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Kim v. Democratic People's Republic of Korea

United States District Court, District Circuit

June 14, 2013

HAN KIM, et al., Plaintiffs,


RICHARD W. ROBERTS United States District Judge

Plaintiffs Han Kim (“Han”) and Yong Seok Kim (“Yong”) bring this civil action under the terrorism exception of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(c), seeking damages against officials, employees and agents of defendant Democratic People’s Republic of Korea (“DPRK”) in connection with the January 16, 2000 abduction of Reverend Kim Dong Shik (“Reverend Kim”), who is Han’s father and Yong’s brother. Following his abduction, Reverend Kim was forcibly transferred to North Korea where the plaintiffs allege he was repeatedly tortured by officials, employees and agents of DPRK.

Plaintiffs filed suit and served DPRK following the requirements of 28 U.S.C. § 1608(a)-(b). DPRK failed to answer or otherwise respond to the complaint, and plaintiffs secured entry of default under Fed.R.Civ.P. 55(a). The plaintiffs then moved for default judgment and have submitted proposed findings of fact, along with supporting declarations and documentary evidence, and proposed conclusions of law.

The FSIA permits courts to exercise subject matter jurisdiction and enter judgments of liability against foreign states only where a plaintiff pleads and produces satisfactory evidence that a foreign state’s conduct falls within one of the enumerated exceptions to sovereign immunity. 28 U.S.C. § 1605A(a), (c). The plaintiffs here rely on the exception for torture, arguing that “[t]he evidence submitted demonstrates that it is far more likely than not that Reverend Kim suffered and continues to suffer the torture and brutal conditions meted out to all ‘enemies’ of the DPRK unfortunate enough to fall into the hands of the DPRK’s security services.” Pls.’ Proposed Findings of Facts and Conclusions of Law (“Pls.’ Proposed Facts”) at 42. However, plaintiffs’ evidence regarding DPRK’s alleged treatment of Reverend Kim appears insufficient to meet the high standard recognized in this circuit that is set by the FSIA’s definition of torture. Because the FSIA precludes jurisdiction over this action against a foreign sovereign for conduct not shown by satisfactory evidence to meet the high standard set for proof of torture, the plaintiffs’ motion for default judgment will be denied but the case will be certified for an interlocutory appeal.



Before Congress amended the FSIA in 2008 to add the § 1605A(c) private right of action, the D.C. Circuit explained that at base, “[t]he FSIA is undoubtedly a jurisdictional statute which, in specified cases, eliminates foreign sovereign immunity and opens the door to subject matter jurisdiction in the federal courts.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002); see also Maritime Int’l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C. Cir. 1982) (“[T]he absence of immunity is a condition to the presence of subject matter jurisdiction.”). The door is opened only for cases that fall into one of the statute’s specifically enumerated exceptions. Here, Han and Yong rely on the exception eliminating foreign sovereign immunity in cases “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, [or] extrajudicial killing, . . . if such act . . . is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” 28 U.S.C. § 1605A(a)(1). The FSIA imposes the additional jurisdictional requirements that the foreign state have been designated as a state sponsor of terrorism during a specified period, that the claimant or victim have been a United States national at the time of the torture, and that the foreign state have been afforded a reasonable opportunity to arbitrate the claim. 28 U.S.C. § 1605A(a)(2). Section 1605A(c) provides the private right of action for a U.S. citizen against such a foreign state for personal injury or death caused by an act of torture engaged in by the foreign state’s officials acting in their official capacity. 28 U.S.C. § 1605A(c). In actions under this provision, “a foreign state shall be vicariously liable for the acts of its officers, employees, or agents.” Id.

Because plaintiffs must allege the elements of a claim under § 1605A(c) in order to meet the requirements for waiver of foreign sovereign immunity, liability will exist whenever the jurisdictional requirements of § 1605A(a) are proven. See Kilburn v. Islamic Republic of Iran, 699 F.Supp.2d 136, 155 (D.D.C. 2010) (“[T]he § 1605A(c) cause of action is fulfilled by demonstrating that the foreign sovereign performed acts described in subsection (a)(1) of § 1605A, which addresses immunity and subject matter jurisdiction. . . . Although an analysis of a foreign sovereign’s potential immunity and liability should be conducted separately, the elements of immunity and liability under § 1605A(c) are essentially the same in that § 1605A(a)(1) must be fulfilled to demonstrate that a plaintiff has a cause of action.”); see also Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 64-69 (D.D.C. 2008) (explaining that § 1605A(c) provides a private right of action where subject matter jurisdiction exists under § 1605A(a)).

The FSIA adopts the definition of torture contained in section 3 of the Torture Victims Protection Act (“TVPA”). 28 U.S.C. § 1605A(h)(7) (citing 28 U.S.C. § 1350 note). The TVPA defines torture as

any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.

TVPA, Pub. L. No. 102-256, § 3(b)(1), 106 Stat. 73, 73 (1992).

