In re: Terrorist Attacks on September 11, 2001

23-1319(L)
In re: Terrorist Attacks on September 11, 2001
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2023
A RGUED: A PRIL 9, 2024
D ECIDED: S EPTEMBER 3, 2024
Nos. 23-1319(L), 23-1251, 23-1294, 23-1298, 23-1299, 23-1300, 23-1301,
23-1308, 23-1318, 23-1342, 23-7261.
IN RE : T ERRORIST ATTACKS ON S EPTEMBER 11, 2001*
________
Appeal from the United States District Court
for the Southern District of New York.
________
Before: WALKER , MENASHI, Circuit Judges, and MERCHANT, District
Judge.†
This case concerns an aspect of one exception, among others, to
the sovereign immunity generally granted to foreign states under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq.
Specifically, the FSIA’s state-sponsored terrorism exception under
§ 1605A waives immunity and grants subject-matter jurisdiction in
* The Clerk of Court is respectfully directed to amend the official caption in this
case to conform with the caption above.
† Judge Orelia E. Merchant, of the United States District Court for the Eastern
District of New York, sitting by designation.

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cases concerning a foreign state’s alleged commission or sponsorship
of an act of terrorism, see id. § 1605A(a), provides a private right of
action against foreign states, see id. § 1605A(c), and, relevant here,
limits appeals in actions brought under the section, see id. § 1605A(f)
(the “appellate bar”). Invoking this last provision, the plaintiffs in this
multidistrict litigation, who are individuals and entities harmed as a
result of the September 11, 2001 terrorist attacks, move to dismiss an
appeal by the defendant, the Republic of the Sudan, for lack of
appellate jurisdiction.
As pertinent here, Plaintiffs brought claims against Sudan
under § 1605A for providing material support to the terrorist
organization al Qaeda in the years leading up to the September 11
attacks. Sudan moved to dismiss Plaintiffs’ actions, asserting foreign
sovereign immunity under the FSIA. In a single order entered in
several related actions, the district court denied Sudan’s motion.
The district court concluded that Sudan lacked immunity
under two terrorism-related exceptions to the FSIA: (1) § 1605A,
including its repealed predecessor statute, § 1605(a)(7); and (2)
§ 1605B. Sudan filed a notice of appeal from the district court’s order,
seeking interlocutory review of the district court’s denial of immunity
under § 1605B and § 1605(a)(7) but not its denial under § 1605A.
Sudan contends that we have jurisdiction over its appeal
pursuant to the collateral-order doctrine, which ordinarily permits
immediate appeals from denials of immunity under the FSIA. See
Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 136 (2d Cir. 2012).
Notwithstanding this doctrine, Plaintiffs argue that we lack appellate
jurisdiction here because of § 1605A(f)’s appellate bar.
Subsection 1605A(f) provides that “[i]n an action brought under

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[§ 1605A], appeals from orders not conclusively ending the litigation
may only be taken” if the district court has certified the order for
immediate appeal pursuant to 28 U.S.C. § 1292(b). The district court
did not do so here.
This case thus presents the question whether § 1605A(f) bars a
foreign state from bringing an appeal under the collateral-order
doctrine without § 1292(b) certification, where the appeal is limited to
rulings on FSIA exceptions other than § 1605A. 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.
________
S EAN P. C ARTER , Cozen O’Connor, Philadelphia,
PA, for Plaintiffs–Appellees–Cross-Appellants Federal
Insurance Company et al.
C HRISTOPHER M. CURRAN, White & Case LLP,
Washington, DC, for Defendant–Appellant–Cross-
Appellee Republic of the Sudan.
________
JOHN M. WALKER , JR ., Circuit Judge:
This case concerns an aspect of one exception, among others, to
the sovereign immunity generally granted to foreign states under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq.
Specifically, the FSIA’s state-sponsored terrorism exception under
§ 1605A waives immunity and grants subject-matter jurisdiction in
cases concerning a foreign state’s alleged commission or sponsorship

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of an act of terrorism, see id. § 1605A(a), provides a private right of
action against foreign states, see id. § 1605A(c), and, relevant here,
limits appeals in actions brought under the section, see id. § 1605A(f)
(the “appellate bar”). Invoking this last provision, the plaintiffs in this
multidistrict litigation, who are individuals and entities harmed as a
result of the September 11, 2001 terrorist attacks, move to dismiss an
appeal by the defendant, the Republic of the Sudan, for lack of
appellate jurisdiction.
As pertinent here, Plaintiffs brought claims against Sudan
under § 1605A for providing material support to the terrorist
organization al Qaeda in the years leading up to the September 11
attacks. Sudan moved to dismiss Plaintiffs’ actions, asserting foreign
sovereign immunity under the FSIA. In a single order entered in
several related actions, the district court denied Sudan’s motion.
The district court concluded that Sudan lacked immunity
under two terrorism-related exceptions to the FSIA: (1) § 1605A,
including its repealed predecessor statute, § 1605(a)(7); and (2)
§ 1605B. Sudan filed a notice of appeal from the district court’s order,
seeking interlocutory review of the district court’s denial of immunity
under § 1605B and § 1605(a)(7) but not its denial under § 1605A.
Sudan contends that we have jurisdiction over its appeal
pursuant to the collateral-order doctrine, which ordinarily permits
immediate appeals from denials of immunity under the FSIA. See
Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 136 (2d Cir. 2012).
Notwithstanding this doctrine, Plaintiffs argue that we lack appellate
jurisdiction here because of § 1605A(f)’s appellate bar. Subsection
1605A(f) provides that “[i]n an action brought under [§ 1605A],
appeals from orders not conclusively ending the litigation may only

