United States District Court for the District of Columbia Docket No.

09-cv-648

IN THE

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

>>>>
HAN KIM, et al.,
Plaintiffs-Petitioners, v.

DEMOCRATIC PEOPLE’S REPUBLIC

OF

KOREA,
Defendant-Respondent.

PETITION FOR PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. § 1292(b)

Robert Joseph Tolchin Meir Katz
Application for admission pending

THE BERKMAN LAW OFFICE, LLC
Attorneys for Plaintiffs-Petitioners

111 Livingston Street, Suite 1928 Brooklyn, New York 11201 718-855-3627

Table of Contents

TABLE OF AUTHORITIES BACKGROUND QUESTIONS PRESENTED

iii

1 5

PETITION FOR PERMISSION TO APPEAL POINT I THE DECISION BELOW REACHES CONTROLLING QUESTIONS OF LAW POINT II THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION RELATING TO THE CONCLUSIONS OF THE COURT BELOW POINT III REVERSAL OF THE DECISION OF THE COURT BELOW WILL MATERIALLY AND PERMANENTLY ALTER THE COURSE OF THIS LITIGATION POINT IV THE ISSUES PRESENTED FOR APPEAL ARE EXCEPTIONALLY IMPORTANT IN LIGHT OF THE FACT THAT EXPLICITLY INCRIMINATING EVIDENCE IS RARELY AVAILABLE AGAINST STATE SPONSORS OF TERRORISM THAT HAVE DEFAULTED IN LITIGATION POINT V THE DECISION BELOW IS PLAINLY WRONG ON THE MERITS 11 6

8

10

10

CONCLUSION

20

ADDENDUM CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES DECISION APPEALED FROM al a2

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Table of Authorities

Cases

Hill v. Republic a/Iraq, 328 F.3d 680 (D.C. Cir. 2003) Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002) United States v. Morton, 467 U.S. 822 (1984)
Statutes

20

passim
6

28 U.S.C. § 1292(b) 28 U.S.C. § 1350 note ("TVPA") 28 U.S.C. § 1605A 28 U.S.C. § 1608

5-6, 8

passim passim
1, 13, 18

Rules and Regulations

FED.R.Clv.P. 55(a)

1

Other Authority

MELANIE KIRKPATRICK, ESCAPE FROM NORTH KOREA: THE UNTOLD STORY OF ASIA'S UNDERGROUND RAILROAD (2012) MERRIAM-WEBSTER ONLINE DICTIONARY, TORTURE, http://www.merriamwebster.com/dictionary/torture

3 13

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BACKGROUND
This is an action by the son and brother of a devout Christian minister and human rights activist who resided in China. The minister, Reverend Kim, was kidnapped by principals and agents of the Democratic People's Republic of Korea (North Korea) and forcibly taken to a prisoner camp for political prisoners, as is common in North Korea. In that camp for political prisoners, Reverend Kim was tortured and, to a near certainty, killed. The son and brother of Reverend Kim ("Plaintiffs") filed suit against North Korea pursuant to 28 U.S.C. § 1605A seeking to hold it liable for the torture and extrajudicial killing of their deceased relative and properly served North Korea pursuant to 28 U.S.C. § 1608. North Korea failed to respond and the Plaintiffs obtained default pursuant to FED.R.ClV.P. 55(a). The Plaintiffs then moved for default judgment. In support of their motion for default judgment, the Plaintiffs submitted detailed proposed findings of law and fact, as well as declarations and affidavits from the following people: • Han Kim, one of the Plaintiffs in this action. • Yong Seok Kim, the other of the Plaintiffs in this action. • Dani Butler, another child of Reverend Kim (not a party to this litigation).

• Yoshikuni Yamamoto, Senior Researcher for the Committee for Human Rights in North Korea (HRNK) (based in Washington, D.C.). Mr. Yamamoto provided the court below with written expert testimony. • J.D. Kim, Esq., who provided the court below with a verified translation of a South Korean court decision that was directly relevant to this litigation. • Do Hee-Youn, a resident of South Korea and a member of the Citizen's Coalition for Human Rights of Abductees and North Korean Refugees (based in Seoul, South Korea) and a representative of the Antihuman Crime Investigation Committee (based in Seoul, South Korea) . Mr. Do has a network of informants who confidentially provide him with information about the state of prisoners in North Korea and provided the court with information that he had about the fate of Reverend Kim. • Cho Bong Ill, a former solider in the North Korean army who fled North Korea and provided the court with his first-hand knowledge of both the North Korean military and Reverend Kim. • Bae Jae Hyun, a former colleague of Reverend Kim who provided the court with his first-hand knowledge of Reverend Kim. • Professor David Hawk, the former Executive Director of the United States section of Amnesty International and Officer-In-Charge of the Cambodia Office of the UN High Commissioner for Human Rights, and currently a

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consultant to the U.S. Committee for Human rights in North Korea (based in Washington, D.C). Prof. Hawk, an expert on human rights in North Korea, provided the court below with written expert testimony. • Ernest C. (Chuck) Downs, a former senior official of the U. S. Department of Defense, and an expert on North Korea. Mr. Downs twice provided the court below with written expert testimony. Additionally, the Plaintiffs provided the court below with documentary evidence from the following sources: • The U.S. Department of State. • The Congressional Research Service. • The United Nations Special Rapporteur on the Situation of Human Rights in the Democratic Peoples Republic of Korea. • Human Rights Watch.
• MELANIE KIRKPATRICK, ESCAPE FROM NORTH KOREA: THE UNTOLD STORY OF ASIA'S UNDERGROUND RAILROAD (2012).

• The Washington Post. • New York Times. • Newsweek Magazine. • Korea Times.

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The Defendant did not challenge the Plaintiffs' motion for default judgment or challenge any of the evidence presented by the Plaintiffs. The court below (Roberts,
J.) held in light of this testimony and other evidence that

Reverend Kim was abducted at the behest of DPRK security forces, not in accordance with any legitimate judicial or other process, due to Kim's religious work and assistance to North Korean refugees. Therefore, the plaintiffs have sufficiently shown that any mistreatment of Reverend Kim was done purposefully.... The experts in this case describe conditions at [sic] an established and extensive system of penal colonies where the DPRK regularly holds abductees and political prisoners, and opine that reports from defectors stating that Reverend Kim was tortured and is either still in custody or has died as a result of his treatment are credible. Dist.Ct.Op. at 30-33. The court's holding on this point is significant and bears elaboration: The court held that Reverend Kim was (1) abducted, (2) on behalf of North Korea, (3) unlawfully, (4) for the purpose of harming him. The court further accepted expert testimony that (5) North Korea maintains penal colonies to house abductees and political prisoners and that (6) Reverend Kim was very likely tortured and is ether still being tortured or has died as a result of that torture. Nevertheless, the court denied the Plaintiffs motion for default judgment on the grounds that the Plaintiffs' voluminous evidence that Reverend Kim was tortured, as that term is used for the purposes of 28 U.S.C. § 1605A, was inadequate. The court reasoned that this Court's decision in Price v. Socialist People's Libyan Arab
Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), compelled demonstration of Reverend

Kim's torture and death beyond a reasonable doubt. The court found that the

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Plaintiffs, who were denied the opportunity to engage with the Defendant in discovery and had limited access to evidence, could not meet that high burden. The court then certified its decision for interlocutory appeal under 28 U.S.C. § 1292(b).

QUESTIONS PRESENTED
(1) Whether Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), requires plaintiffs in a default proceeding against a rogue state to produce evidence that proves their claims of torture beyond a reasonable doubt, when it is impossible to produce a body, photographic evidence, or first-hand eye witness testimony. (2) Whether a finding that someone is a victim of "extrajudicial killing" for the purposes of 28 U.S.C. § 1605A when he was killed by being tortured to death requires that the victim's decedents first prove that he was a victim of "torture" (as that word is used in 28 U.S.C. § 1605A). (3) Whether a plaintiff is entitled to a default judgment in a 28 U.S.C. § 1605A case where the plaintiff has submitted clear evidence that (a) the defendant forcibly kidnapped the victim, (b) transported him back to the defendant state, (c) the victim has never been seen or heard from again, (d) the defendant viewed the victim as a political enemy, (e) the defendant has a long history of torturing and killing its political prisoners, (f) the defendant's network of political prison camps is well documented and known to the U.S. intelligence community, (g) the defendant state is highly secretive and would kidnap and kill anyone that it found leaking information
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about its political prisoners to the outside world (and particularly to the United States), and (h) the Plaintiffs' informants spoke to them and their agents about this case on condition that they remain anonymous as a result of their fear for their lives and the lives of their family members. (4) Was the order of the court below denying the plaintiff s motion for default judgment properly made?