The amended complaint also alleges that Reverend Kim was “tortured to death by officers, employees and agents of defendant North Korea[, ]” Am. Compl. ¶ 27, and that Reverend Kim’s “murder” thus qualifies under 28 U.S.C. § 1605A as an extrajudicial killing, id. ¶ 33. The FSIA adopts the definition of extrajudicial killing contained in the TVPA: “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1992). Courts have found that extrajudicial killing occurs, for example, where a defendant deliberately kills individuals by a targeted or deliberate bombing, see, e.g., Owens v. Republic of Sudan, 826 F.Supp.2d 128, 150 (D.D.C. 2011); Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 74 (D.D.C. 2010), or deliberately assassinates or executes an individual, see Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 839-40 (D.C. Cir. 2009); Kilburn, 699 F.Supp.2d at 152-53; Bakhtiar v. Islamic Republic of Iran, 571 F.Supp.2d 27, 34 (D.D.C. 2008). Here, plaintiffs have not alleged a targeted bombing or a deliberate execution. Instead, by alleging that Reverend Kim was tortured to death and that this murder qualifies as an extrajudicial killing, the plaintiffs must show that North Korean agents deliberately killed Reverend Kim by torturing him. Thus, the plaintiffs’ extrajudicial killing claim relies squarely upon an adequate showing that Reverend Kim was tortured.

The D.C. Circuit has emphasized the high standard that the statutory definition of torture imposes. In Price, an interlocutory appeal of a district court order rejecting Libya’s claim of sovereign immunity in its motion to dismiss, the court of appeals considered the sufficiency of the complaint’s allegations of torture. The circuit’s reasoning merits recounting in some detail:

The severity requirement is crucial to ensuring that the conduct proscribed by the Convention and the TVPA is sufficiently extreme and outrageous to warrant the universal condemnation that the term ‘torture’ both connotes and invokes . . . . [O]nly acts of a certain gravity shall be considered to constitute torture . . . . The term ‘torture, ’ . . . is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain . . . . The critical issue is the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim. The more intense, lasting, or heinous the agony, the more likely it is to be torture . . . . [I]n order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering . . . . [T]orture does not automatically result whenever individuals in official custody are subjected even to direct physical assault. Not all police brutality, not every instance of excessive force used against prisoners, is torture under the FSIA . . . . [I]t is especially important for the courts to ensure that foreign states are not stripped of their sovereign immunity unless they have been charged with actual torture, and not mere police brutality.

Price, 294 F.3d at 92-93 (internal quotations and citations omitted). In addition, for abuse to constitute torture it must be inflicted intentionally, not merely incidentally. Id. at 93 (“In order to lose its sovereign immunity, a foreign state must impose suffering cruelly and deliberately, rather than as the unforeseen or unavoidable incident of some legitimate end.”).

In light of this meaning, the court found insufficient to waive sovereign immunity allegations that plaintiffs were held for approximately three months in a political prison where they allegedly “endured deplorable conditions while incarcerated, including urine-soaked mattresses, a cramped cell with substandard plumbing that they were forced to share with seven other inmates, a lack of medical care, and inadequate food, ” and further “were kicked, clubbed and beaten by prison guards, and interrogated and subjected to physical, mental and verbal abuse.” Id. at 86 (internal quotations omitted). The Price court further found the complaint inadequate because it “says virtually nothing about the purpose of the alleged torture.” Id. at 94; see also Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003) (finding allegations of forcibly removing passenger from cruise ship, holding passenger incommunicado and threatening her with death if she moved from her quarters did not rise to the level of torture under the FSIA and state a claim).

Price considered the sufficiency of torture allegations when the defendants moved to dismiss the complaint for lack of subject matter jurisdiction. Price’s reasoning is equally instructive for determining whether a plaintiff in a default proceeding has established subject matter jurisdiction. When a court reviews unchallenged factual allegations on a motion to dismiss, the allegations are assumed to be true for purposes of assessing subject matter jurisdiction. Price, 294 F.3d at 93. Similarly, for the purposes of examining subject matter jurisdiction on a motion for entry of default under the FSIA, courts accept the plaintiffs’ factual allegations as true. Sisso v. Islamic Republic of Iran, 448 F.Supp.2d 76, 81 & n.5 (D.D.C. 2006) reasoning on motion for entry of default in FSIA proceeding that court was “preclude[d] . . . at this stage of the litigation from making factual findings that are inconsistent with the allegations of the complaint” and explicitly accepted “all of plaintiffs’ factual allegations as true[.]”). However, to establish subject matter jurisdiction, the allegations must be sufficiently detailed. At the pleadings stage, the Price court accordingly found inadequate the allegations before it, holding that

plaintiffs’ complaint offers no useful details about the nature of the kicking, clubbing, and beatings that plaintiffs allegedly suffered. As a result, there is no way to determine from the present complaint the severity of plaintiffs’ alleged beatings -- including their frequency, duration, the parts of the body at which they were aimed, and the weapons used to carry ...

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