Devincci Hourani v. Alexander Mirtchev

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2014 Decided July 31, 2015
No. 13-7088
DEVINCCI SALAH HOURANI AND ISSAM SALAH HOURANI,
APPELLANTS
v.
ALEXANDER V. MIRTCHEV AND KRULL CORPORATION,
APPELLEES
Consolidated with 13-7089
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01618)
Howard W. Foster argued the cause for appellants/cross-
appellees. With him on the briefs was Louis G. Adolfsen.
Jeffrey A. Lamken argued the cause for appellees/cross-
appellants. On the briefs were Warren W. Harris, Jeffrey L.
Oldham, Richard W. Beckler, Stephen Sale, and John D.
Quinn. G. Robert Blakey and LaShon Kell entered
appearances.
Before: TATEL, MILLETT and PILLARD, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Two Kazakh businessmen
claim that the daughter of the President of Kazakhstan
extorted hundreds of millions of dollars’ worth of their
business assets in Kazakhstan. She did so, they claim, with
the help of the defendants in this case, Alexander Mirtchev
and his District of Columbia-based business, Krull
Corporation. At the heart of the dispute is whether the
complaint alleges sufficient domestic misconduct by Mirtchev
and Krull Corporation to state a claim under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961
et seq., the Hobbs Act, 18 U.S.C. § 1951, or District of
Columbia defamation law. The district court dismissed the
complaint for failure to state a claim. The court also denied a
motion for sanctions filed by Mirtchev and Krull Corporation.
We affirm.
I
Statutory Framework
RICO
Congress enacted the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et seq., commonly
known as “RICO,” to “eradicat[e] * * * organized crime in
the United States by strengthening the legal tools in the
evidence-gathering process, by establishing new penal
prohibitions, and by providing enhanced sanctions and new
remedies to deal with the unlawful activities of those engaged
in organized crime,” United States v. Turkette, 452 U.S. 576,
588 (1981) (quoting Organized Crime Control Act of 1970,
Pub. L. No. 91-452, 84 Stat. 922, 923 (Oct. 15, 1970)).
3
To that end, RICO authorizes both criminal penalties, 18
U.S.C. § 1963, and civil remedies, id. § 1964, against those
who engage in a “pattern of racketeering activity” through or
involving an “enterprise,” id. § 1962. “[R]acketeering
activity” means the commission or threatened commission of
any of a long list of state and federal crimes, including
“murder, kidnapping, * * * robbery, bribery, extortion,” and
witness tampering. Id. § 1961(1).
RICO, however, only targets a “pattern” of such
racketeering activity, which means the commission of at least
two acts of racketeering within a certain period of time
(generally ten years). 18 U.S.C. § 1961(5). The commission
of those acts must be through an “enterprise,” which is
defined to include “any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity[.]”
Id. § 1961(4).
As relevant here, RICO prohibits “any person employed
by or associated with any enterprise” that affects interstate or
foreign commerce from “conduct[ing] or participat[ing],
directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity,” 18 U.S.C.
§ 1962(c), or conspiring to do so, see id. § 1962(d).
In addition to criminal penalties enforced by the United
States, RICO authorizes “[a]ny person injured in his business
or property by reason of a violation [of the statute]” to sue in
federal district court and “recover threefold the damages he
sustains and the cost of the suit[.]” 18 U.S.C. § 1964(c).
Hobbs Act
The Hobbs Act makes it a crime to “in any way or degree
obstruct[], delay[], or affect[] commerce or the movement of
4
any article or commodity in commerce, by robbery or
extortion,” as well as to “conspire[] so to do.” 18 U.S.C.
§ 1951(a). The term “extortion” in the Hobbs Act means “the
obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or
fear, or under color of official right.” Id. § 1951(b)(2).
The “commerce” that the Hobbs Act polices is all
“commerce within the District of Columbia, or any Territory
or Possession of the United States; all commerce between any
point in a State, Territory, Possession, or the District of
Columbia and any point outside thereof; all commerce
between points within the same State through any place
outside such State; and all other commerce over which the
United States has jurisdiction.” Id. § 1951(b)(3).
II
Factual Background
Because the court below dismissed the case for failure to
state a claim, we accept the following facts, drawn from the
amended complaint, as true. See, e.g., Klayman v.
Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).
Devincci Hourani and his brother Issam Hourani are
businessmen who previously owned “oil, broadcasting, and
publishing companies” in the Republic of Kazakhstan.
Amended Complaint ¶ 11. As relevant here, Devincci, Issam,
and Issam’s wife, Gulshat, owned shares in KTK Television
and Alma Media Conglomerate, “the largest media holding
company in Kazakhstan.” Id. ¶¶ 14, 17. Their holdings in
Kazakhstan, including those media properties, were worth
“hundreds of millions, perhaps billions, of dollars.” Id. ¶ 28.
 5
Trouble began for the Houranis in June 2007, when
armed agents of the KNB (the Kazakh offshoot of the KGB)
raided the Hourani family’s offices. Amended Complaint
¶¶ 18–20. In the following weeks, “pressure from various
authorities mounted” under the direction of Dariga
Nazarbayeva, daughter of Kazakhstan’s President, Nursultan
Nazarbayev. Id. ¶¶ 20–21.1 Devincci met with Nazarbayeva
in July 2007, and she then “offered to use her influence with
the government to try to ‘protect’ his family’s businesses
from further harassment if he would sign over his family’s
shares in the mass media companies in which they held
interests[.]” Id. ¶ 21. Devincci, “believ[ing] that he had no
choice but to capitulate to her demand,” id. ¶ 22, and acting
“under duress,” signed the paperwork to turn over his,
Issam’s, and Gulshat’s shares in KTK and Alma Media “to
Dariga for her use,” id. ¶ 23. Elsewhere, though, the amended
complaint alleges that Devincci signed over the shares to the
“First Presidential Fund.” Id. ¶ 21. The amended complaint
does not explain what that Fund is or whether Dariga
Nazarbayeva controls it.
