BROIDY CAPITAL MANAGEMENT LLC AND ELLIOTT BROIDY, APPELLEES v. NICOLAS D. MUZIN, ET AL., APPELLEES STATE OF QATAR, APPELLANT
No. 22-7082
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
March 10, 2023
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.
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
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.
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
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.
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.
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
“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
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
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 . . .
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
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
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, 1409 (D.C. Cir. 1985) (“Persons who are not parties to an
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.
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.
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“),
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
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
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
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
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, 322 F.3d 728, 737 n.11 (D.C. Cir. 2003) (quoting
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
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
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
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
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
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
We therefore dismiss this appeal and remand the case for further proceedings consistent with this opinion.
So ordered.