Ronald W. Francis v. Republic of Sudan

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 OLIVIA RUX, individually and as
next friend for I.M.O., a minor;
JAMIE OWENS, individually and as
next friend for I.M.O., a minor;
SHARLA COSTELOW, individually and
as next friend for E.C. and B.C.,
minors; NOVELLA WIGGINS,
individually and as next friend for
J.R.M., Jr., a minor; LORRIE D.
TRIPLETT, individually and as next
friend for Andrea Triplett and
Savannah Triplett; JENNIFER
CLODFELTER, individually and as
next friend for Noah Clodfelter;
KENYON EMBRY, individually and as
next friend for Capri Dumar; No. 05-2003 
RONALD W. FRANCIS; JACQUELINE
SAUNDERS, individually and as next
friend for I.S. and J.S., minors;
SANDRA FRANCIS; ROGELO SANTIAGO;
SIMEONA SANTIAGO; SARAH GUANA
ESQUIVEL; JESSE NIETO; THOMAS
WIBBERLY; PATRICIA WIBBERLY;
THEODIS TRIPLETT; WAYNE TRIPLETT;
REED TRIPLETT; GARY SWENCHONIS,
SR.; DEBORAH SWENCHONIS; SHALALA
SWENCHONIS; KATE BROWN; SEAN
WALSH; KEVIN ROY; LOU GUNN;
MONA GUNN; JAMAL GUNN; JASON
GUNN; ANTON J. GUNN; LEROY
PARLETT; ETTA PARLETT, individually 

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 and as next friend for H.P., a
minor; KERA MILLER; MATTHEW
PARLETT; JOHN CLODFELTER; GLORIA
CLODFELTER; JOSEPH CLODFELTER;
TONI WIBBERLY; DIANE MCDANIELS;
TERESA SMITH; GEORGE COSTELOW;
DOROTHY COSTELOW; FREDERICA 
MCDANIELS-BESS,
Plaintiffs-Appellees,
v.
REPUBLIC OF SUDAN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-04-428-2)
Argued: May 24, 2006
Decided: September 1, 2006
Before WIDENER and DUNCAN, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed in part and dismissed in part by published opinion. Judge
Duncan wrote the opinion, in which Judge Widener and Judge Floyd
joined.
COUNSEL
ARGUED: Douglas Knox Bemis, Jr., HUNTON & WILLIAMS,
Washington, D.C., for Appellant. Andrew C. Hall, HALL, JOSEPH
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& LAMB, P.A., Miami, Florida, for Appellees. ON BRIEF: Gregory
N. Stillman, Carl D. Gray, HUNTON & WILLIAMS, Norfolk, Vir-
ginia; Thomas R. Snider, HUNTON & WILLIAMS, Washington,
D.C., for Appellant. Mary Jane Hall, KAUFMAN & CANOLES,
P.A., Norfolk, Virginia; James Cooper-Hill, Rockport, Texas; Nelson
M. Jones, NICHOLAS & JONES, L.L.P., Houston, Texas; Alan W.
Young, Portola Valley, California, for Appellees.
OPINION
DUNCAN, Circuit Judge:
In this action for damages brought against it by relatives of Ameri-
can sailors killed in the terrorist bombing of the U.S.S. Cole
("Plaintiffs"), the Republic of Sudan ("Sudan") appeals an order of the
district court largely denying its motion to dismiss. On appeal, Sudan
argues both that the district court erred in denying its motion to dis-
miss for lack of subject matter jurisdiction and also that this court
should exercise pendent appellate jurisdiction over, and reverse, the
district court’s denial of its motion to dismiss for lack of personal
jurisdiction and improper venue. Sudan also argues that this court
should exercise pendent appellate jurisdiction over and consider for
the first time its motion to dismiss for lack of standing, an issue on
which the district court deferred action. Because we find that the dis-
trict court’s exercise of subject matter jurisdiction was proper and that
there is no basis to exercise pendent appellate jurisdiction over the
remaining issues, we affirm the district court’s denial of Sudan’s
motion to dismiss for lack of subject matter jurisdiction and dismiss
the remainder of Sudan’s appeal.
I.
This case arises out of the October 12, 2000, bombing of the U.S.S.
Cole in which seventeen American sailors were killed. The bombing,
alleged in the Amended Complaint to have been planned and exe-
cuted by the terrorist organization Al-Qaeda, occurred while the ship
was berthed in Aden Harbor in Yemen. Plaintiffs, consisting of more
than fifty surviving family members of the sailors who were killed,
brought this action to recover for damages resulting from their deaths.
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The Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.A.
§§ 1602-1611 (West 1994 & Supp. 2006), generally immunizes for-
eign states such as Sudan from suit in federal court. See § 1604. Sec-
tion 1605(a)(7) of FSIA, however, provides an exception for suits
against state sponsors of terrorism for damages arising from certain
terrorist acts identified in the statute. § 1605(a)(7). Plaintiffs invoked
§ 1605(a)(7) based on allegations that Sudan had provided various
forms of support to Al-Qaeda both during the years preceding and in
the orchestration of the bombing of the U.S.S. Cole.