According to the amended complaint, Nazarbayeva, who
“had no official title in Kazakhstan,” Amended Complaint
¶ 34, was attempting “to amass ownership of the nation’s
major media outlets” in “contemplat[ion of] a political career
as a possible successor to her father,” id. ¶ 12. She thus
“sought to have the media portray her in the most favorable
1
The amended complaint refers to Nazarbayeva as “Dariga
Nazarbayev” or “Dariga.” See, e.g., Amended Complaint ¶¶ 12, 21.
Her surname is most commonly written with an “a” on the end.
See, e.g., http://www.akorda.kz/en/republic_of_kazakhstan/
president (official website of President Nazarbayev) (last visited
July 24, 2015). For clarity, and to distinguish her from President
Nazarbayev, this opinion refers to her as “Nazarbayeva.”
6
light,” as well as to secure “the vast wealth and ownership
such large businesses would confer.” Id.
The complaint further alleges that Dariga sought the
assistance of the defendants in this case, Alexander Mirtchev
and his “global strategic solutions” consulting firm, Krull
Corporation. Amended Complaint ¶ 13. Both Mirtchev and
Krull Corporation are based in Washington, D.C. Id.
Nazarbayeva’s plan to amass control of Kazakh media was
alleged to be “consistent with” Mirtchev’s earlier
recommendation to President Nazarbayev, made “in a
memorandum informally known as the ‘Superkhan’
document, in which Mirtchev had counseled the President of
Kazakhstan on how he could consolidate power for himself
and his family at the expense of business leaders.” Id. ¶ 15.
According to the complaint, Mirtchev agreed to help
Nazarbayeva gain control of the Houranis’ assets. His
specific role in the scheme is alleged to have taken three
forms. Amended Complaint ¶ 16. First, he “agreed to assist
[Nazarbayeva] with monetizing her control” of the Houranis’
assets. Id. Second, he agreed to “deposit some of the
proceeds of the seized businesses in western bank accounts
where it would not be taxed or otherwise scrutinized.” Id.
Third, “Mirtchev agreed to use his influence to falsely brand
the Houranis as international criminals and terrorists.” Id.
Procedural History
The Hourani brothers filed suit against Mirtchev and
Krull Corporation in the United States District Court for the
District of Columbia in September 2010. That first complaint
gave a somewhat different version of events. In particular,
the initial complaint had the Kazakh Government, rather than
Dariga Nazarbayeva, expropriating the Houranis’ assets. See
7
Original Complaint ¶¶ 106, 126. The expropriation was
alleged to be a specific step in executing the plan outlined in
the “Superkhan memorandum,” rather than merely “consistent
with” it. Compare Original Complaint ¶ 131, with Amended
Complaint ¶ 15.
Other documents that the Houranis filed initially with the
district court purportedly tied Mirtchev to the Superkhan
memorandum, including a letter from the Deputy Prosecutor
General of Kazakhstan, Ashkat Daulbaev, to the Kazakh
Ambassador to the United States, that identified Mirtchev as
responsible for the campaign of intimidation and
expropriation against the Houranis. See Houranis’ Opposition
to Initial Motion to Dismiss ¶ 19; Declaration of Devincci
Hourani ¶¶ 16–20 [JA 289–290]; Declaration of Issam
Hourani ¶ 30. [JA 279]
Mirtchev and Krull Corporation challenged the Daulbaev
letter and other documents as forgeries and moved to dismiss
the complaint. The Houranis then filed an amended
complaint, which is the version at issue in this appeal. As
amended, the complaint contains no mention of the Daulbaev
letter, although it does still reference the Superkhan
memorandum. The complaint now alleges that Mirtchev
conspired to, and did, violate RICO by engaging in criminal
activity through the Krull Corporation, in violation of 18
U.S.C. § 1962(c) and (d). Amended Complaint ¶¶ 42–52.
The specific predicate racketeering crimes alleged are money
laundering, in violation of 18 U.S.C. § 1956, and extortion, in
violation of the Hobbs Act, id. § 1951. Amended Complaint
¶ 44.
Lastly, the amended complaint alleges that Mirtchev
conspired to defame the Houranis by “publish[ing] or
caus[ing] * * * to be published” defamatory statements,
8
including that the Houranis were members and supporters of
the terrorist group Hamas. Amended Complaint ¶ 59. Those
statements were allegedly published on the Kazakh embassy
website, in “a Forbes.com editorial,” in “internal Kazakh
Government memoranda,” in “the so-called Aliyev Dossier
published by [the] Eurasian Transition Group,” and in
“various other Internet publications.” Id.
The district court dismissed the case with prejudice,
reasoning that “the predicate acts that proximately caused
[p]laintiffs’ injury—namely, the extortion in Kazakhstan by a
Kazakh actor of Plaintiffs’ Kazakhstan-based assets—were
squarely extraterritorial and therefore outside of RICO’s
reach.” Hourani v. Mirtchev, 943 F. Supp. 2d 159, 168
(D.D.C. 2013). The court also held that the defamation
claims were too vague to allow for responsive pleadings, and
thus failed to state a claim. Id. at 169. However, the court
denied the defendants’ motion to impose sanctions on the
plaintiffs under Federal Rule of Civil Procedure 11 for filing
contradictory versions of the complaint and for relying on
allegedly forged documents. The court noted that an
objective test applies to finding a Rule 11 violation, but did
not determine whether there had been a violation, “choos[ing]
not to impute bad faith on the part of the [p]laintiffs” and
“finding ample grounds for dismissing the complaint on the
substantive grounds” already given in the opinion. Id. at 172.
