Broidy Capital Management LLC v. Nicolas Muzin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 28, 2022 Decided March 10, 2023

No. 22-7082

BROIDY CAPITAL MANAGEMENT LLC AND ELLIOTT BROIDY,

APPELLEES

v.

NICOLAS D. MUZIN, ET AL.,

APPELLEES

STATE OF QATAR,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00150)

David M. Zionts argued the cause for appellant. With him

on the briefs was Alexander A. Berengaut.

Martin Totaro, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States in support of

appellant. With him on the brief were Brian M. Boynton,

Principal Deputy Assistant Attorney General, and Sharon

Swingle, Attorney.

2

Daniel R. Benson and Daniel A. Saunders, pro hac vice,

argued the causes for appellees. On the brief was Henry B.

Brownstein.

Before: SRINIVASAN, Chief Judge, WILKINS and RAO,

Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: As signatories to the Vienna

Convention on Diplomatic Relations, Apr. 18, 1961, T.I.A.S.

No. 7502 (entered into force Dec. 13, 1972), and the Vienna

Convention on Consular Relations, Apr. 24, 1963, T.I.A.S. No.

6820 (entered into force Dec. 14, 1969), the United States of

America and Appellant State of Qatar are obliged “to hold

‘inviolable’ the premises of foreign missions[,] the persons of

diplomatic agents,” and, among other things, the archives and

documents of foreign missions. Ignatiev v. United States, 238

F.3d 464, 466 (D.C. Cir. 2001). When a document of a foreign

mission has the status of being “inviolable” under the Vienna

Conventions, the “receiving State” is commonly understood to

have “a duty to abstain from exercising any sovereign rights, in

particular law enforcement rights, [with] respect” to the

document. EILEEN DENZA, DIPLOMATIC LAW: COMMENTARY

ON THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS 110

(4th ed. 2016).

This appeal concerns a discovery dispute over certain

documents in an ongoing case before the District Court.

Defendants are non-mission third parties hired by Qatar as

“contractors to support its foreign policy objective of

maintaining U.S. Government support.” Appellant’s Br. 1, 7.

Plaintiffs brought this case against Defendants for allegedly

helping Qatar hack Plaintiffs’ computer systems and

disseminate the hacked materials in a coordinated public

3

relations campaign against Plaintiffs. The District Court

granted Plaintiffs’ motion to compel Defendants to produce

documents related to their work on Qatar’s behalf. On appeal,

Qatar contends that the disputed documents are inviolable

under the Vienna Conventions and protected from disclosure

under principles of international comity.

Qatar, however, is not a party to this suit, having chosen to

only file statements of interest in the underlying District Court

proceedings as amicus curiae. Under longstanding Supreme

Court precedent and that of our Court, an appellant not named

in the underlying suit must be bound by an underlying order

and avail itself of applicable procedural rules in the related trial

court proceedings to be recognized as a party that can properly

bring an appeal. Otherwise, the appeal must be dismissed

under the well-established rule that only parties can appeal an

adverse judgment. For these reasons, and as further explained

below, we must dismiss this appeal.

At the same time, we are cognizant of the Supreme Court’s

exhortation to “American courts . . . to demonstrate due respect

for . . . any sovereign interest expressed by a foreign state.”

Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for

S. Dist. of Iowa, 482 U.S. 522, 546 (1987). We recognize that

both the parties and the District Court were operating in

uncharted territory regarding how a foreign sovereign may

invoke its treaty rights under the Vienna Conventions in our

courts without forfeiting its foreign sovereign immunity.

Accordingly, we remand with instructions to the District Court

to afford Qatar the opportunity to intervene or take some other

action to become a party in accordance with this opinion before

enforcing the underlying discovery order.

4

I.

In January 2019, Plaintiffs Elliott Broidy and Broidy

Capital Management, LLC brought this suit against Defendants

Nicolas D. Muzin, Joseph Allaham, Gregory Howard, and

Stonington Strategies LLC in the U.S. District Court for the

District of Columbia. Defendants are U.S.-based “political

consultants, lobbyists, and public relations professionals” that

Qatar hired “to support its foreign policy objective[s]” in the

United States. Appellant’s Br. 1, 7. Plaintiffs’ suit claims that

Defendants “participated on Qatar’s behalf in disseminating

allegedly hacked materials concerning Broidy” due to his

outspoken criticism of Qatar. Id. at 10.

This case came before this Court in 2020 when Defendants

appealed an order denying their motion to dismiss under

Federal Rule of Civil Procedure 12(b)(1) for lack of subject-

matter jurisdiction. Defendants contended that they were

“entitled to conduct-based foreign official immunity” given

their relationship with Qatar or, in the alternative, immunity

based on “a distinct doctrine that they call[ed] ‘derivative’

immunity.” Broidy Cap. Mgmt., LLC v. Muzin, 12 F.4th 789,

794, 801 (D.C. Cir. 2021). We rejected both theories and

affirmed the decision denying Defendants’ motion to dismiss.

Id. at 804. In so doing, our Court recognized Defendants’

contention of an “indirect risk to Qatar” that Plaintiffs would

“seek to gain access to Qatar’s sensitive, diplomatic

communications” through Plaintiffs’ prosecution of the case.