Plaintiffs filed their original complaint on July 16, 2004, and subse-
quently amended it several times. They effected service of process on
Sudan on December 16, 2004. When Sudan failed to answer within
the prescribed time, the Clerk of Court entered default against it.
Plaintiffs then moved for default judgment, which the district court
scheduled for hearing. Before the date of the hearing, Sudan filed a
Motion to Vacate Entry of Default and Cancel Evidentiary Hearing.
In that motion, Sudan argued that the district court lacked personal
jurisdiction because of insufficient process and service of process.
Following a hearing on Sudan’s motion, the district court vacated the
entry of default with Plaintiffs’ consent but held that Sudan had
waived its right to contest personal jurisdiction and that Plaintiffs had
effected proper service on Sudan.
On August 3, 2005, Sudan filed its Motion to Dismiss Plaintiffs’
Amended Complaint with Prejudice. In that motion, Sudan argued (1)
that the court lacked subject matter jurisdiction under FSIA because
Plaintiffs failed to plead sufficient jurisdictional facts; (2) that Sudan
lacked sufficient minimum contacts with Virginia to support personal
jurisdiction; (3) that venue was improper in the Eastern District of
Virginia; (4) that Plaintiffs’ process was insufficient; (5) that Plain-
tiffs’ service of process was insufficient; and (6) that Plaintiffs had
failed to state a claim on which relief could be granted for various
reasons, including lack of standing.
On August 26, 2005, the district court entered the order, which is
at issue in this appeal, denying most of Sudan’s motion to dismiss. In
that order, the district court held: (1) that Plaintiffs had pleaded suffi-
cient facts to support subject matter jurisdiction under § 1605(a)(7);
(2) that Sudan had waived its right to contest personal jurisdiction,
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service of process, and venue; (3) that Plaintiffs had nevertheless
effected proper service of process on Sudan; (4) that the district court
had personal jurisdiction over Sudan; and (5) that the Eastern District
of Virginia was a proper venue for the suit. The district court took
under advisement Sudan’s motion to dismiss for failure to state a
claim until after Sudan filed an answer. In so doing, the district court
specifically deferred ruling on Sudan’s argument that Plaintiffs lacked
standing. Sudan timely appealed.
In this appeal, Sudan argues that the district court erred in denying
its motion to dismiss for lack of subject matter jurisdiction under
FSIA, an issue that is subject to interlocutory review. Sudan also asks
us to exercise pendent appellate jurisdiction to review the district
court’s rulings on the issues of personal jurisdiction and venue. Sudan
finally asks us to exercise pendent appellate jurisdiction over and
decide the issue of standing, even though the district court has not yet
ruled on it. We consider each of Sudan’s arguments in turn.
II.
We first address Sudan’s argument that Plaintiffs failed to allege
sufficient facts in the Amended Complaint to establish subject matter
jurisdiction under FSIA.1 "The existence of subject matter jurisdiction
under [FSIA] . . . is a question of law" that we review de novo. Eckert
Int’l, Inc. v. Gov’t of the Sovereign Democratic Republic of Fiji, 32
F.3d 77, 79 (4th Cir. 1994). For reasons that follow, we reject Sudan’s
argument.
FSIA provides that, subject to certain limited exceptions, "a foreign
state shall be immune from the jurisdiction of the courts of the United
States." § 1604. One exception to such immunity arises in claims
against a foreign state for injuries resulting from certain acts of terror-
ism. See § 1605(a)(7).2 Under § 1605(a)(7), "victims of terrorism
1We have jurisdiction to review this issue because "[o]rders denying
sovereign immunity are immediately appealable collateral orders."
Eckert Int’l, Inc. v. Gov’t of the Sovereign Democratic Republic of Fiji,
32 F.3d 77, 79 (4th Cir. 1994).
2Section 1605(a)(7) provides that a foreign state that has been desig-
nated as a state sponsor of terrorism is not immune from a suit
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[can] sue countries that have been designated state sponsors of terror-
ism by the State Department . . . for those countries’ provision of
‘material support’ for terrorist acts." Hegna v. Islamic Republic of
Iran, 376 F.3d 226, 230 (4th Cir. 2004) (citing § 1605(a)(7)). This so-
called "terrorist exception" has the following jurisdictional require-
ments: (1) the provision of material support by a state sponsor of ter-
rorism; (2) the provision of such support by an official of the state
"while acting within the scope of his or her office, employment, or
agency"; and (3) a causal link between the material support and dam-
age resulting from an act of terrorism. See § 1605(a)(7).
A foreign state’s challenge3 to subject matter jurisdiction in an
action brought pursuant to the terrorist exception to FSIA may be
based on either (1) the inadequacy of the pleadings as a matter of law;
or (2) a denial of the allegations in the complaint. Phoenix Consult-
ing, Inc., 216 F.3d at 40. In the first instance, the foreign state does
not challenge the plaintiff’s allegations of fact; in the second, the dis-
trict court must resolve the factual dispute in ruling on the motion to
dismiss. Id. Sudan’s motion to dismiss here was based solely on the
legal sufficiency of the pleadings. In other words, this appeal presents
no contested issues of fact and we accept Plaintiffs’ allegations as true
for purposes of determining jurisdictional sufficiency. See Price v.