III
Analysis
Jurisdiction
The district court had federal-question jurisdiction over
the Houranis’ RICO and Hobbs Act claims and supplemental
jurisdiction over the defamation claim under D.C. law, which
9
arose out of the same alleged conspiracy. We have
jurisdiction to review the district court’s dismissal of the case
with prejudice because it is a final judgment for purposes of
28 U.S.C. § 1291.
Mirtchev and Krull Corporation argue, however, that this
case presents a non-justiciable political question. If they were
correct, both we and the district court would lack jurisdiction
to decide this case and we would have to vacate the judgment
below. See, e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 132
S. Ct. 1421, 1427 (2012) (when a case involves a political
question, “a court lacks the authority to decide the dispute”);
Lin v. United States, 561 F.3d 502, 505 (D.C. Cir. 2009).
But Mirtchev and Krull Corporation are not correct. At
bottom, their argument is that this case “necessarily ask[s] the
courts to find that Kazakhstan was involved in racketeering,
extortion, and defamation[,]” and that “[c]ondemning foreign
government action is a policy determination within the
exclusive realm of the executive and legislative branches,
which are constitutionally responsible for the nation’s foreign
relations.” Mirtchev Br. 48.
That misunderstands the contours of the political question
doctrine. That doctrine bars our jurisdiction only when the
Constitution textually commits “the issue” to be adjudicated
in the case “to a coordinate political department,” or when
there is “a lack of judicially discoverable and manageable
standards for resolving it.” Nixon v. United States, 506 U.S.
224, 228 (1993) (quoting Baker v. Carr, 396 U.S. 186, 217
(1962)). As the complaint frames them, the racketeering and
extortion issues center on what Mirtchev and Krull
Corporation did. Mirtchev and Krull Corporation are both
private parties and domestic residents, not foreign
governmental entities. Nothing in the Constitution reserves to
10
the Political Branches the determination of Mirtchev’s or
Krull Corporation’s private civil liability for racketeering or
extortion.
In addition, the standards needed to resolve the Houranis’
racketeering, extortion, and defamation claims are the
workaday tools for decision-making that courts routinely
employ. To be sure, a judgment in the case might implicate
the actions of a foreign government and the Act of State
doctrine, see infra 16–24. But that has never been enough, by
itself, to trigger the political question doctrine’s jurisdictional
bar. As the Supreme Court has reminded, even though civil
litigation can sometimes affect the Nation’s foreign relations,
“courts cannot avoid their responsibility merely ‘because the
issues have political implications.’” Zivotofsky, 132 S. Ct. at
1428 (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).
Indeed, both before and since the enactment of the
Foreign Sovereign Immunities Act (“FSIA”) in 1976, 28
U.S.C. §§ 1602 et seq., courts have often heard cases directly
involving the conduct of foreign governments and foreign
officials. See, e.g., BG Group PLC v. Republic of Argentina,
134 S. Ct. 1198 (2014); Republic of Mexico v. Hoffman, 324
U.S. 30, 36 (1945); de Csepel v. Republic of Hungary, 714
F.3d 591, 594 (D.C. Cir. 2013). And even questions of
foreign sovereign immunity are “a matter of grace and comity
rather than a constitutional requirement.” Republic of Austria
v. Altman, 541 U.S. 677, 689 (2004). Adjudicating the
lawfulness of those acts of a foreign sovereign that are subject
to the United States’ territorial jurisdiction, in other words, is
not an issue that the Constitution entirely forbids the judiciary
to entertain, or commits exclusively to the Political Branches.
Secure in our jurisdiction, we turn to the merits.
11
Standard of Review
We review de novo the district court’s dismissal of the
complaint for failure to state a claim, see, e.g., Autor v.
Pritzker, 740 F.3d 176, 179 (D.C. Cir. 2014), asking whether
the complaint states “plausible grounds for relief,” Winder v.
Erste, 566 F.3d 209, 213 (D.C. Cir. 2013).
On the cross-appeal, we review the denial of sanctions
under Rule 11 for abuse of discretion. See Cooter & Gell v.
Hartmax Corp., 496 U.S. 384, 405 (1990).
The RICO and Hobbs Act Claims
Foreign elements pervade this case. The main actors
were Kazakhs, the extorted property was in Kazakhstan, and
the key events were committed by Kazakhs to other Kazakhs
in Kazakhstan. Fortunately, we need not wade into the thorny
question of whether or when RICO applies to such foreign
conduct.2 The Houranis have litigated this case and framed
2
The courts of appeals have split on the issue. Compare, e.g.,
European Community v. RJR Nabisco, Inc., 764 F.3d 129, 136 (2d
Cir. 2014) (RICO can apply to extraterritorial conduct “if, and only
if, liability or guilt could attach to extraterritorial conduct under the
relevant RICO predicate.”), with United States v. Chao Fan Xu, 706
F.3d 965, 974–975, 977 (9th Cir. 2013) (“[W]e begin the present
analysis with a presumption that RICO does not apply
extraterritorially in a civil or criminal context[,]” and “RICO’s
focus is on the pattern of racketeering activity for purposes of
analyzing extraterritorial application of the statute.”), and
Liquidation Comm’n of Banco Intercontinental, S.A. v. Renta, 530
F.3d 1339, 1351–1352 (11th Cir. 2008) (“RICO may apply
extraterritorially if conduct material to the completion of the
racketeering occurs in the United States, or if significant effects of
the racketeering are felt here.”).
