The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2004 Decided July 30, 2004
No. 03-7117
BLAKE KILBURN, INDIVIDUALLY ON HIS OWN BEHALF, AND AS
EXECUTOR OF THE ESTATE OF PETER C. KILBURN, DECEASED,
APPELLEE
v.
SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA AND
LIBYAN EXTERNAL SECURITY ORGANIZATION,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01301)
Arman Dabiri argued the cause and filed the briefs for
appellants.
Douglas Hallward–Driemeier, Attorney, U.S. Department
of Justice, argued the cause for amicus curiae United States
of America in support of appellee. With him on the brief
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
were Peter D. Keisler, Assistant Attorney General, Roscoe C.
Howard, Jr., U.S. Attorney, Douglas N. Letter, Counsel, and
Mark Clodfelter, Assistant Legal Advisor, Department of
State.
Stuart H. Newberger argued the cause for appellee Blake
Kilburn. With him on the brief were Clifton S. Elgarten and
Michael L. Martinez.
Before: GINSBURG, Chief Judge, and GARLAND and ROBERTS,
Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: This case arises out of the kidnap-
ing and murder of an American citizen in Lebanon between
November 1984 and April 1986. Libya appeals from the
denial of its motion to dismiss the case, arguing that sover-
eign immunity protects it from suit and that the plaintiff lacks
a viable cause of action. We reject the first contention,
concluding that the ‘‘terrorism exception’’ of the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7),
strips Libya of the shield of sovereign immunity. We decline
to exercise appellate jurisdiction over the second.
I
Blake Kilburn brought suit against the Socialist People’s
Libyan Arab Jamahiriya (Libya), the Libyan External Securi-
ty Organization (LESO), the Islamic Republic of Iran, and the
Iranian Ministry of Information and Security, seeking dam-
ages on his own behalf and as executor of the estate of his
brother, Peter Kilburn (together, the plaintiff), for Peter’s
kidnaping, sale, torture, and death. The allegations of the
complaint, as further detailed in district court pleadings and a
declaration, are as follows.
Peter Kilburn was an American citizen who lived in Leba-
non and worked as an instructor and librarian at the Ameri-
can University of Beirut. On November 30, 1984, he was
abducted from his apartment; Hizbollah, a terrorist organiza-
tion funded by Iran, claimed responsibility. In late 1985, the
American government was approached by an intermediary
3
who claimed to be acting on behalf of Kilburn’s captors and
who sought a ransom for his return. For the next several
months, the United States negotiated for Kilburn’s release.
On April 14, 1986, while Kilburn was still in captivity, the
United States conducted airstrikes on Tripoli, Libya, in retali-
ation for Libya’s involvement in the bombing of a Berlin
nightclub that killed two American soldiers. Thereafter,
Libya made it known that it wanted to purchase an American
hostage to murder in revenge for the airstrikes. Sometime
between April 14 and 17, the Arab Revolutionary Cells
(ARC), a terrorist organization sponsored by Libya, bought
Kilburn from Hizbollah for approximately $3 million and
subsequently tortured him. On or about April 17, 1986, ARC
murdered Kilburn and left his body by the side of a road near
Beirut, alongside the bodies of two British hostages. In a
note found nearby, ARC claimed responsibility.
Blake Kilburn’s complaint, filed on June 12, 2001, alleged
that his brother was the victim of hostage taking, torture, and
extrajudicial killing, for which the defendants were responsi-
ble. The complaint sought recovery through multiple causes
of action, including the Flatow Amendment, 28 U.S.C. § 1605
(note), and theories of wrongful death, battery, assault, false
imprisonment, slave trafficking, torture, and intentional inflic-
tion of emotional distress. Although the complaint did not
specify the legal sources of the latter causes of action, later
pleadings asserted that they arose under state common law,
foreign law, and international law, and that additional federal
statutory causes of action might also be available.
The Iranian defendants did not appear, and the plaintiff
sought a default judgment against them. That motion re-
mains pending in the district court. The Libyan defendants
did appear, and the parties agreed to a limited course of
jurisdictional discovery. Thereafter, the Libyan defendants
filed a motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1), contending that their sover-
eign immunity deprived the court of subject-matter jurisdic-
tion, and pursuant to Rule 12(b)(6), contending that the
plaintiff had failed to state a claim upon which relief could be
4
granted. The district court denied both requests. Sua
sponte, the court also considered a question not raised by the
parties — whether the plaintiff could assert a claim for
punitive damages against defendant LESO — and answered
in the affirmative. This appeal followed.1
II
We begin with the question of the Libyan defendants’
sovereign immunity. The district court’s decision to deny
their motion to dismiss plainly did not end the case; to the
contrary, it permitted the case to go forward. Ordinarily,
that would preclude our hearing this interlocutory appeal,
because our jurisdiction is generally confined to ‘‘final deci-
sions of the district court.’’ 28 U.S.C. § 1291; see id. § 1292
(permitting interlocutory appeals in certain circumstances not
present here). Under the collateral order doctrine, however,
an order qualifies as ‘‘final’’ under § 1291 if it: ‘‘(1) conclu-
sively determine[s] the disputed question, (2) resolve[s] an
important issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
final judgment.’’ Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (internal
quotation marks omitted); see Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). The denial of a motion
to dismiss on the ground of sovereign immunity satisfies all
three criteria, and is therefore subject to interlocutory re-
view. See, e.g., Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002); Jungquist v.
Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1025–
26 (D.C. Cir. 1997); Foremost–McKesson, Inc. v. Islamic
Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990). In
1 The defendants also sought, and the district court denied,
dismissal on the ground that the court’s exercise of personal
jurisdiction over them violated the due process clause of the Fifth
Amendment. Although the defendants recognize that this circuit
has held that ‘‘foreign states are not ‘persons’ protected by the
Fifth Amendment,’’ Price v. Socialist People’s Libyan Arab Jama-
hiriya, 294 F.3d 82, 96 (D.C. Cir. 2002), they raise the issue solely
to preserve the possibility of further appellate review.
5
particular, with respect to the last criterion, an ‘‘order deny-
ing dismissal for immunity is effectively unreviewable on
appeal because ‘sovereign immunity is an immunity from trial
and the attendant burdens of litigation, and not just a defense
to liability on the merits.’ ’’ Jungquist, 115 F.3d at 1026
(quoting Foremost-McKesson, 905 F.2d at 443).
Under the FSIA, a foreign state is immune from the
jurisdiction of American courts unless the case falls within
one of a list of statutory exceptions (or as provided by
international agreements). 28 U.S.C. § 1604; see id.
§§ 1605–1607. If no exception applies, the district court
lacks subject matter jurisdiction. Id. § 1604. If an exception
does apply, the district court has jurisdiction. Id. § 1330(a);
see World Wide Minerals, Ltd. v. Republic of Kazakhstan,
296 F.3d 1154, 1161 (D.C. Cir. 2002); Phoenix Consulting,
Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000).
Congress amended the FSIA in the Antiterrorism and
Effective Death Penalty Act of 1996, adding an additional
exception colloquially known as the ‘‘terrorism exception.’’
That exception denies sovereign immunity in any case:
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 (as defined in section 2339A of title 18) for
such an act if such act or provision of material support 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 agencyTTTT
28 U.S.C. § 1605(a)(7). This exception applies only if three
additional criteria are also satisfied: the foreign state was
designated a ‘‘state sponsor of terrorism’’ at the time the act
occurred; the foreign state was given a reasonable opportuni-
ty to arbitrate a claim regarding an act that occurred within
the state’s borders; and the claimant or victim was a national
of the United States. Id. § 1605(a)(7)(A), (B). There is no
dispute that these criteria are satisfied here. The only
question is whether the plaintiff’s claims fall within the main
6
body of the exception, upon which the jurisdiction of the
district court depends.
‘‘In order to preserve the full scope of sovereign immunity,
the district court must make the ‘critical preliminary determi-
nation’ of its own jurisdiction as early in the litigation as
possible.’’ Phoenix Consulting, 216 F.3d at 39 (quoting Fore-
most–McKesson, 905 F.2d at 449). In making that determi-
nation, the nature of the court’s inquiry depends on the
nature of the defendant’s challenge. ‘‘If the defendant chal-
lenges only the legal sufficiency of the plaintiff’s jurisdictional
allegations, then the district court should take the plaintiff’s
factual allegations as true and determine whether they bring
the case within any of the [FSIA] exceptions to immunity
invoked by the plaintiff.’’ Id. at 40. But if the defendant
challenges ‘‘the factual basis of the court’s jurisdiction, the
court may not deny the motion to dismiss merely by assuming
the truth of the facts alleged by the plaintiff and disputed by
the defendant. Instead, the court must go beyond the plead-
ings and resolve any disputed issues of fact the resolution of
which is necessary to a ruling upon the motion to dismiss.’’
Id.
In their motion to dismiss, the Libyan defendants chal-
lenged both the legal and factual sufficiency of the plaintiff’s
claims. For the sake of clarity, we address these challenges
separately in Parts III and IV. Our standard of review is de
novo. See Price, 294 F.3d at 91.
III
The Libyan defendants maintain that, even if the allega-
tions of the complaint are true, they fail to bring this case
within the compass of the terrorism exception. That conten-
tion is founded on two legal arguments regarding the scope of
the exception.
A
The defendants’ first argument is that § 1605(a)(7) re-
quires, as a matter of jurisdiction, a causal connection be-
tween the foreign state’s alleged acts and the victim’s alleged
7
injuries. Stated at that level of generality, the defendants
are plainly right. The section provides an exception to
sovereign immunity in any case in which money damages are
sought for injury or death ‘‘that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage tak-
ing, or the provision of material support or resources TTT for
such an act.’’ 28 U.S.C. § 1605(a)(7) (emphasis added). As
we are generally required to give effect to every statutory
term, Duncan v. Walker, 533 U.S. 167, 174 (2001), we cannot
ignore the phrase ‘‘caused by.’’ Moreover, because
§ 1605(a)(7) is a jurisdictional provision, see Cicippio–Puleo v.
Islamic Republic of Iran, 353 F.3d 1024, 1032 (D.C. Cir.
2004), causation is indeed a jurisdictional requirement.