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be taken” if the district court has certified the order for immediate
appeal pursuant to 28 U.S.C. § 1292(b). The district court did not do
so here.
This case thus presents the question whether § 1605A(f) bars a
foreign state from bringing an appeal under the collateral-order
doctrine without § 1292(b) certification, where the appeal is limited to
rulings on FSIA exceptions other than § 1605A. 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.
BACKGROUND
Between 2002 and 2004, five sets of plaintiffs filed suits against
the Republic of the Sudan to recover damages for harms arising out
of the September 11, 2001 terrorist attacks.1 Additional plaintiffs filed
related suits in 2020.2 The plaintiffs in all suits (collectively,
“Plaintiffs”) are individuals killed or injured in the attacks, their
families, and insurers who paid out claims for losses from the attacks.
Plaintiffs’ actions have been consolidated for multidistrict litigation
proceedings. See In re Terrorist Attacks on Sept. 11, 2001, No. 03-md-
1 These suits include Ashton v. Al Qaeda Islamic, No. 02-cv-6977 (S.D.N.Y. filed
Sept. 4, 2002); Burnett v. Al Baraka Inv. & Dev. Corp., No. 03-cv-9849 (S.D.N.Y. filed
Dec. 11, 2003); Fed. Ins. v. Al Qaida, No. 03-cv-6978 (S.D.N.Y. filed Sept. 10, 2003);
Cont’l Cas. Co. v. Al Qaeda Islamic Army, No. 04-cv-5970 (S.D.N.Y. filed Sept. 1,
2004); and Est. of John P. O’Neill, Sr. v. Kingdom of Saudi Arabia, No. 04-cv-1922
(S.D.N.Y. filed Mar. 10, 2004).
2 These suits include Aronow v. Republic of Sudan, No. 20-cv-7733 (S.D.N.Y. filed
Sept. 18, 2020); Betru v. Republic of Sudan, No. 20-cv-10615 (S.D.N.Y. filed Dec. 16,
2020); Parker v. Republic of the Sudan, No. 20-cv-10657 (S.D.N.Y. filed Dec. 17, 2020);
and Nolan v. Republic of the Sudan, No. 20-cv-10720 (S.D.N.Y. filed Dec. 18, 2020).

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1570 (S.D.N.Y. filed Dec. 10, 2003).
Initially, Sudan failed to participate in the district court
proceedings, leading the Clerk of Court to enter several default
judgments against it. In 2020, Sudan finally appeared in the litigation.
The district court then vacated the default judgments and approved
the filing of two new consolidated complaints—the Ashton Amended
Complaint (“AAC”) and the Consolidated Amended Complaint
(“CAC”)—covering the plaintiffs in the five original actions.3 The
district court also approved procedures whereby other plaintiffs
could either file actions adopting the allegations of the AAC or the
CAC or else conform existing complaints to one of these amended
complaints. See Order, In re Terrorist Attacks on Sept. 11, 2001, No. 03-
md-1570, ECF No. 6547. As noted, additional plaintiffs then did so.4
In the AAC and the CAC, Plaintiffs allege that Sudan
knowingly provided material support to al Qaeda beginning in the
early 1990s, including by helping to raise funds for the terrorist
organization, harboring its founder Osama Bin Laden, sponsoring
terrorist training camps, and providing diplomatic cover to al Qaeda
operatives. Without Sudan’s support, Plaintiffs allege, al Qaeda
would not have been capable of perpetrating the September 11
attacks. On that theory, Plaintiffs seek to hold Sudan liable for the
mass destruction, injuries, and deaths that resulted from the attacks.
As relevant here, the AAC and the CAC assert claims against
3 The Ashton Amended Complaint covers the plaintiffs in Ashton v. Al Qaeda
Islamic, No. 02-cv-6977 (S.D.N.Y. filed Sept. 4, 2002). See Am. Compl., In re Terrorist
Attacks, No. 03-md-1570, ECF No. 6537. The CAC covers the plaintiffs in the other
four original actions. See Am. Compl., id., ECF No. 6539.
4 See supra note 2 and accompanying text.

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Sudan pursuant to § 1605A’s private right of action, § 1605A(c).5 The
CAC additionally asserts claims pursuant to § 1605A’s additional-
damages provision, § 1605A(d), which authorizes related actions for
property loss and loss claims under insurance policies. In previous
complaints, Plaintiffs had asserted claims under § 1605A’s
predecessor statute, § 1605(a)(7), which Congress repealed and
replaced with the new § 1605A in 2008. A decade later, in 2018, the
plaintiffs in one of the five original actions became the first to assert
§ 1605A claims against Sudan in a supplemental complaint. See
Compl., O’Neill v. Republic of the Sudan, No. 18-cv-12114 (S.D.N.Y.
filed Dec. 21, 2018), ECF No. 1. A few years after that, all the original
actions were consolidated in the AAC and the CAC. Thus, all
Plaintiffs are now asserting § 1605A claims against Sudan.
After Plaintiffs filed the AAC and the CAC, Sudan moved to
dismiss their actions pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(2), and 12(b)(6) for lack of subject-matter
jurisdiction, lack of personal jurisdiction, and failure to state a claim,
respectively. As pertinent here, Sudan argued that subject-matter
jurisdiction was lacking because it was immune from suit under the
FSIA and no exception to foreign sovereign immunity applied.
In a Memorandum Decision and Order dated August 10, 2023,
the district court adopted a magistrate judge’s Report and
Recommendation to deny Sudan’s motion to dismiss. First, the
district court determined that it possessed subject-matter jurisdiction
over Plaintiffs’ actions under two FSIA exceptions: (1) the state-
5 The complaints also assert claims under the Anti-Terrorism Act, 18 U.S.C. § 2331
et seq.; Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222, 130 Stat. 852
(2016); Alien Tort Statute, 28 U.S.C. § 1350; Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961 et seq.; international law, and state tort law.