12
their arguments on the assumption that neither RICO nor the
Hobbs Act applies extraterritorially, contending that the
domestic conduct of Mirtchev and Krull Corporation alone
violated RICO and the Hobbs Act. See Houranis Br. 11
(“[T]he parties do not dispute that RICO does not apply
extraterritorially[.]”); Houranis Reply Br. 19 (“Plaintiffs do
not argue that the Hobbs Act has extraterritorial
application.”). According to the complaint, that domestic
conduct consisted of Mirtchev:
 Agreeing, from his Washington, D.C. office, to a
scheme in which Kazakh actors expropriated the
Houranis’ Kazakh assets in Kazakhstan. Amended
Complaint ¶ 33.
 Receiving payments from Nazarbayeva in
Washington, D.C. bank accounts in the Krull
Corporation’s name “[a]s compensation for his role in
the extortion[.]” Id. ¶ 29.
 Laundering money from the expropriation of the
Houranis’ Kazakh assets through “bank accounts he
controls.” Id. ¶ 40.3
3
The complaint also alleges defamation and conspiracy to defame
under D.C. law, but those are not predicate acts of racketeering
under RICO. See 18 U.S.C. § 1961(1)(A). The complaint further
asserts that Mirtchev conspired to violate D.C.’s anti-extortion law,
D.C. Code § 22-3251, see Amended Complaint ¶ 50, violation of
which would count as a predicate act of racketeering under RICO,
see 18 U.S.C. § 1961(1)(A). Unlike the Hobbs Act, the Houranis
have not expressly stipulated that the D.C. extortion law does not
apply extraterritorially. But the Houranis make only glancing
references in two footnotes to, and no substantive arguments about,
D.C. extortion law. See Houranis Br. 4 n.2, 16 n.5. Any reliance
on D.C. extortion law in lieu of the Hobbs Act is thus forfeited.
See, e.g., National Oilseed Processors Ass’n v. OSHA, 769 F.3d
13
Those allegations fall short of stating a RICO claim.
Starting from the top: The Houranis do not contend that their
complaint states a claim of domestic Hobbs Act extortion by
Mirtchev or anyone else. Nor do they assert that the actual
extortion of their assets in Kazakhstan was itself in any way a
violation of the Hobbs Act. They argue only that Mirtchev’s
agreement in D.C. to Dariga Nazarbayeva’s extraterritorial,
non-Hobbs-Act extortion scheme in Kazakhstan constituted a
conspiracy in the United States to violate the Hobbs Act.
The plain text of the Hobbs Act shutters that argument.
That statute, recall, applies to anyone who “in any way or
degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by
robbery or extortion” or who “conspires so to do.” 18 U.S.C.
§ 1951(a) (emphasis added). The problem for the Houranis is
that, having agreed that the underlying extortion of assets in
Kazakhstan did not violate the Hobbs Act, neither could
Mirtchev’s conspiracy “so to do.” Id. § 1951(a). That is, the
only conspiracies that the Hobbs Act captures are conspiracies
to violate the Hobbs Act itself. The conspiracy provision
would apply to extortion on foreign soil only if the
substantive provisions of the Hobbs Act were to apply to that
extortion, which is an argument that the Houranis have
declined to press.
Next up, the Houranis allege Mirtchev’s and Krull
Corporation’s involvement in money payments and money
laundering. Those allegations fare no better than the
conspiracy claim, for two reasons.
1173, 1184 (D.C. Cir. 2014) (“[T]he court generally declines to
consider an argument if a party buries it in a footnote and raises it
in only a conclusory fashion[.]”).
14
First, the Houranis have failed to state a claim for money
laundering. The federal money laundering statute, 18 U.S.C.
§ 1956, contains several different prohibitions, but common to
all of them is a requirement that the money being laundered
must in some way be associated with “unlawful activity.”
See, e.g., id. § 1956(a)(1) (requiring that a covered transaction
“involves the proceeds of specified unlawful activity”);
id. § 1956(a)(2)(A) (prohibiting transferring funds in or
through the United States “with the intent to promote the
carrying on of specified unlawful activity”).
Unfortunately for the Houranis, the statute defines
“unlawful activity,” and the alleged extortion in Kazakhstan
falls outside that definition. In particular, the money
laundering statute defines most of the “offense[s] listed in
section 1961(1) of this title,” 18 U.S.C. § 1961(1), as
“unlawful activity.” Id. § 1956(c)(7)(A). That includes
Hobbs Act violations. But the Houranis have said that the
extortion itself did not violate the Hobbs Act, and they have
not alleged any other prerequisite “unlawful activity” for
purposes of the statute.
Second, the Houranis’ complaint nowhere alleges that
they were injured in any way by the alleged acts of money
laundering. See Houranis Br. 30–31. That is fatal. A civil
RICO plaintiff “only has [statutory] standing if, and can only
recover to the extent that, he has been injured in his business
or property by the conduct constituting the violation,” and the
“compensable injury necessarily is the harm caused by
predicate acts sufficiently related to constitute a pattern.”