PETITION FOR PERMISSION TO APPEAL POINT I THE DECISION BELOW REACHES CONTROLLING QUESTIONS OF LAW
The court below certified this case for interlocutory appeal sua sponte. Dist.Ct.Op. at 33-35. In the process, the court considered all of the statutory requirements of28 U.S.C. § 1292(b) and found them all present. The court's principal ruling was that it lacked subject matter jurisdiction over this case. Dist.Ct.Op. at 33. A court that lacks subject matter jurisdiction over an issue lacks authority to rule on that issue or dispute. United States v. Morton, 467 U.S. 822, 828 (1984). Before reaching that larger issue, the court made two preliminary rulings. First, the court held that where a plaintiff alleges extrajudicial killing under 28 U.S.C. § 1605A on the grounds that the victim was tortured to death,

"the... extrajudicial killing claim relies squarely upon an adequate showing that [the

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victim] was tortured." Dist.Ct.Op. at 6. This decision was material to the court's resolution of the extrajudicial killing claim. Since the court would later hold that the Plaintiffs had not satisfied the statutory requirements for a torture claim, they also did not satisfy the statutory requirements for an extrajudicial killing claim. In other words, the court's decision not to address the extrajudicial killing claim independently was fatal to that claim. I Second, the court held that in order to obtain default judgment in a 28 U.S.C. § 1605A torture claim, a plaintiff must demonstrate, beyond a reasonable doubt/ but without the benefit of discovery, the specific nature of the victims injuries, their frequency, and the body parts they affect. See Dist.Ct.Op. at 33. It is not enough, wrote the district court, to allege, and produce expert testimony in support of the allegation, sufficient to give rise to a strong inference that the victim died from his injuries. See Dist.Ct.Op. at 32-33.

As the Plaintiffs will discuss further in the last part of this Petition, the district court made a serious error of logic here. Finding that someone was "tortured to death," as that term is used in the vernacular for the purpose of pleading a distinct claim, is different from a finding that the person was "tortured," as that word is defined by statute for a different purpose. For this reason alone, the district court's decision ought to be reversed. 2 The district court never actually uses the words "beyond a reasonable doubt." But it also never explicitly states what standard of proof it insisted upon. Given the court's account of the fact and expert testimony that it accepted, Dist.Ct.Op. at 14-28, 30-33, the decision defies explanation if one does not assume that the court below insisted that the plaintiffs meet the extraordinarily high burden known as "beyond a reasonable doubt." As the court's decision makes clear, the Plaintiffs' evidence proved the matter well beyond the "preponderance of the evidence" and the "clear and convincing" standards.
I

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These holdings were dispositive of the Plaintiffs claims. They turn on questions of law and are therefore the proper subject of a 28 U.S.C. § 1292 interlocutory appeal. See also Dist.Ct.Op. at 34 ("Here, the determination of subject matter jurisdiction qualifies as a controlling question of law.").

POINT II THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION RELATING TO THE CONCLUSIONS OF THE COURT BELOW
The district court expressly acknowledged that "there is a substantial ground for difference of opinion about whether plaintiffs have presented the requisite quantum of evidence to show that Reverend Kim was tortured under the FSIA." ld. at 34 (internal quotation marks omitted). Indeed. The Plaintiffs in this case submitted uncontroverted evidence demonstrating that (a) agents of North Korea forcibly kidnapped Reverend Kim, (b) they transported him back to North Korea, (c) he has never been seen or heard from again, (d) North Korea viewed Reverend Kim as a political enemy, (e) North Korea has a long history of torturing and killing its political prisoners, (f) North Korea's network of political prison camps is well documented and known to the U.S. intelligence community, (g) North Korea is highly secretive and would kidnap and kill anyone that it found leaking information about its political prisoners to the outside world (and particularly to the United States), and (h) the Plaintiffs' informants spoke to them and their agents about this case on condition that they remain anonymous as a result of their fear for their lives -8-

and the lives of their family members. Based on this evidence, the court accepted that Reverend Kim was (a) abducted, (b) on behalf of North Korea, (c) unlawfully, (d) for the purpose of harming him. The court further accepted expert testimony that (e) North Korea maintains penal colonies to house abductees and political prisoners and that (f) Reverend Kim was very likely tortured and is ether still being tortured or has died as a result of that torture. Id. at 30-33. The court further acknowledged that [North Korea's] failure to respond to the complaint or to respond to any of the congressional inquiries regarding Reverend Kim's fate, in part, obscures the precise details of Reverend Kim's treatment following his abduction by [North Korean] agents. Moreover, the widely feared nature of [North Korean] repression appears to force those individuals who may know details about Reverend Kim's whereabouts and treatment to convey such information sparingly and anonymously.
Id. at 31.

Notwithstanding all of this evidence, and despite the fact that getting more explicit evidence out of North Korea is impossible as a practical matter;' the district court held that the Plaintiffs had not proven that Reverend Kim was "tortured" for the purposes of 28 U.S.C. § 1605A. This holding is contrary to logic and has no basis in 28 U.S.C. § 1605A or this Court's holding in Price, upon which the district court purports to rely. There can be no doubt that there is substantial ground for difference of opinion relating to the district court's conclusions.

3

It is impossible in part because North Korea defaulted in this case, thus

preventing the Plaintiffs from serving it with discovery requests and requests for admission and from deposing North Korean officials who might have first-hand knowledge of the facts of this case.
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POINT III REVERSAL OF THE DECISION OF THE COURT BELOW WILL MATERIALLY AND PERMANENTLY ALTER THE COURSE OF THIS LITIGATION
As noted above, the district court concluded that it lacks subject matter jurisdiction. If this Court denies the instant Petition, the district court will have no choice but to dismiss the complaint. If, however, this Court reverses the district court, that reversal will likely directly result in the entry of default judgment on behalf of the Plaintiffs. This distinction is roughly comparable to the difference between night and day. See also Dist.Ct.Op. at 35.

POINT IV THE ISSUES PRESENTED FOR APPEAL ARE EXCEPTIONALLY IMPORTANT IN LIGHT OF THE FACT THAT EXPLICITLY INCRIMINATING EVIDENCE IS RARELY AVAILABLE AGAINST STATE SPONSORS OF TERRORISM THAT HAVE DEFAULTED IN LITIGATION
The net effect of the district court's decision is to immunize secretive regimes like North Korea from the protections created by 28 U.S.C. § 1605A and related statutes. Under the district court's reasoning, it is impossible to gain default judgment for torture under 28 U.S.C. § 1605A absent an eyewitness to the torture (who is willing to put his own life and the lives of his family on the line in order to testify), photographic evidence of torture (where the photograph is admissible as evidence pursuant to the Federal Rules of Evidence), or the physical presence of the victim

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himself (dead" or alive). But North Korea takes the secrecy of its oppression very seriously. It goes to great lengths to prevent the release of any such evidenceparticularly to the United States. Thus, notwithstanding the overwhelming evidence that North Korea regularly engages in torture and extrajudicial killing of its political prisoners, the effect of the district court's decision is to bestow a form of practical immunity on North Korea. Nothing in 28 U.S.C. § 1605A, the Foreign Sovereign Immunities Act ("FSIA") in toto, or this Court's decision in Price, indicates a desire or intent to immunize North Korea. This Court ought to clarify that Price means no such thing. POINT V
THE DECISION BELOW IS PLAINLY WRONG ON THE MERITS

This Court should grant the Plaintiffs' request for leave to appeal and then reverse the district court without further briefing.
1.

The Plaintiffs alleged that North Korea is liable under 28 U.S.C.

