Lusik Usoyan v. Republic of Turkey ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2021 Decided July 27, 2021
No. 20-7017
LUSIK USOYAN, ET AL.,
APPELLEES
v.
REPUBLIC OF TURKEY,
APPELLANT
Consolidated with 20-7019
Appeals from the United States District Court
for the District of Columbia
(No. 1:18-cv-01141)
Mark E. Schamel argued the cause for appellant. With him
on the briefs were David S. Saltzman, Cathy A. Hinger, and
Victoria A. Bruno.
Agnieszka M. Fryszman argued the cause for appellees.
With her on the brief were Steven R. Perles, Edward B.
MacAllister, Joshua K. Perles, Douglas M. Bregman, Stephen
J. Whelan, Jennifer M. Wiggins, Michael E. Tigar, Mark S.
Sullivan, and Joshua Colangelo-Bryan. Andreas N. Akaras
entered an appearance.
2
Neil H. Koslowe was on the brief for amicus curiae Chris
Stanley, et al. in support of appellees.
Brian M. Boynton, Acting Assistant Attorney General,
U.S. Department of Justice, and Sharon Swingle and Daniel
Winik, Attorneys, Richard C. Visek, Acting Legal Adviser,
Department of State, were on the brief for amicus curiae
United States of America in support of affirmance.
Before: HENDERSON, MILLETT and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: On May 16,
2017, Turkish security forces violently clashed with a crowd of
protesters outside the Turkish ambassador’s residence in
Washington, D.C. Injured protesters, led by Lusik Usoyan
(Usoyan) and Kasim Kurd (Kurd), filed two lawsuits in district
court against the Republic of Turkey. Turkey moved to dismiss
all claims against it, asserting defenses of foreign sovereign
immunity, the political question doctrine and international
comity. Rejecting all three defenses, the district court allowed
both suits to proceed. In this consolidated appeal, we affirm.
I. Background
Many members of the Turkish expatriate community are
strongly opposed to Turkey’s president, Recep Tayyip
Erdogan. They consider him a strongman who rules by decree,
violates civil rights, illegally detains and tortures his own
citizens and terrorizes Turkey’s Kurdish population. Thus,
when President Erdogan announced that he was visiting
Washington, D.C. in May 2017, several anti-Erdogan protests
were planned—three of which are relevant to this litigation.
3
The facts that follow are drawn from the district court’s orders
herein. See Usoyan v. Republic of Turkey, 438 F. Supp. 3d 1(D.D.C. 2020); Kurd v. Republic of Turkey, 438 F. Supp. 3d 69(D.D.C. 2020).
On May 16, a small group of protesters assembled near
Lafayette Square, directly adjacent to the White House, while
President Erdogan met with President Trump at the White
House. The protesters had a valid permit and protested
peacefully. Then, approximately twenty of the Lafayette
Square protesters migrated to Sheridan Circle, assembling on
the sidewalk directly across the street from the Turkish
ambassador’s (Ambassador) residence. They correctly
anticipated that the residence would be President Erdogan’s
first stop upon leaving the White House. The anti-Erdogan
protesters carried signs and chanted through a bullhorn.
According to Turkey, some of them had flags or signs
supporting the Kurdistan Workers Party (PKK), which the U.S.
government has designated a foreign terrorist organization.
Others may have had paraphernalia associated with the
People’s Protection Unit (YPG), which Turkey considers an
alter ego of the PKK.
Meanwhile, a far larger counter-demonstration,
comprising pro-Erdogan civilians and Turkish security forces,
assembled on the side of the street adjacent to the
Ambassador’s residence. Both groups yelled, taunted and
threatened each other. Officers from the Metropolitan Police
Department (MPD) formed a cordon between the two camps,
trying to keep the peace. Nevertheless, shortly after 4 p.m.,
pro- and anti-Erdogan demonstrators entered the street that was
supposed to separate the groups. Despite police presence, the
two sides clashed. It is unclear which side started the row.
What we do know is that it took MPD about one minute to
restore peace. Both camps sustained injuries.
4
Once police got each group back on its respective
sidewalk, the pro-Erdogan demonstrators began pleading with
law enforcement to clear away the protesters before President
Erdogan arrived at the residence. One Turkish government
employee allegedly told an MPD officer, “You need to take
them; if you don’t, I will.”
At approximately 4:10 p.m., President Erdogan’s vehicle
arrived at the residence. What happened next is disputed. The
plaintiffs claim that President Erdogan spoke with his head of
security and ordered an attack on the protesters. Defendant
Turkey denies this. What neither side disputes, however, is that
the pro-Erdogan group—including the Turkish security
detail—moved decisively against the protesters. The attack
commenced at approximately 4:13 p.m., while President
Erdogan remained sitting in his vehicle near the entrance to the
residence. After reviewing videotape of the incident, the
district court gave the following description:
[T]he protesters remained standing on the designated
sidewalk. Turkish security forces and other pro-
Erdogan individuals then crossed a police line to
attack the protesters. The protesters did not rush to
meet the attack. Instead, the protesters either fell to
the ground, where Turkish security forces continued
to kick and hit them, or ran away, where Turkish
security forces continued to chase and otherwise
attack them. The Turkish security forces violently
physically attacked the protesters. Defendant Turkey
argues that President Erdogan was within range of a
possible handgun, improvised explosive device, or
chemical weapon attack. Even if the Court assumes
this to be true, at the time of the second attack, the
protesters were merely standing on the Sheridan
Circle sidewalk. Defendant Turkey points to no
5
indication that an attack by the protesters was
imminent.
Usoyan, 438 F. Supp. 3d at 20 (internal citation omitted).