It is here, however, that we part company with the defen-
dants. They contend not merely that § 1605(a)(7) requires a
causal connection, but that it specifically requires ‘‘but for’’
causation: that is, an allegation (and, ultimately, evidence)
that ‘‘but for’’ Libya’s actions, Peter Kilburn would not have
been purchased, tortured, or killed. The defendants appar-
ently regard ‘‘but for’’ as a particularly restrictive standard of
causation, and insist that nothing less will do.2
As a moment’s inspection of § 1605(a)(7) makes clear, there
is no textual warrant for this claim: the words ‘‘but for’’
simply do not appear; only ‘‘caused by’’ do. Cf. Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992) (reject-
ing the suggestion that the FSIA’s commercial activity excep-
tion, 28 U.S.C. § 1605(a)(2), which requires a ‘‘direct effect’’
in the United States for acts performed elsewhere, ‘‘contains
2 ‘‘But for’’ causation may be restrictive in some circumstances,
such as the multiple actors example discussed in the text below.
See PROSSER & KEETON ON THE LAW OF TORTS 66–67 (5th ed. 1984).
Often, however, it is viewed as an expansive theory. See, e.g.,
Pryor v. American President Lines, 520 F.2d 974, 978 n.4 (4th Cir.
1975) (describing ‘‘but for’’ causation as a potentially ‘‘limitless’’
standard under which ‘‘Eve’s trespass caused all our woe’’ (citing 2
HARPER & JAMES, THE LAW OF TORTS 1108 (1956))); see generally
PROSSER & KEETON, at 266 (noting that the breadth of ‘‘but for’’
causation may depend on whether it is employed as a rule of
inclusion or exclusion).
8
any unexpressed requirement of ‘substantiality’ or ‘foresee-
ability’ ’’). In Jerome B. Grubart, Inc. v. Great Lakes Dredge
& Dock Co., 513 U.S. 527, 536–38 (1995), the Supreme Court
interpreted ‘‘caused by’’ in another jurisdictional statute to
require only a showing of ‘‘proximate cause.’’ We follow the
Court’s example here.
In Grubart, jurisdiction turned on the meaning of the
Extension of Admiralty Jurisdiction Act, which provides that
the admiralty jurisdiction of the United States ‘‘shall extend
to TTT all cases of damage or injury TTT caused by a vessel on
navigable water.’’ 46 U.S.C. app. § 740 (emphasis added).
Rejecting the contention that ‘‘caused by’’ means that the
damage must be close in time and space to the activity that
caused it, the Court held that the phrase means only ‘‘what
tort law has traditionally called ‘proximate causation.’ ’’ Gru-
bart, 513 U.S. at 536. As the Court explained, ‘‘this classic
tort notion normally eliminates the bizarre.’’ Id.; see gener-
ally PROSSER & KEETON ON THE LAW OF TORTS 263 (5th ed. 1984)
(noting that an ‘‘essential element of the plaintiff’s cause of
action’’ for any tort ‘‘is that there be some reasonable connec-
tion between the act or omission of the defendant and the
damage which the plaintiff has suffered,’’ a ‘‘connection usual-
ly TTT dealt with by the courts in terms of what is called
‘proximate cause’ ’’). ‘‘There is no need or justification,’’ the
Supreme Court said, ‘‘for imposing an additional nonremote-
ness hurdle in the name of jurisdiction.’’ Grubart, 513 U.S.
at 538.
The essence of the Libyan defendants’ argument is that
here there is a ‘‘need or justification’’ for imposing an addi-
tional hurdle beyond proximate cause, and that ‘‘but for’’
cause is the appropriate hurdle. They offer the following
hypothetical:
A terrorist organization is supported by two foreign
states. One specifically instructs the organization to
carry out an attack against a U.S. citizen. Can the state
which only provides general support, but was not in-
volved with the act giving rise to the suit, also be
stripped of its immunity?
9
Reply Br. at 13. ‘‘The answer’’ to this hypothetical, the
defendants assert, ‘‘clearly must be no.’’ Id. Libya’s argu-
ment fails to persuade for several reasons.
First, we are not moved by the plight of Libya’s hypotheti-
cal foreign state. We see no reason why there would be a
greater justification for — or why Congress would have a
greater interest in — protecting a party haled into court
under § 1605(a)(7) than one trying to resist admiralty juris-
diction. After all, the only defendants that are subject to
§ 1605(a)(7) in the first place are those that the State Depart-
ment has designated as ‘‘state sponsor(s) of terrorism.’’ 28
U.S.C. § 1605 (a)(7)(A).
Second, § 1605(a)(7) permits actions for injuries caused by
‘‘material support’’ of terrorist acts by such state sponsors,
and, as Congress recognized, such support is difficult to trace.
As the House Report on the terrorism exception stated:
[S]tate sponsors of terrorism include Libya, Iraq, Iran,
Syria, North Korea, Cuba, and Sudan. These outlaw
states consider terrorism a legitimate instrument of
achieving their foreign policy goals. They have become
better at hiding their material support for their surro-
gates, which includes the provision of safe havens, fund-
ing, training, supplying weaponry, medical assistance,
false travel documentation, and the like. For this rea-
son, the Committee has determined that allowing suits
in the federal courts against countries responsible for
terrorist acts TTT is warranted.
H.R. Rep. No. 104–383, at 62 (1995) (emphasis added). Ac-
cordingly, the more likely situation is not Libya’s hypotheti-
cal, involving one direct and one general state sponsor, but
rather the case in which multiple foreign states claim to be
providing only ‘‘general support.’’ Such a case, in which
application of a ‘‘but for’’ standard to joint tortfeasors could
absolve them all, is precisely the one for which courts gener-
ally regard ‘‘but for’’ causation as inappropriate. See PROSSER
& KEETON, at 266–67.