§ 1605A for the extrajudicial killing of Reverend Kim. See Dist.Ct.Op. at 5 ("The amended complaint also alleges that Reverend Kim was 'tortured to death by officers, employees and agents of defendant North Korea[,]"'). 28 U.S.C. § 1605A defines extrajudicial killing with reference to section 3 of the Torture Victims Protection Act If the plaintiff can produce the dead body, the body could possibly be subject to a forensic analysis, which would become the subject of an expert report. However, even forensic analysis might be incapable of determining the circumstances or frequency of the trauma inflicted upon the victim. It seems that by the reasoning of the court below, even such compelling testimony would be rejected.
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("TVPA"), 28 U.S.C. § 1350 note. The TVPA requires "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." Id. The district court's entire analysis on that claim follows: 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. Dist.Ct.Op. at 6. It assumed, improperly, that where a litigant alleges deliberate killing by torture, he must first establish a claim for torture. The court went on to hold that the Plaintiffs did not establish a claim for torture and therefore could not establish a claim for extrajudicial killing. The trouble is that the TVPA defines extrajudicial killing, as the court itself acknowledged. Torture, which has its own definition under the TVPA, is not one of the elements of a claim for extrajudicial killing. See 28 U.S.C. § 1350 note. Rather, all a plaintiff must show to establish a claim for extrajudicial killing is that the victim was (1) deliberately (2) killed (3) without legitimate authorization. By alleging and then demonstrating with satisfactory evidence that Reverend Kim was deliberately killed by North Korea, which tortured him to death, the Plaintiffs adequately supported a claim for extrajudicial killing. "Death by torture" is not an independent claim or a variation of a claim for torture, it is rather the means by which North

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Korea executed Reverend Kim. Similarly, if a plaintiff alleges that a victim was deliberately killed by poisoning, "death by poisoning" is merely the means by which the victim was executed and does not form a new claim or add to the elements that the claimant must prove in order to establish a claim for extrajudicial killing. There is no doubt that in order to obtain default judgment under 28 U.S.C. § 1608(e), by evidence satisfactory to the court, the Plaintiffs needed to provide some evidence that Reverend Kim was "tortured" as they used that word in their complaint.

See, e.g., Kim v. Democratic People 's Republic ofKorea, No. 09-cv-648, Dkt. No.5,
First Amended Complaint ("FAC") at
~

1 ("Reverend Kim Dong Shik, was abducted

on January 16, 2000 by officials, employees and agents of defendant Democratic People's Republic of Korea ("North Korea"), and was then tortured and murdered by officials, employees and agents of defendant North Korea." (emphasis added)). But it is obvious from the context that the Plaintiffs did not intend to adopt the legal definition of torture contained in the TVPA. Rather they used that word in the vernacular. MERRIAM-WEBSTER ONLINE DICTIONARY defines "torture" (as a verb) as "to cause intense suffering to," or "to punish or coerce by inflicting excruciating pain." It offers the word in contextual examples, which include "Don't torture yourself over the mistake." http://www.merriam-webster.com/dictionarv/torture.Itis to that lower (vernacular) standard that the Plaintiffs must be held because it is in that sense that the used the word "torture" with regard to their extrajudicial killing claims. -13-

Of course, the torture in this case was far more pernicious than that imagined by Webster's dictionary. As the Plaintiffs pointed out to the district court in their proposed findings of fact, "A torture that can kill is indeed 'torture' for the purposes of the FSIA." Kim v. Democratic People's Republic of Korea, No. 09-cv-648, Dkt. No. 52, Plaintiffs' Revised Proposed Findings of Fact at 10. The Plaintiffs adequately demonstrated that Reverend Kim died as a result of his treatment in his prison camp in North Korea. As they will demonstrate below, that meets the demanding definition of torture in the TVPA. But that analysis is irrelevant here. All that the Plaintiffs must show is that Reverend Kim was deliberately "tortured" (defined in the vernacular) to death. They have done so. The district court's resolution of the Plaintiffs' extrajudicial killing claim on the grounds that the Plaintiffs could not establish a different, unrelated, claim is an abuse of discretion. That holding should be summarily reversed. 2. In resolving the Plaintiffs' claim for torture under 28 U.S.C. § 1605A,

which is likewise defined with reference to the TVPA, the district court relied heavily upon this Court's decision in Price. Accordingly, some consideration of that decision is in order: Price was a contested dispute. Libya, the state sponsor of terrorism in Price, filed a motion before the district court to dismiss the case for lack of jurisdiction, which was denied. Libya then sought and received an interlocutory appeal to this

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Court.' At issue on appeal was "whether plaintiffs have alleged facts that are legally sufficient to revoke Libya's immunity under the FSIA." Price, 294 F.3d at 85. This Court concluded that "the allegations supporting plaintiffs' torture claim are not adequate to bring the case within the statutory exceptions to foreign sovereign immunity. The complaint in its present form is simply too conclusory to satisfy [statutory requirements]." Id. (emphasis added). The case involved a pair of Americans who were doing business in Libya. They were accused by the Libyan government of engaging in "anti-revolutionary propaganda," were arrested and sent to a political prison for 165 days (including time served post-acquittal). In that prison, "they endured deplorable conditions ... , 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] were 'kicked, clubbed and beaten' by prison guards, and 'interrogated and subjected to physical, mental and verbal abuse.'" Id. at 86 (quoting the complaint). The Court went on to note that "torture," for the purposes of the TVPA (and thus 28 U.S.C. § 1605A) is limited to that which "is sufficiently extreme and outrageous to warrant the universal condemnation that the term 'torture' both connotes and invokes." Id. at 92. The Court The court below brushed aside, without logical justification or legal authority, the significant distinctions between this case and Price. Dist.Ct.Op. at 8 ("Price's reasoning is equally instructive for determining whether a plaintiff in a default proceeding has established subject matter jurisdiction."). This is a default proceeding, not a contested dispute. And it is on the Plaintiffs' motion for judgment, rather than a defendant's motion to dismiss for lack of jurisdiction. As the Plaintiffs will explain, those distinctions are significant.
5

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explained that not all pain and suffering, even when the result of a "direct physical assault" is "torture," and noted that "[t]he more intense, lasting, or heinous the agony, the more likely it is to be torture .... Not all police brutality, not every instance of excessive force used against prisoners, is torture under the FSIA." Id. at 93 (emphasis in original). The Price Court declined to specify what specific elements make up torture or to otherwise define that term (beyond the definition provided by the TVPA). Nor could it have-what constitutes torture under the TVPA depends upon an analysis of the facts and circumstances. Indeed, what qualifies as "torture" in one case might not in another. For example, piercing a part of a victim's body with a broad sword on a daily basis would probably be deemed torture in the absence of other mitigating facts. However, if the victim was previously (prior to his captivity) injured and paralyzed from the neck down so that such punctures caused him no pain, perhaps that experience, unpleasant as it surely would be, might not constitute "torture." Perhaps recognizing that, the Price Court engaged in a fact specific analysis: [The] 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 them out-in order to ensure that they satisfy the TVPA's rigorous definition of torture. In short, there is no way to discern whether plaintiffs' complaint merely alleges police brutality that falls short of torture. Thus, the facts pleaded do not reasonably support a finding that the physical abuse allegedly inflicted by Libya evinced the degree of cruelty necessary to reach a level of torture.
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Id. at 93-94 (emphasis added). The court below, however, misunderstood that

language from Price to affirmatively require all district courts in this Circuit to ascertain "the[] frequency [and] duration [of beatings and other inflicted pain and] the parts of the body at which they were aimed," regardless of the other circumstances.
See Dist.Ct.Op. at 20,22,25, 27-28, 32-33. And it was the very fact that the Plaintiffs

could not produce evidence relating to which of Reverend Kim's body parts the Defendant targeted, and how frequently those body parts were targeted, that proved fatal in this case. Dist.Ct.Op. 31-33. Of course, this Court did not intend in Price to require all 28 U.S.C. § 1605A plaintiffs to satisfy precisely the same inquiry. Reverend Kim's treatment undoubtedly was exceptionally harsh and painful. It was surely "sufficiently extreme and outrageous to warrant the universal condemnation," Price at 92. And it almost certainly resulted in his death. That is "torture" for the purposes of the TVPA.
3. Price is distinguished from this case because it was an action to

determine the sufficiency of the pleadings. The Price Court was duty-bound to determine, on the basis of the pleadings and any factual evidence presented, whether the allegations created a basis for subject matter jurisdiction. But this is a default judgment action after the entry of default against the defendant. The factual allegations in the complaint were never challenged and must be accepted as true, even for the purposes of establishing subject matter jurisdiction. Indeed, as Price itself

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said, "When reviewing a plaintiff s unchallenged factual allegations to determine whether they are sufficient to deprive a foreign state defendant of sovereign immunity, we assume those allegations to be true." Id. at 93. Accordingly, if the wellpleaded factual allegations in the complaint were sufficient to establish subject matter jurisdiction-they were and the court below never said otherwise-then the court has subject matter jurisdiction.
It is true that 28 U.S.C. § 1608(e) imposes an additional burden on courts in

FSIA default judgment actions: No judgment by default shall be entered ... unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. The statute means what it says. In order to enter default judgment, the court must satisfy itself that adequate evidence has been presented. The statute says nothing about subject matter jurisdiction. Subject matter jurisdiction was thus established by the complaint and entry of default. The court below abused its discretion by finding, on the grounds stated, that it lacked subject matter jurisdiction. 4. The fact that this is a default proceeding, not a contested dispute,

likewise distinguishes Price in light of the fact that the Plaintiffs have diminished access to evidence. The court below acknowledged this fact and then lamented: "Unfortunately for plaintiffs, no D.C. Circuit opinion appears to allow such circumstances to lessen the plaintiffs' exacting burden of proof." Dist.Ct.Op. at 31. But no D.C. Circuit opinion holds that the Plaintiffs burden of proof is not diminished