Having reviewed video of the altercation ourselves, we find no
clear error with this statement of facts. See Price v. Socialist
People’s Libyan Arab Jamahiriya, 389 F.3d 192, 197 (D.C.
Cir. 2004).
Plaintiff Lacy MacAuley makes a factually unique
allegation. MacAuley was not present at the protests outside
the White House or the Ambassador’s residence.
Understanding that the Turkish Embassy (Embassy) was
President Erdogan’s next stop after the Ambassador’s
residence, she created an anti-Erdogan sign and walked toward
the Embassy. Before reaching the Embassy, MacAuley
stopped at a police barricade and began yelling. After
President Erdogan’s motorcade passed, multiple members of
the Turkish security detail emerged from a vehicle and ran
toward MacAuley, surrounding her. They covered her mouth,
grabbed her wrist and seized her sign before MPD intervened.
The two groups of plaintiffs allege substantially the same
facts. Both groups press claims of assault, battery, intentional
infliction of emotional distress and violation of D.C. Code
22-3704, which ordinance creates a civil cause of action for
injuries that demonstrate an accused’s prejudice based on, inter
alia, the victim’s race or national origin. Separately, the
Usoyan plaintiffs also allege negligent infliction of emotional
distress, loss of consortium, civil conspiracy and civil claims
under the Justice Against Sponsors of Terrorism Act, see 18
U.S.C. § 2333; 28 U.S.C. § 1605B(c). The Kurd plaintiffs
separately allege false imprisonment, as well as civil claims
under the Alien Tort Statute, see 28 U.S.C. § 1350.
6
Turkey moved to dismiss all claims. First and foremost, it
claimed foreign sovereign immunity with respect to the
entirety of both complaints. Additionally, it argued that all
claims were non-justiciable by virtue of the political question
doctrine and international comity. After the district court
denied Turkey’s motions to dismiss, Turkey filed two
interlocutory appeals, consolidated pursuant to a joint motion
of the parties.
We have jurisdiction to review the denial of a motion to
dismiss based on sovereign immunity. Azima v. RAK Inv.
Auth., 926 F.3d 870, 874 (D.C. Cir. 2019). We have pendent
jurisdiction to review Turkey’s arguments under the political
question and international comity doctrines. Id.; see also
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1026–27 (D.C. Cir. 1997).
II. Foreign Sovereign Immunity
Under the Foreign Sovereign Immunities Act (FSIA), 28
U.S.C. §§ 1602 et seq., a foreign state is “presumptively
immune from the jurisdiction of United States courts.” Saudi
Arabia v. Nelson, 507 U.S. 349, 355 (1993). The FSIA codifies
a limited number of exceptions to the presumption, which
exceptions are “the sole basis for obtaining jurisdiction over a
foreign state in our courts.” Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 434 (1989).
The district court determined that it had jurisdiction under
the FSIA’s “tortious acts exception,” which strips immunity in
any case
in which money damages are sought against a foreign
state for personal injury or death, or damage to or loss
of property, occurring in the United States and caused
by the tortious act or omission of that foreign state or
7
of any official or employee of that foreign state while
acting within the scope of his office or employment;
except this paragraph shall not apply to—
(A) any claim based upon the exercise or
performance or the failure to exercise or perform
a discretionary function regardless of whether the
discretion be abused.
28 U.S.C. § 1605(a)(5), (a)(5)(A). Invoking the
§ 1605(a)(5)(A) exception to the exception, Turkey argues that
the “discretionary function” exception preserves its sovereign
immunity.
The FSIA’s discretionary function exception is modeled
after a similarly worded exception in the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2680(a). See H.R. Rep. 94-1487, at
21 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6620.
Because the United States Supreme Court has not yet
interpreted the FSIA’s discretionary function exception, we
look to what it has said about the FTCA’s analogous provision.
See MacArthur Area Citizens Ass’n v. Republic of Peru, 809
F.2d 918, 921–22 (D.C. Cir. 1987) (FTCA precedent provides
“guidance” in FSIA cases). Using the same rationale, the
district court applied FTCA precedent mutatis mutandis.
The Supreme Court has said that the FTCA’s discretionary
function exception applies—and sovereign immunity is
preserved—if two conditions are met. First, there must be no
“federal statute, regulation, or policy [that] specifically
prescribes a course of action for an employee to follow.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988) (emphasis
added). See also United States v. Gaubert, 499 U.S. 315, 322
(1991). Second, the employee’s exercise of discretion must be
“the kind that the discretionary function exception was
designed to shield”—that is, “based on considerations of public
8
policy.” Berkovitz, 486 U.S. at 536–37. See also Gaubert, 499
U.S. at 322–23. The district court held that only the first
Berkovitz condition was satisfied. Reviewing de novo, see de
Csepel v. Republic of Hungary, 714 F.3d 591, 597 (D.C. Cir.
2013), we agree.
A. First Berkovitz Condition
Under Berkovitz, we first determine whether the
challenged conduct “involves an element of judgment or
choice.” 486 U.S. at 536 (citing Dalehite v. United States, 346
U.S. 15, 34 (1953)). An action is not discretionary if an
employee is “bound to act in a particular way.” Gaubert, 499
U.S. at 329. If a governing law or policy “mandates particular
conduct” and the employee violates the mandate, “there will be
no shelter from liability because there is no room for choice.”1
Id. at 324. Nor is an action discretionary if “the decisionmaker
is acting without actual authority.” Red Lake Band of
Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C.
Cir. 1986). See also Birnbaum v. United States, 588 F.2d 319,
329 (2d Cir. 1978) (discretionary function “can derive only
from properly delegated authority”). In essence, Berkovitz’s
first condition asks whether the challenged conduct is
rightfully the product of independent judgment. See Berkovitz,
486 U.S. at 536 (citing Westfall v. Erwin, 484 U.S. 292, 296–
97 (1988)).