Id. (internal quotations omitted). While the Court noted that

this risk was not a sufficient reason to find immunity for

Defendants, the Court added that it “trust[ed] the district court

ha[d] the appropriate tools to protect Qatar’s absolute FSIA

‘immunity from trial and the attendant burdens of litigation.’”

Id.

5

After the case was remanded, Qatar filed a “Notice of

Interest” in the District Court “for the limited purpose of

enabling it to monitor the proceedings to ensure that its

sovereignty and immunities [were] respected in any discovery

that [was] conducted.” In its Notice of Interest, Qatar described

itself as a “non-party to this action” and expressly provided that

it was “not seek[ing] to intervene.” Attorney David M. Zionts

also filed a notice of appearance on behalf of Qatar. Plaintiffs

objected to Qatar’s notice and Mr. Zionts’s appearance and

asked that both be stricken, asserting that Qatar must formally

intervene to make an appearance.

Soon after, Defendants filed an emergency motion seeking

an order to prevent the release of sensitive information during

discovery, including all information protected by the Vienna

Conventions. Defendants claimed that Plaintiffs had stalled

ongoing negotiations between the parties to propose a joint

protective order and had proceeded to serve third-party

subpoenas despite agreeing to not conduct third-party

discovery during the negotiations. The terms of Defendants’

proposed order largely matched those of a protective order

entered in a prior case before the U.S. District Court for the

Central District of California brought by Plaintiffs against

Qatar, Defendants, and several others. A major difference,

however, was that Defendants’ proposed order here included

the addition of an immunity protocol that would allow Qatar to

review information provided by third parties prior to their

production to check for potential privilege or inviolability

issues and to redact documents accordingly. Defendants

claimed this addition was necessary, in part, because Qatar was

not a party in this case unlike in the California matter. Plaintiffs

opposed the emergency motion and offered an alternative

protective order that did not include the added immunity

protocol.

6

The District Court eventually issued the protective order

requested by Defendants, but it declined to adopt the proposed

immunity protocol, holding that “Qatar may not receive or

review ongoing discovery in this case . . . without moving to

intervene pursuant to Federal Rule of Civil Procedure 24(b).”

Broidy Cap. Mgmt., LLC, v. Muzin, No. 1:19-CV-150-DLF

(D.D.C. Dec. 8, 2021) (minute order). In support thereof, the

District Court cited In re Sealed Case (Medical Records), a

case in which this Court emphasized that “courts of appeals

have construed a district court’s decision to permit a non-party

to participate in a discovery dispute as the equivalent of

authorizing intervention.” 381 F.3d 1205, 1211 n.4 (D.C. Cir.

2004), overruled in part on other grounds by Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100 (2009). As to Qatar’s notice

and appearance, the District Court declined to strike them as

Plaintiffs requested. Instead, the District Court stated in the

minute order that the court would take them under

consideration as “the equivalent of amicus briefs.” The District

Court further noted that “no pending motion require[d]

addressing Qatar’s exact status,” and it declined to do so at that

juncture.

Discovery was contentious from the start. In their

response to Plaintiffs’ requests for production of documents

related to Defendants’ work with Qatar, Defendants objected

throughout under the basis that many of the requested

documents were privileged or otherwise protected under the

Vienna Conventions and principles of international comity.

Plaintiffs subsequently filed a motion to compel discovery.

During the briefing on that motion, Qatar filed a statement of

interest explaining why the documents should be shielded from

discovery under its treaty rights and international comity

interests.

7

The District Court granted Plaintiffs’ motion to compel,

holding that Defendants were not shielded from discovery

based on “do[ing] business with [Qatar].” Broidy Cap. Mgmt.

LLC v. Muzin, No. 1:19-CV-150-DLF, 2022 WL 1801031, at

*6 (D.D.C. June 2, 2022). The District Court construed Article

24 of the Vienna Convention on Diplomatic Relations—which

provides that “[t]he archives and documents of the mission

shall be inviolable at any time and wherever they may be”—as

applying only to “documents that either belong to or are

possessed by a mission, at the exclusion of those that have been

delivered to their intended recipient.” Id. Accordingly, and

after discussing the “surrounding provisions” of the treaty, the

District Court found that “the documents at issue are no longer

‘of the mission,’ as that phrase is used in Article 24.” Id. The

District Court also held that international comity “provides no

barrier to discovery in this case.” Id. at *9. Qatar appealed the

District Court’s order, and, on its motion, we ordered a stay

pending appeal. See Broidy Cap. Mgmt. LLC v. Muzin, No. 22-

7082, 2022 WL 2525300, at *1 (D.C. Cir. July 1, 2022) (per

curiam).

The issues raised by Qatar on appeal are novel. Qatar

contends that the District Court’s interpretation of the Vienna

Conventions is erroneous and asks this Court to clarify the

scope of the Conventions’ protections of documents created by,

given to, or created with a mission’s third-party contractors.

Qatar also raises a separate argument that international comity

principles require the protection of such documents.

As a nonparty, however, Qatar may not appeal the District

Court’s order.

II.