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as a result of a willful default. And common sense dictates that it must be. The district court's failure to recognize this was clear error. 5. As noted above, the district court imposed (without so acknowledging)

upon the Plaintiffs the highly exacting burden of proving its case beyond a reasonable doubt. It demanded first-hand testimony-when none is available because the Defendant has taken steps to assure its unavailability-describing the scope and nature of the specific maneuvers that North Korea used against Reverend Kim. It failed to properly credit numerous accounts of North Korea's general tactics in the prisons in which Reverend Kim was incarcerated and expert testimony stating that Reverend Kim nearly certainly suffered the same fate. See, e.g., id. at 19-20. The district court specifically failed to properly credit certain highly probative declarations by Plaintiffs' experts, such as these two: 9. The brutal punishment that Reverend Kim was most probably subjected to includes severe beatings while in stress positions (such as while suspended from the ceiling), near-starvation, and forced physical exertion to the point of absolute physical exhaustion. 10. I am aware of the testimony of approximately 1000 former North Korean prisoners who served time in North Korean prison camps. I do not know of any case in which the former prisoner was not subjected to torture while in the prison camp. There is a steady flow of testimony of former prisoners that describe the most severe types of torture. Kim v. Democratic People's Republic of Korea, No. 09-cv-648, Dkt. No. 50, Supplemental Declaration of Emest C. (Chuck) Downs. The district court cited a number of cases debating precisely what the Plaintiffs burden of proof ought to be, noting that some courts required "clear and convincing" -19-

evidence while many others seemed to require only general reasonableness. Dist.Ct.Op. at 10-13; see also Hill v. Republic ofIraq , 328 F.3d 680 (D.C. Cir. 2003) (imposing a reasonableness standard). None of the cases cited imposed the exceptionally high standard required by the court below. And the court below provided no basis for its decision to impose such a high standard, particularly in light of the fact that this was a default proceeding. The district court abused its discretion by requiring Plaintiffs to prove their case beyond a reasonable doubt.
CONCLUSION

For the reasons stated herein, this Court should grant the Plaintiffs leave to appeal and should reverse the order of the district court. Dated: Brooklyn, New York June 24,2013 Respectfully submitted, THE BERKMAN LAW OFFICE, LLC Attorneys for the Plaintiffs-Petitioners

Ofcounsel: Robert J. Tolchin, Esq. Meir Katz, Esq. Application for admission pending

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ADDENDUM

Pursuant to Circuit Rules Sea) and 28(a)(1), Appellants Kim et al. hereby provide the following certificate of parties, rulings, and related cases. (A) Parties and Amici. The following is a list of persons who are

known to be parties to this case at this time: Plaintiffs-Appellants: Han Kim and Yong Seok Kim. Defendant-Appellee: Democratic People's Republic of Korea (A.K.A. North Korea). Intervenors & Amici: There are no interveners and no known amici. (B) Rulings Under Review. The ruling under review is the district

court's June 14,2013 Memorandum Opinion and Order by Judge Richard W. Roberts of the U.S. District Court for the District of Columbia. The Opinion and Order denied the Appellants' motion for default judgment pursuant to 28 U.S.C. § 160SA (the Foreign Sovereign Immunities Act). The Court, on its own motion, certified this case for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Opinion and Order is appended to this Petition. (C) Related Cases. There are no known related cases.

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Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
)

HAN KIM, et al., Plaintiffs, v. DEMOCRATIC PEOPLE'S REPUBLIC of KOREA, et al., Defendants.
- -- - --

)
)

)
)

)
)

Civil Action No. 09-648 (RWR)

) )
)

)
)

MEMORANDUM OPINION AND ORDER

Plaintiffs Han Kim ("Han U

)

and Yong Seok Kim ("Yong U

)

bring

this civil action under the terrorism exception of the Foreign Sovereign Immunities Act ("FSIA U
) ,

28 U.S.C.

§

1605A(c), seeking

damages against officials, employees and agents of defendant Democratic People's Republic of Korea ("DPRK U
)

in connection with

the January 16, 2000 abduction of Reverend Kim Dong Shik ("Reverend Kim U
) ,

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
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- 2 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." of Facts and Conclusions of Law ("Pls.' Pls.' Proposed Findings 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.

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- 3 -

DISCUSSION
I.

JURISDICTION AND LIABILITY UNDER THE FSIA 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 (D.C. Cir. 2002); see also Maritime Int'l Nominees

F.3d 82, 87

Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C. Cir. 1982) (" [T] he absence of immunity is a condition to the The door is opened

presence of subject matter jurisdiction.").

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, killing, [or] extrajudicial

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

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- 4 of the torture, and that the foreign state have been afforded a reasonable opportunity to arbitrate the claim.
§

28 U.S.C.

16 05A(a) (2).

Section 1605A(c) provides the priva te 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 t h e jurisdictional requirements of
§

1605A(a) are proven.

See

Kilburn v. Islamic Republic of Iran, (D.D.C. 2010) ("[T]he
§

699 F. Supp. 2d 136, 155

1605A(c) cause of action is fulfilled by

demonstrating that the foreign sovereign performed acts described in subsec tion (a ) (1) of
§

1605A, which addresses immunity a nd Although an anal ysis of a

subject matter jurisdiction . . .

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 demonstra te that a p laintiff has a cause of action."); see also Gates v . Syria n Ara b Repub l i c , 5 80 F. Supp. 2d 53, 64-69 (D. D.C. 2008) (explaining that § 1605A(c) provides a

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- 5 -

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 U.S.C.
§

("TVPA").

28

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[,J" Am. Compl. en 27, and that Reverend Kim's "murder" thus qualifies under 28 U.S.C. killing, id. en 33.
§

1605A as an extrajudicial

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
-a6-

(1992).

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-

6 -

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 Instead,

alleged a targeted bombing or a deliberate execution.

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:

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-

7 -

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 omi tted) . In addition, for abuse to constitute torture it must
Id. at 93

be inflicted intentionally, not merely incidentally.

("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

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-

8 -

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." Si mp s o n v . Social is t 230, 234 Id. at 94; see also

People 's Li b ya n Arab Jamahiriya, 326 F.3d (finding aJlegations of forcibly

(D.C. eir. 2003)

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

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-

9 -

subject matter jurisdiction.

Price, 294 F.3d at 93.

Similarly,

for the purposes o f examining subject matter jurisdiction on a motion f or entry of default u n d e r the FSIA, courts accept the plaintiffs' factual allegations as true. Republic of Iran, Sisso v. Islamic

448 F. Supp. 2d 76, 81 & n .S (D.D.C. 2006)

(reasoning on motion for entry of default in FSIA proceeding that court was "preclude[d]
at this stage o f the litigati on from

making factua l findings that are inconsistent with the allegations of the c omplaint" 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, hol di ng 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 t heir frequency, duration, the parts of the b ody at which they were aimed, and the weapons used t o carry them out -- in order to ensure that they satisfy the TVPA's rigorous definition of torture. Price , 294 F. 3d at 93 . Be y o n d t he plea d ings s ta ge , pla i nt iffs

"have to prove t h e merits o f their claims before they can obtain a de f a ul t
judgment " and " t he evidence they present wi ll h a v e t o

provide suppor t " for the theorie s of lia bi lity t hey al lege .

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- 10 Sisso, 448 F. Supp. 2d at 79 n .2. It follows that plaintiffs

must provide sufficiently detailed proof of their allegations that DPRK agents tortured Reverend Kim in order to ensure that the conduct "satisf[ies] the TVPA's rigorous definition of torture." II. Price, 294 F.3d at 93.

STANDARDS FOR DEFAULT JUDGMENT Default judgment against a foreign state shall be entered

only where a plaintiff "establishes his claim or right to relief by evidence that is satisfactory to the Court."
§

28 U.S.C.

1608(e).

The "satisfactory to the court" standard is identical

to the standard for entering default judgment against the United States under Fed. R. Civ. P. 55 (d) (requiring claimant to

"establish[] a claim or right to relief by evidence that satisfies the court"). 683 (D.C. Cir. 2003) (1976)). Hill v. Republic of Iraq, 328 F.3d 680,

(citing H.R. Rep. No. 94-1487, at 26 See

Neither standard, however, is easily defined.