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sponsored terrorism exception, 28 U.S.C. § 1605A, including its
repealed predecessor statute, § 1605(a)(7); and (2) the Justice Against
Sponsors of Terrorism Act (“JASTA”) exception, 28 U.S.C. § 1605B.6
Second, the district court found that it had personal jurisdiction over
Sudan. Third, the district court concluded that Plaintiffs had
adequately pled most claims, including the § 1605A claims.
Sudan filed a notice of appeal from the August 10, 2023 order.
In its Civil Appeal Pre-Argument Statement, Sudan indicates that it
intends to challenge the district court’s denial of immunity and
exercise of subject-matter jurisdiction only under § 1605B and
§ 1605(a)(7), and not under § 1605A. Sudan asserts that we have
jurisdiction over its appeal under the collateral-order doctrine, which
“allows an immediate appeal from an order denying immunity under
the FSIA.” Rogers, 673 F.3d at 136 (quoting Kensington Int’l Ltd. v.
Itoua, 505 F.3d 147, 153 (2d Cir. 2007)).7
DISCUSSION
Plaintiffs now move to dismiss Sudan’s appeal for lack of
6 Section 1605B was enacted in 2016 specifically to allow 9/11 suits against foreign
states that were not designated state sponsors of terrorism. See 162 Cong. Rec.
S6167 (daily ed. Sept. 28, 2016) (statement of Sen. Richard Blumenthal).
Section 1605B withdraws a foreign state’s immunity “in any case in which money
damages are sought against a foreign state for physical injury . . . or death
occurring in the United States and caused by—(1) an act of international terrorism
in the United States; and (2) a tortious act or acts of the foreign state . . . regardless
where th[ose] tortious act[s] . . . occurred.” 28 U.S.C. § 1605B(b).
7 Sudan also claims that our jurisdiction over its appeal arises under 28 U.S.C.
§ 1291, which permits “appeals from all final decisions of the district courts.” 28
U.S.C. § 1291. To the extent that Sudan argues that § 1291 provides a separate basis
for appellate jurisdiction independent of the collateral-order doctrine, we reject
that argument. See infra Part I.

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appellate jurisdiction. Plaintiffs argue that § 1605A(f) of the FSIA—
which imposes limitations on appeals in certain FSIA cases—bars us
from hearing Sudan’s appeal. Resolving Plaintiffs’ motion thus
requires us to examine the interplay between § 1605A(f)’s appellate
bar and the collateral-order doctrine.
Subsection 1605A(f) provides that “[i]n an action brought
under [§ 1605A], appeals from orders not conclusively ending the
litigation may only be taken” if the district court has certified the
order for immediate appeal under 28 U.S.C. § 1292(b). See 28 U.S.C.
§ 1605A(f); id. § 1292(b). The district court did not do so here. Even
so, Sudan argues that § 1605A(f) does not preclude it from invoking
the collateral-order doctrine to bring an appeal limited to the district
court’s § 1605B and § 1605(a)(7) rulings. Plaintiffs counter that
§ 1605A(f) eliminates all appeals under the collateral-order doctrine
in actions brought under § 1605A, whether or not other FSIA
exceptions are also applicable.
We think Plaintiffs have the better view. Below, we discuss the
legal standards applicable to this motion and then turn to the merits
of the parties’ arguments. We conclude that § 1605A(f) requires
dismissal of Sudan’s appeal.
I. Legal Standards
Our appellate jurisdiction is circumscribed by statute. We
possess jurisdiction under 28 U.S.C. § 1291 to review a district court’s
“final decisions,” and under § 1292(b) to review interlocutory orders
that the district court has certified as appealable. In § 1291’s final-
judgment rule, “Congress has expressed a preference [against] having
litigation punctuated by ‘piecemeal appellate review of trial court