10
Third, Libya’s hypothetical (and its argument) deals solely
with a claim based on a state’s general ‘‘material support’’ for
a terrorist organization. But ‘‘the provision of material sup-
port’’ for a terrorist act is only one of the predicates for the
§ 1605(a)(7) exception. Foreign states also lose immunity for
acts (of torture, extrajudicial killing, or hostage taking) ‘‘en-
gaged in by an official, employee, or agent’’ of the state itself.
28 U.S.C. § 1605(a)(7). Libya makes no argument at all as to
why a restrictive standard of causation should be imposed in
direct action cases, yet the statutory phrase ‘‘caused by’’
applies equally to every § 1605(a)(7) case.3
Finally, we underline that the only issue before us here is
jurisdictional causation, because § 1605(a)(7) is solely a juris-
dictional provision. Cicippio–Puleo, 353 F.3d at 1032. To
succeed in the end, the plaintiff must go beyond jurisdiction
and provide proof satisfying a substantive cause of action.
Id. The plaintiff has alleged a number of sources that could
provide a cause of action, including state, federal, foreign, and
international law. Whatever the ultimate source may be, it
will no doubt carry with it — as a matter of substantive
law — its own rules of causation. Of these, there are a large
variety. See PROSSER & KEETON, at 266–68, 273. Any con-
cerns about reaching too far to charge foreign states with the
attenuated impact of their financial activities are better ad-
dressed as questions of substantive law. Indeed, to go fur-
ther as a matter of jurisdiction — to accept Libya’s conten-
tion that § 1605(a)(7) requires a single causation standard
that is more restrictive than the base-line standard of proxi-
mate cause — runs afoul of the FSIA’s injunction that a non-
immune ‘‘foreign state shall be liable in the same manner and
to the same extent as a private individual under like circum-
stances.’’ 28 U.S.C. § 1606.
3 Prosser suggests that a standard like ‘‘but for’’ is particularly ill-
suited to direct action cases. See PROSSER & KEETON, at 266
(stating that the ‘‘but for’’ rule fails in the following case: ‘‘A stabs
C with a knife, and B fractures C’s skull with a rock; either wound
would be fatal, and C dies from the effects of both’’).
11
In this case, there is no doubt that the plaintiff’s allegations
satisfy the proximate cause standard. The complaint alleges
that, after the United States bombed Tripoli, ‘‘Libyan agents
in Lebanon made it known that they wanted to purchase an
American hostage to murder in retaliation.’’ Compl. ¶ 13. It
specifically asserts that Peter Kilburn ‘‘was purchased and
killed by members of the Arab Revolutionary Cells,’’ id. ¶ 21,
‘‘whose acts were funded and directed by Libya,’’ id. ¶ 26
(emphasis added). A subsequent declaration makes clear
that the plaintiff’s allegation is not just that ARC was ‘‘sup-
ported’’ and ‘‘funded’’ by the Libyan government, but that it
was ‘‘directed’’ by that government ‘‘and acted as its agent in
Lebanon to carry out terrorist activities, including the pur-
chase and assassination of Peter Kilburn.’’ Decl. of Ambassa-
dor Robert Oakley (Ret.) ¶ 14 (hereinafter ‘‘Oakley Decl.’’).
If proven, these allegations are more than sufficient to estab-
lish that the acts of the Libyan defendants were the proxi-
mate cause of Peter Kilburn’s injury and death.
B
The Libyan defendants also advance a second argument in
favor of a restrictive view of § 1605(a)(7). Noting that the
statute denies sovereign immunity for claims involving injury
caused by ‘‘an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of material support
or resources TTT for such an act,’’ 28 U.S.C. § 1605(a)(7)
(emphasis added), they insist that to come within this provi-
sion, a state’s material support must go directly for the
specific act (e.g., torture) that gives rise to the claim. In the
instant case, the defendants contend that § 1605(a)(7) re-
quires the plaintiff to allege (and, ultimately, to prove) that
Libya directly funded ARC’s purchase, torture, and murder
of Peter Kilburn — not just that Libya provided material
support to ARC.
Although the defendants pose this as an independent re-
striction on the scope of § 1605(a)(7), it is closely tied to their
causation argument and suffers from some of the same
defects. On the one hand, imposing a jurisdictional require-
12
ment that a state sponsor’s financial assistance to a terrorist
organization must be directly traceable to a particular terror-
ist act would likely render § 1605(a)(7)’s material support
provision ineffectual. Money, after all, is fungible, and ter-
rorist organizations can hardly be counted on to keep careful
bookkeeping records. On the other hand, the requirement
that the plaintiff’s injury be ‘‘caused by’’ the provision of
material support — in the sense of proximate causation, see
supra Part III.A — should ameliorate most concerns about
remoteness. Any further concerns will likely be addressed
by the substantive law that governs the applicable cause of
action. See generally Doe v. Dominion Bank of Washington,
N.A., 963 F.2d 1552, 1560 (D.C. Cir. 1992) (noting that it ‘‘is
axiomatic that under a negligence regime, one has a duty to
guard only against foreseeable risks’’); Boim v. Quranic
Literacy Inst. & Holy Land Found. for Relief & Dev., 291
F.3d 1000, 1012 (7th Cir. 2002) (holding that, to establish a
private cause of action for material support of terrorism
under 18 U.S.C. §§ 2333, 2339A, ‘‘the plaintiffs must be able
to show that [the murder of their son by Hamas] was a
reasonably foreseeable result of [defendants’] making a dona-
tion’’ to Hamas).
