Usoyan v. Republic of Turk.
| Decision Date | 21 September 2022 |
| Docket Number | Civil Action 18-1141 (CKK) |
| Parties | LUSIK USOYAN, et al., Plaintiffs v. REPUBLIC OF TURKEY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Pending before this Court are Plaintiffs' [98] Motion to Compel Defendant's Participation in a Rule 26(f) Conference and Defendant Republic of Turkey's [99] Motion to Stay Pending Petition for Writ of Certiorari to the United States Supreme Court. Turkey seeks to stay this case pending resolution of its Petition for a Writ of Certiorari, which was filed in the United States Supreme Court on January 13 2022. Plaintiffs oppose a stay and have moved to compel Turkey to participate in a discovery conference under Federal Rule of Civil Procedure 26(f).
Upon review of the pleadings,[1] the relevant legal authorities, and the record as a whole, the Court DENIES Turkey's [99] Motion to Stay. In light of this decision and because the Court shall (in a separate, forthcoming order) require the parties to comply with the requirements of Rule 26(f) and Local Civil Rule 16.3, the Court shall also DENY without prejudice Plaintiffs' [98] Motion to Compel.
Plaintiffs filed their Complaint in this action on May 15, 2018. See Compl., ECF No. 1. Their claims arise from events that took place at a May 16, 2017 protest over Turkish President Recep Erdogan's visit to the District of Columbia. Plaintiffs were protesting President Erdogan's policies, and allege that they were attacked by Turkish security forces and civilian supporters of President Erdogan in two altercations outside the Turkish Ambassador's Residence and one altercation near the Turkish Embassy. These attacks form the basis of Plaintiffs' various claims against Defendant, the Republic of Turkey (“Turkey”).[2] See generally Compl.; Usoyan v. Republic of Turkey, 438 F.Supp.3d 1, 7-10 (D.D.C. 2020) (). Turkey moved to dismiss all claims against it, arguing that this Court lacks subject matter jurisdiction due to Turkey's sovereign immunity. See Mot. to Dismiss, ECF No. 56.
On February 6, 2020, the Court denied without prejudice Turkey's Motion to Dismiss. See Usoyan v. Republic of Turkey, 438 F.Supp.3d 1 (D.D.C. 2020). The Court concluded that Plaintiffs' allegations “fall within the tortious acts exception to immunity under the [Foreign Sovereign Immunities Act (“FSIA”)],” and that Turkey had not shown that it was immune from suit. Id. at 25. On February 19, 2020, Turkey filed a [85] Notice of Appeal, indicating that it would seek review of the Court's order denying its motion to dismiss by the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). Notice of Appeal, ECF No. 85. On appeal, the D.C. Circuit consolidated this case with the related case, Kurd v. Republic of Turkey.
After hearing oral argument, D.C. Circuit “invited” the “United States Department of Justice” to “file a brief amicus curiae addressing the views of the United States” “on this case, and in particular 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 (i.e., not on diplomatic grounds).” Per Curiam Order, Lusik Usoyan et al. v. Republic of Turkey, Nos. 20-7017, 20-7019 (D.C. Cir. Jan. 25, 2021). The United States filed a brief in support of Plaintiffs, agreeing with this Court's conclusion that Turkey was not immune from suit based on the “highly fact-intensive” inquiry. See Gov.'s Br. at 2, Lusik Usoyan et al. v. Republic of Turkey, Nos. 20-7017, 20-7019 (D.C. Cir. Mar. 9, 2021).
On July 21, 2021, a unanimous panel of D.C. Circuit affirmed this Court's order denying Turkey's motion to dismiss. Usoyan v. Republic of Turkey, 6 F.4th 31, 40 (D.C. Cir. 2021). Turkey unsuccessfully sought en banc review of the panel's decision. See Order, Lusik Usoyan et al. v. Republic of Turkey, Nos. 20-7017, 20-7019 (D.C. Cir. Oct. 15, 2021) (). The D.C. Circuit issued its mandate on October 25, 2021. See USCA Mandate, ECF No. 97.