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decisions which do not terminate the litigation.’” Fischer v. N. Y. State
Dep’t of L., 812 F.3d 268, 273 (2d Cir. 2016) (quoting United States v.
Hollywood Motor Car Co., 458 U.S. 263, 265 (1982)).
As a denial of a motion to dismiss, the district court’s
August 10, 2023 order did not “end[] the litigation on the merits” and
would therefore not ordinarily be appealable as a “final decision”
under § 1291. In re Roman Cath. Diocese of Albany, N.Y., Inc., 745 F.3d
30, 35 (2d Cir. 2014) (per curiam) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978)). Nor is it an interlocutory order that
has been certified as appealable. See 28 U.S.C. § 1292(b). For our
purposes, that leaves only the collateral-order doctrine as a possible
basis for our jurisdiction over Sudan’s appeal. We review this
doctrine and the FSIA’s appellate bar in turn.
A. The Collateral-Order Doctrine
While sometimes described as an exception to § 1291’s final-
judgment rule, the collateral-order doctrine is instead “best
understood . . . as a ‘practical construction’ of it.” Will v. Hallock, 546
U.S. 345, 349 (2006) (quoting Digit. Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 867 (1994)). This doctrine permits our review of a “small
class” of interlocutory rulings that do not end the litigation but are
nevertheless “too important to be denied review and too independent
of the cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.” Id. (first quoting Behrens v.
Pelletier, 516 U.S. 299, 305 (1996); and then quoting Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
An appeal can proceed under the collateral-order doctrine if
three requirements are met. The order appealed from must “[1]

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conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the action, and
[3] be effectively unreviewable on appeal from a final judgment.” Id.
(quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144 (1993)). These requirements are stringent; “if any one [of
them] is unsatisfied, the order is not immediately appealable under
this doctrine.” Fischer, 812 F.3d at 274.
A denial of foreign sovereign immunity under the FSIA
“generally satisfies the conditions necessary to invoke the collateral
order doctrine,” EM Ltd. v. Banco Central De La República Argentina,
800 F.3d 78, 87 (2d Cir. 2015), and is therefore immediately appealable,
see Rogers, 673 F.3d at 136.
B. The FSIA and the Appellate Bar Under § 1605A(f)
Notwithstanding the collateral-order doctrine’s general
applicability to FSIA cases, § 1605A(f)’s appellate bar restricts certain
interlocutory appeals implicating § 1605A.
As previewed above, § 1605A is one of several statutory
exceptions that withdraw the jurisdictional immunity generally
conferred upon foreign states under the FSIA. See 28 U.S.C. §§ 1604,
1605A. In civil actions against foreign states, subject-matter
jurisdiction “depends on the existence of one of the[se] specified
exceptions to foreign sovereign immunity.” Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 435 (1989) (quoting
Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983)).

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Section 1605A, the FSIA’s state-sponsored terrorism exception,
withdraws a foreign state’s immunity and confers subject-matter
jurisdiction
in any case not otherwise covered by this chapter in
which money damages are sought against a foreign state
for personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or resources
for such an act if such act or provision of material support
or resources is engaged in by an official, employee, or
agent of such foreign state while acting within the scope
of his or her office, employment, or agency.
28 U.S.C. § 1605A(a)(1); see also id. § 1605A(a)(2) (granting jurisdiction
over claims under this section that meet certain specifications). This
exception may be invoked only against a foreign state that was
designated as a “state sponsor of terrorism” by the State Department
at the time that the terrorist act occurred or as a result of such act. Id.
§ 1605A(a)(2)(A)(i)(I); see also id. § 1605A(h)(6) (defining the term
“state sponsor of terrorism”).
Enacted in 1996, the state-sponsored terrorism exception was
originally codified at 28 U.S.C. § 1605(a)(7). See Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104–132, § 221(a),
110 Stat. 1214, 1241–42. Congress later amended and recodified the
exception at 28 U.S.C. § 1605A as part of the National Defense
Authorization Act for Fiscal Year 2008 (“NDAA”), Pub. L. 110–181,
§ 1083(a)(1), 122 Stat. 3, 338–41.

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The NDAA amendments to the state-sponsored terrorism
exception “clear[ed] away a number of legal obstacles, including
adverse court rulings, that ha[d] stifled plaintiffs’ efforts to obtain
relief in civil actions against designated state sponsors of terrorism.”
In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 40
(D.D.C. 2009). For example, Congress expressly created a private
right of action against foreign states for acts falling within the
terrorism exception, see 28 U.S.C. § 1605A(c), in response to a court
decision declining to find one under § 1605(a)(7), see Cicippio-Puleo v.
Islamic Republic of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004); see also 154
Cong. Rec. S54–55 (daily ed. Jan. 22, 2008) (statement of Sen. Frank
Lautenberg) (criticizing Cicippio-Puleo). Particularly relevant to this
case, the NDAA amendments also added § 1605A(f)’s appellate bar.
See Simon v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008) (noting
that § 1605A is “more advantageous to plaintiffs” than § 1605(a)(7)
because the later statute includes the appellate bar).
II. Analysis
Invoking § 1605A(f), Plaintiffs challenge our jurisdiction to
consider Sudan’s appeal. As noted, Sudan seeks to appeal from the
district court’s August 10, 2023 order denying Sudan’s motion to
dismiss on foreign sovereign immunity grounds. As a preliminary
matter, Sudan disputes that its appeal, which it limited to the district
court’s denial of immunity under § 1605B and § 1605(a)(7), comes
within the purview of § 1605A(f)’s appellate bar. And even if
§ 1605A(f) applies, Sudan argues that it may nevertheless bring its
appeal under collateral-order doctrine.

