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.