Sedima, S.P.R.L. v. Imrex Co, Inc., 473 U.S. 479, 496, 497
(1985).4
4
The alleged money-laundering activities likely also fail because
they do not plausibly allege anything more than “the transparent
15
With no injury from the money laundering, and no
cognizable Hobbs Act claim to supply the missing injury
either, the Houranis have no injurious predicate acts at all, let
alone a pattern of them. The wheels have completely come
off of the Houranis’ civil RICO claim.5
Defamation
The Houranis allege that Mirtchev “published or caused
* * * to be published” a series of defamatory statements
against them, including allegations, as paraphrased in the
complaint, that they (i) were members and supporters of the
terrorist group Hamas, (ii) imported workers into Kazakhstan
who were “trained in Islamic terrorist camps,” (iii) committed
assault, and (iv) owned an apartment in which a woman was
falsely imprisoned and later murdered. Amended Complaint
¶¶ 58, 59. Those statements allegedly appeared on the
website of the Kazakh Embassy in the United States “with the
active support of the Kazakh ambassador,” in internal Kazakh
government memoranda, in a document known as the “Aliyev
Dossier” produced by the “Eurasian Transition Group,” in an
editorial on Forbes.com, and in “various other Internet
publications.” Id. ¶ 59. Apart from alleging that the Embassy
statements were published “on December 18, 2008,” and that
division or deposit” of “unlawfully obtained funds” from a one-
time criminal incident. See United States v. Adefehinti, 510 F.3d
319, 322 (D.C. Cir. 2008). We need not definitively resolve that
issue, however, given the alternative grounds for affirmance.
5
The parties devote a great deal of energy to arguing whether a
court should look to the location of the enterprise or the location of
the pattern of racketeering to decide whether the complaint states a
claim for a domestic RICO violation. That dispute is irrelevant in
light of the complaint’s failure to properly plead a pattern of
racketeering that injured the Houranis under either test.
16
the other statements were published some time “in 2008,” the
complaint does not provide any further detail on when or
where the statements appeared or their actual content.
Amended Complaint ¶¶ 58, 62.
The Houranis’ defamation claims arising from the alleged
publication of materials on the Kazakh Embassy’s website
“with the active support of the Kazakh ambassador” and in
internal Kazakh government documents run afoul of the Act
of State doctrine. That doctrine prevents federal courts from
“declar[ing] invalid * * * the official act of a foreign
sovereign,” W.S. Kirkpatrick & Co., Inc. v. Environmental
Tectonics Corp., 493 U.S. 400, 405 (1990), involving
activities undertaken “within its own territory,” Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964).
See also Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.
2076, 2084 (2015) (“The actions of a recognized sovereign
committed within its own territory also receive deference in
domestic courts under the act of state doctrine.”).
The “text of the Constitution does not require the act of
state doctrine.” Banco Nacional, 376 U.S. at 423. Instead,
the doctrine “expresses the strong sense of the Judicial Branch
that its engagement in the task of passing on the validity of
foreign acts of state may hinder rather than further this
country’s pursuit of goals * * * in the international sphere.”
Id. As such, it operates as a rule of judicial restraint in
decisionmaking, not a jurisdictional limitation like the
political question doctrine. See supra 10; see also World Wide
Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154,
1161 (D.C. Cir. 2002); In re Papandreou, 139 F.3d 247, 256
(D.C. Cir. 1998) (The Act of State doctrine “is a substantive
17
rule of law” that applies only after jurisdiction is
established.).6
The unusual content of the Houranis’ allegations, which
we must take as pled, see de Csepel, 714 F.3d at 598, 604,
triggers the Act of State doctrine in this case. While the
Houranis argue that they only seek to hold Mirtchev and Krull
Corporation liable for conspiracy to defame, the amended
complaint demands a deeper inquiry than that. Defamation
requires both defamatory statements and publication of that
defamation. Oparaugo v. Watts, 884 A.2d 63, 76 (D.C.
2005). The complaint alleges that Mirtchev “caused” the
Embassy of Kazakhstan, with the active involvement of the
Ambassador, to be the publisher of the defamatory statements.
Amended Complaint ¶ 58. Specifically, the amended
complaint maintains that, at Nazarbayeva’s behest, (i) the
“Kazakh Embassy in Washington, D.C. * * * ma[d]e its
website available for anti-Hourani content,” Amended
Complaint ¶ 57, and the (ii) defamatory statements were then
published “with the “active support of the * * * ambassador,”
in conspiracy with Mirtchev, id. ¶ 58.
Accordingly, the defamation alleged here is not
Mirtchev’s or Krull Corporation’s own speech. Nor does the
complaint allege that the Ambassador or Embassy unwittingly
6
Because the Act of State doctrine is a rule of judicial restraint,
courts may raise the doctrine sua sponte. See Ramirez de Arellano
v. Weinberger, 745 F.2d 1500, 1533 n.143 (D.C. Cir. 1984),
certiorari granted, judgment vacated on other grounds by
Weinberger v. Ramirez de Arellano, 471 U.S. 1113 (1985). In this
case, the parties themselves raised the Act of State doctrine, but
their original briefs focused their analysis on the RICO and Hobbs
Act claims. Supplemental briefs ordered by the court addressed the
doctrine’s application to the Houranis’ claim of a conspiracy to
defame.
18
published the falsehoods. Quite the opposite, the complaint
alleges defamation through the “active” and at least knowing
(if not deliberate) publication by Embassy officials at the
highest level primed to propagate “anti-Hourani” defamatory
messages in the form of official Kazakh government speech
on that government’s own official platform. The Houranis
thus have alleged that the Ambassador was in the thick of the
defamation conspiracy against them, and that the critical step
of publishing the allegedly false statements—a step that
transformed them into defamation—was perpetrated by the
official speech of the Kazakh government on an official
government platform.
The Houranis contend that the Act of State doctrine does
not apply because the Ambassador’s conduct took place at the
Embassy in Washington, D.C., and not within Kazakh
territory. It is certainly true that, as a general rule, the Act of
State doctrine applies to foreign government activities
undertaken “within its own territory,” Banco Nacional, 376
U.S. at 401, although that factor is not so inflexible as to
overlook the quintessentially sovereign nature of foreign
governmental action, see Yahoo! Inc. v. La Ligue Contre le
Racisme et L’Antisemitisme, 433 F.3d 1199, 1226 (9th Cir.