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 pro-
vision 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 agency.
§ 1605(a)(7).
3"Because sovereign immunity is in the nature of an affirmative
defense, the plaintiff need not prove the absence of sovereign immunity
in the first instance; rather, ‘the defendant bears the burden of proving
that the plaintiff’s allegations do not bring its case within a statutory
exception to immunity.’" Owens v. Republic of Sudan, 412 F. Supp. 2d
99, 104 (D.D.C. 2006) (citing Phoenix Consulting, Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)) (emphasis omitted).
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Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C.
Cir. 2002); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905
F.2d 438, 440 n.3 (D.C. Cir. 1990).
The standard we apply in assessing Sudan’s challenge "is similar
to that of Rule 12(b)(6), under which dismissal is warranted if no
plausible inferences can be drawn from the facts alleged that, if
proven, would provide grounds for relief." Price, 294 F.3d at 93.
Plaintiffs need not set out every fact on which jurisdiction under
§ 1605(a)(7) depends. Id. Rather, they must include sufficient facts to
support a reasonable inference that their claims satisfy the terrorist
exception and, therefore, that an exercise of subject matter jurisdic-
tion is appropriate. Owens, 412 F. Supp. 2d at 106; see Price, 294
F.3d at 93-94.
The Amended Complaint broadly alleges that Sudan "provided
material support in the form of funding, direction, training and cover
to Al-Qaeda, a worldwide terrorist organization whose operatives
facilitated the planning and execution of the bombing of the U.S.S.
Cole." Am. Compl. at 2. More specifically, the Amended Complaint
contains the following jurisdictional allegations:
26. Defendant Republic of Sudan, by and through offi-
cials, employees or agents acting knowingly and will-
fully, used funds and other assets belonging to the
Republic of the Sudan to provide material support and
resources to Osama bin Ladin and to Al Qaeda, the
perpetrators of the bombing of the U.S.S. Cole refer-
enced herein above on October 12, 2000 in port in
Yemen, which bombing resulted in the wrongful
deaths of the plaintiffs’ decedents. The provision of
material support or resources was engaged in by offi-
cials, employees and agents of the Republic of the
Sudan while such officials, employees or agents were
acting within the scope of their office, employment or
agency.
27. The bombing of the U.S.S. Cole was an act of interna-
tional terrorism knowingly and deliberately aided and
abetted by Defendant Republic of the Sudan. The pro-
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viding to Osama bin Ladin of safe harbor and shelter
during a period of time up to and including 1996 and
to other members of Al Qaeda through 2001, created
liability, on the part of Defendant Republic of the
Sudan. Defendant Republic of the Sudan provided
material support and resources to some of the actual
perpetrators of the bombing of the U.S.S. Cole. The
Republic of Sudan aided and abetted the actual perpe-
trators in carrying out such acts of terrorism. Agents,
servants or employees of the Republic of the Sudan
knew that the acts of Osama bin Ladin were acts of
terrorism designed to cause death or serious injury to
the victims of its terrorism. Agents, servants or
employees of the Republic of the Sudan participated in
the providing of the shelter to Osama bin Ladin and to
Al-Qaeda, the perpetrators of the acts complained of
herein. Among the acts providing support or resources
were the following: (a) the Gum Arabic Company,
Ltd, a company operating in the Republic of Sudan
was jointly owned by the government of Sudan and
Osama bin Ladin; (b) use of a diplomatic pouch to
send explosive materials belonging to Osama bin
Ladin for Al Qaeda outside the Republic of Sudan; (c)
the establishment of a bank primarily financed by
Osama bin Ladin, the al-Shamal Islamic Bank in Khar-
toum, which bank is jointly owned by the Republic of
the Sudan; (d) Omar Hassan Ahmad al Bashir, presi-
dent of the Republic of Sudan, authorized the entry
into the Republic of Sudan by Al Qaeda operatives and
gave Al Qaeda special authority to avoid paying taxes
and duties ordinarily due to the Republic of the Sudan;
(e) Osama bin Ladin founded Wadi-al-Aqiq, a trading
company which was allowed unrestricted shipping by
the Sudanese government; (f) the Sudanese govern-
ment allowed Osama bin Ladin and Al Qaeda to oper-
ate training camps within the Republic of Sudan for
the purpose of training terrorists including training
such people in how to manufacture bombs and explo-
sives; (g) the Republic of Sudan failed to comply with
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UN Security Council Resolutions 1044, 1054 and
1096, which were passed in 1996, and as of April,
2000 continued to harbor various terrorist groups
including but not limited to Al Qaeda; (h) the Suda-
nese government allowed Al Qaeda operative Jamal
Ahmed al-Fadl to ship four crates of explosive from
Sudan to Yemen, the site of the bombing of the USS
Cole; (i) Defendant Republic of the Sudan . . . sent its
minister of foreign affairs, Mustafa Osman Ismail in
May 2003 to the United States to issue a public apol-
ogy for the prior harboring and assisting of terrorists
including but not limited to Al Qaeda and Osama bin
Ladin, which apology was aired on CSPAN. . . .
