United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2005 Decided September 30, 2005
No. 04-7037
ROBERT LEE BEECHAM, PERSONAL REPRESENTATIVE OF THE
ESTATE OF KENNETH FORD, ET AL.,
APPELLEES
v.
SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(01cv02243)
Arman Dabiri argued the cause and filed the briefs for
appellants Socialist People’s Libyan Arab Jamahiriya, et al.
Steven R. Perles argued the cause for appellees. With him
on the brief were Thomas Fortune Fay, Jacob A. Stein, and
Robert L. Bredhoff.
Stuart H. Newberger, Clifton S. Elgarten, and Michael L.
Martinez were on the brief for amici curiae Blake Kilburn, et al.
in support of appellees.
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Before: SENTELLE, RANDOLPH, and ROGERS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The Socialist People’s Libyan
Arab Jamahiriya and other defendants -- collectively Libya --
appeal the district court’s order requiring the parties to confer
and propose a jurisdictional discovery plan. Our inquiry begins
-- and ends -- with an examination of our jurisdiction to hear this
appeal.
Plaintiffs are victims and estate representatives of victims
injured or killed in the 1986 bombing of the “La Belle”
discotheque in West Berlin, Germany. Their complaint alleges
as follows. Defendant Colonel Muammar Al-Ghaddafi, head of
the Libyan government, directed Libyan agents to plan, prepare,
and execute the attack. Libyan agent Souad Chraidi transported
plastic explosives, a detonator, and a timing device from the
Libyan embassy in East Berlin to an apartment in West Berlin.
Chraidi and others made the final preparations for the attack,
fitting the detonator and timer to the explosives, which they
concealed in a bag for delivery to the discotheque. On the night
of the bombing, Verena Chanaa and Andrea Häusler brought the
bomb to the discotheque, where they activated the timing
device, placed the bomb at a seat in the center of the dance floor,
and left. In the early morning hours of April 5, 1986, the bomb
exploded with approximately 260 people inside the discotheque.
Three people were killed and more than two hundred injured.
Among other things, plaintiffs point to telex
communications between Libyan intelligence in Tripoli and the
Libyan embassy in East Berlin confirming defendants’
responsibility for the attack. Colonel Al-Ghaddafi purportedly
admitted as much to a German ambassador in a meeting in 2001.
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Plaintiffs invoked the district court’s subject matter
jurisdiction under the Foreign Sovereign Immunities Act of
1976, 28 U.S.C. §§ 1330, 1602-1611. Section 1605(a)(7) of the
Act carves out an exception to the provision giving foreign
states immunity from suits in federal and state courts. See 28
U.S.C. § 1604. Under certain circumstances, a foreign state has
no immunity in a suit seeking damages “for personal injury or
death that was caused by an act of torture, extrajudicial killing
. . . or the provision of material support or resources . . . for such
an act” if officials, employees or agents of the foreign state
engaged in these actions while acting within the scope of their
office or employment. 28 U.S.C. § 1605(a)(7). Libya
interposed a sovereign immunity defense and moved to dismiss
the complaint. According to the motion, plaintiffs had not
sufficiently alleged, under § 1605(a)(7), that Libya “caused” the
harm plaintiffs suffered from the bombing. In Phoenix
Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39-40 (D.C.
Cir. 2000), we viewed as jurisdictional the requirement that
plaintiffs bring their case within one of the exceptions in
§ 1605(a) when the foreign state has claimed sovereign
immunity. In response to Libya’s motion in this case, plaintiffs
moved for “jurisdictional discovery,” which Libya opposed.
The district court considered the allegations of the
complaint to be legally sufficient because, if true, the causal
chain implicating Libya and the individual defendants was “pled
sufficiently clearly and specifically to counter defendants’ legal
challenge.” As to the complaint’s factual sufficiency, Phoenix
Consulting forbade the court from treating the complaint’s
allegations as true, and required it to “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.” 216 F.3d
at 40. Libya argued that plaintiffs had not “presented a scintilla
of evidence to support the allegations of the complaint,” which
the district court took as a denial of plaintiffs’ allegations
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“sufficient to merit initial targeted discovery” to resolve subject
matter jurisdiction.
To that end, the court ordered the parties to “confer” and
submit “a joint report proposing a plan for conducting discovery
limited to facts bearing upon the court’s subject matter
jurisdiction.” The court stayed its order while the parties
pursued settlement talks. When the talks proved fruitless, the
court reinstated the order. Libya invokes this court’s appellate
jurisdiction under 28 U.S.C. § 1291.