2006) (Act of State doctrine can apply to actions extending
beyond a state’s borders if “governmental” in nature);
Callejo v. Bancomer, S.A., 764 F.2d 1101, 1121 n.29 (5th Cir.
1985) (“Even when an act of a foreign state affects property
outside its territory, however, we may still give effect to the
act if doing so is consistent with United States public policy.
* * * A foreign state’s interest in the enforcement of its laws
does not always end at its borders.”).7
7
The fact that a foreign state’s embassy is generally considered to
be within the jurisdiction of the host state is, alone, insufficient to
find the Act of State doctrine inapplicable to conduct occurring
19
In any event, the alleged conduct here is rooted, in all
relevant respects, within foreign sovereign territory because
the defamatory publication was necessarily official
governmental speech formulated and directed from Astana,
Kazakhstan. What the Houranis’ argument overlooks is that
the Ambassador is not just any government functionary, but
instead is an official whose defining purpose is to speak for
the Kazakh government sitting within its own territory. The
role of the ambassador is to “[r]epresent the sending State
[i.e., Kazakhstan] in the receiving State [i.e., the United
States].” Vienna Convention on Diplomatic Relations, Art.
3(1)(a), Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502
(entered into force in U.S. Dec. 13, 1972). As the
“representative[] of a particular sovereign,” the Ambassador
“serve[s] in the place of the one sending” him. Fatemi v.
United States, 192 A.2d 525, 527 (D.C. 1963); see also
Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179
F.3d 1279, 1295–1297 (11th Cir. 1999).
there. But cf. El-Hadad v. Embassy of United Arab Emirates, 69 F.
Supp. 2d 69, 81 (D.D.C. 1999), rev’d in part on other grounds, 216
F.3d 29 (D.C. Cir. 2000) (declining to apply Act of State doctrine
to foreign government’s commercial activities because defendant
was an embassy). To be sure, the law does not treat embassies as
the territory of their sovereign for all purposes. See, e.g., Persinger
v. Islamic Republic of Iran, 729 F.2d 835, 837 (D.C. Cir. 1984)
(United States Embassy in Iran not treated as part of the “United
States” for purposes of FSIA provision allowing suit against foreign
states for tortious injury within the United States). But it does for
some purposes. See, e.g., Vienna Convention on Diplomatic
Relations Art. 22(1), April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No.
7502 (entered into force in U.S. Dec. 13, 1972) (“The premises of
the mission shall be inviolable.”). Given both the Act of State
doctrine’s concern with diplomatic comity, the crucial role of
ambassadorial communications in the conduct of diplomacy, and
the distinctly non-commercial character of the conduct at issue, the
Act of State doctrine appropriately applies in this narrow context.
20
That is why courts “traditionally have assumed that an
ambassador’s powers include the authority to present his or
her country’s position.” Aquamar, 179 F.3d at 1296.
Accordingly, when an ambassador speaks in his or her official
capacity, that statement “must be regarded * * * as an
authoritative representation by the [foreign] government”
itself and, “as such [is] binding and conclusive in the courts of
the United States against that government.” Agency of
Canadian Car & Foundry Co. v. American Can Co., 258 F.
363, 368–369 (2d Cir. 1919). In other words, when an
Ambassador speaks through official Embassy channels, like
the Embassy website, he or she “speaks as the sovereign
authority for the territory” the sending government controls,
Banco Nacional, 376 U.S. at 410, and gives voice to the
foreign government speaking from within its own territory.
That is particularly true when, as here, the Ambassador’s
speech formally communicated the foreign government’s
official view of domestic events occurring within its own
territory, involving its own nationals, and implicating its own
national security. When it comes to that type of sovereign
speech, courts of the United States must treat the
Ambassador’s statements “as an authoritative representation
by the [Kazakh] government” itself. Agency of Canadian
Car, 258 F. at 368–369.
For that reason, the Embassy’s statements on domestic
matters, foreign relations, terrorism, national security, and
similar subjects of traditional sovereign and diplomatic
communication—the very communications the amended
complaint puts into issue here—must be treated as the voice
of the Kazakhstan government itself articulating its views as
officially formulated and dictated from within its own
territory. Whatever Mirtchev’s role in their provenance, once
the statements appeared on the official Embassy website with
the active approval and support of the Ambassador, they
21
became the official speech of the Kazakh government sitting
in Astana, Kazakhstan. And that decision by a foreign
government to engage in official speech about its own
nationals’ domestic activities is the kind of “distinctly
sovereign” act and “formal governmental action” concerning
internal affairs that triggers the Act of State doctrine’s and
international comity’s traditional concerns. McKesson Corp.
v. Islamic Republic of Iran, 672 F.3d 1066, 1073-1074 (D.C.
Cir. 2012); see also Riggs Nat’l Corp. v. Commissioner of
Internal Revenue Service, 163 F.3d 1363, 1366–1368 (D.C.
Cir. 1999) (applying Act of State doctrine to an order by a
foreign finance minister).8
The Houranis’ complaint, moreover, makes that foreign-
sovereign speech an essential predicate for liability. As the
Houranis have pled their case, a court could not find that
Mirtchev orchestrated defamation through the Ambassador’s
“active” publication of “anti-Hourani” defamatory statements
on the official Embassy website without necessarily finding
that the Kazakhstan government’s speech on internal and
quintessentially governmental matters was itself defamatory.