It is a “well settled” rule that “only parties to a lawsuit, or

those that properly become parties, may appeal an adverse

8

judgment.” Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per

curiam). See also Ex parte Cockcroft, 104 U.S. 578, 578–79

(1881); Bayard v. Lombard, 50 U.S. 530, 551 (1850); United

States v. Seigel, 168 F.2d 143, 144 n.2 (D.C. Cir. 1948)

(collecting cases). This rule “does not implicate the

jurisdiction of the courts under Article III of the Constitution”

“[n]or . . . the sorts of concerns that are ordinarily addressed as

a matter of prudential standing.” Devlin v. Scardelletti, 536

U.S. 1, 6–7 (2002). Instead, it is a procedural requirement that

appellate courts must address separately from issues of

standing or jurisdiction. Id. at 7.

“The label ‘party’ does not indicate an absolute

characteristic, but rather a conclusion about the applicability of

various procedural rules that may differ based on context.” Id.

at 10. “Parties to the record include the original parties and

those who have become parties by intervention, substitution, or

third-party practice.” United States v. LTV Corp., 746 F.2d 51,

53 (D.C. Cir. 1984) (per curiam). Movants in trial proceedings

have also historically been considered “parties” by the

Supreme Court in the appeals of underlying “collateral orders

to which they were parties, even though they were not named

parties to . . . the underlying judgments.” Devlin, 536 U.S. at

16–17 (Scalia, J., dissenting) (emphasis omitted); see also id.

at 7–8 (majority opinion). “[T]he appellants in these cases

were parties only in the sense that they were bound by the order

from which they were seeking to appeal.” Id. at 8.

In Devlin, the Supreme Court highlighted the following

examples of movants from prior Supreme Court cases who

were not named in the underlying action yet were considered

“parties” for purposes of appeal: (1) a nonnamed party who

appealed an “order finding [the] nonparty witness in

contempt,” U.S. Cath. Conf. v. Abortion Rts. Mobilization, Inc.,

487 U.S. 72, 76 (1988); (2) “a bidder for property at a

9

foreclosure sale, who was not a named party in the foreclosure

action, [who] appeal[led] the refusal of a request he made

during that action to compel the sale,” Devlin, 536 U.S. at 7–8

(citing Blossom v. Milwaukee & Chi. R.R. Co., 68 U.S. (1

Wall.) 655 (1863)); and (3) “a receiver, who was an officer of

the court rather than a named party to the case, [allowed] to

appeal from an order ‘relating to the settlement of his

accounts,’” id. at 8 (citing Hinckley v. Gilman, Clinton &

Springfield R.R. Co., 94 U.S. 467 (1876)). Devlin expanded

this list to include “nonnamed class members [who] object to a

settlement at [a Rule 23] fairness hearing without first

intervening.” Id. at 14. It so held despite the Supreme Court’s

prior holding in Marino that petitioners who “presented their

objections to the District Court at [a] hearing” on the settlement

of a class wide claim of employment discrimination were not

parties after failing to intervene. 484 U.S. at 303–04.

The Supreme Court distinguished Devlin from Marino

because while “the settlement affected [the Marino

petitioners], the District Court’s decision did not finally

dispose of any right or claim they might have had because they

were not members of the class.” Devlin, 536 U.S. at 9. It was

this “sense of being bound by the settlement” that the Devlin

majority found “most important to [the] case.” Id. at 10. The

Supreme Court also pointed to “class action procedure,”

finding that since it “allows nonnamed class members to object

to a settlement at the fairness hearing without first intervening

. . . it should similarly allow them to appeal the District Court’s

decision to disregard their objections.” Id. at 14 (internal

citation omitted).

In sum, Devlin maintained the longstanding bright-line

rule that only parties can appeal an adverse underlying order or

judgment. The Supreme Court clarified, however, that the

label “party” does not include just those named on either side

10

of the “v.” in a lawsuit, either from the original filing or

amendment of a complaint, “intervention, substitution, or

third-party practice.” LTV Corp., 746 F.2d at 53. In addition,

the label “party” applies also to those bound by an underlying

order who participated in the trial court under “the applicability

of various procedural rules . . . based on [the] context” of the

underlying proceedings. Devlin, 536 U.S. at 10. Accordingly,

an unnamed class member who timely objects to the approval

of a class settlement at the related fairness hearing made

available under the Federal Rules of Civil Procedure is

considered a proper “party” for purposes of appeal. See id. at

14; see also FED. R. CIV. P. 23(e)(2) (“If the proposal would

bind class members, the court may approve it only after a

hearing and only on finding that it is fair, reasonable, and

adequate.”).

This Circuit has historically allowed nonnamed parties to

appeal District Court orders that adversely “affect[] [their]

interests,” including under both the collateral order doctrine

and the Perlman doctrine. In re Stone, 940 F.3d 1332, 1340

(D.C. Cir. 2019). In virtually all of these cases, however, the

aggrieved sought to intervene, instituted an ancillary

proceeding, or took some other action pursuant to available

procedural rules prior to appealing the binding, adverse order

of the trial court. See id. at 1341 (collecting cases).

In United States v. American Telephone & Telegraph Co.,

for example, a party that had filed an unsuccessful motion to

intervene to assert a work product privilege in certain requested

discovery sought to appeal a related interlocutory discovery

order. 642 F.2d 1285, 1287 (D.C. Cir. 1980). This Court

reiterated that “[t]he general rule in this circuit is that ‘one who

is not a party to a record and judgment is not entitled to appeal

therefrom.”’ Id. at 1290. The panel noted, however, that the

appellant could “appeal the interlocutory discovery order . . .

