HAN KIM v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 774 F.3d 1044 (D.C. Cir. 2014)
treated the Reverend.
F.Supp.2d at 41–42.
Kim,
950
The Kims appeal. We review the district court’s application of the law—in this
case, its articulation of the FSIA’s evidentiary requirements—de novo. See Brayton v. Office of the United States Trade
Representative, 641 F.3d 521, 524 (D.C.Cir.
2011).
II.
The Torture Victims Protection Act—
and, by reference to that Act, the FSIA—
describes torture and extrajudicial killing
in some detail. An act is torture only if
the perpetrator intends to and actually
does inflict severe pain in order to punish
or to extract information. A killing runs
afoul of the statute only if it occurs outside
the normal legal process. The statute
thus imposes tight constraints on courts
required to decide whether an act satisfies
the terrorism exception’s substantive elements. But when the defendant State
fails to appear and the plaintiff seeks a
default judgment, the FSIA leaves it to the
court to determine precisely how much
and what kinds of evidence the plaintiff
must provide, requiring only that it be
‘‘satisfactory to the court.’’ 28 U.S.C.
§ 1608(e).
Our case law provides little help. Indeed, the single case on which the district
court relied—Price—differs significantly
from this one. In that case, we were
considering Libya’s motion to dismiss under a ‘‘standard TTT similar to that of Rule
12(b)(6),’’ and we granted that motion because the plaintiff’s allegations were too
general, observing that he ‘‘offer[ed] no
useful details about the nature’’ or ‘‘purpose of the alleged torture.’’ Price, 294
F.3d at 93–94. Absent more specific allegations, we explained, we were unable to
distinguish between ‘‘actual torture’’ and
‘‘mere police brutality.’’ Id. at 93. Here,
1047
by contrast, the issue is whether the Kims
are entitled to a default judgment—a question that turns on whether the evidence is
‘‘satisfactory to the court.’’ Of course, the
Kims alleged plenty in their complaint,
asserting, for example, that ‘‘[w]hen Reverend Kim refused to adopt the [official
political] ideology [of North Korea,] he was
punished by being deprived of all food’’
and that he ‘‘died as the result of [that]
starvation and [ ] torture.’’ Compl., ¶¶ 24–
25. If proven with admissible evidence,
that treatment would clearly constitute
torture within the TVPA’s meaning. But
while accepting the Kims’ allegations as
true, the district court concluded that their
evidence was too weak to support their
claims. Specifically, it emphasized repeatedly that the plaintiffs had failed to
‘‘provide any first-hand accounts of Reverend Kim’s treatment’’ that ‘‘address[ed]
the nature or severity of any torture Reverend Kim suffered, or specif[ied] 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.’’ Kim, 950 F.Supp.2d at 37
(emphasis added). Properly understood,
then, the question before us is not whether
the Kims’ allegations were specific enough
to implicate the terrorism exception and
withstand a motion to dismiss, but rather
whether the amount and types of evidence
they proffered were ‘‘satisfactory.’’ On
that question, Price has nothing to say.
Another important distinction separates
this case from Price. Having escaped
their captors, the Price plaintiffs were
alive, present, and capable of describing
their treatment in more detail. In those
circumstances, we could realistically expect
more from them. By contrast, Reverend
Kim is missing and presumed dead, so his
family will almost certainly be unable to
offer the court any more than they already
have.