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 state provided material support to al Qaeda. Sudan moved to dismiss, claiming foreign sovereign immunity under the Foreign Sovereign Immunities Act. The district court denied the motion, finding that Sudan lacked immunity under two exceptions: 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 Sudan filed an interlocutory appeal, seeking immediate review only of the rulings regarding § 1605B and the repealed § 1605(a)(7), arguing that the collateral-order doctrine allowed it to bypass the final judgment rule. However, the district court had not certified the order for immediate appeal under 28 U.S.C. § 1292(b).
The Second Circuit focused on 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 certified under § 1292(b). The court held that this statutory bar eliminates the collateral-order doctrine as a basis for interlocutory appeals in such cases. The court rejected Sudan's argument that the bar only applied to appeals specifically challenging § 1605A rulings. The opinion clarified that § 1605A(f) restricts review of the entire nonfinal order, not just specific issues within it. Furthermore, the court determined that the plaintiffs' actions were 'brought under' § 1605A because the operative complaints asserted claims under that section's private right of action. The court noted that while Sudan raised timeliness and 'standalone' exception arguments, these were premature and could not be reviewed at the interlocutory stage due to the very appellate bar they were contesting. Legislative history confirmed Congress intended § 1605A(f) to prevent state sponsors of terrorism from using the collateral-order doctrine to delay justice.
Sudan must wait until the district court issues a final judgment on the merits of the case before it can appeal the denial of its sovereign immunity claims. The dismissal is without prejudice, allowing Sudan to seek reinstatement of the appeal within thirty days of the final judgment. This ruling reinforces the legislative intent to expedite litigation against state sponsors of terrorism by removing procedural delays that foreign states might otherwise use to prolong the process.
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