In any event, Libya’s textual argument has no application
here. The plaintiff does not allege that Libya merely provid-
ed material support to ARC, but rather that it specifically
funded and directed Peter Kilburn’s purchase and murder.
See Oakley Decl. ¶ 16; see also id. ¶¶ 6, 11–14; Compl. ¶ 23.
Indeed, the plaintiff’s claims rest not only on a theory of
material support, but also on a theory of agency. The
plaintiff asserts that ARC was not just some independent
organization that Libya provided with funds, but rather an
‘‘agent’’ of Libya. See Oakley Decl. ¶ 14. In statutory terms,
plaintiff’s allegation is that Peter Kilburn’s injuries and death
were caused by terrorist acts ‘‘engaged in by an TTT agent of
[a] foreign state’’ — and not merely by ‘‘provision of material
support TTT for such an act.’’ 28 U.S.C. § 1605(a)(7) (empha-
sis added). The ‘‘for such an act’’ language that Libya
highlights plays no textual role with respect to those kinds of
allegations. To the contrary, Libya is responsible for the acts
13
of its agent ‘‘within the scope of TTT [its] agency,’’ id.,
regardless of whether Libya financed those acts — provided,
of course, that the elements of agency are established. See
Foremost–McKesson, 905 F.2d at 445 (holding that a foreign
state is responsible for the actions of a commercial entity if it
‘‘exercise[s] the necessary degree of control over [it] to create
a principal/agent relationship’’); see also Transamerica Leas-
ing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 848–49
(D.C. Cir. 2000) (same); Gilson v. Republic of Ireland, 682
F.2d 1022, 1026 n.16 (D.C. Cir. 1982) (same).
IV
We turn next to defendants’ challenge to the factual basis
for the district court’s jurisdiction. As explained above, if a
defendant invoking sovereign immunity challenges ‘‘the factu-
al basis of the court’s jurisdiction,’’ the court ‘‘must go beyond
the pleadings and resolve any disputed issues of fact the
resolution of which is necessary to a ruling upon the motion
to dismiss.’’ Phoenix Consulting, 216 F.3d at 40. To resolve
such a factual dispute, however, the court ‘‘retains ‘considera-
ble latitude in devising the procedures it will follow to ferret
out the facts pertinent to jurisdiction.’ ’’ Id. (quoting Pra-
kash v. American Univ., 727 F.2d 1174, 1179–80 (D.C. Cir.
1984)); see Grubart, 513 U.S. at 537 (noting that ‘‘any litiga-
tion of a contested subject-matter jurisdictional fact issue
occurs in comparatively summary procedure’’).
Contrary to defendants’ assertion, the district court under-
stood its responsibilities in this regard. See Kilburn v.
Republic of Iran, 277 F. Supp. 2d. 24, 29–30, 33 (D.D.C. 2003)
(citing Phoenix Consulting, 216 F.3d at 40). In this case, the
parties agreed to limited jurisdictional discovery, pursuant to
which the plaintiff provided the defendants with supporting
documents from the CIA and State Department, and with a
declaration by retired Ambassador Robert Oakley. Oakley
was the State Department’s Coordinator for Counterterror-
ism during the period of Peter Kilburn’s kidnaping and
murder. Plaintiff also produced a list of witnesses who would
14
testify to Libya’s responsibility. No depositions were con-
ducted or sought. After reviewing these materials, the dis-
trict court concluded that denial of the motion to dismiss was
warranted. We agree.
‘‘ ‘In accordance with the restrictive view of sovereign
immunity reflected in the FSIA,’ the defendant bears the
burden of proving that the plaintiff’s allegations do not bring
its case within a statutory exception to immunity.’’ Phoenix
Consulting, 216 F.3d at 40 (quoting Transamerican S.S.
Corp. v. Somali Democratic Republic, 767 F.2d 998, 1002
(D.C. Cir. 1985)); see Princz v. Federal Republic of Germa-
ny, 26 F.3d 1166, 1171 (D.C. Cir. 1994). We have never
decided whether, in addition to the ultimate burden of persua-
sion, the defendant also bears the initial burden of produc-
tion.4 But even if the plaintiff has the burden of production,
he has satisfied it. Ambassador Oakley’s declaration states
that he would testify — both as an expert and based on first-
hand knowledge of some of the events in question — that
ARC was an agent of Libya, that it purchased, tortured, and
killed Peter Kilburn, and that the Libyan government ex-
pressly provided the funds for the purchase and directed the
killing. See Oakley Decl. ¶¶ 11–17. Given that the only
discovery to date has been that which the plaintiff has
voluntarily accorded the defendants, and that the plaintiff has
not yet had an opportunity to conduct any, that is more than
sufficient to satisfy any possible burden of production at this
stage of the litigation.5
4 Compare Gould, Inc. v. Pechiney Ugine Kuhlmann & Trefime-
taux, 853 F.2d 445, 451 & n.5 (6th Cir. 1988) (indicating that the
foreign state defendant bears the burden of going forward with
evidence that the alleged act does not come within an exception to
sovereign immunity), and H.R. Rep. No. 94–1487, at 6616 (1976)
(same), with Virtual Countries, Inc. v. Republic of South Africa,
300 F.3d 230, 241 (2d Cir. 2002) (holding that the burden of
production shifts to the plaintiff if the defendant presents a prima
facie case that it is a foreign sovereign).