29. The attack on October 12, 2000 against the U.S.S.
Cole while in a harbor in the waters of Yemen was
part of a decade-long plan of international terrorism
directed at the United States of America and its citi-
zens that was conceived and implemented pursuant to
an international conspiracy of terrorists, usually
referred to as Al Qaeda, which conspiracy was joined
and supported by Defendant Republic of the Sudan. Al
Qaeda could not have existed or planned its acts of ter-
rorism, including an act directed at an American Naval
vessel, without the support of state sponsors of terror-
ism including Defendant Republic of the Sudan.
Between 1991 and 1996 Defendant Republic of the
Sudan provided shelter and a safe haven for the opera-
tions of Al Qaeda’s leader, Osama bin Ladin. After
1996, Defendant continued to render support and shel-
ter [to] other Al-Qaeda operatives including Yemeni
militant terrorists who planned the attack on the U.S.S.
Cole.
30. Commencing in 1991, Osama bin Ladin and his Al
Qaeda organization were welcomed in the Republic of
the Sudan by the leader of the National Islamic Front
Haza al Turabi and the President of the Republic of the
Sudan, Omar Bashir, who provided entry to and depar-
ture from the Republic of the Sudan for members of Al
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Qaeda without the normal customs inspections and
payment of fees to which all other persons were sub-
jected.
Id. ¶¶ 26, 27, 29, 30. Sudan argues that these allegations do not satisfy
the three jurisdictional requirements of § 1605(a)(7) listed above. We
therefore turn to a consideration of each.
A. The sufficiency of Plaintiffs’ allegations of "material support
or resources" by a state sponsor of terrorism4
Sudan argues that Plaintiffs’ allegations of "material support or
resources" under § 1605(a)(7) do not meet the statutory definition of
that term. Under § 1605(a)(7),
the term "material support or resources" means any prop-
erty, tangible or intangible, or service, including currency or
monetary instruments or financial securities, financial ser-
vices, lodging, training, expert advice or assistance, safe-
houses, false documentation or identification,
communications equipment, facilities, weapons, lethal sub-
stances, explosives, personnel . . . , and transportation.
18 U.S.C.A. § 2339A(b)(1) (West Supp. 2006); see § 1605(a)(7)
(incorporating the definition of "material support or resources" from
18 U.S.C. § 2339A(b)(1)). Plaintiffs may therefore satisfy the first
requirement of § 1605(a)(7) by identifying conduct by Sudan that
falls within the meaning of any one of these listed forms of material
support. Because § 2339A(b)(1) does not define the forms of material
support that are relevant in this case, we will construe each in accord
with its ordinary or natural meaning. Smith v. United States, 508 U.S.
223, 228 (1993). In doing so, however, we also bear in mind the need
to interpret statutory language in a manner that effectuates congres-
sional intent. See United Hosp. Ctr., Inc. v. Richardson, 757 F.2d
1445, 1453 (4th Cir. 1985). With these principles in mind, we con-
sider various forms of material support referenced in § 2339A(b)(1).
4The United States has designated Sudan a state sponsor of terrorism.
58 Fed. Reg. 52523-01 (Oct. 8, 1993).
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Sudan focused much of its argument on the parameters of the term
"safehouses." As we have set forth above, Plaintiffs allege that Sudan
provided Al-Qaeda safe haven and a base of operations from which
to conduct its terrorist operations. Am. Compl. ¶ 27(a), (c), (d), (e),
(f) (alleging that Sudan allowed entry of Al-Qaeda operatives into
Sudan; provided financial support to Al-Qaeda in the form of joint
business ventures and relief from taxes and duties; and allowed Al-
Qaeda to operate terrorist training camps in Sudan). Sudan argues that
these allegations are not sufficient to state material support under the
"safehouses" provision because the term should be limited to discrete
buildings or structures. We disagree.
The term "safehouse" is normally defined as a "place where one
may engage in secret activities or take refuge." Webster’s Ninth New
Collegiate Dictionary 1036 (1986). While one could certainly read the
type of spatial limitations that Sudan advocates into this definition,
we discern nothing inherent in the normal meaning of the term that
necessarily warrants those limitations. Rather, it is entirely consistent
with this definition to construe the statutory term to include the mak-
ing available of locations within a country that serve as a base of
operations for terrorists.
The underlying purpose of § 1605(a)(7), which guides our analysis,
supports the more expansive construction of the term. Congress
adopted § 1605(a)(7) to "give American citizens an important eco-
nomic and financial weapon against" state sponsors of terrorism by
"allowing suits . . . against countries responsible for terrorist acts
where Americans . . . suffer injury or death." H.R. Rep. No. 104-518,
at 62 (1995) (Conf. Rep.). Congress based this expansion of jurisdic-
tion on its recognition that state sponsors of terrorism "have become
better at hiding their material support for their surrogates, which
includes the provision of safe havens, funding, training, . . . and the
like." Id. Thus, the ordinary meaning of the term "safehouses" does
not require, nor does the legislative history underlying the statute sup-
port, the restrictive interpretation of the term for which Sudan argues.