We see two issues that need to be resolved. First, Turkey
is a foreign power and—as Turkey itself concedes—its agents
do not have the authority to perform law enforcement functions
1
Of course, if a regulation mandates particular conduct and
“the employee obeys the direction, the Government will be protected
because the action will be deemed in furtherance of the policies
which led to the promulgation of the regulation.” Id. at 324.
9
inside the United States. See Restatement (Fourth) of the
Foreign Relations Law of the United States § 432(b) (Am. L.
Inst. 2018) (“[A] state may not exercise jurisdiction to enforce
in the territory of another state.”).2 Accordingly, if we are to
find that the Turkish security detail was exercising its
discretion in taking its challenged actions, we must identify the
source of that discretion. Second, whatever the source of
Turkey’s discretion, the plaintiffs allege that Turkey exceeded
that discretion by violating various laws of Washington, D.C.
We must also determine, then, whether these alleged violations
take Turkey’s conduct outside the ambit of the discretionary
function exception.
1.
In FTCA cases, we usually do not ponder the source of the
government’s discretion. The cases typically arise in contexts
in which the government’s authority to act is uncontroversial.
For example, there is little debate that the government has
discretion when it administers a program of government
contracts, see Sloan v. HUD, 236 F.3d 756, 760 (D.C. Cir.
2001), arrests a criminal suspect, see Shuler v. United States,
531 F.3d 930, 934 (D.C. Cir. 2008), or maintains roadways on
federal land, see Cope v. Scott, 45 F.3d 445, 450 (D.C. Cir.
1995). In FTCA cases, analysis of Berkovitz’s first condition
generally focuses on whether the government’s discretion is
altered or removed by law or policy rather than its discretion in
initio.
2
“A state typically exercises jurisdiction to enforce through its
law-enforcement officers . . . . Examples of jurisdiction to enforce
include the search of a place, the arrest of a person, imprisonment
after criminal conviction, and the seizure of property.” Id. at § 432
cmt. a.
10
There are exceptions, of course. Red Lake Band involved
a 1979 uprising on an Indian reservation. See 800 F.2d at 1188.
At the time, a police force run by the Bureau of Indian Affairs
(BIA) was responsible for law enforcement on the reservation.
Id. at 1188–89. The lawsuit arose out of actions taken by a
Federal Bureau of Investigation (FBI) special agent who, after
arriving on the scene, took command of the BIA officers. It
was uncontested that the agent’s actions were outside the FBI’s
statutory mandate. Id. at 1189 (citing parties’ joint statement).
Because the agent acted “outside the scope of his authority,”
his actions were also “outside the scope of the discretionary
function exception.” Id. at 1197. Thirty years later, we relied
on Red Lake Band for the proposition that “constitutionally
ultra vires conduct” cannot be discretionary. Loumiet v. United
States, 828 F.3d 935, 944–45 (D.C. Cir. 2016).3 Similarly, in
Birnbaum, the Second Circuit held that “a discretionary
function can only be one within the scope of authority of an
agency or an official” insofar as it is “delegated by statute,
regulation, or jurisdictional grant.” 588 F.2d at 329. Because
the Central Intelligence Agency’s statutory charter did not give
it authority to collect intelligence regarding domestic matters,
it had no authority to participate in a mail-opening program
with the FBI. Accordingly, the discretionary function
exception did not apply. See id.3
Loumiet reasoned that “the absence of a limitation on the
discretionary-function exception for constitutionally ultra vires
conduct would yield an illogical result: the FTCA would authorize
tort claims against the government for conduct that violates the
mandates of a statute, rule, or policy, while insulating the
government from claims alleging on-duty conduct so egregious that
it violates the more fundamental requirements of the Constitution.”
Id.11
Because U.S. law does not confer the same powers on
foreign sovereigns as it does on the federal government, the
question of an employee’s initial authority to act is more likely
to exist in an FSIA case. If a foreign government has no
authority to take a certain type of action in the United States,
its employee’s action in that sphere cannot constitute an
exercise of discretion. We need not ponder whether Turkey’s
discretion was taken away if it never existed in the first place.
The first Berkovitz condition therefore requires that we
understand the source of Turkey’s discretion—if any—to
defend visiting officials using physical force.
During oral argument, counsel for both parties were asked
about the source of the Turkish security detail’s authority to
use physical force in the United States. Although the plaintiffs’
counsel responded that there was no evidence that the Turkish
security detail “received any authorization to act in any
manner,” Turkey’s counsel maintained that the security detail’s
authority was grounded in “the international law about the
relations between sovereigns.”
We invited the United States to provide its views “on the
source and scope of any discretion afforded to foreign security
personnel with respect to taking physical actions against
domestic civilians on public property.” In its brief, the United
States declares that no source of positive law explicitly grants
Turkey the authority to use physical force in the protection of
diplomats on U.S. soil. Instead, the United States locates
Turkey’s right in customary international law:
The principle that sending states are authorized to
protect diplomats and officials traveling abroad has
not been codified in a treaty, as has the obligation of
receiving states to protect foreign diplomatic and
consular personnel, but that does not reflect any
12
uncertainty about whether the authority exists. To the
contrary, this principle is widely accepted in
international practice and reflects the fact that nations
have inherent authority to protect their diplomats and
senior officials outside their borders, subject to the
authorization of the receiving state.
Although the United States does not use the phrase
“customary international law,” that is the clear implication of
its reference to international practice and the “inherent
authority” of nations. Customary international law, after all, is
simply the “general and consistent practice of states followed
by them from a sense of legal obligation.”4 Restatement
(Third) of the Foreign Relations Law of the United States §
102(2) (Am. L. Inst. 1987).
