This case arises from multidistrict litigation involving individuals and entities harmed by the September 11, 2001 terrorist attacks, who sued the Republic of Sudan for providing material support to al Qaeda. Plaintiffs brought claims under the Foreign Sovereign Immunities Act (FSIA), specifically the state-sponsored terrorism exception at 28 U.S.C. § 1605A, as well as the JASTA exception at § 1605B and the predecessor statute § 1605(a)(7). The district court denied Sudan's motion to dismiss, ruling that Sudan lacked immunity under these exceptions. Sudan then filed a notice of appeal seeking immediate review of the denial of immunity under § 1605B and § 1605(a)(7), but not under § 1605A. Sudan argued that the collateral-order doctrine allowed this immediate appeal. Plaintiffs moved to dismiss, arguing that § 1605A(f) prohibits such interlocutory appeals in actions brought under that section unless the district court certifies the order for immediate appeal under § 1292(b).
The Second Circuit analyzed whether the statutory appellate bar in 28 U.S.C. § 1605A(f) overrides the collateral-order doctrine. The court first determined that the district court's order was a nonfinal 'order' because it did not conclusively end the litigation. The court then addressed whether the plaintiffs' actions were 'brought under' § 1605A. The court held that because the operative complaints asserted claims under § 1605A's private right of action, the actions fell within the scope of § 1605A(f), regardless of whether other FSIA exceptions were also invoked. The court rejected Sudan's argument that the statute only barred appeals in actions newly 'brought' under § 1605A and not those 'maintained' under it, noting that the legislative history and statutory structure did not support such a distinction. Finally, the court concluded that the plain text of § 1605A(f) states that appeals from nonfinal orders in such actions 'may only be taken' pursuant to § 1292(b) certification. The court found this language unambiguous, stating that § 1605A(f) eliminates all interlocutory appeals under the collateral-order doctrine from orders falling within its scope. The court emphasized that Congress enacted this bar specifically to prevent state sponsors of terrorism from using the collateral-order doctrine to delay justice for victims.
The Republic of Sudan cannot appeal the district court's denial of sovereign immunity until the case reaches a final judgment or the district court certifies the order for immediate appeal under § 1292(b). This decision reinforces the legislative intent to prevent state sponsors of terrorism from delaying litigation through interlocutory appeals. The appeal is dismissed without prejudice, meaning Sudan may seek to reinstate the appeal within thirty days if the district court enters a final judgment or provides the necessary certification.
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