Moreover, the only other court to have construed comprehensively
the scope of the term "safehouses" reached a similar conclusion. In
rejecting a nearly identical argument by Sudan in an action for dam-
ages arising out of Al-Qaeda’s 1998 bombings of the U.S. embassies
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in Kenya and Tanzania, the district court for the District of Columbia
held that "[i]nsofar as the government of the Republic of Sudan affir-
matively allowed and/or encouraged al-Qaeda and Hizbollah to oper-
ate their terrorist enterprises within its borders, and thus provided a
base of operations for the planning and execution of terrorist attacks
. . . Sudan provided a ‘safehouse’ within the meaning of 18 U.S.C.
§ 2339A, as incorporated in 28 U.S.C. § 1605(a)(7)." Owens, 412 F.
Supp. 2d at 108. Similarly, here, allegations that Sudan provided Al-
Qaeda with locations within the country where its members could
meet, engage in business activities and operate terrorist training
camps satisfy the "safehouses" provision of § 2339A(b)(1) for pur-
poses of meeting the jurisdictional requirements of § 1605(a)(7).
In addition, Plaintiffs’ allegations meet the "financial services" and
"transportation" elements of the definition of material support as well.
As explained above, we will construe each in accordance with its
ordinary meaning. See Smith, 508 U.S. at 228.
The term "financial services" normally means the function of pro-
viding a service relating to finance or financiers. Webster’s Ninth
New Collegiate Dictionary 463, 1076 (definitions of financial and ser-
vice). Plaintiffs meet this definition by alleging that Sudan formed a
trading company and a bank with Al-Qaeda, and that it granted mem-
bers of Al-Qaeda special tax and customs allowances. Each of these
actions on the part of Sudan provided services of a financial nature
to Al-Qaeda. Am. Compl. ¶ 27(a), (c), (d).
The term "transportation" commonly means "an act, process, or
instance" of conveying "passengers or goods" from one place to
another. Webster’s Ninth New Collegiate Dictionary 1254. Plaintiffs
meet this definition by alleging that Sudan allowed Al-Qaeda to use
its diplomatic pouch, authorized entry of members of Al-Qaeda into
the country, allowed a company run by Osama bin Laden unrestricted
shipping, and allowed a member of Al-Qaeda to ship explosives to
Yemen. Am. Compl. ¶ 27(b), (d), (e) and (f). Each of these alleged
actions involve Sudan’s exercise of control over the movement of
passengers or goods from one place to another.
At bottom, Plaintiffs’ allegations meet numerous elements of the
definition of material support set out in § 2339A(b)(1) and incorpo-
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rated into § 1605(a)(7). We therefore conclude that there is no basis
to dismiss the Amended Complaint on the ground that Plaintiffs’ alle-
gations failed to satisfy the jurisdictional requirement of material sup-
port.
B. The sufficiency of Plaintiffs’ allegations of the provision of
material support by an official, employee or agent of Sudan
while acting within the scope of his or her governmental
authority
Sudan further argues that Plaintiffs failed to allege that a Sudanese
official acting within the scope of his or her governmental authority
provided the alleged material support, as required by § 1605(a)(7).
Again, we disagree.
Plaintiffs easily satisfy this requirement with their allegation that
"Omar Hassan Ahmad al Bashir, president of the Republic of Sudan,
authorized the entry into the Republic of Sudan by Al-Qaeda opera-
tives and gave Al-Qaeda special authority to avoid paying taxes and
duties ordinarily due to" Sudan. Am. Compl. ¶ 27(d) (emphasis
added). At times relevant to these proceedings, President Bashir was
"an official, employee, or agent" of Sudan by virtue of his elected
position and the broad governmental authority he wielded under the
constitution of Sudan in force at the time. See generally Constitution
of the Republic of Sudan (repealed 2005), available at http://
www.sudan.net/government/constitution/english.html.
Moreover, President Bashir’s alleged actions fell "within the scope
of his . . . office, employment, or agency" because each involved the
exercise of the governmental authority vested in the office of presi-
dent by Sudan’s constitution. As noted above, Plaintiffs allege that
President Bashir authorized the entry of Al-Qaeda operatives into
Sudan and granted those operatives special tax considerations. Am.
Compl. ¶ 27(d). The authority to control both immigration and taxa-
tion in Sudan were constitutionally allocated to the federal govern-
ment. Constitution of the Republic of Sudan arts. 110(c), 110(j),
113(b) (repealed 2005). The power of the federal government under
that document was exercised by the President of Sudan, along with
a Council of Ministers who were appointed by the President. Consti-
tution of the Republic of Sudan arts. 42, 47, 49 (repealed 2005).
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Based on this governmental structure and allocation of power, we
conclude that President Bashir’s alleged actions were within the scope
of his office and, therefore, that the actions set forth in the Amended
Complaint satisfy § 1605(a)(7)’s requirement that Plaintiffs allege the
provision of material support by an official of the government acting
within the scope of his authority.5
C. The sufficiency of Plaintiffs’ allegations of jurisdictional
causation
Sudan argues that Plaintiffs failed to allege sufficient facts to draw
a causal connection, for pleading purposes, between the alleged provi-
sion of material support to Al-Qaeda and the deaths caused by the
bombing of the U.S.S. Cole. For the reasons that follow, we must
reject this argument as well.
