.

“This Court reviews a grant of summary judgment de novo and applies 

the same standard as the district court.” Lyles v. Medtronic Sofamor Danek, 

USA, Inc., 871 F.3d 305, 310 (5th Cir. 2017). “The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). “‘Where the burden of production at trial ultimately rests 

on the nonmovant, the movant must merely demonstrate an absence of 

evidentiary support in the record for the nonmovant’s case.’ The nonmovant 

must then ‘come forward with specific facts showing that there is a genuine 

issue for trial.’” Lyles, 871 F.3d at 310-11 (citation omitted).

We “view the evidence in the light most favorable to the nonmovant

and draw all reasonable inferences in the nonmovant’s favor,” Star Fin. 

Servs., Inc. v. Cardtronics USA, Inc., 882 F.3d 176, 179 (5th Cir. 2018), but

“[w]e may affirm a grant of summary judgment ‘based on any rationale 

presented to the district court for consideration,’” Nola Spice Designs, LLC 

2 The magistrate judge also concluded that the fraudulent-transfer claims failed for 

lack of a successful underlying claim. 

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v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Terrebonne 

Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 887 (5th Cir. 2002)).

III.

A.

Under JASTA, “liability may be asserted as to any person who aids 

and abets, by knowingly providing substantial assistance, or who conspires 

with [a] person who commit[s] . . . an act of international terrorism.” Pub. L. 

No. 114-222, § 4, 130 Stat. 852, 854 (2016) (codified at 18 U.S.C. 

§ 2333(d)(2)). “No action shall be maintained under section 2333,” 

however, “for injury or loss by reason of an act of war.” § 2336(a). In this 

context, an “act of war” is defined as “any act occurring in the course of—

(A) declared war; (B) armed conflict, whether or not war has been declared, 

between two or more nations; or (C) armed conflict between military forces 

of any origin.” 18 U.S.C. § 2331(4).

Though the plaintiffs admit that their mustard-gas injuries occurred 

during the Gulf War, a military conflict between the United States, its allies,

and Iraq, they argue that Iraq’s use of mustard gas “could not be an act of 

war because it grossly violated the basic norms and rules established by the 

laws of war.” Instead, they argue, Iraq’s use of mustard gas qualifies as 

“international terrorism,” because it was used to “‘intimidate or coerce a 

civilian population’ or [to] influence ‘the policy of a government.’” See

§ 2331(1).

This argument is far removed from the statute’s plain text. Neither 

§ 2336(a) nor § 2331(4) contains any suggestion that the act-of-war exception 

applies only to acts of war that conform to international law. See Stutts v. De 

Dietrich Grp., No. 03-CV-4058, 2006 WL 1867060, at *4 (E.D.N.Y. June 30, 

2006) (concluding that the act-of-war exception applied to use of chemical 

weapons on U.S. troops during Gulf War). But see Estate of Klieman v. 

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Palestinian Authority, 424 F. Supp. 2d 153, 166 (D.D.C. 2006) (“As a matter 

of law, an act that violates established norms of warfare and armed conflict 

under international law is not an act occurring in the course of armed 

conflict.”). Instead, the exception broadly covers “any act occurring in the 

course of . . . armed conflict, whether or not war has been declared.” 

§ 2331(4) (emphasis added). And there can be no doubt that the Gulf War 

was an “armed conflict.” Accordingly, the JASTA claim is foreclosed 

because the plaintiffs’ injuries occurred “by reason of an act of war.”

§ 2336(a).3

B.

“In resolving questions of Texas law, we rely on the authoritative 

decisions of the Texas Supreme Court.” Tummel v. Milane, 787 F. App’x 

226, 227 (5th Cir. 2019). Under Texas law, a civil conspiracy requires:

(1) a combination of two or more persons; (2) the persons seek 

to accomplish an object or course of action; (3) the persons 

reach a meeting of the minds on the object or course of action; 

(4) one or more unlawful, overt acts are taken in pursuance of 

the object or course of action; and (5) damages occur as a 

proximate result.

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 

(Tex. 2017) (citing Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005)). Proving 

a conspiracy means that each of the defendants can be held liable for “all acts 

done by any of the conspirators in furtherance of the unlawful combination.” 

Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 140 (Tex. 2019)

(citation omitted).

3 As a fallback position, the plaintiffs also suggest that they may have been injured 

not in attacks on U.S. troops but when Hussein used mustard gas on Iraqi civilians. The 

plaintiffs cite no evidence in the record to support this proposition, however.

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But civil conspiracy is not an independent tort, so “the agreement 

itself” does not create a cause of action. Id. at 141-42 (quoting Carroll v. 

Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979)). Rather, a plaintiff 

must demonstrate that he has been injured by some “act done pursuant to 

the common purpose” of the conspiracy. Id. at 141 (quoting Carroll, 592 

S.W.2d at 925). In other words, damages “proximately caused by the 

conspiracy itself” are not enough; the plaintiff must show “some tortious act 

committed by a co-conspirator pursuant to the conspiracy.” Id. at 141-42; 

accord Carroll, 592 S.W.2d at 928 (“An alleged conspirator is not liable for an 

act not done in pursuance of the common purpose of the conspiracy.”).

