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356 FEDERAL SUPPLEMENT, 3d SERIES
munity under the FSIA or another international agreement.
[12–14] Foreign governments are generally immunized from lawsuits brought
against them in the United States unless
an FSIA exception applies. See 28 U.S.C.
§ 1604; Mohammadi v. Islamic Republic
of Iran, 782 F.3d 9, 13–14 (D.C. Cir. 2015).
The plaintiffs invoke jurisdiction under the
FSIA’s terrorism exception, codified at 28
U.S.C. § 1605A, see Pls.’ Mot. at 9, which
provides that ‘‘[a] foreign state shall not be
immune from the jurisdiction of courts of
the United States or of the States in any
case TTT in which money damages are
sought against a foreign state for personal
injury or death that was caused by an act
of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision
of material support or resources for such
an act TTT,’’ 28 U.S.C. § 1605A(a)(1). Subject matter jurisdiction under this terrorism exception may be exercised when the
plaintiff establishes the following four elements: (1) ‘‘the foreign state was designated as a state sponsor of terrorism at the
time [of] the act TTT or was so designated
as a result of such act, and TTT remains so
designated when the claim is filed,’’ id.
§ 1605A(a)(2)(A)(i)(I); (2) ‘‘the claimant or
the victim was, at the time [of] the act TTT
a national of the United States,’’ id.
§ 1605A(a)(2)(A)(ii); (3) ‘‘in a case in which
the act occurred in the foreign state
against which the claim has been brought,
the claimant has afforded the foreign state
a reasonable opportunity to arbitrate the
claim,’’ id. § 1605A(a)(2)(A)(iii); and (4) the
plaintiff seeks monetary damages ‘‘for personal injury or death caused by ‘torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act,’ if
‘engaged in by an official, employee, or
agent’ of a foreign country,’’ Mohammadi,
782 F.3d at 14 (quoting 28 U.S.C.
§ 1605A(a)(1) ). These four elements,
which are discussed below, have been satisfactorily proven here.
1.
First Element: North Korea Was
Timely Designated a State
Sponsor of Terrorism
With respect to the first element, North
Korea was designated a state sponsor of
terrorism, in part due to Otto’s detention
and abusive treatment resulting in his
death. North Korea was first designated
as a state sponsor of terrorism by the
State Department in 1988. See Notice, Determination Pursuant to Section 6(j) of the
Export Administration Act of 1979; North
Korea, 53 Fed. Reg. 3477–01 (Feb. 5,
1988). The State Department, however, rescinded that determination in 2008. Notice, Rescission of Determination Regarding North Korea, 73 Fed. Reg. 63540–01
(Oct. 24, 2008). The State Department redesignated North Korea as a state sponsor of terrorism in November 2017, and
that designation has not been rescinded.
See Notice, Democratic People’s Republic
of Korea (DPRK) Designation as a State
Sponsor of Terrorism (SST), 82 Fed. Reg.
56100–01 (Nov. 27, 2017). North Korea
thus ‘‘remain[ed] so designated when’’ the
plaintiffs filed their claims in April 2018.
28 U.S.C. § 1605A(a)(2)(A)(i)(I); see also
Compl. at 1, 21.
Notwithstanding that North Korea was
not designated as a state sponsor of terrorism ‘‘at the time’’ of Otto’s detention in
January 2016 or by the time of his subsequent release in June 2017, see 28 U.S.C.
§ 1605A(a)(2)(A)(i)(I), subject matter jurisdiction is established if the foreign state
was designated as a state sponsor of terrorism ‘‘as a result of such act,’’ id. Here,
the State Department’s designation of
North Korea as a state sponsor of terrorism was, at least in part, a result of North
Korea’s detention and mistreatment of