The plaintiffs seize on the Government’s statement, noting
that Turkey did not “identify any statute, regulation, or other
source of law that either confers or limits its discretion to act”
nor did the Government “identify any such specific
authorization in this case.” Turkey responds that the
Government’s position is consistent with its own view that its
right to protect President Erdogan with physical force inheres
in its sovereignty.
We think that Turkey—following the United States’
lead—has the better view. International law is the source of
many powers that are incidental to sovereignty. Although the
United States Constitution does not affirmatively grant the
4
Despite its lack of codification, customary international law
“has essentially the same binding force under international law as
treaty law.” Curtiss A. Bradley & Jack L. Goldsmith, Customary
International Law as Federal Common Law: A Critique of the
Modern Position, 110 Harv. L. Rev. 815, 818 (1997) (citing
Restatement (Third) at § 102 cmt. j).
13
federal government the power to “acquire territory by
discovery and occupation,” “expel undesirable aliens” or
“make such international agreements as do not constitute
treaties in the constitutional sense,” the Supreme Court has
described these powers as “inherently inseparable from the
conception of nationality.” United States v. Curtiss-Wright
Exp. Corp., 299 U.S. 304, 318 (1936). And in each case, the
Court found the power not in the Constitution or some other
source of positive law but, instead, in “the law of nations.” Id.(citing Jones v. United States, 137 U.S. 202, 212 (1890)
(territory); Fong Yue Ting v. United States, 149 U.S. 698, 705
et seq. (1893) (aliens); B. Altman & Co. v. United States, 224
U.S. 583, 600–01 (1912) (treaties)). The United States’ view,
then, is legally plausible.
The next question is whether it is well-supported. As
evidence of international law, we look to obvious sources like
treaties and legislative acts, see The Paquete Habana, 175 U.S.
677, 700 (1900), as well as “the general usage and practice of
nations” and “judicial decisions recognizing and enforcing that
law,” Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980)
(quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–
61 (1820)).
The United States first notes that diplomats should be able
to execute their duties in safety and without fear of
molestation.5 Of this proposition we have no doubt. The
5
The parties assume that the inviolability of foreign diplomats
extends to a foreign head of state. Although this may be a safe
assumption in modern times, it was not always the case. During the
Middle Ages, “envoys enjoyed more security than their principals.”
Linda S. Frey & Marsha L. Frey, The History of Diplomatic
Immunity 83 (1999). On the rare occasion that a ruler negotiated in-
person, he was forced to take precautions. See id. at 83–84. The
Gothic king Alaric II suggested meeting the Frankish king Clovis
14
Vienna Convention on Diplomatic Relations—ratified by the
United States in 1972—declares that “[t]he person of a
diplomatic agent shall be inviolable.” Vienna Convention on
Diplomatic Relations and Optional Protocol on Disputes, Art.
29, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502 (entered
into force in U.S. Dec. 13, 1972). The Supreme Court has
recognized that this “concern for the protection of ambassadors
and foreign ministers even predates the Constitution.” Boos v.
Barry, 485 U.S. 312, 323 (1988). See also Frend v. United
States, 100 F.2d 691, 693 (D.C. Cir. 1938) (“[A]mbassadors,
public ministers, and consuls, charged with friendly national
intercourse, are objects of especial respect and protection.”
(quoting Pres. Fillmore, Message to Congress, Dec. 2, 1851)).
Emer de Vattel’s 1758 treatise called violence against a foreign
minister “an offense against the law of nations.” 4 E. de Vattel,
The Law of Nations § 82, at 465 (J. Chitty ed. 1844).
A sending state’s right to use force in defense of its
officials, however, does not necessarily follow from the right
of those officials to carry out their business unmolested. As
the United States notes, “[t]here is good reason to assign
receiving states the primary responsibility for protecting
visiting foreign government officials.” We made a similar
point when faced with a First Amendment challenge brought
by individuals who sought to demonstrate outside the
Nicaraguan embassy: “Peace and dignity would be destroyed
outright” if “the task of repulsing invasions of the embassy and
alone on an island. Louis the German and Charles the Bald met on
an island in the Rhine; one year later, relying on the threat of
religious sanction to deter bad behavior, the two kings met in a
church. The Saxon leader Widukind demanded an exchange of
hostages before agreeing to confer with Charlemagne.
Unsurprisingly, “[r]ulers increasingly delegated their diplomatic
duties to others.” Id. at 84.
15
its grounds would be left largely to the foreign nation’s security
forces.” Finzer v. Barry, 798 F.2d 1450, 1463 (D.C. Cir.
1986), rev’d in part on other grounds sub nom. Boos v. Barry,
485 U.S. 312 (1988). In sum, the inviolability of diplomats
suggests, but does not affirmatively establish, that a sending
state has the right to use force in the defense of diplomats.
Next, the United States refers to the Government’s
practice overseas. U.S. diplomats and diplomatic facilities are
protected by the State Department’s Bureau of Diplomatic
Security, U.S. Marine Corps security guards and local
contractors. The United States argues that this principle is
reciprocal and that the reciprocity has been impliedly codified:
although aliens on non-immigrant visas are generally
prohibited from possessing firearms in the United States, see
18 U.S.C. § 922(g)(5)(B), the Congress exempts “foreign law
enforcement officer[s] of a friendly foreign government
entering the United States on official law enforcement
business,” id. at § 922(y)(2)(D).
Reciprocity undoubtedly “governs much of international
law in this area.” Boos, 485 U.S. at 323 (citing Clifton E.
Wilson, Diplomatic Privileges and Immunities 32 (1967)).