Smi t h ex reI . Smit h v . I slami c Emira t e of Afgh an i s t an , 262 F. Supp. 2d 217, 223 (S.D.N.Y. 2003) (observing that "[t]he issue

appears to have defied definitive resolution largely because in most cases the evidence of the defaulting defendant's liability is quite compelling and thus the matter can be decided without a more concise meaning of 'evidence satisfactory to the court'"). The D.C. Circuit has not addressed the question, and lower courts

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- 11 have articulated varying rationales for what quantum of evidence is "satisfactory.u Some courts in FSIA default proceedings have found to be "satisfactoryu evidence that they described as "clear and convincing. u See, e.g., Weinstein v. Islamic Republic of Iran, (finding jurisdictional

184 F. Supp. 2d 13, 16 (D.D.C. 2002)

facts "established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding U
) ;

Mousa v. Islamic Republic of Iran, 238 F. (same). But the reasoning of these

Supp. 2d 1, 3 (D.D.C. 2001)

cases suggests strongly -- and in some cases indicates explicitly -- that clear and convincing evidence was considered a sufficient, rather than a necessary, quantum of proof.
~,

See,

Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, (concluding that "the plaintiffs have gone

269 (D.D.C. 2003)

beyond the necessary burden of 'evidence satisfactory to the court' and have proven each e lement by clear and convincing evidence U
) •

Other courts have drawn an analogy between the FSIA default standard and that for judgment as a matter of law, either after a jury trial or on summary judgment. One court held that the FSIA

default standard "call[s] for proof by evidence of a nature and quality sufficient to support summary judgment under Fed. R. Civ.

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- 12 P. 56, n amely, oral or wr i t t e n testimony unde r oath, made upon person a l kn owledge b y wi t n e s se s competent t o testif y to th e ma t t e r s stated th erein." Hill v . Repub l i c o f Iraq, 17 5 F. Supp. (refe rri ng to then- cu r r ent Ru le

2d 36 , 3 8 n. 4 ( D. D. C. 2 001) 5 6(e)).1 91, 98

In Ungar v . Islamic Republ ic of Iran, 211 F. Sup p . 2d

(D.D .C. 200 2), the c ourt considere d t h e Hill standard,

among oth e r s , but t he n pu rpo r te d t o opt f o r the sta n d ard for jud gme n t as a mat ter o f law a f t er a jur y trial, s e t fo rth in Fe de ral Rule of Civil Proc e d u re 50 (a), wh ich t he cou r t des c ribe d as "a legally sufficient evidentiary basis for a reasonable jury t o find for plaint if f." s ee, e.g . , Ga tes, I d. a t 98. 2 Several subsequent c ou rts,

5 80 F. Sup p. 2 d at 63, have a d opte d as t he

(This case was reversed in part by Hil l v . Republi c of Iraq, 328 F.3d 680 (D.C. Cir. 2003). The D.C. Circuit rejected the burden of proof on damages for default judgment that the dis t r ict c ourt articul ated, b u t "di d not add r es s the question of t h e FSIA's p la i ntiff's burden o n proof on liabilit y." Hill, 328 F. 3d at 683 - 8 4 .
2 The Federal Rule of Civil Procedure 50(a) standard is more stringent than the Ungar court's formulation suggests. Judgment as a matter of law against a party may be granted only if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [an] issue." Fed. R. Civ. P. 50(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (holding that the summary judgment standard "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict") . In this light, the standards actually applied in Hill and Ungar are virtually identical.

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- 13 standard that the plaintiffs must put forth a "legally sufficient
p rima facie case."

See, e.g., Kilburn,

699 F. Supp. 2d at 150.

Interpreting the "satisfactory to the court" standard to require a legally sufficient prima facie case best accounts for the posture of default proceedings under the FSIA. Where the

defendant has not participated in the proceedings and there has been no opportunit y for discovery, plaintiffs cannot be expected to meet a typica l standard for judgment as a matter o f law. However, the plaintiff's evidence must be rigorous enough to support the facts necessary for jurisdiction. In FSIA default proceedings, "the court may accept as true the plaintiffs' uncontroverted evidence." Republic of Iran, Wachsman v. Islamic

603 F. Supp. 2d 14 8, 155 ( D. D.C. 2009) (quoting Elahi v. Islamic Republic

(internal quotations omitted)

of Iran , 124 F. Supp. 2d 97, 100 (D.D.C. 2000)); see also Gates, 580 F. Supp . 2 d a t F . Supp. 12 39 , 1 2 43 63 (same); Alejand re v. Repu bli c o f Cuba, 996 (s a me ) . The e vi dence

(S.D. Fla. 199 7 )

provided, however, is subject to the Fede ral Rul e s o f Evidence . See, e.g., Daliberti v. Republic of Iraq, 14 6 F. Supp. 2d at 21 n.1 (D.D.C. 2001) (noting that "[i]n the absence of defense

co un s e l , the Court us ed particular care t o d r aw the find i ngs of f a c t and c o n clusions o f law f rom a dmiss ib le testimo n y in accordance with the Federal Rules of Eviden ce"). Hearsay

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- 14 evidence therefore is normally inadmissible because it lacks sufficient indicia of reliability. Expert witnesses, however, Fed. R.

may rely on hearsay evidence to reach their conclusions. Evid. 703.

Plaintiffs may present their evidence in the form of

affidavits or declarations, see Campuzano, 281 F. Supp. 2d at 268 (citing Weinstein, 184 F. Supp. 2d at 19), and an evidentiary hearing is not required before a default judgment against a foreign state is entered. See Ben-Rafael v. Islamic Republic of (D.D.C. 2008).

Iran, 540 F. Supp. 2d 39, 43 III. PLAINTIFFS' EVIDENCE

Plaintiffs have submitted their own declarations, as well as declarations from family member Dani Butler, and from multiple experts on North Korea. Exhibits include congressional

resolutions relating to Reverend Kim's abduction, and press materials, book excerpts and reports from human rights organizations and the U.S. State Department about North Korea. The plaintiffs rely in particular on the decision of a South Korean court that tried and convicted a DPRK intelligence agent for crimes including the abduction of Reverend Kim. Plaintiffs See

have provided a sworn English translation of that decision.

Declaration of J.D. Kim (certifying translation of Decision of Seoul Joong Ang Ji Bang Court, Criminal Part 23 court decision")). ("South Korean

The judgment of the South Korean court is a

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- 15 proper subject of judicial notice under Fe de ral Ru l e of Ev i dence 201 to establish the fact of foreign litigation and the resulting actions o f the foreign court. Fe d . R. Ev id. 201 (p e r mi t t i ng

judicial notice of a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sou rces wh o s e accuracy cannot reasonably be quest ioned); s ee, e.g., Jordan (Bermuda) Inv. Co., Ltd. v. Hunter Green I n v s. Ltd., (taking judicial n otice

154 F. Supp. 2d 682, 689 (S.D.N. Y. 2001)

of foreign court judgment); Lu xpro Corp. v. Apple Inc., No. C 100 3058 JSW, 2 0 1 1 WL 10860 27, a t (same). *3 (N.D. Cal. March 2 4 , 20 1 1 )

A declaration certifying under penalty o f perjury that

the translation of the decision is true and correct accompanies the decision and suffices to establish its accuracy. U.S.C.
§

See 28

1746.

Recited below, without an at tempt to parse th e

admissibility of all of it, is the evidence presented by the plaintiffs. North Korean refugees who were able to escape to China would stay in secret safe-houses that non-governmental organizations and religious humanitarian groups had established or that Chinese locals in the area with ethnic Korean descent would support. 1 17. Report of Yoshikuni Yamamoto ("Yamamoto Decl.")

In response, the DPRK established a network of local

agents in China under DPRK's security services to abduct

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- 16 defectors and the humanitarian workers who assisted them.
~~

Id.

18, 23.

On September 17, 2002, DPRK leader Kim Jong-II

admitted publicly to Prime Minister Koizumi of Japan that DPRK security services had engaged in kidnapping Japanese citizens between 1977 and 1983. Declo")
~

Declaration of Ernest C.

Downs

("Downs

20.

In 1993, Reverend Kim moved to China to work as a missionary providing humanitarian and religious services to the families of North Korean defectors and refugees who had fled across the SinoKorean border seeking asylum. Yamamoto Decl.
~

20.

He had

previously worked with the Special Olympics in China and worked to raise money for medical supplies for needy children. He

l e a r n e d of the plight of North Korean refugees and at once committed himself to aid this disadvantaged community. Declaration of Han Kim ("Han Decl.")
~~

19, 21.

Reverend Kim set

up numerous refugee shelters and a school for expatriate North Korean children and handicapped persons in the Chinese town of Yanji.
~

He named the school the "School of Love."

Yamamoto Decl.