Though the complaint alleges a conspiracy to violate the Export 

Administration Act,4 the plaintiffs “do not allege that the violation of the 

EAA is the underlying tort claim that caused them damages.” And with good 

reason. Although the alleged EAA violations may have proximately caused 

the plaintiff’s injuries, it is undisputed that the EAA does not provide a 

private right of action. See Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1397 

(S.D. Tex. 1995) (recognizing that “no private cause of action exists under 

the Export Administration Act”); Bulk Oil (Zug) A.G. v. Sun Co., 583 F. 

Supp. 1134, 1143 (S.D.N.Y. 1983) (same), aff’d mem., 742 F.2d 1431 (2d Cir. 

1984).

Instead, the plaintiffs argue that the EAA violations led to Iraq’s use 

of mustard gas, which they claim constituted battery.5 But even if that is so, 

4 Specifically, the complaint alleges that Alcolac “entered into an agreement with 

agents of the government of Iraq to ship large quantities of TDG in late 1987 and early 1988. 

. . . Alcolac and agents of the Iraqi government conspired with each other to knowingly 

violate provisions of the Export Administration Act.” 

5 We assume, without deciding, that the plaintiffs’ complaint adequately alleges 

battery as the tort underlying their civil-conspiracy claim. 

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the plaintiffs have provided no evidence that Alcolac conspired to commit 

that battery. Cf. Chu v. Hong, 249 S.W.3d 441, 446 (Tex. 2008) (“Chu could 

only be liable for conspiracy if he agreed to the injury to be accomplished; 

agreeing to the conduct ultimately resulting in injury is not enough.”).

Although in their complaint the plaintiffs asserted that Alcolac “acted to aid 

and abet Iraq in its efforts to obtain chemical weapons,” the plaintiffs now 

concede that “Alcolac may not have known” that the TDG was destined for 

“Iraq and Saddam Hussein specifically.” Consequently, any conspiracy 

involving Alcolac could not have had as its “common purpose” the provision 

of mustard gas to Iraq, much less the use of mustard gas by Iraq in a war that 

had not yet begun. Instead, at most, the evidence demonstrates Alcolac’s 

participation in a conspiracy to illegally export large quantities of TDG in 

exchange for money. Because the plaintiffs have identified no tortious 

conduct involved in achieving that object, the plaintiffs have failed to 

establish the elements of civil conspiracy. Cf. Tri, 162 S.W.3d at 557 

(“[M]erely proving a joint ‘intent to engage in the conduct that resulted in 

the injury’ is not sufficient to establish a cause of action for civil conspiracy.” 

(quoting Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996))).

The plaintiffs argue that it was foreseeable that the exported TDG 

would be turned into mustard gas by some “nefarious character” and that it 

would then be “used for terrorist activity.” Perhaps so, but that misses the 

point. The question is not whether the plaintiffs’ battery was a foreseeable 

result of the alleged conspiracy but whether the battery was “done in 

pursuance of the common purpose of the conspiracy,” Carroll, 592 S.W.2d 

at 928.6 Because there is no evidence of a common purpose beyond the initial 

6 For this reason, the plaintiffs’ reliance on Halberstam v. Welch, 705 F.2d 472 

(D.C. Cir. 1983), is misplaced. That case recognizes simply that “a conspirator can be liable 

even if he neither planned nor knew about the particular overt act that caused injury, so long 

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sale and exportation of the TDG, any eventual use of mustard gas on the 

plaintiffs, even if foreseeable, was not in furtherance of the alleged

conspiracy. The plaintiffs’ conspiracy claim thus fails for lack of an 

underlying tort.

C.

Under TUFTA, “an asset transferred with ‘actual intent to hinder, 

delay, or defraud’ a creditor may be reclaimed for the benefit of the 

transferor’s creditors.” Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 562 

(Tex. 2016) (quoting TEX. BUS. & COM. CODE § 24.005(a)(1)). This statute 

is “intended to prevent debtors from defrauding creditors by moving assets 

out of reach” and therefore “provides a comprehensive statutory scheme 

through which a creditor may seek recourse for a fraudulent transfer of assets 

or property.”Sargeant v. Al Saleh, 512 S.W.3d 399, 411-12 (Tex. App.—

Corpus Christi 2016, orig. proceeding [mand. denied]). A “creditor” is an 

individual “who has a claim,” and a “claim” requires “a right to payment or 

property.” TEX. BUS. & COM.CODE § 24.002(3)-(4).

The plaintiffs argue only that because they “have viable underlying 

claims, the Court should also reverse the Trial Court[’s] order dismissing 

[their] claims under TUFTA.” Because the plaintiffs’ JASTA and civilconspiracy claims fail, however, the plaintiffs do not have valid underlying 

claims. Accordingly, their TUFTA claims fail as well.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

as the purpose of the act was to advance the overall object of the conspiracy.” Id. at 487 (emphasis 

added). 

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