Section 1605(a)(7) strips a foreign state of its sovereign immunity
only where damages are sought for an injury "that was caused by . . .
the provision of material support or resources [for certain acts of ter-
rorism]." § 1605(a)(7) (emphasis added). Courts have interpreted this
statutory language to create a "jurisdictional causation" requirement
that a plaintiff must meet to overcome a sovereign immunity-based
challenge to subject matter jurisdiction under § 1605(a)(7). See Kil-
burn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1129 (D.C. Cir. 2004); Owens, 412 F. Supp. at 109-10.
Jurisdictional causation under § 1605(a)(7) is distinct from the sub-
stantive causation element of a claim. See Kilburn, 376 F.3d at 1129.
Our decision today reaches only the type of causation that
5Although we focus here on the actions of the president in the exercise
of his specific authority, we note as well that other aspects of providing
safe haven to Al-Qaeda also necessarily involved official governmental
support. For example, as the district court recognized, permitting the use
of diplomatic pouches, granting relief from taxes and duties, allowing the
establishment and operation of terrorist training camps, and establishing
financial joint ventures between Sudan and Al-Qaeda, Am. Compl.
¶ 27(a)-(i), could only be carried out by government officials acting
within the scope of their offices. See Rux v. Republic of Sudan, No. 2:04-
CV-428, 2005 WL 2086202 (E.D. Va. Aug. 26, 2005) (unpublished).
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§ 1605(a)(7) requires to overcome foreign sovereign immunity and
establish subject matter jurisdiction over an action against a foreign
state. "To succeed in the end, the plaintiff[s] must go beyond jurisdic-
tion and provide proof [of causation that] satisf[ies] a substantive
cause of action." Id. That a plaintiff must ultimately establish substan-
tive causation addresses any lingering concerns that a foreign state
could be exposed to damages for remote or attenuated acts of support.
Id.
Sudan argues that Plaintiffs’ allegations do not satisfy jurisdictional
causation because they contain factual gaps that break the causal
chain between Sudan’s support of Al-Qaeda and the bombing of the
U.S.S. Cole. Sudan appears to advocate the same but-for standard for
jurisdictional causation that the D.C. Circuit confronted in Kilburn,
discussed below. See id. at 1127-29. (rejecting Libya’s argument that
§ 1605(a)(7) requires allegations that the acts of terrorism would not
have occurred without its support). In practical terms, Sudan’s posi-
tion would require a plaintiff to plead sufficient facts to chart a direct
and unbroken causal line between a state’s provision of material sup-
port and an ultimate act of terrorism. However, neither the text of the
statute nor relevant authority warrants adoption of such a stringent
standard for purposes of surviving a motion to dismiss.
In Kilburn, the D.C. Circuit interpreted the "caused by" language
of § 1605(a)(7) to require only a showing of proximate cause. 376
F.3d at 1128. Proximate cause is normally satisfied where there is a
"reasonable connection between the act or omission of the defendant
and the damages which the plaintiff has suffered." W. Keeton et al.,
Prosser & Keeton on the Law of Torts 263 (5th ed. 1984). The D.C.
Circuit based its conclusion on the Supreme Court’s interpretation of
identical jurisdictional language in the Extension of Admiralty Juris-
diction Act ("Extension Act"), 46 U.S.C.A. app. § 740 (West 1975 &
Supp. 2006).6 Kilburn, 376 F.3d at 1128 (citing Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 536-38
6The relevant text of the Extension Act states: "The admiralty and mar-
itime jurisdiction of the United States shall extend to and include all
cases of damage or injury, to person or property, caused by a vessel on
navigable water, notwithstanding that such damage or injury be done or
consummated on land." 46 U.S.C. app. § 740 (emphasis added).
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(1995)). In construing the Extension Act in Grubart, the Supreme
Court rejected an attempt to require close temporal and spatial prox-
imity between a harm and the action that allegedly caused it. Grubart,
513 U.S. at 536. Instead, the Court held that the concept of proximate
cause provided the proper measure for jurisdictional causation. In Kil-
burn, the D.C. Circuit applied Grubart’s analysis to reject the defen-
dant’s attempt to subject jurisdictional causation under § 1605(a)(7)
to a but-for standard. Kilburn, 376 F.3d at 1129-30.
Guided by these decisions, we agree that proximate cause is the
appropriate standard to apply at this juncture. It serves simultaneously
to weed out the most insubstantial cases without posing too high a
hurdle to surmount at a threshold stage of the litigation. We find noth-
ing in the relevant authority nor in the text of § 1605(a)(7) to support
Sudan’s call for a more stringent standard. See Kilburn, 376 F.3d at
1128. Instead, Plaintiffs must establish jurisdictional causation by
alleging facts sufficient to establish a reasonable connection between
a country’s provision of material support to a terrorist organization
and the damage arising out of a terrorist attack. See Kilburn, 376 F.3d
at 1128; Owens, 412 F. Supp. 2d at 111.
Plaintiffs’ allegations satisfy this standard. As set forth above,
Plaintiffs make both general and specific allegations regarding
Sudan’s involvement in the bombing. Am. Compl. ¶¶ 26, 27, 29, 30.