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We disagree with Sudan. As set forth below, § 1605A(f) applies
to Sudan’s appeal and renders the collateral-order doctrine
inapplicable as a jurisdictional basis for the appeal.
A. Section 1605A(f) applies to Sudan’s appeal.
We first address whether the text of § 1605A(f) encompasses
Sudan’s appeal. When interpreting a statute, we “necessarily begin[]
with the plain meaning of a law’s text and, absent ambiguity, will
generally end there.” Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.
2010) (quoting Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir.
2009)). Subsection § 1605A(f) provides: “In an action brought under
this section, appeals from orders not conclusively ending the
litigation may only be taken pursuant to [certification under]
section 1292(b) of this title.” 28 U.S.C. § 1605A(f).
Because there was no such certification below, § 1605A(f)’s
limitation on appellate review applies to Sudan’s appeal if (1) the
district court’s August 10, 2023 order did not terminate Plaintiffs’
actions against Sudan; and (2) those actions are “brought under”
§ 1605A. Id. We consider each issue in turn.
1. The district court’s order is a nonfinal
“order.”
First, § 1605A(f) applies to “orders not conclusively ending the
litigation.” Id. Absent any limiting language, we construe this phrase
as referring to all nonfinal orders—that is, all interlocutory orders. As
noted, the district court’s August 10, 2023 order denying Sudan’s
motion to dismiss did not “end[] the litigation on the merits.” In re
Roman Cath. Diocese, 745 F.3d at 35 (quoting Coopers, 437 U.S. at 467).
It is thus plainly a nonfinal “order” within the meaning of § 1605A(f).

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Sudan insists, however, that § 1605A(f) does not preclude our
review of the entire order. Seeking to avoid § 1605A(f)’s strictures,
Sudan emphasizes that its proposed appeal challenges the district
court’s rulings as to § 1605B and § 1605(a)(7) but not as to § 1605A.
Sudan appears to argue that, even if § 1605A(f) precludes it from
challenging the latter ruling, the statute poses no impediment to our
review of the former rulings, which do not implicate § 1605A.
We disagree. Subsection 1605A(f) restricts our review of
nonfinal “orders,” rather than specific issues or rulings within those
orders. 28 U.S.C. § 1605A(f) (emphasis added). As such, the whole of
the district court’s order—including the district court’s rulings as to
§ 1605B and § 1605(a)(7)—is subject to § 1605A(f)’s limitation on
appellate review. Cf. BP P.L.C. v. Mayor & City Council of Balt., 141 S.
Ct. 1532, 1537–38 (2021) (“Here, the relevant portion of [28 U.S.C.]
§ 1447(d) provides that ‘an order remanding a case to the State court
from which it was removed pursuant to section 1442 or 1443 of this
title shall be reviewable by appeal.’ . . . From this it would seem to
follow that, when a district court’s removal order rejects all of the
defendants’ grounds for removal, § 1447(d) authorizes a court of
appeals to review each and every one of them. After all, the statute
allows courts of appeals to examine the whole of a district court’s
‘order,’ not just some of its parts or pieces.”).
2. Plaintiffs’ actions are “brought under” § 1605A.
Second, § 1605A(f) operates in actions “brought under”
§ 1605A. 28 U.S.C. § 1605A(f). As we have explained in other
statutory contexts, an action is “brought under” a statute when it is
“established by or referenced in” that statute. Vultaggio ex rel.
Vultaggio v. Bd. of Educ., 343 F.3d 598, 602 (2d Cir. 2003) (per curiam).

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As noted, the operative complaints in Plaintiffs’ present actions—the
AAC and CAC—assert claims against Sudan pursuant to § 1605A’s
private right of action, § 1605A(c), and to § 1605A’s additional-
damages provision, § 1605A(d). The district court found these claims
to be sufficiently plausible to survive Sudan’s motion to dismiss. This
is enough to deem Plaintiffs’ actions as being “brought under”
§ 1605A, such that § 1605A(f)’s appellate bar applies.
Sudan disputes that conclusion. It offers three principal
arguments as to why Plaintiffs’ actions are not “brought under”
§ 1605A and therefore beyond § 1605A(f)’s reach. None of its
arguments is availing.
a. We do not reach Sudan’s timeliness
challenge.
Sudan first argues that Plaintiffs’ actions are not “brought
under” § 1605A because their § 1605A claims are time-barred.
Section 1605A contains a ten-year statute of limitations for claims
brought under it, as did its repealed predecessor statute, § 1605(a)(7).
See 28 U.S.C. § 1605A(b); Owens v. Republic of Sudan, 864 F.3d 751, 765
(D.C. Cir. 2017). “Notwithstanding the limitation period, the [2008]
NDAA provided two means of bridging the gap between the now-
repealed § 1605(a)(7) and the new § 1605A.” Owens, 864 F.3d. at 765;
see also NDAA § 1083(c) (codified at 28 U.S.C. § 1605A note
concerning “Effective Date”). First, § 1083(c)(2) of the NDAA
authorized plaintiffs with pending § 1605(a)(7) actions to convert or
refile their actions under § 1605A—and thereby to take advantage of
§ 1605A’s explicit right of action against foreign states—within 60
days of the NDAA’s enactment. See NDAA § 1083(c)(2) & (c)(2)(C)(ii).
Second, § 1083(c)(3) established a separate mechanism that continues