11

only if the district court’s denial of [their motion to intervene]

was erroneous and also appealable.” Id. After “revers[ing] on

the issue of intervention,” the Court allowed the appellant “to

intervene for the limited purpose of appealing the district

court’s discovery order” and found it had jurisdiction to

address the merits of that order under the collateral order and

Perlman doctrines. Id. at 1295–96, 1296 n.55. It was the

appellant’s “claim for intervention,” even though it was

originally denied, that allowed it to be considered a proper

party for the appeal of the discovery order. Id. at 1290.

Likewise, in United States v. Hubbard, a “stranger[] to

[an] [underlying] criminal case” was allowed to appeal a

District Court order unsealing documents that the appellant had

an asserted interest in keeping confidential. 650 F.2d 293, 307

(D.C. Cir. 1980). The appellant “chose to employ three

[different] mechanisms” to seek relief: intervention, a motion

for return of property accompanied by an application for a

temporary restraining order to stop the release of the

documents, and a petition for writ of mandamus to this Court.

Id. at 308–09. Our Court held that a “motion to the court of

trial is . . . appropriate for the purpose of the presumptive

owner’s assertion of interest in maintaining the confidentiality

of documents . . . seized” in a criminal proceeding. Id. at 310–

11. The Court found that the appellant’s use of the three

different approaches to seek relief had the effect of

commencing an “ancillary, summary proceeding.” Id. at 311.

Since the appellant was “in fact heard on the merits” at the trial

court through this ancillary proceeding, the Court found the

appellant to be a proper party for the appeal. Id. at 312–13.

Accordingly, someone who has properly instituted an ancillary

proceeding to assert a right at risk in a separate action at the

trial court may appeal a resulting adverse order in that action.

See id.; see also United States v. Barry, No. 90-3149, 1990 WL

104925, at *1 (D.C. Cir. July 5, 1990) (collecting cases

12

regarding third-party appeals of gag orders challenged in

proceedings ancillary to criminal matters). In discussing its

jurisdiction, the Court analogized to the requirements of the

collateral order doctrine and found that those requirements

were satisfied. Hubbard, 650 F.2d at 314 (citing Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949)).

We addressed this issue also in In re Sealed Case (Medical

Records), a case in which the plaintiffs filed an unopposed

motion “to compel production of the District of Columbia’s

‘complete files’ on the appellant,” “an adult male who [was] a

committed ward” of the District. 381 F.3d at 1207–08. After

the district court granted the motion, ordering the appellant’s

files to be produced to the plaintiffs, the “appellant’s guardian

ad litem . . . entered a special appearance to represent [him] in

connection with the requests for his ‘medical and ward files.’”

Id. at 1208. The guardian ad litem “filed a motion for

reconsideration and for a more extensive protective order

pursuant to Federal Rule of Civil Procedure 26(c)” that the

district Court subsequently denied. Id. At a subsequent

hearing to clarify which documents should be produced, the

guardian ad litem objected again to the documents’ production

“on the ground that some of the documents were privileged and

confidential.” Id. On appeal, our Court found that the

appellant was a proper party to appeal. Id. at 1211 n.4.

Importantly, the appellant was not just affected by the

underlying discovery order but had participated also in the trial

court under the applicable rule for that context, namely Rule

26. As we explained, the “district court’s decision to permit

[the nonparty appellant] to participate in [the] discovery

dispute” through his motion practice and in the later hearing

operated “as the equivalent of authorizing

intervention.” Id. The Court further held that it had

jurisdiction over the appeal under both the collateral order and

Perlman doctrines. Id. at 1209–11.

13

Accordingly, and as we have repeatedly held, “a person

who was not a party to the record in the District Court and who

made no effort to become a party there, can[not] bring the case

into this court simply by noting an appeal.” Seigel, 168 F.2d at

146. Qatar has failed to submit a case in this Circuit “in which

a person who had taken no steps to become a party to the

proceeding in the court below, was permitted to appeal.” Id. at

145. Yet, it asks this Court to further expand the rule

articulated in Devlin to include foreign sovereigns who, acting

as nonparty amicus curiae, have submitted statements of

interest asserting the inviolability of disputed discovery under

the Vienna Conventions and principles of international comity.

We reject this proposed expansion for two primary reasons.

First, the underlying District Court order does not “bind”

Qatar. “Bind,” as used in Devlin, is a term of art that means to

“impose one or more legal duties on (a person or institution).”

Bind, BLACK’S LAW DICTIONARY (11th ed. 2019); see also

Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C. Cir. 1993)

(equating the “the binding effect of [a] class settlement” with

“‘plain legal prejudice[]’ as when ‘the settlement strips the

party of a legal claim or cause of action’”). Here, the

underlying order does not require any action of Qatar or place

any other legal duty on the country.

In Devlin, the “approval of the settlement . . . b[ound]

petitioner as a member of the class,” 536 U.S. at 9, because it

“extinguishe[d] the claim, barring a subsequent action on that

claim,” Cooper v. Fed. Rsrv. Bank of Richmond, 467 U.S. 867,

874 (1984). “Binding,” therefore, describes the preclusive

effect of an order such that it “amount[s] to a ‘final decision of

[petitioner’s] right or claim.’” Devlin, 536 U.S. at 9. This

preclusive effect does not apply, however, to those who are not

parties to a suit, except under certain recognized exceptions.