Plaintiffs first make general allegations that Sudan "aided and abet-
ted" the bombing with knowledge that Al-Qaeda had designed the
attack to cause death or serious injury. Id. Plaintiffs then detail spe-
cific allegations that Sudan allowed Al-Qaeda to use its diplomatic
pouch to ship explosives, allowed Al-Qaeda operatives to enter the
country; granted Al-Qaeda relief from taxes, allowed Al-Qaeda to
operate terrorist training camps in the country that provided instruc-
tion on the use of explosives, and allowed an Al-Qaeda operative to
ship explosives from Sudan to Yemen, the site of the bombing. Id.
¶ 27(b), (d), (f), (h).
Plaintiffs’ allegations are somewhat imprecise as to the temporal
proximity of Sudan’s actions to and their causal connection with the
bombing of the U.S.S. Cole. Although the allegations describe actions
on the part of Sudan that could have supported and facilitated the
bombing, they do not chart a direct and unbroken factual line between
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Sudan’s actions and the bombing. However, such imprecision is not
fatal for purposes of jurisdictional causation so long as the allega-
tions, and the reasonable inferences drawn therefrom, demonstrate a
reasonable connection between Sudan’s actions and the bombing. See
Kilburn, 376 F.3d at 1128; Owens, 412 F. Supp. 2d at 111. The alle-
gations do so here by describing how Sudan provided Al-Qaeda a
base of operations to plan and prepare for the bombing, and provided
operational support for the attack. Accordingly, we find no merit in
Sudan’s contention that Plaintiffs failed to allege sufficient facts to
support the jurisdictional causation element of § 1605(a)(7).
In summary, we find that Plaintiffs alleged sufficient facts to create
subject matter jurisdiction under § 1605(a)(7) and, therefore, find no
error in the district court’s denial of Sudan’s motion to dismiss for
lack of subject matter jurisdiction.
III.
Sudan next asks this court to exercise pendent appellate jurisdiction
over the district court’s denial of its motion to dismiss for lack of per-
sonal jurisdiction, which is a non-final order that is not otherwise
immediately appealable. Sudan argues that we should do so to pro-
mote the efficient use of judicial resources by foregoing the litigation
that would potentially result from delaying review of this issue until
after final judgment is entered in the district court. We must decline
to exercise such jurisdiction, however.
It borders on the axiomatic that, subject to certain limited excep-
tions, our appellate jurisdiction is limited to final orders from the dis-
trict courts. 28 U.S.C. § 1291 (2000). The district court’s order
denying Sudan’s motion to dismiss for lack of personal jurisdiction
is not a final order because it does not "end[ ] the litigation on the
merits and leave[ ] nothing for the court to do but execute the judg-
ment." Catlin v. United States, 324 U.S. 229, 233 (1945). Nor does
it fall within the category of non-final orders that are immediately
appealable under the collateral-order doctrine because they are "con-
clusive, . . . resolve important questions separate from the merits, and
. . . are effectively unreviewable on appeal from the final judgment
in the underlying action." Swint v. Chambers County Comm’n, 514
U.S. 35, 42 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337
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U.S. 541, 546 (1949)).7 There is nothing that would prevent effective
review of the denial of a motion to dismiss for lack of personal juris-
diction following final judgment in the district court. See Van Cau-
wenberghe v. Biard, 486 U.S. 517, 526-27 (1988); Byrd v.
Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380,
381 n.1 (5th Cir. 1999).
Sudan nevertheless argues that we should review this issue under
pendent appellate jurisdiction, a judicially-created, discretionary
exception to the final judgment requirement. Under this exception, we
retain the discretion to review issues that are not otherwise subject to
immediate appeal when such issues are so interconnected with imme-
diately appealable issues that they warrant concurrent review. See
Taylor, 81 F.3d at 437. Pendent appellate jurisdiction is an exception
of limited and narrow application driven by considerations of need,
rather than of efficiency. See Montano v. City of Chicago, 375 F.3d
593, 599 (7th Cir. 2004); Taylor, 81 F.3d at 437. In Swint, the
Supreme Court suggested that pendent appellate jurisdiction is avail-
able only (1) when an issue is "inextricably intertwined" with a ques-
tion that is the proper subject of an immediate appeal; or (2) when
review of a jurisdictionally insufficient issue is "necessary to ensure
meaningful review" of an immediately appealable issue. Swint, 514
U.S. at 50-51.
Sudan relies on a line of authority from the District of Columbia
Circuit that suggested that the exercise of pendent appellate jurisdic-
tion is appropriate based on "considerations of fairness or efficiency."
Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.
Cir. 1996); see also Jungquist v. Sheikh Sultan Bin Khalifa Al
Nahyan, 115 F.3d 1020, 1026 (D.C. Cir. 1997). However, the
Supreme Court appears to have foreclosed such considerations in
Swint. The Court there rejected an efficiency argument similar to
Sudan’s by reasoning that such arguments "drift away from the statu-
7Non-final orders are also immediately appealable in other limited cir-
cumstances. See 28 U.S.C. §§ 1292(a) & (b) (2000); Fed. R. Civ. P.
54(b). Having carefully reviewed the record, we conclude that neither the
facts nor procedural history of this case implicate any of these excep-
tions.
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tory instructions Congress has given to control the timing of appellate
proceedings." Swint, 514 U.S. at 45.