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to be used to bring “related actions” under § 1605A. See id.
§ 1083(c)(3) (capitalization omitted). It provides that “[i]f an action
arising out of an act or incident [was] timely commenced under
section 1605(a)(7),” then “any other action arising out of the same act
or incident may be brought under section 1605A” within 60 days of
the later of the “entry of judgment in the original action” or the
NDAA’s enactment. Id.
As indicated above, Plaintiffs originally filed their actions
under § 1605(a)(7) shortly after the September 11, 2001 attacks, well
within the ten-year limitations period, but did not assert § 1605A
claims against Sudan until 2018 at the earliest. The district court
nevertheless deemed Plaintiffs’ § 1605A claims timely under
§ 1083(c)(3). It determined that because no judgment had yet been
entered on Plaintiffs’ original § 1605(a)(7) actions, § 1083(c)(3)
allowed Plaintiffs to bring their present actions under § 1605A as
“related actions” “arising out of the same act or incident” as the
original actions. See NDAA § 1083(c)(3). Sudan challenges that
determination, arguing that Plaintiffs cannot avail themselves of
§ 1083(c)(3) because that provision authorizes § 1605A actions only if
the related § 1605(a)(7) actions had reached judgment when the
NDAA was enacted, which was not the case here. Sudan thus reasons
that § 1083(c)(3) cannot render their § 1605A claims timely.
We do not reach Sudan’s timeliness challenge now, however,
because it is premature. The district court’s finding that Plaintiffs
timely brought § 1605A claims pursuant to § 1083(c)(3) was integral
to its holding that Plaintiffs’ actions are cognizable under § 1605A.
Sudan’s timeliness challenge impermissibly attacks that holding. In
other words, if Sudan is right that Plaintiffs’ § 1605A claims are time-
barred, then the district court necessarily erred in holding that

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§ 1605A provides a basis for subject-matter jurisdiction over
Plaintiffs’ actions. However, § 1605A(f)’s appellate bar prohibits
Sudan from attacking the merits of that interlocutory ruling absent
§ 1292(b) certification. As a result, our resolution of Sudan’s
timeliness challenge must wait until after the entry of final judgment,
should Sudan choose to pursue the challenge then.
This is not to say, however, that § 1605A(f) entirely precludes
us from asking, at this stage of the litigation, whether Plaintiffs’
actions are “brought under” § 1605A. This inquiry necessarily
informs our analysis as to whether § 1605A(f) bars Sudan’s
interlocutory appeal, given that § 1605(f)’s appellate bar operates only
in actions “brought under” § 1605A. But our inquiry is far less
searching than that proposed by Sudan. We do not independently
consider whether Plaintiffs’ § 1605A claims are timely. Nor do we
review the claims for plausibility. Instead, we simply assure
ourselves of the existence of § 1605A claims in Plaintiffs’ actions and,
having done so, defer to the district court as to their viability pending
appeal from the final judgment.
b. Section 1605A(f) does not distinguish
between actions “brought” and actions
“maintained” under § 1605A.
Sudan next contends that, even if Plaintiffs’ § 1605A claims are
timely, Plaintiffs’ actions are not “brought” under § 1605A but simply
“maintained” under that section. In Sudan’s view, § 1605A creates a
distinction between, on the one hand, new actions “brought” under
§ 1605A, and, on the other, actions like Plaintiffs’ that were first filed
under § 1605(a)(7) and later “maintained” under § 1605A pursuant to
§ 1083(c)’s gap-bridging rules. See Owens, 864 F.3d at 765. Sudan cites

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subsection (b) of § 1605A, which sets forth § 1605A’s limitations
period, as evidence of this distinction. Subsection 1605A(b) provides
that “[a]n action may be brought or maintained under this section if the
action is commenced, or a related action was commenced under
section 1605(a)(7)” within the ten-year limitations period. Id.
(emphasis added). Sudan claims that § 1605A(b)’s distinction
between “brought” and “maintained” extends to § 1605A(f), thus
triggering § 1605A(f)’s appellate bar in actions “brought”—but not
those “maintained”—under § 1605A.
Sudan’s view is not tenable. To start, Sudan reads too much
into § 1605A(b)’s “brought or maintained” language. It is true that,
when used in reference to legal actions, the term “maintain” can mean
“‘to continue’ to litigate, as opposed to ‘commence’ an action.”
Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 695 (2003) (quoting
Black’s Law Dictionary 1143 (3d ed. 1933)). But “maintain” is also
“often read as ‘bring’ or ‘file.’” Id. (quoting Black’s Law Dictionary,
supra, at 1143). Given these contrasting meanings, we are reluctant to
accord § 1605A(b)’s “brought or maintained” language the
significance that Sudan urges.
Whatever the precise meaning of “brought” and “maintained”
in § 1605A(b), we think that other language in § 1605A in fact
supports the position that Plaintiffs’ actions are “brought” under
§ 1605A. Specifically, § 1083(c)(3) of the NDAA, which applies to
actions that were previously filed under § 1605(a)(7), states only that
related actions “may be brought under section 1605A,” without
mentioning that such actions may be maintained under it.8 See
8 Sudan reads § 1083(c)(3) differently. In its view, while § 1083(c)(3) allows
plaintiffs to “bring” new related actions asserting § 1605A claims, it does not allow
plaintiffs to assert § 1605A claims by filing amended complaints in existing