Thus, we give significant weight to the Government’s
contention that “[t]he United States would not rely entirely on
a foreign government, even that of a close ally, to protect senior
U.S. officials traveling abroad; nor would the United States
expect other nations to fully cede the protection of their
diplomats and senior officials to our own personnel.”
Finally, we note that the United States’ legal position is
itself evidence of international law, see Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 432–33 (1964) (Executive
Branch is “an interpreter of generally accepted and traditional
rules” of international law), and worthy of some deference. In
16
Al Bahlul v. United States, for example, we said that a “highest-
level Executive Branch deliberation is worthy of respect in
construing the law of war.” 767 F.3d 1, 25 (D.C. Cir. 2014)
(en banc) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 733–
34 (2004)) (referring to Attorney General’s legal opinion to
President Andrew Johnson). And this is a hoary principle. In
Jones v. United States, for example, the Supreme Court
deferred to the President’s international law determination that
a certain island was not subject to Haiti’s jurisdiction. See 137
U.S. at 214, 222–23. See also Williams v. Suffolk Ins. Co., 38
U.S. (13 Pet.) 415, 418 (1839) (similar); Ex parte Republic of
Peru, 318 U.S. 578, 589 (1943) (in pre-FSIA suit against
Peruvian vessel, State Department request that vessel be
declared immune was conclusive). Although the
Government’s legal brief—even when offered as a non-
party—may lack the force of a presidential decree, the
Executive Branch often speaks through its lawyers. See Am.
Ins. Ass’n v. Garamendi, 539 U.S. 396, 417 (2003) (Solicitor
General speaks for State Department); Al-Bihani v. Obama,
619 F.3d 1, 46 (D.C. Cir. 2010) (Kavanaugh, J., concurring in
denial of reh’g en banc) (Executive Branch speaks through
Justice Department’s Office of Legal Counsel and Office of
Solicitor General).
In summary, the United States’ legal position is well-
reasoned and comports with the strong evidence that a sending
state has a right in customary international law to protect
diplomats and other high officials representing the sending
state abroad. Accordingly, we agree with its determination.
2.
Although we have established that the Turkish security
detail had a right to protect President Erdogan, that does not
automatically satisfy Berkovitz’s first condition. We must
17
address the plaintiffs’ argument that “Turkey did not have
discretion to commit criminal assaults.” Turkey allegedly
violated several District of Columbia laws, including assault
with a dangerous weapon and aggravated assault, see D.C.
Code §§ 22-402, 404.01.6 After reviewing the entire record,
including video footage of the confrontations, we think it clear
that the plaintiffs’ allegations are plausible. See Loumiet, 828
F.3d at 946 (plaintiffs must “plausibly allege[]” government
violated legal mandate). See also Gaubert, 499 U.S. at 324–
25. We also note that fifteen members of the Turkish security
detail were subsequently indicted by the United States on
criminal assault charges. The remaining question is whether
these allegations strip Turkey’s immunity.
We conclude that Turkey’s immunity is not removed by
the plaintiffs’ allegations that it violated local law. Unless a
“specific directive exists,” we cannot say that an employee has
“no choice” in his actions. Cope, 45 F.3d at 448 (emphasis
added) (internal quotations omitted). Not every law prescribes
specific conduct. When a contractor sued the Washington
Metropolitan Area Transit Authority (WMATA) for not
including a certain technical report in a bid solicitation, we
rejected the argument that WMATA’s duties of good faith and
fair dealing “specifically prescribed” the inclusion of certain
content in its solicitations. KiSKA Const. Corp. v. Wash.
Metro. Area Transit Auth., 321 F.3d 1151, 1159–60 (D.C. Cir.
2003). WMATA still had “broad discretion to determine the
6
These alleged violations are not synonymous with the claims
pressed in the Kurd and Usoyan complaints. Like the Loumiet
plaintiffs, the plaintiffs here allege one set of violations that forms
their cause of action and another—closely related—set that attempts
to negate the discretionary function defense. See 828 F.3d at 945–
46 (citing Limone v. United States, 579 F.3d 79, 102 & n.13 (1st Cir.
2009)).
