Usoyan v. Republic of Turk.

• Citation: 6 F.4th 31
• Decision Date: 27 July 2021
• Docket Number: C/w 20-7019,No. 20-7017,20-7017
• Parties: Lusik USOYAN, et al., Appellees v. REPUBLIC OF TURKEY, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

6 F.4th 31

Lusik USOYAN, et al., Appellees

v.REPUBLIC OF TURKEY, Appellant

No. 20-7017

C/w 20-7019

United States Court of Appeals, District of Columbia Circuit.

Argued January 25, 2021

Decided July 27, 2021

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.

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.

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. 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.

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 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.

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, 113 S.Ct. 1471, 123 L.Ed.2d 47 (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, 109 S.Ct. 683, 102 L.Ed.2d 818 (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 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...