This case arises from multidistrict litigation involving individuals and insurers harmed by the September 11, 2001 terrorist attacks. Plaintiffs sued the Republic of Sudan, alleging the country provided material support to al Qaeda. The district court denied Sudan's motion to dismiss, ruling that Sudan lacked sovereign immunity under two exceptions to the Foreign Sovereign Immunities Act (FSIA): the state-sponsored terrorism exception under 28 U.S.C. § 1605A and the Justice Against Sponsors of Terrorism Act exception under § 1605B. Sudan filed an interlocutory appeal, seeking to challenge the denial of immunity under § 1605B and the repealed § 1605(a)(7), but not the ruling under § 1605A. Sudan argued that the collateral-order doctrine allowed immediate appeal of these specific immunity denials. However, the plaintiffs moved to dismiss, citing the specific appellate restrictions in § 1605A(f).
The Second Circuit analyzed whether the statutory bar in 28 U.S.C. § 1605A(f) precluded Sudan's appeal. 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 actions were 'brought under' § 1605A. The court held that because the operative complaints asserted claims under § 1605A's private right of action, the entire case fell within the scope of § 1605A(f), regardless of whether Sudan intended to appeal only the rulings on other FSIA exceptions. The court rejected Sudan's argument that the statute distinguished between actions 'brought' and 'maintained' under the section, noting that the legislative history of the National Defense Authorization Act of 2008 explicitly intended to eliminate the ability of state sponsors of terrorism to use the collateral-order doctrine to delay justice. The court concluded that § 1605A(f) renders the collateral-order doctrine inapplicable to any interlocutory appeal in an action brought under that section, absent certification under § 1292(b).
Sudan's appeal is dismissed, meaning the foreign state cannot challenge the denial of sovereign immunity until the district court issues a final judgment on the merits of the case. This decision reinforces the congressional intent to prevent state sponsors of terrorism from using procedural mechanisms to delay litigation. The dismissal is without prejudice, allowing Sudan to file a new appeal once the district court enters a final judgment.
Podcast (federal-narrative-summaries): Play in new window | Download