Plaintiffs, including individuals harmed in the September 11 attacks and their insurers, filed consolidated lawsuits against the Republic of Sudan in the Southern District of New York. The complaints alleged that Sudan provided material support to al Qaeda and sought damages under the Foreign Sovereign Immunities Act, specifically the state-sponsored terrorism exception found at 28 U.S.C. § 1605A, as well as the JASTA exception at § 1605B. Sudan moved to dismiss, claiming foreign sovereign immunity. The district court denied the motion, ruling that Sudan lacked immunity under both § 1605A and § 1605B. Sudan then filed an interlocutory appeal, seeking to challenge only the denial of immunity under § 1605B and the repealed predecessor statute § 1605(a)(7), while relying on the collateral-order doctrine to bypass the final judgment rule. The plaintiffs moved to dismiss the appeal, arguing that § 1605A(f)'s specific appellate bar precluded any interlocutory review in this case.
The Second Circuit analyzed the interplay between the general collateral-order doctrine and the specific statutory bar in 28 U.S.C. § 1605A(f). The court began by noting that § 1605A(f) states that in an action brought under that section, appeals from orders not conclusively ending the litigation may only be taken if the district court certifies the order under 28 U.S.C. § 1292(b). The court found that the district court's order denying immunity was a nonfinal order and that the plaintiffs' actions were brought under § 1605A because the operative complaints asserted claims under that statute's private right of action. The court rejected Sudan's argument that the appellate bar only applied to rulings on § 1605A itself. The statute restricts review of the entire 'order,' not just specific issues within it. Therefore, even though Sudan sought to appeal only the rulings on § 1605B and § 1605(a)(7), the presence of § 1605A claims in the action triggered the bar. Furthermore, the court held that § 1605A(f) renders the collateral-order doctrine inapplicable as a jurisdictional basis for interlocutory appeals. The plain text of the statute limits appeals to those certified under § 1292(b), leaving no room for the collateral-order doctrine. Legislative history confirmed Congress's intent to eliminate the ability of state sponsors of terrorism to use the collateral-order doctrine to delay justice for victims.
The appeal is dismissed without prejudice. The Republic of Sudan cannot immediately challenge the denial of immunity under other FSIA exceptions while the case is still pending. Sudan must wait for a final judgment to appeal, or it may attempt to persuade the district court to certify the order for immediate appeal under 28 U.S.C. § 1292(b). This decision reinforces the statutory design to prevent state sponsors of terrorism from using procedural doctrines to delay litigation against victims.
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