8
Importantly, this case does not involve the commercial activities
of Embassy staff. Cf. Alfred Dunhill, 425 U.S. at 697–698 (Act of
State doctrine does not apply to “the purely commercial conduct of
foreign governments”); id. at 706 (Act of State doctrine not
extended to “acts committed by foreign sovereigns in the course of
their purely commercial operations”) (cited in McKesson, 672 F.3d
at 1074). This case involves concerns of domestic political affairs,
criminality, and national security that are at the core of territorial
sovereign prerogatives. See Amended Complaint ¶¶ 12, 16
(Nazarbayeva “was contemplating a political career as a possible
successor to her father,” and the alleged defamation was intended to
“neutralize the Houranis’ ability to attack [Nazarbayeva] or her
father in response to the extortion of their businesses.”).
22
Indeed, the content of the Ambassador’s official statements
would themselves have to be adjudicated “defamatory” for
there to have been any compensable injury inflicted on the
Houranis by Mirtchev’s conspiracy with the Ambassador and
Embassy. There simply is no basis for finding that the
statements were defamatory for purposes of Mirtchev’s and
Krull Corporation’s liability without also finding that they
were defamatory when coming out of the Kazakhstan
government’s mouth.
This case is very different from Kirkpatrick, in which the
court could set aside the validity of a foreign sovereign’s
actions and focus exclusively on the allegations against
private parties. In Kirkpatrick, the Supreme Court found no
Act of State barrier to allegations that a contract with the
Nigerian government was secured through bribery, even
though entertaining those allegations would have “impugn[ed]
or question[ed] the nobility of a foreign nation’s motivations.”
493 U.S. at 408 (internal quotation marks omitted). There,
deciding the case would not have required the court to declare
the government contract legally invalid, id. at 406, since
liability could attach regardless of the validity of the contract
that the bribery secured or even whether government officials
had accepted the proffered bribe. The Act of State doctrine
accordingly did not apply because the case could be decided
without directly adjudicating the lawfulness of the Nigerian
government’s conduct.
Not so here. The Houranis can recover for the
Ambassador’s statements on the Embassy website only if they
can persuade a factfinder that those official foreign
government statements published on a foreign sovereign’s
own communication platform were themselves defamatory,
and thus invalid. See Kirkpatrick, 493 U.S. at 405 (treating a
sovereign action as “tortious would have required denying [it]
23
legal effect”); Underhill v. Hernandez, 168 U.S. 250, 254
(1897) (Act of State doctrine precluded deciding the
tortiousness of the “acts of a military commander representing
the authority of the revolutionary party as a government”).
Whether or not the Ambassador published those statements at
Mirtchev’s behest, that claim goes beyond impugning the
integrity of a foreign sovereign’s motives. Such a claim “[]or
any asserted defense,” Kirkpatrick, 493 U.S. at 406, could not
be adjudicated without a court having to inquire into the legal
validity or tortiousness of the Kazakh government’s activities
and official government communications.
That the Houranis do not directly sue the Kazakh
government or seek damages from it is beside the point. The
Act of State doctrine turns on what must be adjudicated, and
having intertwined the Ambassador, the Embassy, and
Mirtchev in “active” collaboration and joint publication of the
defamation, the Houranis’ complaint requires that the
defamatory content—the “legality”—of that published and
official foreign government speech be adjudicated. See
Callejo, 764 F.2d at 1113 (“[E]ven if the defendant is a
private party, not an instrumentality of a foreign state, * * *
we nevertheless decline to decide the merits of the case if in
doing so we would need to judge the validity of the public
acts of a sovereign state performed within its own territory.”);
see also Alfred Dunhill of London, Inc. v. Republic of Cuba,
425 U.S. 682, 697 (1976) (Act of State doctrine “foreclos[es]
court adjudications involving the legality of acts of foreign
states on their own soil.”); Abourezk v. Reagan, 785 F.2d
1043, 1071 n.4 (D.C. Cir. 1986) (Bork. J., dissenting) (“A
United States court ought not lightly undertake a role in which
it must issue a public pronouncement that * * * a foreign
government is untruthful about an issue of intergovernmental
relations. Few exercises could be further outside the bounds
24
of judicial competence, or more intrusive with respect to the
conduct of foreign affairs.”).
Finally, it bears noting that the Houranis’ claim arises
under District of Columbia law. Congress did not pass the
statute at issue, nor did the President sign it into law. The
Political Branches thus have not made the sensitive decision
to apply defamation law to foreign sovereigns’ official
communications about events internal to their own territory.
Cf. American Insurance Ass’n v. Garamendi, 539 U.S. 396,
425–426 (2003) (noting the relative “weakness” of local
government’s interest in policing official foreign government
disclosures). Quite the contrary, the Political Branches have
expressly determined that foreign sovereigns should enjoy
immunity for claims of “libel, slander, [and]
misrepresentation” involving non-commercial matters. 28
U.S.C. § 1605(a)(5)(A). The function of the Act of State
doctrine is to promote “international comity, respect for the
sovereignty of foreign nations on their own territory, and the
avoidance of embarrassment to the Executive Branch in its
conduct of foreign relations.” Kirkpatrick, 493 U.S. at 408.
Those same considerations strongly reinforce the
appropriateness of our decision not to tread in an area where
the Political Branches have waved the courts off.
Similar principles apply to the complaint’s allegations
about “internal Kazakh Government memoranda[.]”
Amended Complaint ¶ 59. But that is just the beginning of
those allegations’ problems. Absent from the complaint is
any plausible allegation of harm from those purported internal
governmental exchanges. The only harm that the Houranis
claim they suffered as a result of the alleged defamation is
that they were “discredit[ed] * * * in the eyes of Western
authorities and media.” Amended Complaint ¶ 60. There is
no plausible suggestion that internal Kazakh Government
25
memoranda would have been seen by, let alone
communicated a defamatory message to, “Western authorities
and media.” If they had, they would no longer be “internal”
memoranda.