See Ethnic Emps. of Libr. of Cong. v. Boorstin, 751 F.2d 1405,

14

1409 (D.C. Cir. 1985) (“Persons who are not parties to an

action ordinarily are not bound by the judgment in the action.”).

None of the “recognized exceptions” to the general “rule

against nonparty preclusion” appear to be present in this case,

let alone raised on appeal. Taylor v. Sturgell, 553 U.S. 880,

893 (2008). Qatar asserts an important interest that may be

adversely impacted under the District Court’s order to disclose

this contested discovery. Yet, as a nonparty to the underlying

suit, Qatar is not “bound” by that order in future suits. See

Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 810 (D.C. Cir.

2002); Boorstin, 751 F.2d at 1409. Accordingly, Qatar lacks

the party status required to properly bring this appeal.

Second, Qatar has failed to demonstrate that it took action

during the District Court proceedings under “the applicability

of [any] procedural rules . . . . [in this] context.’” United States

ex rel. Eisenstein v. City of New York, 556 U.S. 928, 934 n.3

(2009) (quoting Devlin, 536 U.S. at 10). The fact that someone

is bound by an underlying order or judgment “is not

determinative” as to whether they will be recognized as a party

who can bring an appeal; “nonparties may be bound by a

judgment for a host of different reasons.” Eisenstein, 556 U.S.

at 936 (citing Taylor, 553 U.S. at 893–95). In Devlin, the

nonnamed parties’ ability to appeal without first intervening

was predicated on the fairness hearing procedure in Rule 23

that allowed unnamed class members to object to a proposed

class settlement. Eisenstein, 556 U.S. at 934 n.3 (citing Devlin,

536 U.S. at 10–11). There is no equivalent procedural vehicle

in this case. The fact that Qatar “stand[s] in a relationship

analogous to that of an amicus curiae” is unavailing. Moten v.

Bricklayers, Masons & Plasterers, Int’l Union of Am., 543 F.2d

224, 227 (D.C. Cir. 1976) (per curiam). Amici “d[o] not

automatically acquire party status simply by being permitted to

comment on the proposed final judgment or by filing its notice

of appeal.” LTV Corp., 746 F.2d at 53.

15

There is also a practical reason for not expanding our

precedent to allow nonparties in Qatar’s position the right to

appeal. “Rules of procedure,” including the rule that only

parties may appeal adverse judgments, “are not mere naked

technicalities” to be ignored. Seigel, 168 F.2d at 146. Our trial

courts must manage the “disposition of hundreds of cases” at

any given time. Id. These rules afford our courts a “reasonable

and known” structure that is “essential to the administration of

justice.” Id. It would wreak havoc, for example, if judges were

encouraged to “sally forth each day looking for wrongs to

right,” taking it upon themselves to identify additional claims

or inventive defenses never raised by the parties in the many

cases brought before them. Greenlaw v. United States, 554

U.S. 237, 244 (2008). Further chaos would ensue if courts

were required to address the arguments of every nonparty with

an interest in ongoing litigation before the court. That is why

we have the “principle of party presentation,” which requires

that our courts “rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter of

matters the parties present.” United States v. Sineneng-Smith,

140 S. Ct. 1575, 1579 (2020). The bright-line rule that only

parties may appeal an adverse judgment provides similar order

to our administration of justice and the “meticulous disposition

of the conflicts” brought before our courts. Seigel, 168 F.2d at

146. Just as courts are required to follow these procedural

rules, “[l]itigants must be required to cooperate in the efficient

disposition of their cases.” Id.

As a nonparty, Qatar is not bound by the underlying order.

Qatar also chose to not avail itself of any applicable procedural

mechanism—such as intervention—to become a party to the

underlying suit or to the proceedings related to the discovery

order challenged on appeal. Since no party to the underlying

matter has brought this appeal, it is not properly before us.

16

III.

Qatar asserts that it should not be required to become a

party to bring this appeal because such a holding would require

it “to risk a claim that it had surrendered its immunity from suit

in order to assert its privileges and immunities in discovery.”

Appellant’s Br. 22.

Our “courts of appeals have wide discretion to adopt and

apply ‘procedural rules governing the management of

litigation.’” Joseph v. United States, 135 S. Ct. 705, 705 (2014)

(Kagan, J., respecting the denial of certiorari) (quoting Thomas

v. Arn, 474 U.S. 140, 146 (1985)). The adoption of these rules

must “represent reasoned exercises of the courts’ authority.”

Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993).

At the same time, these procedural rules, like the one at issue

here, must yield if they “conflict[] with constitutional or

statutory provisions.” Thomas, 474 U.S. at 148. Accordingly,

the rule that only a party may appeal an adverse judgment

would be “invalid” in this case if, as Qatar contends, its

application would conflict with the Foreign Sovereign

Immunities Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1602–

1611. Thomas, 474 U.S. at 148.

Immunity is a threshold issue which the court has an

independent obligation to address. See Process & Indus. Devs.

Ltd. v. Fed. Republic of Nigeria, 962 F.3d 576, 584 (D.C. Cir.

