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KWAN v. U.S.

February 11, 2000

KANG JOO KWAN, INDIVIDUALLY AND AS REPRESENTATIVE OF A CLASS, AND SE JEIK PARK, ON BEHALF OF THE NATIONAL ASSEMBLY OF THE REPUBLIC OF KOREA, AND THE REPUBLIC OF KOREA, PLAINTIFFS,
V.
THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.

MEMORANDUM

Presently before the Court is the motion of the defendant, the United States of America ("United States"), to dismiss (Document No. 13) and the response of the plaintiffs thereto. Also before the Court is the motion of defendant for a protective Order (Document No. 23) and the motion of the plaintiffs for leave to file and correct their memorandum of law (Document No. 21). The United States seeks to dismiss this lawsuit pursuant to Federal Rule of Civil Procedure 12(b), arguing that the plaintiffs lack standing and that the claims are not justiciable. Defendant also argues that the complaint fails to state a claim upon which relief may be granted because the lawsuit is time barred. For the reasons set forth below, the motion to dismiss will be granted.*fn1

I. Background

Procedurally, this case has been beset by delays and at least one false start. On November 20, 1997, plaintiffs filed a complaint alleging, as does the present case, violations by the government of the United States of an agreement between the United States and the Republic of Korea to compensate Korean soldiers who died or were injured during the Vietnam conflict. See Kang Joo Kwan v. United States, No. 97-CV-7112. After receiving a one-month extension of time, the defendant moved to dismiss the complaint. Plaintiffs sought and received an unopposed two-month extension to respond to the motion to dismiss. Instead of responding, on June 4, 1998, at the end of the two month period, plaintiffs voluntarily dismissed the 1997 action.

Approximately seven months later, on January 13, 1999, plaintiffs again filed a complaint, thereby instituting this action. This second complaint raises essentially the same claims as were raised in the first action but added another plaintiff. Defendant again moved to dismiss the complaint on March 16, 1999, making essentially the same arguments it made in its motion to dismiss filed in the first action. The Court granted both plaintiffs' initial unopposed motion for a two month extension of time to respond to the motion, and the subsequent unopposed motion for an additional one month extension of time. At the end of the three months, plaintiffs amended their complaint adding the Republic of Korea ("ROK") as a party. Shortly thereafter, plaintiffs filed a response to the motion to dismiss. As the complaint had been amended, the Court dismissed as moot the defendant's motion to dismiss.

The Court granted the unopposed motion of the defendant for an extension of 11 days to respond to the amended complaint. On July 30, 1999, the defendant again filed a motion to dismiss, repeating many of the arguments it made in its previous motion but adding the contention that the plaintiffs had not been authorized to represent the Republic of Korea and that the Republic of Korea could not proceed parens patriae. Again, plaintiffs sought, and the defendant did not oppose, a one month extension of time to respond. The defendant did not oppose a subsequent motion for an additional ten days. Plaintiffs then moved for another extension of sixty days to allow for the resolution of "a dispute within the government of Korea as to whether this suit should go forward." (Plaintiff's Opposed Motion for Extension of Time at unnumbered page 2). Defendant opposed this last extension and this Court denied the motion ordering the plaintiffs to respond to the motion. (Document No. 19).

The Brown Commitment "has never been made public in the Republic of Korea" and "was not made known to Plaintiff, Kang Joo Kwan, until approximately March, 1996." (Id. at ¶ 15). Kwan brings this action now alleging that while serving as a member of the military for the Republic of Korea in South Vietnam, he suffered injuries for which he, as well as other similarly situated ROK veterans, are entitled to receive benefits under the "understandings and agreements, including the Brown Commitment" with the United States. (Id. at ¶ 14).

According to the United States, the total number of ROK military personnel deployed to Vietnam during the period 1965-1970 was 47,872. (Affidavit of James G. Hergen, Assistant Legal Adviser for East Asian and Pacific Affairs, Dept. of State at ¶ 10) (citing to hearings held before the Subcommittee on United States Security Agreements and Commitments Abroad of the Committee on Foreign Relation of the United States Senate, 91st Cong., 2d Sess., Part 6, February 24-26, 1970, at 1555 ("SFRC Report")). As of February 7, 1970, cumulative ROK casualties in Vietnam were: 3,094 killed in action; 3,051 wounded in action; and 4 missing in action. (Id. at 1556). Total U.S. death and disability payments to the Republic of Korea for the killed and injured ROK forces during this period amounted to $10.5 million. (Id. 1571).

Payments under the Brown Commitment were made directly to the Minister of National Defense for the Republic of Korea. The Republic of Korea in turn paid its veterans. Nothing in the Brown Commitment authorizes payment of benefits from the United States directly to individual Korean veterans. (Def.Mem., Exh. 1 at ¶ 19).

II. Standard

A defendant may challenge the subject matter jurisdiction of a district court in one of two ways. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Kronmuller v. West End Fire Co. No. 3 Fire Dep't, 123 F.R.D. 170, 172 (E.D.Pa. 1988). First a defendant may challenge subject matter jurisdiction by asserting that the complaint, on its face does not allege sufficient grounds to establish subject matter jurisdiction. Mortensen, 549 F.2d at 891. In deciding a facial challenge, the court must assume that the allegations contained in the complaint are true. Cardio-Medical Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). In this circumstance, a court may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. See Mortensen, 549 F.2d at 891; Kronmuller, 123 F.R.D. at 172.

A defendant may also challenge the subject matter jurisdiction of a federal court by factually attacking the jurisdictional allegations of the plaintiff as set forth in the complaint. Mortensen, 549 F.2d at 891. In this circumstance, the "court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.; United Transp. Union v. Southeastern Penn. Transp., 23 F. Supp.2d 557, 558 (E.D.Pa. 1998). Thus, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891. The court may consider affidavits, depositions and testimony to resolve factual issues bearing on jurisdiction. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). The plaintiff has the burden of proving that the court has jurisdiction to adjudicate the claims in the complaint. Mortensen, 549 F.2d at 891. Although the defendant has not stated whether it is making a facial or factual attack, it is apparent that the attack is both facial and factual. On the one hand, defendant facially attacks the standing of the individual plaintiffs under the Brown Commitment absent a formal complaint by the Republic of Korea. In addition, defendant makes a factual attack on the assertion that the Republic of Korea is a proper party to this case, thereby precluding the individual plaintiffs from having standing as well.*fn2

A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must determine whether the plaintiff is entitled to relief under any set of facts consistent with the allegations of the complaint. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir. 1994). In deciding a motion to dismiss under Rule 12(b)(6), the factual allegations in the complaint must be accepted as true and all reasonable inferences that can be drawn therefrom must be viewed in the light most favorable to the plaintiff. Id. A court may, however, also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir .1994). A motion to dismiss should only be granted if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). When subject ...


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