As to the remaining allegedly defamatory statements, the
amended complaint fails to state a claim under District of
Columbia law. To state a claim, a plaintiff must allege that:
(1) “the defendant made a false and defamatory statement
concerning the plaintiff”; (2) “the defendant published the
statement without privilege to a third party”; (3) “the
defendant’s fault in publishing the statement amounted to at
least negligence”; and (4) either “the statement was actionable
as a matter of law irrespective of special harm,” or “its
publication caused the plaintiff special harm.” Oparaugo,
884 A.2d at 76 (internal quotation marks omitted).
The allegations here stumble at the starting gate. The
complaint claims that Mirtchev “published or caused these
statements to be published,” but it alleges no factual basis
whatsoever for that charge. There is no allegation that
Mirtchev communicated with Forbes.com; the complaint does
not even disclose what was published. There likewise is no
explanation of what the “Eurasian Transition Group” is,
Mirtchev’s relationship to it, or even what the “Aliyev
Dossier” is or actually said. Finally, the complaint is devoid
of any facts at all about the “various other Internet
publications,” what they are, what they said, or Mirtchev’s
involvement with them. Simply alleging that one year
someone said something false on the Internet, without more,
does not come anywhere near stating a plausible defamation
claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (plaintiffs must “nudge[] their claims across the line
from conceivable to plausible”).
26
The conspiracy allegation fails for much the same reason.
The only agreement identified in the defamation section of the
complaint is one between Mirtchev and Dariga Nazarbayeva.
See Amended Complaint ¶¶ 56, 57. The complaint also
alleges that Mirtchev acted “with the active support of the
Kazakh ambassador.” Id. ¶ 58. Those allegations might start
to explain Mirtchev’s involvement in the Kazakh
government’s own internal and embassy publications, but
those statements do nothing to explain his role in the other
referenced publications. There is no allegation of any
agreement between Mirtchev and anyone else leading to the
publications by Forbes, the “Eurasian Transition Group,” or
any of the “various other Internet publications.” The
complaint thus fails to state a claim for defamation or for
conspiracy to defame.9
Rule 11 Sanctions
Mirtchev and Krull Corporation cross-appeal the district
court’s denial of their motion for Rule 11 sanctions. They
9
The complaint also runs into serious difficulties with the District’s
statute of limitations. The Houranis initially filed the complaint in
September 2010, almost two years after the publication of the
allegedly defamatory statements. The statute of limitations for
defamation claims in the District is one year after publication. See
D.C. Code § 12-301(4); Mullin v. Washington Free Weekly, Inc.,
785 A.2d 296, 299 (D.C. 2001). Moreover, the complaint alleges
that Forbes and “various other Internet publications” published the
defamatory statements in 2008, Amended Complaint ¶¶ 59, 62, so
whatever the merits of the Houranis’ claim that they were unaware
of Mirtchev’s involvement until 2010, it is clear that there were
other known potential defendants amenable to suit in 2008.
Nevertheless, because the complaint fails to state a claim, we need
not decide in this case whether the discovery rule or some other
doctrine would rescue the defamation claims from the ordinary
operation of the statute of limitations.
27
claim that the plaintiffs relied on forged documents in district
court, including the Daulbaev letter. They also urge sanctions
because the two versions of the complaint are contradictory
over who took the Houranis’ assets: the Kazakh government
(in the original complaint), or Dariga Nazarbayeva (in the
amended complaint).
The district court acknowledged that the different
versions of the complaint were mutually contradictory, and
found the plaintiffs’ explanations for the inconsistencies
“difficult to accept.” Hourani, 943 F. Supp. 2d at 171–172.
The court made no finding on the forgery issue, however. Id.
at 161–162 n.4.
Rule 11 requires a party to certify, among other things,
that “the factual contentions [in a pleading] have evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further
investigation or discovery[.]” Fed. R. Civ. P. 11(b)(3). Since
the Rule was amended in 1983, courts must apply an
objective standard of reasonableness in determining whether
there has been a violation of the Rule; a finding of bad faith is
not required. See Business Guides, Inc. v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 554 (1991).
But once a district court finds a Rule 11 violation, it
retains broad discretion in imposing sanctions. A sanction
imposed under Rule 11 “must be limited to what suffices to
deter repetition of the conduct or comparable conduct by
others similarly situated.” Fed. R. Civ. P. 11(c)(4). Proper
considerations in exercising that discretion specifically
include “[w]hether the improper conduct was willful, or
negligent,” and “whether it was intended to injure.” Fed. R.
Civ. P. 11, Advisory Committee Note to 1993 amendment.
28
Here, the district court cited the correct objective
standard for determining the existence of a Rule 11 violation
at the outset. See Hourani, 943 F. Supp. 2d at 170. After
examining the allegations of contradictory pleadings, the
court stated that it chose “not to impute bad faith on the part
of the [p]laintiffs, finding ample grounds for dismissing the
complaint on the substantive grounds” identified in its
decision. Id. at 172.
Mirtchev and Krull Corporation claim that the court
abused its discretion by applying a pre-1983 subjective test
when it declined to impute bad faith on the part of the
plaintiffs. We disagree. The court below did not find that
there was any violation of Rule 11; it made no finding either
way so thus had no occasion to apply the Rule’s objective
test. Instead, the court skipped that step and determined that,
even if there had been a violation, it would not exercise its
discretion to dismiss the complaint because of both the lack of
bad faith and the complaint already being dismissed on the
merits. The district court acted well within its discretion in
deciding that devoting further resources to investigating the
alleged forgeries was not worth the candle since the case was
already terminated.
IV
Conclusion
For those reasons, we affirm the judgment dismissing the
case and declining to impose sanctions under Rule 11.
So ordered.