6 F.4th 31
D.C. Cir.2021Background
- On May 16, 2017, anti‑Erdogan protesters gathered near the Turkish ambassador’s residence in Washington, D.C.; a pro‑Erdogan crowd including Turkish security forces attacked protestors and bystanders, injuring plaintiffs.
- Plaintiffs (groups led by Lusik Usoyan and Kasim Kurd, plus Lacy MacAuley) sued the Republic of Turkey for assault, battery, IIED, D.C. anti‑bias statute violations, and related torts; some plaintiffs alleged additional federal claims (JASTA, ATS).
- Turkey moved to dismiss, asserting foreign sovereign immunity under the FSIA (invoking the discretionary‑function exception), the political‑question doctrine, and international comity; the district court denied dismissal.
- On interlocutory appeal, the D.C. Circuit reviewed (de novo) whether the FSIA’s tortious‑act exception (§1605(a)(5)) waived immunity and whether discretionary‑function, political‑question, or comity doctrines barred adjudication.
- The court accepted the United States’ view that customary international law gives sending states some authority to protect visiting officials, but held that the specific violent acts alleged were not exercises of discretion grounded in public policy and thus not shielded by the FSIA discretionary‑function exception.
- The court also rejected Turkey’s political‑question and international‑comity arguments and affirmed the district court’s denial of Turkey’s motions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA §1605(a)(5) (tortious‑act exception) applies or is displaced by the discretionary‑function exception | Plaintiffs: acts were unlawful assaults not grounded in policy; discretionary‑function exception does not apply | Turkey: security decisions are discretionary protective measures tied to foreign‑policy/security and thus immune | Held: tortious‑act exception applies; discretionary‑function exception fails because alleged attacks were not grounded in public policy and were separable from protected security decisions |
| Source and scope of Turkish security’s authority to use force in U.S. | Plaintiffs: no evidence of authorization to use force in U.S.; actions were unauthorized | Turkey: authority inheres in sovereignty and customary international law to protect officials abroad; U.S. Government brief supports this | Held: customary international law provides a right to protect visiting officials, but that right does not immunize all alleged conduct |
| Justiciability under the political‑question doctrine | Plaintiffs: courts can apply manageable standards (focus on nature of conduct, not foreign policy balancing) | Turkey: assessing immunity requires weighing political/security judgments unsuitable for courts | Held: political‑question doctrine does not bar review; the inquiry is legal (whether conduct is policy‑grounded), not a foreign‑policy balancing reserved to political branches |
| International comity / sovereign‑party comity as basis to abstain or dismiss | Plaintiffs: FSIA provides exclusive framework; comity cannot override statutory exceptions | Turkey: comity/foreign relations concerns counsel deference and dismissal | Held: comity cannot displace the FSIA’s exclusive standards; court may adjudicate under FSIA framework |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (1988) (two‑part FTCA test for discretionary‑function exception applied as guidance under FSIA)
- United States v. Gaubert, 499 U.S. 315 (1991) (discretionary‑function analysis; only policy‑grounded decisions protected)
- Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (FSIA establishes presumptive immunity and limited exceptions)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (FSIA provides sole basis for jurisdiction over foreign states)
- Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (D.C. Cir. 1986) (conduct outside statutory authority is not discretionary)
- Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016) (discretionary‑function exception does not shield constitutionally ultra vires conduct; authority/source of discretion matters)
- Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995) (discrete operational acts separable from protected policy decisions)
- Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (general statutory duties may leave room for choice; specificity matters)
- Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003) (security/resource allocation decisions are classic policy judgments)
- Republic of Austria v. Altmann, 541 U.S. 677 (2004) (FSIA is a comprehensive, exclusive framework for sovereign‑immunity issues)
- Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (1983) (immunity rooted in comity and grace but governed by FSIA)
- Baker v. Carr, 369 U.S. 186 (1962) (political‑question factors for justiciability analysis)