5See Phoenix Consulting, 216 F.3d at 40 (holding that the district
court ‘‘must give the plaintiff ample opportunity to secure and
present evidence relevant to the existence of jurisdiction’’) (citation
15
It is equally plain that the Libyan defendants have so far
satisfied neither a burden of production nor their required
burden of persuasion. They submitted no affirmative evi-
dence whatsoever to show that they fall outside the terrorism
exception. They did not, for example, file an affidavit deny-
ing that their agents purchased or killed Peter Kilburn. Cf.
Phoenix Consulting, 216 F.3d at 39 (noting that, by filing a
sworn declaration that an alleged written contract was a
forgery, the foreign state defendant disputed the plaintiff’s
claim that it had waived sovereign immunity through the
contract). They did not proffer testimony denying that they
had provided material support for those acts. They did not
even deny that ARC was their agent.
What the defendants did do, instead, was to point out what
they see as ‘‘contradictions’’ between the plaintiff’s claims and
some passages in the CIA and State Department documents.
These asserted contradictions primarily involve reports that
multiple terrorist organizations had claimed responsibility for
hostage taking in Lebanon during the relevant period. Al-
though the defendants do not explain the significance of these
reports or what they contradicted, presumably the defendants
believe the reports suggest that a Libyan-sponsored organiza-
tion did not carry out the acts in question. But the reports
do not deny that a Libyan-sponsored organization purchased
or killed Peter Kilburn; nor do they suggest that such an
organization was not a proximate cause of those acts, even if
not the sole cause. In fact, it is not apparent that the
asserted ‘‘contradictions’’ have any relevance at all to this
case.6
and internal quotation marks omitted); see also Grubart, 513 U.S.
at 537–38 (‘‘Normal practice permits a party to establish jurisdiction
at the outset of a case by means of a nonfrivolous assertion of
jurisdictional elements TTT and any litigation of a contested subject-
matter jurisdictional fact issue occurs in comparatively summary
procedure before a judge alone (as distinct from litigation of the
same fact issue as an element of the cause of action, if the claim
survives the jurisdictional objection).’’) (citations omitted).
6Some of those asserted contradictions do not appear to relate to
Peter Kilburn. For example, although the defendants point to a
16
In short, the defendants have failed to satisfy their ‘‘burden
of proving that the plaintiff’s allegations do not bring its case
within a statutory exception to immunity.’’ Phoenix Consult-
ing, 216 F.3d at 40. The district court was therefore right to
deny their motion to dismiss for lack of jurisdiction under
Rule 12(b)(1).
V
In addition to challenging the district court’s jurisdiction,
the Libyan defendants also sought dismissal pursuant to Rule
12(b)(6), contending that the plaintiff had failed to state a
claim upon which relief could be granted. The district court
denied that motion and, at the same time and sua sponte, held
that defendant LESO could be subject to punitive damages if
it were ultimately found liable. The Libyan defendants seek
review of both decisions. In particular, they note that this
circuit has recently held that one of the causes of action
plaintiff asserted, the Flatow Amendment, 28 U.S.C. § 1350
(note), does not ‘‘creat[e] a private right of action against a
foreign government.’’ Cicippio–Puleo, 353 F.3d at 1033.
The Libyan defendants further argue that no other cause of
action is available to plaintiffs who bring suit under
§ 1605(a)(7). But cf. id. at 1035 (declining to decide whether
terrorism victims invoking § 1605(a)(7) have other causes of
action).
CIA report that five terrorist organizations had claimed responsibil-
ity for hostages taken in Lebanon in March of 1984, see CIA,
Terrorism Review 735 (Apr. 8, 1985) (attached to Defs.’ Mot. to
Dismiss, App. D), Kilburn was not kidnaped until November of that
year. Others do not appear to relate to the Libyan defendants.
For example, although the defendants stress a State Department
document stating that Kilburn was originally kidnaped by Islamic
Jihad (presumably in contradiction to the allegation that the origi-
nal kidnaping was by Hizbollah), see Department of State, Unclassi-
fied Documents 3 (attached to Defs.’ Mot. to Dismiss, App. F), the
complaint does not allege that Libya played a role in the original
kidnaping. Nor does the document address the complaint’s conten-
tion that Islamic Jihad and Hizbollah are one and the same. See
Compl. ¶ 4.
17
Denial of a motion to dismiss for failure to state a claim
under Rule 12(b)(6) is not ordinarily subject to interlocutory
appeal. It is neither a final decision nor a proper subject for
appeal under the ‘‘collateral order’’ doctrine. Price, 294 F.3d
at 91. Whether conclusive or not, it plainly is not separate
from the merits. And it is eminently reviewable on appeal
from the final judgment; indeed, that is the usual way in
which Rule 12(b)(6) decisions are appealed. See generally
Cohen, 337 U.S. at 541. The defendants do not disagree.