Moreover, since Swint, this court has consistently limited its appli-
cation of pendent appellate jurisdiction to the two circumstances out-
lined therein. See, e.g. United States v. Bundy, 392 F.3d 641, 649 (4th
Cir. 2004); Altman v. City of High Point, 330 F.3d 194, 207 n.10 (4th
Cir. 2003); Antrican v. Odom, 290 F.3d 178, 191 (4th Cir. 2002); Hin-
son v. Norwest Fin. S.C., Inc., 239 F.3d 611, 615 (4th Cir. 2001);
United States v. North Carolina, 180 F.3d 574, 581 n.4 (4th Cir.
1999); Jenkins v. Medford, 119 F.3d 1156, 1159 n.2 (4th Cir. 1997)
(en banc); Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996). The
First through Eleventh Circuits have similarly limited their applica-
tion of pendent appellate jurisdiction. See Kilburn, 376 F.3d at 1134
n.7 (collecting cases).
We are constrained by the language of the Supreme Court as well
as our own precedent from recognizing efficiency considerations as
a basis for the exercise of pendent appellate jurisdiction. Because
Sudan has not argued that jurisdiction is proper under either element
of Swint, we decline to review the denial of its motion to dismiss for
lack of personal jurisdiction and dismiss that portion of its appeal.
IV.
Sudan next argues that we should exercise pendent appellate juris-
diction over its claim that Plaintiffs lack standing based on the Death
on the High Seas Act ("DOHSA"), 46 U.S.C. app. §§ 761-767 (West
1975 & Supp. 2006).8 Sudan argues that resolution of this standing
issue is necessary to ensure meaningful review of the issue of subject
matter jurisdiction because "[i]f Plaintiffs have no standing to bring
the claims asserted, the Court’s decision on the FSIA issue will be an
advisory opinion." Appellant’s Br. at 5. Even if we were inclined to
8This issue is not otherwise immediately appealable because the order
being appealed neither terminated this action nor resolved Sudan’s stand-
ing argument. See § 1291; Swint, 514 U.S. at 42 (recognizing that a deci-
sion must conclusively resolve an issue for the collateral order doctrine
to apply).
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consider an issue taken under advisement and not ruled on by the dis-
trict court, we find no basis to exercise jurisdiction over this issue.
The standing issue and the FSIA issue are not sufficiently intercon-
nected to justify pendent appellate jurisdiction. Under the elements of
Swint, jurisdiction is appropriate where issues are (1) "so intertwined
that we must decide the pendent issue in order to review the claims
properly raised on interlocutory appeal or [(2)] resolution of the issue
properly raised on interlocutory appeal necessarily resolves the pen-
dent issue." Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir.
2000) (citations omitted); see also Berrey v. Asarco, Inc., 439 F.3d
636, 647 (10th Cir. 2006). Neither situation exists here. Resolution of
Sudan’s FSIA argument neither required us first to decide nor neces-
sarily decides the issue of standing under DOHSA. In fact, our analy-
sis of the FSIA issue did not address, or even refer to, the issue of
standing. Each issue involves a distinct legal concept that does not
affect analysis of the other. Accordingly, we find no basis to exercise
pendent appellate jurisdiction over the issue of standing.
Contrary to Sudan’s argument, our decision not to exercise juris-
diction over this issue does not threaten to render our ruling on the
FSIA issue advisory. We would issue an advisory opinion were we
to pass "judgment upon issues which remain unfocused because they
are not pressed before the Court with that clear concreteness provided
when a question emerges precisely framed and necessary for decision
from a clash of adversary argument exploring every aspect of a multi-
faceted situation embracing conflicting and demanding interests."
United States v. Fruehauf, 365 U.S. 146, 157 (1961). No such danger
exists here. We have decided the issue of subject matter jurisdiction
based on a concrete set of facts in the context of a live controversy
between the parties. The fact that Plaintiffs’ case might eventually
succumb to a dispositive defect, such as lack of standing, does not
alter the concrete nature of the dispute before us today or the propri-
ety of our ruling.
Because no basis exists to exercise jurisdiction over Sudan’s stand-
ing argument, we decline review and dismiss that portion of its
appeal.
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V.
Although the issue is presented obliquely in its brief, Sudan seeks
appellate review of the district court’s ruling that venue for this action
was proper in the Eastern District of Virginia. An order denying a
motion to dismiss for improper venue, however, is interlocutory and
not immediately appealable. La. Ice Cream Distribs., Inc. v. Carvel
Corp., 821 F.2d 1031, 1033 (5th Cir. 1987). Therefore, we lack appel-
late jurisdiction over this issue. Sudan does not argue that we should
exercise pendent appellate jurisdiction over this issue and we discern
no reason to do so. Therefore, we decline to exercise jurisdiction to
review the district court’s order regarding venue and dismiss that por-
tion of Sudan’s appeal.
VI.
In light of the foregoing, we affirm the district court’s denial of
Sudan’s motion to dismiss for lack of subject matter jurisdiction and
dismiss the remainder of Sudan’s appeal for lack of appellate jurisdic-
tion.
AFFIRMED IN PART AND DISMISSED IN PART
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