On January 12, 2022, Plaintiffs filed a Motion to Compel Turkey to participate in a Rule 26(f) conference. See Pls.' Mot. to Compel. Then, on January 13, 2022, Turkey filed a petition for a writ of certiorari in the United States Supreme Court, seeking review of the D.C. Circuit's decision affirming this Court's denial of its motion to dismiss. See Petition for Writ of Certiorari, Republic of Turkey v. Lusik Usoyan, et al., No. 21-1013 (U.S. Jan. 13, 2022).[3] On the following day, Turkey filed its Motion to Stay in this case, requesting that this Court stay further proceedings pending the Supreme Court's consideration of its petition.
On February 14, 2022, the Supreme Court requested a response from Plaintiffs to Turkey's petition for a writ of certiorari, which was filed on March 15, 2022 and Turkey filed a reply on March 29, 2022. See Respondents' Br. in Opp'n, Republic of Turkey v. Lusik Usoyan, et al., No. 21-1013 (U.S. Mar. 15, 2022); Reply Br. for Pet'r, Republic of Turkey v. Lusik Usoyan, et al., No. 21-1013 (U.S. Mar. 29, 2022). The parties' briefs were distributed for the Supreme Court's April 14, 2022 conference. On April 18, 2022, the Supreme Court “invited” the “Solicitor General” to “file a brief in this case expressing the views of the United States.” See Order, Republic of Turkey v. Lusik Usoyan, et al., No. 21-1013 (U.S. Apr. 18, 2022). As of the date of this Memorandum Opinion & Order, the Solicitor General has not yet filed a brief in response and the Supreme Court has neither granted nor denied Turkey's petition.
In making determinations on motions to stay, courts “exercise [ ] judgment” and “weigh competing interests.” U.S. ex rel. Vermont Nat'l Tel. Co. v. Northstar Wireless, L.L.C., 288 F.Supp.3d 28, 31 (D.D.C. 2017) (quoting Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 879 n.6 (1998)). Courts look at four factors to determine whether to issue a stay:
Cuomo v. United States NRC, 772 F.2d 972, 974 (D.C. Cir. 1985). The Court shall consider each factor in turn.
The Court first considers the likelihood that Turkey will “prevail on the merits” of its petition for a writ of certiorari. Cuomo, 772 F.2d at 974. The Court finds that Turkey is unlikely to do so. In a comprehensive, well-reasoned decision, the D.C. Circuit affirmed this Court's denial of Turkey's motion to dismiss. Usoyan, 6 F.4th 31. The panel's decision was fully supported by relevant statutory and case law, addressed in detail both parties' arguments, and sought the views of the United States, which agreed with this Court's conclusion that Turkey was not immune from Plaintiffs' claims in this case. Id. Moreover, there was no dissenting opinion, and Turkey's request for en banc consideration was denied. Turkey's lack of success on the merits of its immunity arguments suggests that it is unlikely to succeed on these arguments before the Supreme Court.
However, as this Court has previously explained, to avoid “having to speculate about the ultimate outcome” of the Supreme Court's consideration of Turkey's petition for a writ of certiorari, it must also consider “whether or not this case presents serious legal questions.” Philipp v. Fed. Rep. of Germany, 436 F.Supp.3d 61, 66 (D.D.C. 2020); see also Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). Turkey posits that its petition raises “serious and important legal questions regarding the application of the FSIA's discretionary function exception” and “the interests of international comity, which will impact relations between the United States and foreign nations.” Def.'s Mot. to Stay at 7.
To be sure, it is well-established that “actions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States and the primacy of federal concern is evident.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983) (“[A]ctions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States and the primacy of federal concern is evident.”). However, as Plaintiffs correctly observe in ruling on Turkey's motion to dismiss, this Court made a “very narrow, fact-specific decision.” Usoyan, 438 F.Supp.3d at 21. So too did the D.C. Circuit, drawing on this Court's findings of fact and upon its own review of the video of the altercation at issue in the Complaint. See Usoyan, 6 F.4th at 37. Although Defendant Turkey frames its petition as presenting general questions about the “application of the FSIA's discretionary function exception” and as to the “safety of all foreign heads of state traveling to the U.S.,” Def.'s Mot. at 7, this Court's decision (and the D.C. Circuit's affirmation thereof) involved applications of those principles to the specific facts of this case. The decisions of this Court and the D.C. Circuit turned on the specific facts presented by this case-not on a legal question of broad applicability. The “fact intensive” nature of the decisions by this Court and the D.C. Circuit weigh against a conclusion that Turkey's petition for a writ of certiorari presents a...
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