Instead, they urge us to assume jurisdiction over the non-
immunity issues as ‘‘pendent’’ to the sovereign immunity
decision over which we have interlocutory jurisdiction.
The leading case on pendent appellate jurisdiction is Swint
v. Chambers County Commission, 514 U.S. 35 (1995). In
Swint, the Supreme Court expressed some skepticism about
the existence of pendent appellate jurisdiction altogether, and
particularly about a ‘‘ ‘liberal’ or ‘flexible’ approach’’ to the
issue. 514 U.S. at 47 n.5. The Court ultimately concluded
that it ‘‘need not definitively or preemptively settle here
whether or when it may be proper for a court of appeals, with
jurisdiction over one ruling, to review, conjunctively, related
rulings that are not themselves independently appealable.’’
Id. at 50–51. But it held that there was no such jurisdiction
in that case, because the proposed pendent issue and the
properly appealable issue were not ‘‘inextricably intertwined,’’
and because review of the former decision was not ‘‘necessary
to ensure meaningful review’’ of the latter. Id. at 51. Subse-
quently, in Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), the
Court held that pendent jurisdiction was proper where both
the ‘‘inextricably intertwined’’ and ‘‘necessary to ensure
meaningful review’’ conditions were satisfied.
In Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d
675 (D.C. Cir. 1996), we declined to exercise pendent jurisdic-
tion over the appeal of an order holding a party liable for
attorney’s fees. We said that we would ‘‘exercis[e] pendent
appellate jurisdiction sparingly,’’ and ‘‘only when substantial
considerations of fairness or efficiency demand it.’’ 85 F.3d
at 678–79. We also said, however, that while ‘‘[s]ome courts
read Swint to permit pendent appellate jurisdiction only
18
when the [two Swint conditions] obtain,’’ we did ‘‘not think
[Swint] meant to prescribe a definitive or exhaustive list of
conditions.’’ Id. at 679 n.4.
The other circuits have taken a different path, saying that
they will take pendent appellate jurisdiction only when one or
both of the Swint conditions appear,7 and criticizing our more
permissive reading of Swint.8 But despite using more expan-
sive language, we have so far largely confined the doctrine to
cases that come within one or the other of the Swint condi-
tions,9 or that involve questions like personal jurisdiction10 or
the statute of limitations11 — which we have described as
‘‘logically antecedent’’ or ‘‘threshold’’ issues. See Barbour v.
WMATA, 2003 WL 22095655, at *1 (D.C. Cir. 2003).
7 See Limone v. Condon, 2004 WL 1299980, at *9–10 (1st Cir.
2004); Rein v. Socialist People’s Libyan Arab Jamahiriya, 162
F.3d 748, 758 (2d Cir. 1998); E.I. DuPont de Nemours & Co. v.
Rhone Poulenc Fiber & Resin, 269 F.3d 187, 203 (3d Cir. 2001);
Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996); Thornton v.
General Motors Corp., 136 F.3d 450, 453–54 (5th Cir. 1998); Cham-
bers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir.
1998); Jones v. InfoCure Corp., 310 F.3d 529, 536 (7th Cir. 2002);
Woolfolk v. Smith, 81 F.3d 741, 743 (8th Cir. 1996); Watkins v.
Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998); Sevier v. Lawrence,
60 F.3d 695, 701 (10th Cir. 1995); Hudson v. Hall, 231 F.3d 1289,
1294 (11th Cir. 2000).
8 See Rein, 162 F.3d at 758; see also Limone, 2004 WL 1299980,
at *9–10.
9 See, e.g., National R.R. Passenger Corp. v. Express Trak,
L.L.C., 330 F.3d 523, 528 (D.C. Cir. 2003) (exercising pendent
jurisdiction where both Swint conditions existed); United States ex
rel. Long v. SCS Bus. & Tech Inst., Inc., 173 F.3d 870, 873–86 (D.C.
Cir. 1999) (same where the issues were ‘‘inextricably intertwined’’);
Twelve John Does v. District of Columbia, 117 F.3d 571, 574–75
(D.C. Cir. 1997) (same).
10 See Jungquist, 115 F.3d 1020.
11 See Griggs v. WMATA, 232 F.3d 917, 919 & n.2 (D.C. Cir.
2000); Rendall–Speranza v. Nassim, 107 F.3d 913, 916–17 (D.C.
Cir. 1997).
19
This case does not fit any of those rubrics. Whether state
tort law properly provides the plaintiff with a cause of action,
for example, is not inextricably linked with, or necessary for
meaningful review of, the proper scope of jurisdictional causa-
tion under § 1605(a)(7). To the contrary, as we noted in Part
III, these are analytically distinct questions. Nor can the
cause of action question fairly be characterized as an anteced-
ent or threshold issue. The question of whether the plaintiff
has a cognizable cause of action (and what that cause of action
might be) is not a question separate from the merits; it is the
merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998). And all of this is, of course, a fortiori regarding
the question of whether LESO, if liable, can be assessed
punitive damages.
It is true that we did, in one case, decide to take pendent
jurisdiction over a merits question (whether the Washington
Metropolitan Area Transit Authority was subject to the Dis-
trict of Columbia’s Freedom of Information Act), in order to
avoid what we described as a ‘‘difficult’’ state sovereign
immunity question. See KiSKA Constr. Corp.–U.S.A. v.