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NDAA § 1083(c)(3) (emphasis added). This is the very provision that
Plaintiffs invoked to assert § 1605A claims in the AAC and the CAC.
Sudan points out that § 1083(c)(2) promises that an action
converted under that provision will “be given effect as if the action
had originally been filed under section 1605A(c),” NDAA § 1083(c)(2),
but that § 1083(c)(3) does not carry the same guarantee. Thus, Sudan
argues, an action that was filed pursuant to § 1083(c)(3) is merely
“maintained” under § 1605A and is not subject to 1605A(f)’s appellate
bar. We do not agree. First, § 1083(c)(3) uses the term “brought
under,” while § 1083(c)(2) does not. Second, § 1083(c)(2) permits a
plaintiff to convert a § 1605(a)(7) action to a § 1605A action via motion,
without refiling the action. Perhaps for that reason, Congress
included an express guarantee that an action converted this way
would be given the same effect as an originally filed § 1605A action.
Such a reading accords with Congress’s intent that plaintiffs with
both new and previously filed actions against state sponsors of
terrorism be able to avail themselves of the benefits of § 1605A,
regardless of the procedure that § 1605(a)(7) plaintiffs used to convert
their actions. See Van Beneden v. Al-Sanusi, 709 F.3d 1165, 1167 n.4
actions, as some Plaintiffs here have done. There are several problems with this
reasoning. For one, some Plaintiffs did, in fact, file new related actions asserting
§ 1605A claims. See Compl., O’Neill v. Republic of the Sudan, No. 18-cv-12114
(S.D.N.Y. filed Dec. 21, 2018), ECF No. 1; see also supra notes 2 & 4 and
accompanying text. More importantly, as the magistrate judge here pointed out,
this reasoning “would create unnecessary inefficiency by forcing plaintiffs to file
entirely duplicative new cases whose sole difference is that they are brought under
§ 1605A rather than § 1605(a)(7).” R. & R., In re Terrorist Attacks, No. 03-md-1570,
ECF No. 7942, at 27. Furthermore, it “would require accepting that [in
§ 1083(c)(3)], Congress created a provision whose only practical effect is to create
unnecessary duplicative filings while extracting further filing fees from terror
victims.” Id. We thus reject Sudan’s reading of § 1083(c)(3) as it pertains to that
statute’s relation to § 1605A(f)’s appellate bar.

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(D.C. Cir. 2013) (noting that in replacing § 1605(a)(7) with § 1605A,
“Congress sought to lighten the jurisdictional burdens borne by
victims of terrorism seeking judicial redress, such as by ensuring that
individuals barred from suit under § 1605(a)(7) would nevertheless
be able to bring their claims”).
Because the text and structure of other parts of § 1605A do not
expressly distinguish between actions “brought” and those
“maintained” under the section, we have no reason to think that
Congress intended to create an operative distinction between such
actions applicable throughout the section. Thus, to the extent that
§ 1605A(b) itself may be read to distinguish between such actions, we
decline to extend that distinction to § 1605A(f)’s appellate bar.
c. We do not reach Sudan’s argument that
§ 1605A is a “standalone” FSIA exception.
Sudan finally argues that Plaintiffs’ actions are not “brought
under” § 1605A because the district court deemed the actions
cognizable under other FSIA exceptions besides § 1605A, namely
§ 1605B and § 1605(a)(7). In essence, Sudan argues that because
§ 1605A’s immunity-stripping provision applies “in any case not
otherwise covered by this chapter,” 28 U.S.C. § 1605A(a)(1) (emphasis
added), § 1605A is a “standalone” FSIA exception that operates only
when no other FSIA exception could cover an action. Plaintiffs
counter that it would be incongruous to interpret § 1605A in this
restrictive manner given that Congress enacted this section to
augment, not eliminate, the remedies otherwise available to victims
of terrorism. See, e.g., In re Islamic Republic of Iran Terrorism Litig., 659
F. Supp. 2d at 58.

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We will not weigh in on this issue now. As with Sudan’s
timeliness challenge, its argument that § 1605A is a “standalone”
exception is premature. If we accepted this argument, we would be
forced to label as error the district court’s holding that Plaintiffs’
actions, despite being “otherwise covered” by § 1605B and
§ 1605(a)(7), are nonetheless cognizable under § 1605A. As we earlier
explained, however, § 1605A(f) precludes us from reviewing the
merits of this holding at this interlocutory stage.
* * *
In sum, because the district court’s August 10, 2023 order is a
nonfinal “order” and Plaintiffs’ actions are deemed to be “brought
under” § 1605A, § 1605A(f)’s appellate bar applies to Sudan’s appeal.
B. Section 1605A(f) renders the collateral-order doctrine
inapplicable to Sudan’s appeal.
Lastly, we address Sudan’s arguments pertaining to the
collateral-order doctrine. Even if § 1605A(f) applies to Sudan’s
appeal—as we have now concluded—Sudan argues that the statute
does not preclude it from appealing the district court’s § 1605B and
§ 1605(a)(7) rulings by way of the collateral-order doctrine. Plaintiffs
respond that § 1605A(f) eliminates all interlocutory appeals from
orders falling within its scope, including those brought pursuant to
the collateral-order doctrine.9
9 Plaintiffs further contend that even if § 1605A(f) did not bar Sudan from invoking
the collateral-order doctrine, Sudan’s appeal could not proceed because it fails to
satisfy the first prong of the collateral-order doctrine. Specifically, Plaintiffs argue
that an appeal limited to the district court’s rulings on § 1605B and § 1605(a)(7),
and not § 1605A, would not “conclusively determine the disputed question” of
Sudan’s immunity under the FSIA. Will, 546 U.S. at 349 (quoting P.R. Aqueduct,