2020) (recognizing that immunity assertions should be

resolved “as early in the litigation as possible”); In re

Papandreou, 139 F.3d 247, 252 (D.C. Cir. 1998) (noting that

courts should “look beyond the pleadings” when addressing

foreign sovereign immunity). The FSIA codifies historic

international law principles weighing the “careful balance

between respecting the immunity historically afforded to

foreign sovereigns and holding them accountable, in certain

17

circumstances, for their actions.” Rubin v. Islamic Republic of

Iran, 138 S. Ct. 816, 822 (2018). The statute provides that

foreign states are “presumptively immune from the jurisdiction

of United States courts[,] unless a specified exception applies.”

Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). These

exceptions “provide[] the sole basis for obtaining jurisdiction

over a foreign state in federal court.” Chevron Corp. v.

Ecuador, 795 F.3d 200, 203 (D.C. Cir. 2015) (quoting

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.

428, 439 (1989)).

Qatar expresses concerns “that, if it intervened, Broidy

would sue Qatar directly, invoking the [FSIA]’s counterclaim

exception to immunity (which applies in some circumstances

where ‘a foreign state intervenes’) or the waiver exception

(which permits waivers ‘by implication’).” Appellant’s Br.

20–21 (citing 28 U.S.C. §§ 1607, 1605(a)(1)). Under our

precedent, Qatar’s hesitation to intervene—while

understandable given the immunity protections at stake—is

unfounded.

Under the FSIA’s counterclaim exception, “‘[i]n any

action brought by a foreign state, or in which a foreign state

intervenes,’ the ‘foreign state shall not be accorded immunity

with respect to any counterclaim’ fitting within three defined

categories.” Khochinsky v. Republic of Poland, 1 F.4th 1, 10

(D.C. Cir. 2021) (quoting 28 U.S.C. § 1607). These categories

include counterclaims: (1) “for which a foreign state would not

be entitled to immunity under section 1605 or 1605A of [the

FSIA] had such claim been brought in a separate action against

the foreign state”; (2) “arising out of the transaction or

occurrence that is the subject matter of the claim of the foreign

state”; or (3) “to the extent that the counterclaim does not seek

relief exceeding in amount or differing in kind from that sought

by the foreign state.” 28 U.S.C. § 1607. “Consistent with the

18

ordinary understanding of a counterclaim, the counterclaim

exception applies only when there is an ‘action brought by a

foreign state, or in which a foreign state intervenes,’ and when

the ostensible ‘counterclaim’ is brought ‘in’ that same action.”

Khochinsky, 1 F.4th at 10.

The FSIA also provides that “a foreign state will not be

‘immune from jurisdiction’ in any case ‘in which the foreign

state has waived its immunity either explicitly or by

implication.’” Id. at 8 (cleaned up) (quoting 28 U.S.C. §

1605(a)(1)). “A foreign state will not be found to have

explicitly waived its immunity unless it has clearly and

unambiguously done so.” Wye Oak Tech., Inc. v. Republic of

Iraq, 24 F.4th 686, 691 (D.C. Cir. 2022) (cleaned up). A

waiver “by implication” is not defined in the FSIA, but it has

been construed “narrowly.” Khochinsky, 1 F.4th at 8. This

Circuit requires “that the foreign state have intended to waive

its sovereign immunity.” Id. (emphasis omitted). The

“requisite evidence of a foreign state’s intent” to establish

waiver by implication has been found in “only three

circumstances: (i) the state’s ‘executing a contract containing

a choice-of-law clause designating the laws of the United

States as applicable’; (ii) the state’s ‘filing a responsive

pleading without asserting sovereign immunity’; or (iii) the

state’s ‘agreeing to submit a dispute to arbitration in the United

States.’” Id. at 8–9. Courts are loathe to “stray beyond these

examples.” Id. at 9.

A review of our precedent, and that of other courts,

demonstrates that nonparties may file a motion for limited

intervention, while expressly reserving their rights. See United

States v. Brit. Am. Tobacco Austl. Servs., Ltd., 437 F.3d 1235,

1240 (D.C. Cir. 2006) (noting that the district court granted

limited intervention “only as to [intervenor’s] possible

privilege in documents”); Fund For Animals, Inc. v. Norton,

19

322 F.3d 728, 737 n.11 (D.C. Cir. 2003) (quoting FED. R. CIV.

P. 24(a) advisory committee’s note on 1966 amendment) (“An

intervention of right under the amended rule may be subject to

appropriate conditions or restrictions responsive among other

things to the requirements of efficient conduct of the

proceedings.”); see also United States v. City of Detroit, 712

F.3d 925, 931 (6th Cir. 2013) (collecting cases) (“Rule 24 also

provides for limited-in-scope intervention.”); DataTreasury

Corp. v. Elec. Data Sys. Corp., No. 3:02-CV-2642-K, 2003

WL 22019528, at *1 (N.D. Tex. Aug. 26, 2003) (granting

limited intervention to movant “for the sole purpose of

protecting its alleged fee interest”). Qatar, similarly, could

have filed a motion for limited intervention under Federal Rule

of Civil Procedure 24 while expressly reserving its sovereign

immunity protections, and the FSIA exceptions it referenced

“would not in fact apply.” Appellant’s Br. 21.

