Lusik Usoyan v. Republic of Turkey

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.

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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.