20. DPRK intelligence agent Hua was convicted on April 21, 2005

by a South Korean Court in Seoul, for his involvement in planning and executing various abductions of civilians from China to North Korea following the instructions of a senior DPRK intelligence

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- 17 official. South Korean court decision at 1. One of the crimes

for which Hua was convicted was his direct involvement in planning and carrying out the abduction of Reverend Kim. 2. Hua was sentenced to ten years imprisonment. Id. at The

Id. at 1.

plaintiffs allege that agents prosecuted for abducting Reverend Kim provided information concerning Reverend Kim's torture in North Korea, and cite to the South Korean court decision for support. Pis.' Proposed Facts at 8; Revised Proposed Findings of However, the court decision

Facts and Conclusions of Law at 18.

makes no reference to Reverend Kim being tortured in North Korea. Members of the United States Congress have investigated the DPRK policy of abducting foreigners and have issued various resolutions regarding the issue. On June 11, 2002, the House of

Representatives issued a resolution urging the governments of the United States, South Korea and China to seek a full accounting from the DPRK regarding the whereabouts of Reverend Kim. Decl.
~

Downs

25, Ex. A.

On July 11, 2005, the House of

Representatives issued a resolution condemning the DPRK's use of abductions and demanding the return of individuals being held in North Korea. Id.
~

25, Ex. C.

On January 28, 2005, an Illinois

congressional delegation, including then-United States Senator Barack Obama, sent a letter to North Korean Ambassador to the United Nations Pak Gil Yon, which specifically asked that North

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- 18 Korea forthwith investigate the circumstances of Reverend Kim's abduction and fate, and which stated that its signatories would

not support the removal of the DPRK from the State Department's list of State Sponsors of Terrorism until the whereabouts of Reverend Kim had been made known. Id.
~

25, Ex. E .

This letter

was followed by a letter from Representative Henry Hyde in his capacity as the Chairman of the House Committee on International Relations, dated November 4, 2005, after the Illinois congressional delegation had returned from a trip to Japan.
~

Id.

25, Ex. F. A recently declassified internal State Department cable

dated February 3, 2000, from representatives stationed in Seoul communicating with headquarters in Washington, D.C., states that a local Chinese paper reported that Chinese investigators had "strong evidence" that Reverend Kim was kidnapped from China by DPRK agents who had crossed over into China in late December to plan the abduction. Id.
~

26, Ex. G.

The cable

authored a

mere two weeks after Reverend Kim's abduction -- further repor ted that ten people were involved in Reverend Kim's ki dnapping, including a couple posing as North Korean defectors, and tha t Reverend Kim was held hostage in China before being transported into North Korea by his captors. Id. The State Department's

2003 country report on North Korea discusses North Korea's

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- 19 responsibility for disappearances and refers to "unconfirmed reports that in January 2000 North Korean agents kidnaped a South Korean citizen, Reverend Kim Dong Shik, in China and took him to North Korea." Decl. of Robert Tolchin, Dkt. No. 37 at 3. The

State Department also recounts that North Korea engaged in torture including "severe beatings, electric shock, prolonged periods of exposure, humiliations such as public nakedness, and confinement to small 'punishment cells[.]" rd. at 4. The report

describes harsh prison conditions in North Korea where "starvation and executions were common" and former prisoners reported severe beatings and "torture involving water forced into a victim's stomach with a rubber hose and pumped out by guards jumping on a board placed across the victim's abdomen(.]" rd. A

2009 State Department country report on human rights practices in the DPRK states that the North Korean government was responsible for disappearances and that "[i]n 2008 the media reported South Korean missionary Kim Dong-shik had most likely died within a year of his 2000 disappearance near the China-DPRK border." Decl. of Robert Tolchin, Dkt. No. 38 at 3. The 2009 report

reiterates the reported torture methods and the harsh conditions of the prisons in North Korea. rd. at 3-4. However, the State

Department cable and reports do not provide any first-hand accounts of Reverend Kim's treatment, or address the nature or

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- 20 severity of any torture Reverend Kim suffered, or specify the frequency or duration of the acts of torture or the parts of the body at which they were aimed or any weapons used to carry them out. Expert research on human rights abuses in North Korea has reported widespread and systematic repression by DPRK operatives of DPRK citizens and foreign nationals, specifically by means of forced abductions and confinement in kwan-li-so, penal-labor colonies. or political

The reports are based on first-hand

accounts and satellite photography, among other data. Declaration of Professor David Hawk ("Hawk Decl.")
~~

8-13.

Professor David Hawk has expertise in human rights in North Korea, has published extensively on that issue, and has interviewed scores of former prisoners with first-hand accounts of treatment in North Korean camps. He declared that prisoners

of the penal colonies face harsh conditions and treatment, including below-subsistence food rations, back-breaking forced physical labor, brutal beatings, long-term solitary confinement, rape, and forced abortion. rd.
~~

14-19.

Prisoners are forced

to perform labor twelve or more hours a day, seven days a week, and receive only enough food to be kept on the verge of starvation. rd.
~

14.

Prisoners often endure "long-term

solitary confinement in punishment cells which do not have enough

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- 21 space for a person to completely lie down or stand up, causing inmates to experience a loss of circulation and atrophy of legs, and often leading to death within several weeks." Id. err 15.

According to Hawk, "(a]ttempted escapees are automatically executed and other 'major' rule-breakers are publicly executed by hanging or firing squad in front of the assembled prisoners of that section of the camp." Id. "Many inmates cannot withstand

the harsh conditions of their imprisonment and a significant number die within a year of their arrival to the kwan-li-so. A

large number of those who survive develop permanent disabilities -- signs of premature aging, hunchbacks and other physical deformities due to the brutal work conditions and cell sizes." Id.
CJ[

16.

Hawk stated that a defining characteristic of DPRK's

political penal-labor colonies is that "prisoners are not formally arrested, charged (or even told of their offense), or tried in any sort of judicial procedure." Hawk said (w]hile I do not have any firsthand knowledge about Reverend Kim's case specifically, given my extensive experience with the DPRK and the manner in which abductees repatriated from China were usually treated, it is likely that [Reverend Kim] would have been initially held in a ku-ryu-jang, or a DPRK police detention and interrogation facility, before being transferred to a kwan-li-so. It also seems likely to me that Reverend Kim, at a minimum, would have been subjected to the harsh treatment afforded to all of its prisoners. But because Reverend Kim was such a valuable target of the DPRK and so much planning,
-a22-

Id. err 11.

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 22 of 36

- 22 effort and other resources had gone into his abduction, it is clear to me that Reverend Kim was subjected to additional brutality. rd.
~

20.

Reports and concerns about Reverend Kim's treatment

have circulated widely enough that he would have been more likely to be viewed by the DPRK as a high-value target warranting harsh treatment. rd. Hawk "believe[s] that the various reports of

[Reverend Kim's] torture and eventual starvation, from the accounts of other prisoners, are likely to be reliable and accurately describe how Reverend Kim was treated by his captors from the time he was abducted and incarcerated until his untimely death." rd. Hawk does not detail from the reports the nature or

severity of the torture Reverend Kim suffered, or the frequency or duration of the acts of torture or the parts of the body at which they were aimed or any weapons used to carry them out. Ernest C. Downs, a former senior official of the U.S.

Department of Defense who served from 2001 to 2008 on the board of the United States Committee for Human Rights in No r th Korea, stated that it is "clear . that (Reverend Kim] was abducted

by DPRK agents from China and forcibly brought to North Korea[.]" Downs Decl.
~

33.

According to Downs, DPRK agents have

specifically abducted and imprisoned people who have assisted North Korean defectors as well as Christian missionaries. Supplemental Declaration of Ernest C. Downs ("Downs Supp. Decl.")

-a23-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 23 of 36

- 23 ~

6(b)-(d).

Because Reverend Kim assisted North Korean defectors

and was a Christian missionary, he was likely a "valuable and important target to the governme nt and ruling part y of the DPRK." Id.
~

6(a)-(c).

Based on the testimony of other North Korean

prisoners,

Downs states that prisoners are forced to labor for

more than twelve hours per day, sometimes sixteen hours, and the failure to meet production quotas leads to "additional har d labor, less food, Downs Decl.
~

and excepti o nally painful physical p u nishme nt."
~

11i see also Downs Supp. Decl.

11.

Thus,

"[p]risoners in North Korea's political prisons do not often survive." Downs Supp. Decl.
~

7.

Downs states that he is aware

of the testimony of 1000 former North Korean prisoners and Downs "does not know of any case in which the former prisoner was not subjected to torture while in the prison camp." Declo
~

Downs Supp.

10.