WMATA, 167 F.3d 608, 611 (D.C. Cir. 1999).12 But that
decision is not precedent for taking pendent appellate juris-
diction here. As we have already decided that Libya lacks
immunity, there is nothing for us to avoid in this case.13 Nor
12 In another interlocutory appeal, Simpson v. Socialist People’s
Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003), we
decided a merits question after deciding an immunity question. We
did not, however, discuss our authority to do so, and ‘‘the existence
of unaddressed jurisdictional’’ questions deprives a decision of
‘‘precedential effect’’ on those questions. Lewis v. Casey, 518 U.S.
343, 353 n.2 (1996); see Steel Co., 523 U.S. at 91.
13 Compare also Long, 173 F.3d at 893, 895 (distinguishing Steel
Co. and holding that the availability of a statutory cause of action
may be determined before deciding the ‘‘quasi-jurisdictional’’ ques-
tion of Eleventh Amendment immunity), with Steel Co., 523 U.S. at
93 (holding that a merits issue may not be determined before a
jurisdictional question), and 28 U.S.C. § 1604 (providing that ‘‘a
foreign state shall be immune from the jurisdiction of the courts’’
unless the FSIA provides an exception) (emphasis added).
20
would it be fair to characterize the immunity questions dis-
cussed in Parts III and IV as particularly ‘‘difficult.’’ Al-
though we have discussed the legal aspects of causation in
some detail, the allegations that the Libyan defendants were
directly involved in Peter Kilburn’s ordeal make the bottom-
line conclusion that the defendants lack immunity quite easy.
And, as we said in Gilda Marx, ‘‘parties should not be
encouraged to bring insignificant, but final, matters before
this court as mere vehicles for pendent review of numerous or
complex orders that are not independently appealable.’’ 85
F.3d at 679; see also Swint, 514 U.S. at 49–50 (warning that
‘‘a rule loosely allowing pendent appellate jurisdiction would
encourage parties to parlay Cohen-type collateral orders into
multi-issue interlocutory appeal tickets’’).
The Libyan defendants complain that, if we decline to take
pendent jurisdiction over the non-immunity rulings, they may
be required to go through an entire trial on a complaint that
may eventually be determined to have no cognizable cause of
action. This possibility would concern us, of course, had we
not already concluded that the defendants lack immunity
from this litigation. In light of that conclusion, however, the
Libyan defendants are in the same position as any others.
To permit an appeal of the denial of a Rule 12(b)(6) motion
merely because it might spare the defendants the pain of trial
would greatly expand the ‘‘small category of decisions’’ sub-
ject to the collateral order doctrine, Swint, 514 U.S. at 42,
and undermine our promise to exercise pendent appellate
jurisdiction ‘‘sparingly,’’ Gilda Marx, 85 F.3d at 679. As the
court said in Swint with respect to the collateral order
doctrine: ‘‘ ‘§ 1291 requires courts of appeals to view claims
of a right not to be tried with skepticism, if not a jaundiced
eye,’ for ‘virtually every right that could be enforced appro-
priately by pretrial dismissal might loosely be described as
conferring a right not to stand trial.’ ’’ 514 U.S. at 43
(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 873 (1994)).
We do not dispute that both the district court and the
parties would benefit from advance knowledge of this circuit’s
view as to whether the plaintiff has a cause of action against
the defendants. But the Supreme Court has rejected that as
21
a sufficient reason to permit appeal on a theory of pendent
jurisdiction.14 And Congress has expressly provided another
route for just such a situation. Section 1292(b) of Title 28
authorizes a district court to certify in writing that an ‘‘order
involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.’’ 28 U.S.C. § 1292(b).
When the district court so certifies, the court of appeals ‘‘may
thereupon, in its discretion, permit an appeal to be taken
from such order.’’ Id. Indeed, the Swint court pointed to
§ 1292(b) as a reason for caution regarding pendent appellate
jurisdiction:
Congress thus chose to confer on district courts first line
discretion to allow interlocutory appeals. If courts of
appeals had discretion to append to a Cohen-authorized
appeal from a collateral order further rulings of a kind
neither independently appealable nor certified by the
district court, then the two-tiered arrangement § 1292(b)
mandates would be severely undermined.
Swint, 514 U.S. at 47. The district court has not issued a
§ 1292(b) certification here.
In the final balance, whether or not we have authority to
exercise pendent appellate jurisdiction in this case, there is no
question that we have discretion to decline to do so. See
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1118 (D.C.
Cir. 2000); Gilda Marx, 85 F.3d at 679–80. For the forego-
ing reasons, and because taking pendent jurisdiction here
would mean straying far from Swint, we decline to pass on
the rulings of the district court that are not related to the
question of the defendants’ immunity.
14 See Swint, 514 U.S. at 43–44 (rejecting an argument that
judicial economy warranted the exercise of pendent jurisdiction in
that case, notwithstanding that if the defendant were correct,
‘‘reviewing the district court’s order would put an end to the entire
case’’ against it) (internal quotation marks omitted).
22
VI
We affirm the district court’s determination that it had
subject-matter jurisdiction to adjudicate the plaintiff’s claims
against the Libyan defendants. We decline to exercise appel-
late jurisdiction over defendants’ other challenges.