Under a plain reading of the statute, a foreign sovereign

must assert a claim for the FSIA’s counterclaim exception to

apply. A counterclaim is defined as “[a] claim for relief

asserted against an opposing party after an original claim has

been made.” Counterclaim, BLACK’S LAW DICTIONARY (11th

ed. 2019); see also Khochinsky, 1 F.4th at 10 (citing FED. R.

CIV. P. 13 and 28 U.S.C. § 1607). A motion to intervene for

the limited purpose of asserting its privileges under the Vienna

Conventions and international comity would not, in and of

itself, bring Qatar into the ambit of the counterclaim exception,

because filing a motion to intervene solely to file a motion to

quash or strike does not assert a “claim for relief” or raise a

“claim” within the meaning of 28 U.S.C. § 1607. See, e.g.,

Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v.

M/T Respect, 89 F.3d 650, 656 (9th Cir. 1996), as amended on

denial of reh’g (Aug. 28, 1996) (finding intervention alone,

absent filing a claim, does not constitute an exception to

immunity under the FSIA). Moreover, Qatar could have

20

requested that the District Court specifically “limit[] [its]

intervention” to “bar[] [Qatar] from” bringing claims to prevent

“undu[e] delay or prejudice [to] the adjudication” of Plaintiffs’

claims. Fund For Animals, Inc., 322 F.3d at 737 n.11. For

these reasons, the counterclaim exception is inapplicable.

The waiver exception would also not apply if Qatar

explicitly stated it was not waiving FSIA immunity as it has

done throughout this suit. In Ex parte Republic of Peru, Peru

filed a motion to intervene that expressly reserved its rights to

sovereign immunity. 318 U.S. 578, 581 (1943). The country

also participated in discovery in the case by taking a deposition.

Id. at 582. The Supreme Court held that none of those actions

waived sovereign immunity where Peru consistently stated that

no such waiver was intended as it took each action. Id. at 589;

see also Flota Maritima Browning De Cuba, Sociadad

Anonima v. Motor Vessel Ciudad De La Habana, 335 F.2d 619,

625 (4th Cir. 1964) (“[T]here is no waiver when a foreign

power . . . appears specially for the purpose of asserting her

immunity.”).

Even though the FSIA was enacted after Ex parte Republic

of Peru, the Supreme Court’s holding that no waiver results

from limited intervention still has force, especially given the

“narrow[]” grounds for waiver outlined by Congress in the

FSIA. Khochinsky, 1 F.4th at 8. Qatar has “consistently

declared its reliance on [foreign sovereign] immunity”

throughout this litigation. Ex parte Republic of Peru, 318 U.S.

at 589. Filing a motion to intervene, like other litigation

conduct such as filing motions to dismiss, to stay proceedings,

or to object to discovery, are not responsive pleadings that

result in waiver of immunity. See Delta Foods Inc. v. Republic

of Ghana, 265 F.3d 1068, 1069–70 (D.C. Cir. 2001) (holding

foreign sovereign immunity is not waived based on motions “to

dismiss or for summary judgment on the grounds of forum non

21

conveniens, comity, and ripeness” even without expressly

“assert[ing] sovereign immunity”); Foremost-McKesson, Inc.

v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990)

(finding no implicit waiver when foreign nation “did not

respond substantively to any of the averments in the complaint

or pose any defenses to the claims” but “merely argued that the

action should proceed in another forum”); see also In re

Republic of Philippines, 309 F.3d 1143, 1151 (9th Cir. 2002)

(citing FED. R. CIV. P. 12(b)) (finding no waiver of sovereign

immunity because “[a] motion to dismiss . . . is not a responsive

pleading.”); Haven v. Polska, 215 F.3d 727, 733 (7th Cir. 2000)

(holding foreign nation’s “letter objecting to service of process

did not waive sovereign immunity”); Aquamar, S.A. v. Del

Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1291 n.24

(11th Cir. 1999) (finding no implicit waiver despite foreign

nation’s “participation in the litigation, such as removing the

case to federal court, filing statements of position, and joining

[party’s] forum non conveniens motion”); Rodriguez v.

Transnave Inc., 8 F.3d 284, 290 (5th Cir. 1993) (holding

foreign sovereign immunity not waived despite participation in

lawsuit including filing a motion to dismiss and joining in

discovery motions to “fully develop the facts relating to [an]

immunity claim”); Canadian Overseas Ores Ltd. v. Compania

de Acero del Pacifico S.A., 727 F.2d 274, 277 (2d Cir. 1984)

(“[W]e refuse to hold that the filing of a variety of motions,

including a motion to dismiss, automatically waives the

defense [of foreign sovereign immunity].”).

Arguably, Qatar could file a responsive pleading in the

context of its limited intervention, but, under this Court’s

precedent, mere intervention would not “standing alone, ‘fit in

th[e] selective company’ of implied waiver cases” given

Qatar’s assertion of its immunity. Wye Oak Tech., 24 F.4th at

697 (finding “trial participation and post-trial argument”

insufficient to establish an implied waiver of foreign sovereign

22

immunity); see also Est. of Fakhoury v. Islamic Republic of

Iran, Civ. Action No. 21-1218 (JDB), 2022 WL 3355799, at *6

(D.D.C. Aug. 15, 2022) (collecting cases) (“[A] motion to

intervene for a limited purpose does not fall within any of the

three circumstances the D.C. Circuit has recognized to

constitute implied waivers of sovereign immunity”). Since a

discovery motion would constitute neither a contract nor an

arbitration agreement, the other two “circumstances” of waiver

also do not apply in the context of a request for limited

intervention.