18
contents of the . . . bid package” so it retained immunity. Id. at
1160. See also Banneker Ventures, LLC v. Graham, 798 F.3d
1119, 1138–39 (D.C. Cir. 2015) (applying KiSKA). Similarly,
in Cope, certain laws required the United States Park Service
to “work with other agencies to establish and implement
highway safety programs.” 45 F.3d at 450 (first citing 23
U.S.C. § 402 (1988 & Supp. V. 1993); and then citing 23
C.F.R. §§ 1230.1–4 (1994)). But these laws did not “contain
directives so precise that they constrain[ed] the Park Service’s
control” over its roads. Id.In the abstract, it can be difficult to determine whether a
law is so specific that its violation takes challenged conduct
outside the discretionary function exception. But Cope
provides a good guideline: “If a specific directive exists,” then
the “only issue is whether the employee followed the directive,
and is thus exempt,” or, alternatively, “whether the employee
did not follow the directive, thus opening the government to
suit.” 45 F.3d at 448. Refraining from assaulting protestors
would not have automatically made the Turkish security
detail’s conduct discretionary. Likewise, generally applicable
laws prohibiting criminal assault did not give the Turkish
security detail a sufficiently “specific directive” to strip Turkey
of its immunity.7
7
The Ninth Circuit recently held that a foreign sovereign’s
discretion “is not evaluated by [U.S. law], but rather by the
corresponding limitations that bind that sovereign, whether
contained in its own domestic law or (we will assume) in applicable
and established principles of international law.” Broidy Cap. Mgmt.,
LLC v. State of Qatar, 982 F.3d 582, 591 (9th Cir. 2020). We need
not go so far. To whatever extent Broidy holds that the discretionary
act of a foreign state on American soil is unaffected by U.S. law, we
disagree. Granted, U.S. law “does not rule the world” but there is a
presumption that it “governs domestically.” Kiobel v. Royal Dutch
19
This is not to suggest that violation of a proscription never
implicates the first Berkovitz condition. What is important is
not whether a law or policy is phrased in affirmative or
negative terms—prescribing or prohibiting certain conduct—
but how specifically the directive speaks to the challenged
conduct. In Banneker, we saw “no difference between a
prescription by policy that leaves no room for choice and a
proscription that does the same.” 798 F.3d at 1143 (emphasis
altered). There, the challenged conduct was an alleged
violation of WMATA’s Standards of Conduct which
prohibited, inter alia, leaking confidential information. Id. at
1144. The proscription plainly limited the employee’s “room
for choice” but not every proscription does the same. Accord
Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 10 (1st
Cir. 2002) (“A general obligation to avoid unlawful activity—
applicable to everyone in the United States—is hardly
sufficient to remove all room for choice.”). Unlike a
prohibition against disclosing specific information, a criminal
assault ordinance operates at too high a level of generality to
satisfy Berkovitz’s “specific prescription” requirement, at least
if it “does not impose any special obligations on” the employee
whose conduct is challenged. Id.Loumiet is not to the contrary. There, we held that the
“discretionary-function exception does not provide a blanket
immunity against tortious conduct that a plaintiff plausibly
alleges also flouts a constitutional prescription.” 828 F.3d at
943. Loumiet was decided in the FTCA context, where the
defendant is always the United States. But the United States
Constitution does not bind foreign states, see, e.g., Downes v.
Petroleum Co., 569 U.S. 108, 115 (2013) (quoting Microsoft Corp.
v. AT&T Corp., 550 U.S. 437, 454 (2007)). We believe a foreign
state’s policy discretion is constrained both by its own law and by
applicable U.S. law.
20
Bidwell, 182 U.S. 244, 270 (1901); Naoko Ohno v. Yuko
Yasuma, 723 F.3d 984, 993 (9th Cir. 2013); United States v.
Kole, 164 F.3d 164, 175 (3d Cir. 1998), so it would be
inaccurate to describe Turkey’s challenged conduct as a
constitutional violation.
Moreover, as noted supra, we think Loumiet relies on the
same logic that Red Lake Band and Birnbaum apply. These
cases involve the source of an employee’s authority, not
constraints placed on that authority. Loumiet quoted Red Lake
Band’s statement that a government official cannot be said to
be exercising his discretion if he violates a law that “define[s]
the extent of his official powers.” 828 F.3d at 944 (quoting
Red Lake Band, 800 F.2d at 1196). In Red Lake Band and
Birnbaum, FBI and CIA employees, respectively, took actions
that were outside their agencies’ statutory charters. The
Constitution is the charter for the entire government, see
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326, 332
(1816), and if a government employee’s action goes beyond
constitutional boundaries, his action is no less ultra vires than
if an FBI agent commandeers a tribal police force or a foreign
state engages in unauthorized law enforcement activity in the
United States. In summary, Loumiet supports the proposition
that the discretionary function exception does not apply if an
employee acts without a delegation of initial authority. We do
not agree with the plaintiffs’ reading of Loumiet to say that any
plausibly alleged violation of a local ordinance strips a foreign
state of sovereign immunity.8
8
MacArthur also commented—albeit indirectly—on the
consequences of violating local law. See 809 F.2d at 922 n.4. There,
Peru was alleged to have violated the District of Columbia’s zoning
laws. See id. at 919. Even if this were construed as a criminal
violation, we said that it was “hardly clear” that it would
“automatically prevent designation of Peru’s acts as discretionary.”
21
B. Second Berkovitz Condition
The FSIA, like the FTCA, does not shield all exercises of
discretion. Under Berkovitz, the discretionary function
exception “protects only governmental actions and decisions
based on considerations of public policy.” 486 U.S. at 537.
Mere “garden-variety” discretion receives no protection.
Cope, 45 F.3d at 448. Only discretionary actions “grounded in
social, economic, and political policy” fall within the
exception. Gaubert, 499 U.S. at 323. See also Red Lake Band,
800 F.2d at 1195–96. “Grounded in” does not mean
“motivated by.” Our focus “is not on the agent’s subjective
intent” but rather “on the nature of the actions taken.” Gaubert,
499 U.S. at 325.
Determining which discretionary actions qualify is
“admittedly difficult”—after all, “nearly every government
action is, at least to some extent, subject to ‘policy analysis.’”
Cope, 45 F.3d at 448. But we have resisted invitations to shield
actions implicating only “the faintest hint of policy concern[].”
Id. at 449. Moreover, blatantly careless or malicious conduct
cannot be recast in the language of cost-benefit analysis.
Id. at 922 n.4. Granted, MacArthur hinted that the situation might
be different for mala in se crimes. See id. For that proposition, it
referred to Letelier v. Republic of Chile, a frequently cited district
court case dealing with a foreign government’s alleged assassination
of a Chilean political dissident in the District of Columbia. See 488
F. Supp. 665, 665 (D.D.C. 1980). Letelier made a broad assertion:
“there is no discretion to commit, or to have one’s officers or agents
commit, an illegal act”—at least if the act is “clearly contrary to the
precepts of humanity as recognized in both national and international
law.” Id. at 673. But even if the Letelier decision were binding on
us, the plaintiffs have not argued that the Turkish security detail’s
actions violated “precepts of humanity” and thus we need not address
that question.