Downs provides numerous examples from former

prisoners describing inmate mistreatment in DPRK prisons and facilities. I n particula r, Downs submits an excerpt from Hawk's

book The Hidden Gulag which recounts inmates who were subject t o burnings, skin piercing, water torture, being hung by wrists or upside-down, sleep deprivation, food deprivation, facial and shin

beatings with rifle butts, whippings with belts, beatings in the legs wit h a wooden stave, undersized punis hment cells wh e r e detainees could not stand up or lie down and placement in

-a24-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13

Page 24 of 36

- 24 punishment cells for a week or more. Id., Ex. 1 at 148-52.

Downs also attaches an account of a prisoner who was hung by his hands and feet, stabbed in the lower abdomen and held over a fire Id., Ex. 2 at 57-58.

until he lost consciousness.

Downs also opines that "Reverend Kim's killing was motivated by political considerations." Downs Decl.
~

7.

In his opinion,

"a foreigner abducted by the DPRK for political purposes, such as Reverend Kim, after eleven years would still either be languishing in a North Korea prison camp or would have already been killed." Id.
~

34.

He "believe[s] that credible

information on [Reverend Kim's] treatment in North Korea has been obtained from defectors." Id. He states that Reverend Kim

probably was subjected to "severe beatings while in stress positions (such as while suspended from the ceiling), near starvation, and forced physical exertion to the point of absolute physical exhaustion." Downs Supp. Decl.
~

9.

In addition, Downs

asserts that he is certain that "Reverend Kim has been subject to exceptionally painful, brutal, and outrageous treatment while in prison." Id.
~

8.

Downs also states that "[c]redible sources

have reported that Reverend Kim died as a result of his torture and malnutrition." Id.
~

6(i).

Thus, Downs concludes that

Reverend Kim's "death resulted from torture and malnutrition deliberately caused by his North Korean captors." Id.
~

13.

-a25-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13

Page 25 of 36

- 25 Downs neither identifies the former prisoners, the defectors or other credible sources for these conclusions, nor reveals their basis of knowledge about Reverend Kim, nor says he has spoken with any of them. Downs does not provide details from the

credible information received concerning the severity of Reverend Kim's beatings, such as their frequency, duration, the parts of the body at which they were aimed, or the weapons used to carry them out. Do Hee-Youn, a member of a South Korea-based human rights organization, heard "through the information net" that Reverend Kim died in North Korea as a result of torture and malnutrition in February 2001. Decl.")
~

Declaration of Do Hee-Youn ("Do Hee-Youn

13.

Yoshikuni Yamamoto, a researcher at a human rights

organization in Washington, DC, stated generally that "it was reported" that Reverend Kim was tortured after refusing to collaborate and that he died in February 2001 and was buried in District 91 military training base in Sangwon-ri near Pyongyang. Yamamoto Decl.
~

22.

Neither declaration supplied details about

the nature of the reported torture. Human Rights Watch released a 2007 report discussing the mistreatment of prisoners at detention facilities in North Korea. This report states that prisoners are subject to strip searches, verbal abuse and threats, beatings, forced labor, and lack of food
-a26-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 26 of 36

- 26 and medicine, among other abuses. Torture and other cruel and inhuman treatment appears widespread and can occur throughout the process of incarceration in North Korea [ . ] North Korea: Harsher Policies against Border-Crossers, Dkt. No. 35-1 at 8. In particular, the report includes accounts from

former prisoners who state that the guards would make [prisoners] sit down and stand up repeatedly until [they] collapsed, or forced [them] to hang onto cell bars or bang [their] heads onto cell bars. Guards beat people all the time -- they used sticks or belts. They also slapped or kicked inmates for disobedience. Id. Similarly, the United Nations Special Rapporteur on the

situation of human rights in the DPRK released a report which described what it called DPRK's record of torture and inhuman treatment, arbitrary detention and use of prison camps. Pls. '

Supp. Submission of New Auth., Ex. 1, Human Rights Council, Rep. of the Special Rapporteur on the situation of human rights in the DPRK, 22d Sess., U.N. Doc. A/HRC/22/57 (Feb. 1, 2013). This

report stated that, in 2007, there were reports that DPRK authorities engaged in "torture, public executions, and persecution of political dissidents." Id., Annex 1
<J[

22.

In

2008, the Secretary-General stated that reports from DPRK "continue to indicate trends o f torture, inhumane conditions of

detention, public execution, ill-treatment o f refugees" and the Special Rapporteur stated that

-a27-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 27 of 36

- 27 the harsh conditions imposed by the criminal justice system and related detention give rise to a plethora of abuses, including torture and cruel, inhuman and degrading treatment. The abuses are ubiquitous, and include degrading treatment of deceased persons. Id., Annex 1
~

23.

The UN Special Rapporteur cites 2011 reports

which state that DPRK correctional officers beat inmates and that torture was occurring at various camps in the DPRK.
~~

Id., Annex 1

25-26.

In addition, "[t]he Secretary-General noted in 2012

that some reports also indicate the existence of prison camps where torture and execution are widespread." Id., Annex 1
~

27.

The report identifies the political labor camps and states that the Special Rapporteur has consistently expressed concern about "unreasonable and abusive punishments" and "torture and detention without due process of law" and the "harsh conditions" in the camps where "no
clo~hing

is provided" and inmates are "expected Id., Annex 1

to work long hours performing manual labour."
~~

48-51, 54.

Neither report provides any first-hand knowledge The reports do not detail the

of Reverend Kim's mistreatment.

frequency or duration of the acts of torture at the DPRK prison camps. Plaintiffs cite an excerpt from Melanie Kirkpatrick's 2012 book Escape from North Korea that states that Reverend Kim was tortured and murdered by the North Koreans. PIs.' Supp. The

Submission of New Authority, Dkt. No. 55, Ex. 1 at 150-51.

-a28-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 28 of 36

- 28 excerpt states that Reverend Kim was transported to a political prison camp and "[h)e appears to have been beaten and starved to death after refusing to renounce his religion." Id. at 152.

Kirkpatrick also states that "according to [Reverend Kim's) family, his remains are believed to be in People's Army Camp 91, a garrison on the outskirts of Pyongyang." omitted).
Id.

(footnote

Kirkpatrick reports as the source for these details

the plaintiffs' amended complaint and the filings docketed in this case. n.20 (2012). See Melanie Kirkpatrick, Escape from North Korea 329 In any event, the Kirkpatrick excerpt does not

detail the nature or severity of the torture, or the frequency or duration of the acts of torture or the parts of the body at which they were aimed or any weapons used to carry them out. IV. JURISDICTION IN THIS CASE Section 1605A(a) (2) (A) (i) (I) provides in relevant part that a court shall hear a claim under
§

1605A against a foreign state

if that state "was designated as a state sponsor of terrorism at the time the [torture or extrajudicial killing] occurred, and . either remains so designated when the claim is filed

under this section or was so designated within the 6-month period before the claim is filed under this section[.]" North Korea was See Notice,

designated as a state sponsor of terrorism in 1988. Determination Pursuant to Section 6(j) of the Export

-a29-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 29 of 36

- 29 Administration Act of 1979; North Korea, 53 Fed. Reg. 3477-01 (Feb. 5, 1988). October 11, 2008. North Korea's designation was rescinded on See Notice, Rescission of Determination 63540-01 (Oct. 24, 2008).

Regarding North Korea, 73 Fed. Reg.

Thus, North Korea remained designated as a state sponsor of terrorism within the 6-month period before this action was filed on April 8, 2009. Section 1605A(a) (2) (A) (ii) (I) further requires that "the . . occurred

claimant or the victim was, at the time the act . a national of the United States."

An individual deemed to

owe a permanent allegiance to the United States and who actively pursues U.S. citizenship can be held to be a "national of the United States" in satisfaction of
~,

§

1605A(a) (2) (A) (ii) (I).

See,

Saludes v. Republica de Cuba, 577 F. Supp. 2d 1243, 1252 At the time of Reverend Kim's abduction,

(S. D. Fla. 2008).

plaintiff Yong Kim was a U.S. citizen and plaintiff Han Kim can be deemed to have been a U.S. national. He had lived in the u.S.

since 1992 and became a Permanent Resident owing a permanent allegiance to the U.S. In 1999, before his father's abduction,

he began the application process to become a naturalized American citizen with the intention of remaining in this country. Supplemental Declaration of Han Kim at 1-2.

-a30-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 30 of 36

- 30 For any "production of pain" to codstitute torture under the TVPA definition, the act must be "purposive, and not merely haphazard . [or] the unforeseen or unavoidable incident of Price, 294 F.3d at 93. Plaintiffs'

some legitimate end."

proffered evidence includes expert opinions, a type of evidence that courts have credited in FSIA default actions. 699 F. Supp. 2d at 143, 152. See Kilburn,

Hawk asserts that DPRK's policy is

to imprison "political prisoners and others deemed to be opponents of the DPRK regime" to "deter dissent in the larger population[.]" Hawk Decl.
~

10.