If it were the case that Qatar’s limited intervention would

constitute a waiver of its foreign sovereign immunity, our

Court would be obligated to exempt Qatar from the procedural

requirement that only parties can appeal. See Thomas, 474 U.S.

at 148. However, that is not the case. Qatar could have, and

should have, sought to vindicate the rights it asserts under the

Vienna Conventions and principles of international comity by

filing a motion pursuant to one of the “various procedural rules

[applicable to this] context,” Devlin, 536 U.S. at 10, including,

for example, filing a motion for limited intervention, see FED.

R. CIV. P. 24(b)(1)(A), in order to seek a protective order or

some other related relief, see FED. R. CIV. P. 26(c). Cf. League

of Women Voters of United States v. Newby, 963 F.3d 130, 132

(D.C. Cir. 2020) (noting that nonparties may intervene under

Federal Rule of Civil Procedure 24(b) to access documents

“shielded from public view either by seal or by a protective

order”); E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042,

1046 (D.C. Cir. 1998) (same); AT & T Corp. v. Sprint Corp.,

407 F.3d 560, 562 (2d Cir. 2005) (noting that nonparties may

seek to modify a protective order through permissive

intervention); Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775,

783 (1st Cir. 1988) (collecting cases in which nonparty

movants intervened to challenge “court closures and protective

23

orders”). Since it failed to do so, Qatar is not a party and, thus,

cannot bring this appeal.

IV.

Marino confirmed a long-established and fundamental,

bright-line rule: “[O]nly parties to a lawsuit … may appeal an

adverse judgment.” 484 U.S. at 304. Devlin clarified that

“parties” includes: (1) named parties to an action; (2) those

who “properly become parties” through intervention,

substitution, or third-party practice; and (3) those who are not

named in the underlying action but are both bound by an

adverse order and, through applicable procedural rules, seek

relief in the trial court proceedings related to the adverse order.

Devlin, 536 U.S. at 7–10. Absent some “conflict[ing] . . .

constitutional or statutory provision[],” this procedural rule

must be applied. Thomas, 474 U.S. at 148.

Qatar could have moved for limited intervention under

Federal Rule of Civil Procedure 24 to vindicate its treaty rights

or protections under international comity without forfeiting its

foreign sovereign immunity. If Qatar had sought to intervene

with its immunity intact, and the District Court denied

intervention thinking immunity had to be waived for Qatar to

intervene, see, e.g., Jota v. Texaco Inc., 157 F.3d 153, 163 (2d

Cir. 1998) (advising Ecuador that it must waive sovereign

immunity to intervene, which Ecuador declined to do), Qatar

could have appealed that order, see League of Women Voters,

963 F.3d at 134 (holding that the collateral-order doctrine

enables appellate courts to review “a district court order

denying a motion to permissively intervene”); Alternative

Rsch. & Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C. Cir.

2001) (“[T]he denial of intervention as of right is an

appealable, final order regardless of the merits of the claim for

intervention as of right.”). At a minimum, Qatar could have

24

moved to intervene at the District Court for the limited purpose

of appealing the adverse discovery order, recognizing that any

argument not raised by a party would not be preserved on

appeal. Cf. Tachiona v. United States, 386 F.3d 205, 209, 211

(2d Cir. 2004) (finding the United States was a “proper” party

for purposes of appeal after it submitted a “suggestion of

immunity” under 28 U.S.C. § 517 in the underlying district

court proceeding and filed a motion for limited intervention to

appeal an adverse discovery order); see also Eldred v. Ashcroft,

255 F.3d 849, 851 (D.C. Cir. 2001) (en banc) (collecting cases)

(“[W]e would still not reach what would then be the supporting

argument of the amicus”). The denial of that motion would

then also have been appealable. See Veneman, 262 F.3d at 409;

League of Women Voters, 963 F.3d at 134.

Having failed to intervene or take some other available

action that would confer party status at the District Court, Qatar

is not a “party” under Devlin and, thus, cannot appeal the

District Court’s order granting Plaintiffs’ motion to compel

discovery. We do not reach the question of whether the District

Court’s order is itself immediately appealable under the

collateral order doctrine or the Perlman doctrine. However,

Qatar’s “fail[ure] to avail [itself] of [these] adequate alternative

remedies” by at least attempting to become a party means “we

lack jurisdiction to grant” its alternative request to construe its

notice of appeal as a petition for mandamus. In re Stone, 940

F.3d at 1334.

Nevertheless, through its statements of interests filed at the

District Court, Qatar has called attention to its “coordinate

interest in the litigation” and asked our courts to “exercise

special vigilance to protect [it] from the danger” of losing its

privileges and immunities through the underlying discovery

dispute. Aerospatiale, 482 U.S. at 546. Accordingly, and in

“tak[ing] care to demonstrate due respect for [this] special

25

problem confronted by [Qatar],” id., we instruct the District

Court to provide Qatar the opportunity to timely intervene to

assert its rights under the Vienna Conventions and international

comity, or file some other appropriate motion to become a

party to this litigation, in light of this opinion.

We therefore dismiss this appeal and remand the case for

further proceedings consistent with this opinion.

So ordered.