MASSIE v. GOVT. OF DEMOCRATIC PEOPLE’S OF KOREA
Cite as 592 F.Supp.2d 57 (D.D.C. 2008)
released from captivity more than twentyfive years prior to the enactment of the
Anti–Terrorism and Effective Death Penalty Act of 1996, Congress has expressly
directed the retroactive application of 28
U.S.C. § 1605(a)(7) to further a comprehensive counter terrorism initiative by the
legislative branch of government. See 28
U.S.C. § 1605 note (West Supp. 1997)
(‘‘amendments made by this subtitle shall
apply to any cause of action arising before,
on or after the date of the enactment of
this act [April 24, 1996] ).’’ Similarly, the
ten-year statute of limitations for actions
under § 1605(a)(7) does not bar the claims
in this case because Congress has provided
that victims of terrorism be given the benefit of ‘‘all principles of equitable tolling,
including the period during which the foreign state was immune from suit TTT’’ 28
U.S.C. § 1605(f); see also Simon v. Republic of Iraq, 529 F.3d 1187, 1195–96
(D.C.Cir.2008). Because North Korea was
immune from suit by these plaintiffs under
the FSIA until the enactment of
§ 1605(a)(7) in 1996, the Complaint herein
was duly and timely filed on April 24, 2006.
Simon, 529 F.3d at 1195–96.
4. A copy of the Complaint, which was
translated into Korean, was properly
served with process pursuant to 28 U.S.C.
§ 1608(b)(3)(B), on September 8, 2006.
Defendants have failed to respond or appear in this case.
5. To establish subject matter jurisdiction and, thus, subject a foreign sovereign
to suit under section 1605(a)(7), a claim
must set forth the following statutory elements:
that personal injury or death resulted
from an act of torture, extrajudicial killing, aircraft sabotage or hostage taking;
and the act was either perpetrated by
the foreign state directly or by a nonstate actor which receives material sup-
73
port or resources from the foreign state
defendants; and
the act or the provision of material support or resources is engaged in by an
agent, official or employee of the foreign
state while acting within the scope of his
or her office, agency or employment;
and
that the foreign state be designated as a
state sponsor of terrorism either at the
time the incident complained of occurred
or was later so designated as a result of
such act; and
if the incident complained of occurred
within the foreign state defendant’s territory, plaintiff has offered the defendants a reasonable opportunity to arbitrate the matter; and
either the plaintiff or the victim was a
United States national at the time of the
incident; and
similar conduct by United States agents,
officials, or employees within the United
States would be actionable.
28 U.S.C. § 1605(a)(7).
6. Plaintiffs have proven each one of
the foregoing elements.
7. Sections 1605(e)(1) and (2) of the
FSIA provide guidance with regard to interpreting the terms ‘‘torture’’ and ‘‘hostage taking.’’ Article One of the International Convention Against the Taking of
Hostages defines the term ‘‘hostage taking’’ as:
[a]ny person who seizes or detains and
threatens to kill, to injure or to continue
to detain another person [hereinafter referred to as the ‘‘hostage’’] in order to
compel a third party, namely, a State,
an international governmental organization, a natural or judicial person, or a
group of persons, to do or abstain from
doing any act as an explicit or implicit
condition for the release of the hostage
commits the offense of taking of hos-