The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
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
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
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 amended complaint avers that in 1996, the United States
Government, under then President Lyndon B. Johnson, committed
troops to fight in the Vietnam conflict. (Amended Complaint at ¶
The amended complaint further avers that the United States was
"desirous of having the Republic of Korea commit troops to assist
the United States' efforts to defend the people and the
government of South Vietnam." (Id. at ¶ 7). To that end and
pursuant to an agreement with the Republic of Korea, the United
States agreed to provide death and disability benefits resulting
from casualties to ROK troops in Vietnam at rates agreed by the
Joint Untied States-Republic of Korea Military Committee. (Id.
at ¶ 10). Thereafter, on March 4, 1966, the government of the
United States, through its ambassador Winthrop Brown, agreed,
inter alia, to provide death and disability gratuities
resulting from casualties in Vietnam at double the rates
previously agreed to by the United States-Republic of Korea
Military Committee. (Id. at ¶ 11). This agreement is referred
to as the Brown Commitment and is the basis for the present suit.
Presumably, the disability benefits sought in this lawsuit stem
from latent injuries suffered by ROK veterans as a result of
being exposed to Agent Orange in Vietnam.
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.
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 ¶
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 ...