22
Berkovitz’s second condition is met “only where the question
is not negligence but social wisdom, not due care but political
practicability, not reasonableness but economic expediency.”
Id. at 450 (internal quotations omitted).
In a “fact-specific decision,” the district court concluded
that Turkey’s actions were not covered by the exception.
Usoyan, 438 F. Supp. 3d at 20. We agree. Although the
Turkish security detail’s protective mission was discretionary
as a general matter, that does not mean that every action a
Turkish officer may take is an immunized exercise of that
discretion. Discrete injury-causing actions can, in certain
cases, be “sufficiently separable from protected discretionary
decisions to make the discretionary function exception
inapplicable.” Moore v. Valder, 65 F.3d 189, 197 (D.C. Cir.
1995), abrogated on other grounds by Ziglar v. Abbasi, 137 S.
Ct. 1843 (2017). In Moore, we spoke of the vast discretion
committed to federal prosecutors while at the same time
recognizing that a prosecutor’s decision to disclose grand jury
testimony to unauthorized parties was not “inextricably tied”
to his discretion. Id. Accord Linder v. United States, 937 F.3d
1087, 1091 (7th Cir. 2019) (“To say that criminal investigation
and prosecution are suffused with discretion does not imply
that every possible step must be within the scope of [the
discretionary function exception].” (emphasis added)).
Relying on Macharia v. United States, Turkey asserts that
all decisions about how to protect President Erdogan are
susceptible to policy analysis, given that those decisions
required its employees to “weigh varying security risk levels
against the cost of specific countermeasures.” 334 F.3d 61, 66
(D.C. Cir. 2003) (quoting U.S. Dep’t of State Foreign Affairs
Manual, 12 FAM 314.1). But Macharia, which arose from al
Qaeda’s attack on the U.S. Embassy in Kenya, illustrates a
contrary point. There, the government’s allegedly negligent
23
conduct—a failure to provide proper Embassy security—
involved archetypical public policy considerations. Decisions
like “how much safety equipment should be provided to a
particular embassy, how much training should be given to
guards and embassy employees, and the amount of security-
related guidance that should be provided necessarily entail[]
balancing competing demands for funds and resources.” Id. at
67 (citation omitted).
Although certain Turkish security officers may be
responsible for “weigh[ing] varying security risk levels,” those
are not the decisions giving rise to the plaintiffs’ suit. Per
Macharia, examples of policy tradeoffs that involve weighing
security risk levels against the cost of countermeasures might
include, for example, how many security officers to deploy and
how to train and arm them; how the Turkish security detail used
those resources here is not a policy tradeoff. Cf. Gray v. Bell,
712 F.2d 490, 508 (D.C. Cir. 1983) (police officers’ work does
not “typically include” immunized discretionary functions);
Morgan v. Int’l Bank for Reconstruction & Dev., 752 F. Supp.
492, 495 (D.D.C. 1990) (discretionary function immunity
where “complaint alleges not a mere scuffle with guards but a
continuous process of investigation into missing money which
involved the participation of higher level . . . officials”
(emphasis added)).
The Turkish security detail’s conduct was grounded in
public policy only in the limited way that a police officer
effectuates public policy when he gives chase to a fleeing
vehicle. It is “universally acknowledged that the discretionary
function exception never protects against liability for the
negligence of a vehicle driver.” Gaubert, 499 U.S. at 336(Scalia, J., concurring). See also Cope, 45 F.3d at 448;
MacArthur, 809 F.2d at 921; Persinger v. Islamic Republic of
Iran, 729 F.2d 835, 841 n.10 (D.C. Cir. 1984); Dalehite, 346
24
U.S. at 28. For good reason. “Although driving requires the
constant exercise of discretion, the official’s decisions in
exercising that discretion can hardly be said to be grounded in
regulatory policy.” Gaubert, 499 U.S. at 325 n.7. This is true
even though a negligent government driver may have been
acting in the service of some greater policy. “Viewed from
50,000 feet, virtually any action can be characterized as
discretionary. But the discretionary function exception
requires that an inquiring court focus on the specific conduct at
issue.” Limone v. United States, 579 F.3d 79, 101 (1st Cir.
2009). When viewed up close, we believe the decisions by the
Turkish security detail giving rise to the plaintiffs’ suit were
not the kind of security-related decisions that are “‘fraught
with’ economic, political, or social judgments.” Cope, 45 F.3d
at 450. The nature of the challenged conduct was not plausibly
related to protecting President Erdogan, which is the only
authority Turkey had to use force against United States citizens
and residents. Our analysis might have been affected if Turkey
had consulted with the United States regarding the specific
decisions giving rise to the plaintiffs’ suit, see Macharia, 334
F.3d at 67, but there is no such allegation here and, as noted
earlier, the United States has indicted fifteen Turkish security
officials as a result of their actions. Turkey’s claim to
sovereign immunity thereby fails.
Importantly, we do not base our conclusion on whether
Turkey’s actions were justifiable; that is a merits question, not
a jurisdictional one. In the same way that speeding down a
residential street may occasionally be justifiable but is not an
execution of policy, the Turkish security detail’s actions may
have been justified in some circumstances but cannot be said
in this case to have been plausibly grounded in considerations
of security-related policy and thus do not fall within the
discretionary function exception.
25
III. Political Question Doctrine
The political question doctrine “excludes from judicial
review those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the confines of the
Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean
Soc., 478 U.S. 221, 230 (1986). We have called it a “limited
and narrow exception to federal court jurisdiction.” Starr Int’l
Co. v. United States, 910 F.3d 527, 533 (D.C. Cir. 2018). A
lawsuit presents a non-justiciable political question if it
involves one of the following:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; [2] or a lack of judicially discoverable
and manageable standards for resolving it; [3] or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; [4] or the impossibility of a court’s
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; [5] or an unusual need for
unquestioning adherence to a political decision
already made; [6] or the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.
