In re Terrorist Attacks on September 11, 2001, 117 F.4th 13 (2d Cir. 2024) was decided by the United States Court of Appeals for the Second Circuit on September 3, 2024 (No. 23-1319(L) (consolidated with Nos. 23-1251, 23-1294, 23-1298, 23-1299, 23-1300, 23-1301, 23-1308, 23-1318, 23-1342, 23-7261)). The Second Circuit granted the plaintiffs' motion and dismissed Sudan's appeal for want of appellate jurisdiction, holding that § 1605A(f) eliminates collateral-order appeals from any nonfinal order in an action brought under § 1605A, including rulings within that order on other FSIA exceptions. Dismissal was without prejudice to reinstatement within thirty days after entry of final judgment under 28 U.S.C. § 1291. A designated state sponsor of terrorism must therefore litigate to judgment before testing its immunity on appeal.
The question before the court
Where a plaintiff sues a foreign state under the FSIA's state-sponsored terrorism exception, may that state take an immediate collateral-order appeal from the denial of sovereign immunity by confining its appeal to rulings on other FSIA exceptions?
The governing rule
Under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., a foreign state is presumptively immune unless a statutory exception applies. Section 1605A withdraws immunity and confers subject-matter jurisdiction where money damages are sought for personal injury or death caused by torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support for such an act by an official, employee, or agent of a designated state sponsor of terrorism, 28 U.S.C. § 1605A(a)(1), (a)(2)(A)(i)(I), and supplies a private right of action, § 1605A(c). Section 1605A(f), added by the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083(a)(1), 122 Stat. 3, 338-41, provides that 'in an action brought under this section, appeals from orders not conclusively ending the litigation may only be taken' with district court certification under 28 U.S.C. § 1292(b). The separate JASTA exception, 28 U.S.C. § 1605B, and the repealed predecessor, § 1605(a)(7), carry no comparable bar. A denial of FSIA immunity ordinarily satisfies the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
How the court applied it
Sudan appealed a single August 10, 2023 district court order that had denied its immunity motion under both § 1605A (and its predecessor § 1605(a)(7)) and § 1605B. To escape § 1605A(f), Sudan drew a line through the order, appealing only the § 1605B and § 1605(a)(7) rulings and invoking the collateral-order doctrine, which normally makes a denial of foreign sovereign immunity immediately appealable. The panel refused to let the appeal be carved that way. Reading the statute's plain text, it observed that § 1605A(f) speaks to nonfinal 'orders,' not to individual issues or rulings inside them — drawing the analogy to BP p.l.c. v. Mayor and City Council of Baltimore, where the Supreme Court read a comparable appellate-review statute to reach the whole of an order. Because the denial of the motion to dismiss did not end the litigation, it was a nonfinal order within § 1605A(f). The court then asked whether the actions were 'brought under' § 1605A, and held that the operative complaints' claims under § 1605A(c) and (d), which the district court sustained, sufficed. It declined to reach Sudan's argument that those § 1605A claims were time-barred under the NDAA § 1083(c)(3) related-action mechanism, since that attack was itself an impermissible interlocutory challenge to the very ruling § 1605A(f) shields. Answering Sudan's policy objection, the court read Congress as deliberately stripping state sponsors of terrorism of the collateral-order benefit.
What the court concluded
The Second Circuit granted the plaintiffs' motion and dismissed Sudan's appeal for want of appellate jurisdiction, holding that § 1605A(f) eliminates collateral-order appeals from any nonfinal order in an action brought under § 1605A, including rulings within that order on other FSIA exceptions. Dismissal was without prejudice to reinstatement within thirty days after entry of final judgment under 28 U.S.C. § 1291. A designated state sponsor of terrorism must therefore litigate to judgment before testing its immunity on appeal.
From the opinion
- “We hold that § 1605A(f) eliminates all interlocutory appeals under the collateral-order doctrine from orders falling within its scope, including Sudan's proposed appeal.” — Statement of the holding in the introductory summary and repeated in the opinion of Judge Walker
- “Subsection 1605A(f) restricts our review of nonfinal "orders," rather than specific issues or rulings within those orders.” — Part II.A.1, rejecting Sudan's attempt to appeal only the § 1605B and § 1605(a)(7) portions of the district court's order
- “a foreign state that sponsors terrorist acts thereby forfeits the benefits of foreign sovereign immunity” — Closing discussion answering Sudan's argument that the holding undermines the FSIA's protective purpose
Why it matters for cyber conflict
If a state sponsor of terrorism is sued for backing a destructive cyber operation, § 1605A(f) means it cannot stall the case for years on an interlocutory immunity appeal — it must answer in the district court first. The procedural asymmetry is a real, and underappreciated, advantage for victims suing designated sponsors rather than states reachable only under other FSIA exceptions.
Editorial note: this case note was drafted with AI assistance by the JLCW Research Desk, checked against the text of the opinion, and reviewed by a human editor before publication. Every quotation above is carried through from the opinion itself. See our editing policy.
Read the opinion: In re Terrorist Attacks on September 11, 2001 on CourtListener. This note is a summary prepared by the Journal, not legal advice, and not a substitute for the opinion itself.
More on International Law · All case notes · Peer-reviewed scholarship