124
414 FEDERAL SUPPLEMENT, 3d SERIES
in this context means wholly or in part as
a result. See Massie, 592 F. Supp. 2d at 74
(‘‘North Korea has been designated a state
sponsor of terrorism, in part due to its
unlawful seizure of the Pueblo.’’); Warmbier, 356 F. Supp. 3d at 44–45 (finding that
the re-designation of North Korea as a
State Sponsor of Terrorism was ‘‘at least
in part’’ a result of the capture of Otto
Warmbier); see also Valore, 700 F. Supp.
2d at 67 (concluding that Iran was designed a State Sponsor of Terrorism ‘‘in
partial response’’ to a terrorist attack);
Murphy v. Islamic Republic of Iran, 740
F. Supp. 2d 51, 65 (D.D.C. 2010) (similar).
Just two weeks before re-designating
North Korea, President Trump cited the
‘‘capture and torture of the brave American soldiers of the USS Pueblo’’ as among
the most-significant of North Korea’s terrorist actions.6 These remarks, coupled
with the evidence cited in Massie that the
Pueblo attack also partly motivated the
1988 designation,7 satisfies the plaintiffs’
‘‘initial burden of production.’’ Owens I,
864 F.3d at 784. And because North Korea
has ‘‘fail[ed] to present any evidence in
rebuttal,’’ this first element is met. Id.
[23, 24] Second, all but two of the crew
member plaintiffs were U.S. citizens by
birth. See, e.g., Ex. 1, Vol. 1 at 10. And
even those two exceptions, plaintiffs A-2
and A-44, were U.S. servicemen, enlisted
in the Navy as a [redacted], respectively,
and thus satisfy the second element.8 Pls.’
6.
Remarks by President Trump to the National Assembly of the Republic of Korea (Nov. 7,
2017), https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-nationalassembly-republic-korea-seoul-republickorea/; see also Democratic People’s Republic
of Korea (DPRK) Designation as a State
Sponsor of Terrorism (SST), 82 Fed. Reg.
56100-01 (Nov. 27, 2017).
7.
In Massie, Judge Kennedy concluded that
North Korea’s 1988 designation was at least
partly the result of the Pueblo incident. See
Massie, 592 F. Supp. 2d at 74. Though North
Ex. 1, Vol. 1 at 25; Pls.’ Ex. 1, Vol. 4 at 35,
Dkt. 32-6. For the family member plaintiffs, all but four of them were U.S. citizens
at the time of the Pueblo’s capture. See,
e.g., Pls.’ Ex. 1, Vol. 5 at 2. And as to those
four non-U.S. citizens, the ‘‘plain text and
plain meaning’’ of the provision indicate
that ‘‘[t]he claimant and victim need not
both be American citizens.’’ Leibovitch v.
Islamic Republic of Iran, 697 F.3d 561,
570 (7th Cir. 2012). Instead, plaintiffs must
either satisfy the requirements for standing themselves or have ‘‘claims [that] are
derived from claims where the victims
were U.S. government employees at the
time of the attack.’’ Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 13
(D.D.C. 2011). Because the family member
plaintiffs’ claims all derive from U.S. nationals or U.S. armed forces members, the
Court must hear their claims. Similarly,
the estate plaintiffs’ claims shall be heard
because the ‘‘victim[s]’’ were either U.S.
nationals or members of the U.S. armed
forces. 28 U.S.C. § 1605A(a)(i)(2).
Third, the claimants ‘‘afforded the foreign state a reasonable opportunity to arbitrate.’’ Id. § 1605A(a)(2)(A)(iii). The
claimants sent an offer to arbitrate and its
Korean translation to the defendants,
which, relying on the language of
Simpson, offered to submit the matter to a
‘‘third-party organization TTT with extensive experience arbitrating international
Korea was de-designated since Massie and
then re-designated in 2017, at least one other
court in this district has considered evidence
connected to the 1988 designation in ascertaining the basis for the 2017 re-designation.
See Warmbier, 356 F. Supp. 3d at 44–45 (citing Massie, 592 F. Supp. 2d at 74).
8.
Plaintiff A-44 was a naturalized citizen at
the time of the Pueblo’s capture. Pls.’ Ex. 1,
Vol. 4 at 35. Plaintiff A-2 became a naturalized citizen in 1970. Pls.’ Ex. 1, Vol. 1 at 25.