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 Sudan knowingly provided material support to al Qaeda, including harboring Osama Bin Laden and sponsoring training camps. The complaints asserted claims under the Foreign Sovereign Immunities Act, specifically the state-sponsored terrorism exception 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, asserting foreign sovereign immunity. The district court denied Sudan's motion, concluding that Sudan lacked immunity under both § 1605A and § 1605B. Sudan filed an interlocutory appeal, but limited its challenge to the district court's rulings on § 1605B and § 1605(a)(7), arguing that the collateral-order doctrine allowed immediate review of those specific denials of immunity. The plaintiffs moved to dismiss the appeal, contending that § 1605A(f) barred any interlocutory appeal in actions brought under that section without certification.
The Second Circuit analyzed whether the statutory bar in 28 U.S.C. § 1605A(f) precluded Sudan from invoking the collateral-order doctrine. The court began with the plain text of § 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 district court had not provided such certification. Sudan argued that because its appeal was limited to rulings on § 1605B and § 1605(a)(7), the § 1605A(f) bar did not apply. The court rejected this, holding that § 1605A(f) restricts review of the entire nonfinal 'order,' not just specific issues within it. The court further determined that the plaintiffs' actions were 'brought under' § 1605A because the operative complaints asserted claims under § 1605A's private right of action and additional-damages provision. The court declined to reach Sudan's arguments regarding the timeliness of the claims or whether § 1605A was a 'standalone' exception, noting that such challenges would require reviewing the merits of the district court's jurisdictional holding, which § 1605A(f) prohibits at this interlocutory stage. Finally, the court addressed the legislative history, noting that Congress enacted § 1605A(f) specifically to eliminate the ability of state sponsors of terrorism to use the collateral-order doctrine to delay justice for victims. Consequently, the court held that § 1605A(f) renders the collateral-order doctrine inapplicable as a jurisdictional basis for interlocutory appeals from orders falling within its scope.
Sudan's appeal is dismissed without prejudice. The Republic of Sudan must wait for the district court to enter a final judgment on the merits of the underlying terrorism claims before it can challenge its immunity status. This decision reinforces the congressional intent to prevent state sponsors of terrorism from using procedural mechanisms to delay litigation, ensuring that victims can proceed to trial without interruption from interlocutory appeals. The ruling leaves open the question of whether § 1605A is a 'standalone' exception or if it can coexist with other FSIA exceptions, as the court declined to address the merits of that issue at this stage.
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