This case arises from multidistrict litigation involving individuals and insurers harmed by the September 11, 2001 terrorist attacks. Plaintiffs filed suits against the Republic of Sudan, alleging that the country provided material support to al Qaeda, including harboring Osama Bin Laden and sponsoring training camps, which enabled the attacks. The complaints asserted claims under the Foreign Sovereign Immunities Act, specifically the state-sponsored terrorism exception found at 28 U.S.C. § 1605A, as well as the Justice Against Sponsors of Terrorism Act exception at § 1605B and the predecessor statute § 1605(a)(7). Sudan moved to dismiss, claiming foreign sovereign immunity. The district court denied the motion, finding that Sudan lacked immunity under both § 1605A and § 1605B. Sudan then filed a notice of appeal seeking immediate, interlocutory review of the denial of immunity under § 1605B and § 1605(a)(7), but not under § 1605A itself. Sudan argued that the collateral-order doctrine allowed this immediate appeal despite the lack of a final judgment. Plaintiffs moved to dismiss the appeal, arguing that § 1605A(f) prohibits such interlocutory appeals entirely.
The Second Circuit held that the district court lacked jurisdiction to hear Sudan's appeal. The court began by analyzing the text of 28 U.S.C. § 1605A(f), which states that in an action brought under § 1605A, appeals from orders not conclusively ending the litigation may only be taken if the district court certifies the order for immediate appeal under 28 U.S.C. § 1292(b). The court found that the district court's order was nonfinal and that no such certification had been issued. Sudan argued that § 1605A(f) only barred appeals regarding § 1605A rulings, not rulings on other exceptions like § 1605B. The court rejected this, stating that the statute restricts review of the entire 'order,' not just specific issues within it. The court also addressed Sudan's argument that the plaintiffs' actions were not 'brought under' § 1605A because they were originally filed under the predecessor statute § 1605(a)(7) and later converted. The court determined that the complaints explicitly asserted claims under § 1605A's private right of action, meaning the actions were 'brought under' the section. Consequently, the appellate bar applied. The court further concluded that § 1605A(f) renders the collateral-order doctrine inapplicable in this context. The plain text of the statute limits appeals to those certified under § 1292(b), leaving no room for the collateral-order doctrine. Legislative history supported this reading, showing Congress intended to eliminate the ability of state sponsors of terrorism to use the collateral-order doctrine to delay justice for victims.
Sudan's interlocutory appeal is dismissed without prejudice. The Republic of Sudan must now proceed through the district court litigation to a final judgment on the merits. Only after a final judgment is entered can Sudan seek appellate review of the district court's denial of sovereign immunity. This ruling ensures that state sponsors of terrorism cannot use procedural mechanisms to delay the resolution of victim suits, but it also means Sudan must litigate the full case before any appellate court can review its immunity claims.
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