In cases arising under the Foreign Sovereign Immunities
Act, we have recognized our jurisdiction to review a district
court’s order denying a foreign state’s motion to dismiss on the
ground of sovereign immunity. The theory is that under the
collateral order doctrine, see Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949), such orders finally determine the
foreign state’s right to be immune from burdens of a lawsuit
altogether. See, e.g., Jungquist v. Sheikh Sultan Bin Khalifa al
Nahyan, 115 F.3d 1020, 1025-26 (D.C. Cir. 1997). We have
also exercised mandamus jurisdiction to consider the scope of a
district court’s jurisdictional discovery order. In re Minister
Papandreou, 139 F.3d 247, 251-52 (D.C. Cir. 1998). Here the
theory is, in part, that “the demands of international comity”
counsel against requiring foreign officials to subject themselves
to contempt and only then appeal the contempt citation. Id. We
also said that a jurisdictional discovery order might impose
litigation burdens on a foreign state somewhat similar to those
the sovereign immunity defense protects against. Id. at 251.
Libya now seeks to add a third category: orders comparable to
those under Federal Rule of Civil Procedure 24(f) requiring the
parties to confer and submit a joint jurisdictional discovery plan
as a prelude to actual discovery. But Libya points to no case in
which a court has exercised appellate jurisdiction over such
orders, and we see no basis for expanding our appellate
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jurisdiction to cover them. See McKesson Corp. v. Islamic
Republic of Iran, 52 F.3d 346, 353 (D.C. Cir. 1995).
While a limited class of interlocutory orders may be
considered “final decisions” of the district courts under 28
U.S.C. § 1291, and thus immediately appealable, orders to
participate in the sort of discovery conference contemplated here
are not among them. Such orders do not by any stretch resolve
important issues in the case and they do not “conclusively
determine” the scope of jurisdictional discovery. Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
Papandreou, on which Libya mainly relies, does not
support our jurisdiction. For one thing, Libya has brought an
appeal under 28 U.S.C. § 1291; Papandreou was before us on a
petition for a writ of mandamus. The rules governing these
modes of review are different. See In re Minister Papandreou,
139 F.3d at 250; FED. R. APP. P. 21.
For another thing, the burdens of discovery on the foreign
state, which also played a role in Papandreou, are absent here.
The district court has ordered a conference like the ones
contemplated in Rule 26(f); it has not ordered discovery of any
scope. As in Rule 26(f) conferences, the burden of conferring
and formulating a discovery plan in this case falls on the lawyers
for the opposing sides. Both sides recognized as much in their
Joint Report of Counsel on Discovery Plan, which they
submitted to the district court. (The parties’ counsel already
have met and conferred for settlement purposes.)
Libya argues that, as a foreign state, it cannot be required to
violate the district court’s order and be held in contempt for this
court to have jurisdiction. Appellants’ Br. at 8; compare In re
Minister Papandreou, 139 F.3d at 251-52. But whether the
district court would hold Libya in contempt for violating the
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order is not at all clear. District courts can impose any number
of sanctions besides contempt when a party fails to comply with
a discovery order. See, e.g., FED. R. CIV. P. 37(b). Our
jurisdiction cannot rest on the possibility of contempt. The law
of this circuit now is that “a civil contempt order against a party
in a pending proceeding is not appealable as a final order under
28 U.S.C. § 1291.” Byrd v. Reno, 180 F.3d 298, 302 (D.C. Cir.
1999). Byrd explicitly rejected Papandreou’s suggestion to the
contrary. Id. at 300-01.
There are additional reasons why appellate jurisdiction is
wanting. This litigation currently is several steps removed from
Papandreou. The district court there had issued a jurisdictional
discovery order. Here, there has yet to be a conference of
counsel to work out a discovery plan. It is possible the parties
will agree about the proper scope of discovery. If so, they
would then submit the plan to the court, which may or may not
approve it. It is also possible that Libya will convince plaintiffs
or the district court, as strenuously argued to this court, that
Libya simply cannot “under any possible scenario or
circumstances” provide relevant information. Appellants’ Br. at
16. If the parties in good faith are unable to work out a
discovery plan, the district court would have to make its
decision in the exercise of its discretion. See 6 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 26.146 (3d ed.
2005). Only if the court orders jurisdictional discovery and
clearly abuses its discretion in determining the scope of
discovery could mandamus possibly lie. In re Minister
Papandreou, 139 F.3d at 252.
Libya frames its appeal as if we had before us the question
whether jurisdictional discovery is appropriate at all. This
recasting of the issue changes nothing. It is still unknown
whether the parties will resolve the issues in the course of
crafting a discovery plan or whether the district court will
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actually order specific discovery to take place. This court
cannot have jurisdiction before actual discovery is ordered. Any
decision now would be premature. The issue Libya poses may
never arise or it may arise in a context that bears on its
resolution. These are the hallmarks of an interlocutory order
over which the courts of appeals do not have jurisdiction. See
United States v. Cisneros, 169 F.3d 763 (D.C. Cir. 1999).
Appeal dismissed for lack of jurisdiction.