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The plain text of § 1605A(f) squarely resolves this issue in
Plaintiffs’ favor. As the statute provides, an appeal from a nonfinal
order in an action brought under § 1605A “may only be taken
pursuant to section 1292(b) . . . .” 28 U.S.C. § 1605A(f). We noted
above that this limitation precludes our review of entire “orders,”
including rulings concerning FSIA exceptions other than § 1605A. See
id. (emphasis added); see also BP P.L.C., 141 S. Ct. at 1537–38.
Furthermore, this limitation is clear that the “only” avenue for appeal
from orders subject to § 1605A(f) is through § 1292(b) certification.
We thus conclude that, in the absence of such certification, § 1605A(f)
renders the collateral-order doctrine inapplicable as a jurisdictional
basis for interlocutory appeals from orders falling within § 1605A(f)’s
ambit, including the district court’s order here. Simply put, a foreign
state cannot rely on the collateral-order doctrine to bring an
interlocutory appeal that § 1605A(f) would otherwise bar.
Although § 1605A(f)’s text is unambiguous, we note that the
statute’s legislative history reinforces our conclusion. As discussed,
Congress added § 1605A(f) as part of other amendments to the FSIA
meant to grant victims of terrorism greater rights and remedies
against state sponsors of terrorism. See In re Islamic Republic of Iran
Terrorism Litig., 659 F. Supp. 2d at 39–40. As a sponsor of these
amendments explained:
[Section 1605A(f)] also addresses a part of the law which
until now has granted foreign states an unusual
procedural advantage. As a general rule, interim court
506 U.S. at 144). Sudan rejects that contention, arguing that the same jurisdictional
analysis underlies all three FSIA exceptions. Because we hold that § 1605A(f) does
bar Sudan from invoking the collateral-order doctrine, we do not reach these
arguments.

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orders cannot be appealed until the court has reached a
final disposition on the case as a whole. However,
foreign states have abused a narrow exception to this bar
on interim appeals—the collateral order doctrine—to
delay justice for, and the resolution of, victim’s
suits. . . . My provision will eliminate the ability of state
sponsors of terrorism to utilize the collateral order
doctrine.
154 Cong. Rec. S55 (daily ed. Jan. 22, 2008) (statement of Sen. Frank
Lautenberg). These statements erase any doubt that § 1605A(f) is
intended to bar appeals under the collateral-order doctrine by state
sponsors of terrorism.
Notwithstanding Congress’s intent to the contrary, Sudan
urges that § 1605A(f) cannot foreclose all interlocutory appeals under
the collateral-order doctrine. To hold otherwise, Sudan warns, would
frustrate the various policy considerations that underlie the usual rule
permitting immediate appeals from denials of foreign sovereign
immunity under the collateral-order doctrine.
Sudan observes that our general practice of affording foreign
states the benefit of sovereign immunity “helps to induce each nation
state, as a matter of international comity, to respect the independence
and dignity of every other, including our own.” Bolivarian Republic of
Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U.S. 170, 179
(2017) (internal quotation marks omitted and alteration
incorporated). Furthermore, permitting immediate appeals from
denials of immunity ensures that foreign states actually receive that
benefit. See Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d
748, 756 (2d Cir. 1998) (“A sovereign that is required to litigate a case

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on the merits before it can appeal the assertion of jurisdiction over it
has not been afforded the benefit of the immunity to which it is
entitled.” (citing P.R. Aqueduct, 506 U.S. at 145)).
Although Sudan’s observations are not without substance, we
are not concerned that our holding today undermines the general
principles to which Sudan refers. While the FSIA establishes a
“baseline presumption” of immunity for foreign states, “the law also
includes several exceptions.” Beierwaltes v. L’Office Federale De La
Culture De La Confederation Suisse, 999 F.3d 808, 818–19 (2d Cir. 2021).
These exceptions encompass instances in which Congress has
considered a foreign state’s conduct either to be sufficiently non-
governmental or, in the case of the state-sponsored terrorism
exception, sufficiently reprehensible to warrant eliminating foreign
sovereign immunity. See O’Bryan v. Holy See, 556 F.3d 361, 374 (6th
Cir. 2009). Relevant here, Congress enacted the state-sponsored
terrorism exception to “give American citizens an
important . . . weapon against . . . outlaw states” that “consider
terrorism a legitimate instrument of achieving their foreign policy
goals.” H.R. Rep. No. 104-383, at 62 (1995). And Congress’s later
amendments to the exception, including § 1605A(f)’s appellate bar,
were “designed to deter future state-sponsored terrorism.” 154 Cong.
Rec. S54 (daily ed. Jan. 22, 2008) (statement of Sen. Frank Lautenberg).
Implicit in that design is a congressional resolve that a foreign state
that sponsors terrorist acts thereby forfeits the benefits of foreign
sovereign immunity, one of which is the “ability . . . to utilize the
collateral order doctrine.” Id. at S55. Those foreign states that refrain
from sponsoring terrorism need not be concerned about the loss of
sovereign immunity and its attendant benefits.

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C ONCLUSION
For the foregoing reasons, it is hereby ORDERED that
Plaintiffs’ motion to dismiss Sudan’s appeal is GRANTED and the
appeal is DISMISSED, without prejudice to reinstatement within
thirty days following the district court’s entry of a final judgment
pursuant to 28 U.S.C. § 1291.

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