Hawk and Downs state that

Reverend Kim was targeted by DPRK because of his "humanitarian activities" and because he was a Christian missionary who assisted North Korean defectors. Decl.
~~

Hawk Decl.

~

21; Downs Supp .

6(a)-(d), 7.

In particular, Downs states that he is

"virtually certain that Reverend Kim's killing was motivated by political considerations." Downs Supp. Decl.
~

7.

Hawk adds

that in DPRK's penal camps, "prisoners are not formally arrested, charged (or even told of their offense), or tried in any sort of judicial procedure." Hawk Decl.
~

11.

The South Korean court

decision and the expert evidence reflect that Reverend Kim was abducted at the behest of DPRK security forces, not in accordance with any legitimate judicial or other process, due to Kim's religious work and assistance to North Korean refugees.

-a31-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 31 of 36

- 31 Therefore, the plaintiffs have sufficiently shown that any mistreatment of Reverend Kim was done purposefully. However, the plaintiffs' submissions do not establish the severity of the treatment of Reverend Kim in particular, or that his treatment amounts to torture under the rigorous definition of that term adopted in the FSIA. DPRK's failure to respond to the

complaint or to respond to any of the congressional inquiries regarding Reverend Kim's fate, in part, obscures the precise

details of Reverend Kim's treatment following his abduction by DPRK agents. Moreover, the widely feared nature of DPRK

repression appears to force those individuals who may know details about Reverend Kim's whereabouts and treatment to convey such information sparingly and anonymously. Youn Decl. supplied .
~

See, e.g., Do Hee-

2 (describing "network of individuals that have information concerning North Korean matters U and

explaining "many of these individuals are kept confidential to ensure their safety from potentia l retribution against them by the North Korean government U
) .

Unfortunately for plaintiffs, no

D.C. Circuit opinion appears to allow such circumstances to lessen the plaintiffs' exacting burden of proof. Here, the declarations of the plaintiffs and Butler reflect no actual knowledge of how Reverend Kim was treated in the DPRK. The South Korean court decision convicted a DPRK agent of

-a32-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 32 of 36

- 32 abducting Reverend Kim, but does not refer to Reverend Kim being tortured. The congressional resolutions and correspondence

sought, but did not provide, details about Reverend Kim's treatment. The State Department reports discussing abuse in DPRK

prisons and media speculation that Revered Kim died provide no first-hand accounts detailing his treatment. The reports from

Human Rights Watch and the United Nations provide no first-hand accounts of Reverend Kim's mistreatment and do not detail the frequency or duration of the acts of torture at the prison camps. The Kirkpatrick book excerpt recounts information docketed in this case but adds no first-hand information about Reverend Kim's treatment, or any details about the nature or severity o f his torture, or the frequency or duration of any acts of torture or the parts of his body at which they were aimed or any weapons used to carry them out. Two of plaintiffs' declarants, Do Hee-

Youn and Yoshikuni Yamamoto, recounted hearsay reports that Reverend Kim was tortured and died. The declarants did not,

though, reveal the sources of the reports, specify their bases of knowledge, or provide useful details about the nature and severity of any torture. The experts in this case describe conditions at an established and extensive system of penal colonies where the DPRK regularly holds abductees and political prisoners, and opine that

-a33-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 33 of 36

- 33 -

reports from defectors stating that Reverend Kim was tortured and is either still in custody or has died as a result of his treatment are credible. However, Hawk does not report that the

prisoners he spoke with had personal knowledge of Reverend Kim's treatment. Hawk also does not describe the nature or severity of

the torture Revered Kim suffered, or the frequency or duration of acts of torture upon him or the parts of the body at which they were aimed or any weapons used to carry them out. Likewise,

Downs does not identify the sources he deems credible upon whom he based his opinion that Reverend Kim probably died as a result of deliberate torture and malnutrition. He does not reveal their

bases of knowledge about Reverend Kim or say whether he has spoken with them. Nor does Downs provide details regarding the Price constra ins us from

severity of Reverend Kim's beatings.

employing discussion about the abuses generally in these camps to show that mistreatment of Reverend Kim occurred that rose to the level of torture under the TVPA. As the p laintiffs h a v e n ot

satisfied the requirements of the FSIA, subject matter jurisdiction is lacking. Although the plaintiffs have not provided sufficient evidence to support jurisdiction under the FSIA, a district court ruling on whether facts in a complaint adequately allege a basis for invoking the torture exception under the FSIA should be

-a34-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 34 of 36

- 34 immediately appealable. See Price, 294 F.2d at 92 (allowing

Libya to immediately appeal a district court decision rejecting Libya's argument that the facts alleged in the complaint do not bring the case within an FSIA immunity exception). Moreover,

this case qualifies for an interlocutory appeal under 28 U.S.C.
§

1292(b).

That statute provides that an interlocutory appeal

may be certified to the court of appeals when a district judge. . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C.
§

1292(b)

"Under

§

1292(b), a controlling question of

law is one that would require reversal if decided incorrectly or that could materially affect the course of litigation with resulting savings of the court's or the parties' resources[]" and "include[s] issues that would terminate an action if the district court's order were reversed." APCC Servs., Inc. v. Sprint

Communic'ns Co., L.P., 297 F. Supp. 2d 90, 95-96 (D. D.C. 2003) (internal citations and quotation marks omitted). Here, the

determination of subject matter jurisdiction qualifies as a controlling question of law. See id. Also, there is "a

substantial ground for difference of opinion" about whether plaintiffs have presented the requisite quantum of evidence to show that Reverend Kim was tortured under the FSIA. Cf. Doe v.

-a35-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 35 of 36

- 35 Qi, 349 F. Supp. 2d 1258, 1312-17 (N.D. Cal 2004) (discussing

Price and collecting cases applying the standard for sufficient factual allegations to allege torture under the FSIA). Finally,

"[w]hen there are substantial grounds for difference of opinion as to a court's subject matter jurisdiction, courts regularly hold that immediate appeal may 'materially advance the ultimate termination of the litigation.'" Supp. 2d 51, 55 (D. D.C. 2009). Al Magaleh v. Gates, Certification for an 620 F.

interlocutory appeal in this case, then, is warranted. CONCLUSION AND ORDER Subject matter jurisdiction over this action depends in part upon an adequate demonstration that Reverend Kim was tortured following his abduction. Plaintiffs have not met to the court's

satisfaction the high standard recognized by this circuit under the FSIA for showing that Reverend Kim was tortured. Thus, the The

court lacks subject matter jurisdiction over this action.

motion for default judgment will be denied, and the case will be certified for interlocutory appeal on the issue of the requisite quantum of evidence for sufficiently alleging torture under the FSIA. Accordingly, it is hereby ORDERED that plaintiffs' motion [14] for default judgment be, and hereby is, DENIED. It is further

-a36-

Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 36 of 36

- 36 ORDERED that this case be, and hereby is, certified for immediate appeal under 28 U.S.C. § 1292(b) because it involves a controlling question of law as to which there is a substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of this litigation. It is further ORDERED that all proceedings in this case be stayed upon the application of the plaintiffs for an interlocutory appeal under 28 U.S.C. § 1292(b) of the finding that the court lacks subject matter jurisdiction under the FSIA. SIGNED this 14 t h day of June, 2013.

lsi
RICHARD W. ROBERTS United States District Judge

-a37-

Prepared by PrintingHouse Press, Ltd. 10 East 39th Street, New York, NY 10016 Tel No: (212) 719-0990 Fax No: (212) 398-9253
STATE OF NEW YORK COUNTY OF NEW YORK ) ) SS

Paul Budhu, Being duly sworn, deposes and says that deponent is not party to the action, and is over 18 years of age. That on 6/21/2013 deponent caused to be served 1 copy(s) of the within

Petition for Permission to Appeal Pursuant to 28 V.S.c. § 1292(b)
upon the attorneys at the address below, and by the following method:

By Regular lst Class Mail
DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA a.k.a. NORTH KOREA c/o Foreign Minister, Pak Ui Chun Ministry of Foreign Affairs Jung song-dong, Central District Pyongyang, Democratic People's Republic of Korea

Sworn to me this
Friday, June 21,2013
ALLISON R. WADE Notary Public, State of New York No.01WA6191434 Qualifiedin New York County Commission Expires8/11/2016

Case Name: Han Kim, et al v. Democratic People's Republic of Korea Docket/Case No: 09-cv-648 Index:

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