Al-Tamimi v. Adelson, 916 F.3d 1, 5 (D.C. Cir. 2019)
(alterations in original) (quoting Baker v. Carr, 369 U.S. 186,
217 (1962)).
Relying primarily on the second factor, Turkey argues that
the court lacks judicially discoverable and manageable
standards necessary to resolve its immunity claim: “a court
cannot decide . . . whether Turkey used a ‘degree and nature of
26
force’ that warrants immunity without first determining and
then weighing the political justifications for, and
reasonableness of, Turkey’s security decisions concerning its
head of state.”
We disagree. As explained, the immunity inquiry turns
not on whether Turkey’s use of force was reasonable but
whether it was the result of political, social or economic policy
analysis. We can accept that Turkey has its own justification
for responding vigorously to crowds that may endanger its
President but nonetheless conclude that the specific attacks on
the plaintiffs were “sufficiently separable from protected
discretionary decisions.” Moore, 65 F.3d at 197.
Notwithstanding Turkey’s attempted resort to its own
foreign relations and antiterrorism policies as a basis for us to
find a non-justiciable political question, this case is not about
Turkey’s foreign relations. Instead, it is about its liability vel
non for the actions of its own security officers. And that
liability, if any, will not impinge on anything but Turkey’s fisc.
IV. International Comity
International comity “is the recognition which one nation
allows within its territory to the legislative, executive or
judicial acts of another nation.” Hilton v. Guyot, 159 U.S. 113,
164 (1895). Comity can thus be described as a “golden rule
among nations—that each must give the respect to the laws,
policies and interests of others that it would have others give to
its own in the same or similar circumstances.” United States v.
One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 8 (D.D.C.
2013) (quoting Mich. Cmty. Servs., Inc. v. N.L.R.B., 309 F.3d
348, 356 (6th Cir. 2002)). According to Turkey, this doctrine
prevents a federal court from “second-guessing the difficult
decisions that U.S. inaction forced Turkey to make.” The
district court rejected Turkey’s argument, a determination we
27
review de novo, see Simon v. Republic of Hungary, 911 F.3d
1172, 1180 (D.C. Cir. 2018), vacated and remanded, 141 S. Ct.
691 (2021) (mem.).
In evaluating Turkey’s argument, the first task must be to
pin down the precise form of the comity doctrine that Turkey
purports to invoke. One international law scholar, surveying
every Supreme Court case and numerous circuit court cases on
international comity, identified three faces of the doctrine in
U.S. law: deference to foreign lawmakers (“prescriptive
comity”), deference to foreign tribunals (“adjudicative
comity”), and deference to foreign litigants (“sovereign party
comity”). See William S. Dodge, International Comity in
American Law, 115 Colum. L. Rev. 2071, 2078 (2015).
Turkey has not identified any foreign law or foreign judicial
decision that pertains to this case. Its claim, then, can only be
one of sovereign party comity.
Sovereign party comity acts as both a principle of
recognition and a principle of restraint. See id. As a principle
of recognition, it stands for the proposition that “sovereign
states are allowed to sue in the courts of the United States.”
Sabbatino, 376 U.S. at 408–09; see also Pfizer, Inc. v. Gov’t of
India, 434 U.S. 308, 318–19 (1978); The Sapphire, 78 U.S. (11
Wall) 164, 167 (1870). As a principle of restraint, it shields
foreign states from certain kinds of suits in federal or state
court—foreign sovereign immunity, in other words. See
Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486
(1983) (immunity is “a matter of grace and comity”); First
Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765
(1972) (immunity “has its roots . . . in the notion of comity
between independent sovereigns”); Dodge, 115 Colum. L.
Rev. at 2118. Turkey’s competency as a party is not in doubt
so its invocation of comity must be construed as an alternative
argument for sovereign immunity.
28
We reach this conclusion not only through the process of
exclusion but also by examining Turkey’s requested relief.
Turkey does not ask us to import a foreign rule of decision—
which would invoke prescriptive comity. Nor does it ask us to
give a foreign legal decision res judicata effect—which would
invoke adjudicative comity. Rather, it asks us to “abstain from
hearing” the suit altogether. Thus, although Turkey
denominates its third argument as one of comity, it is in effect
asserting an alternative basis for sovereign immunity.
In support of its argument, Turkey emphasizes the obvious
challenges of protecting a head of state in a foreign country.
The question before us, however, is not whether there are good
policy reasons to grant latitude to foreign security services but
whether those reasons require dismissal of a case of which the
FSIA grants the district court jurisdiction.
In the FSIA, the Congress enacted a “comprehensive
framework for resolving any claim of sovereign immunity.”
Republic of Austria v. Altmann, 541 U.S. 677, 699 (2004). The
purpose of the FSIA was “to free the Government from . . .
case-by-case diplomatic pressures.” Verlinden, 461 U.S. at
488. The statute effectuates this purpose by “set[ting] forth
‘the sole and exclusive standards to be used in resolving
questions of sovereign immunity raised by foreign states before
Federal and State courts in the United States.’” MacArthur,
809 F.2d at 919 (emphasis added) (quoting H.R. Rep. 94-1487,
at 12.). We thus have no authority to override the FSIA’s
express exception for tortious conduct based on the sort of
“ambiguous and politically charged standards that the FSIA
replaced.” Altmann, 541 U.S. at 699 (internal quotations
omitted).
29
For the foregoing reasons, we conclude that the district
court properly asserted jurisdiction of the plaintiffs’ two
lawsuits and affirm its denial of Turkey’s motions to dismiss.
So ordered.