This case arises out of the kidnapping and murder of an American citizen in Lebanon between November 1984 and April 1986. Libya appeals from the denial of its motion to dismiss the case, arguing that sovereign immunity protects it from suit and that the plaintiff lacks a viable cause of action. We reject the first contention, concluding that the “terrorism exception” of the Foreign Sovereign Immunities Act
I
Blake Kilburn brought suit against the Socialist People’s Libyan Arab Jamahiriya (Libya), the Libyan External Security Organization (LESO), the Islamic Republic of Iran, and the Iranian Ministry of Information and Security, seeking damages on his own behalf and as executor of the estate of his brother, Peter Kilburn (together, the plaintiff), for Peter’s kidnapping, sale, torture, and death. The allegations of the complaint, as further detailed in district court pleadings and a declaration, are as follows.
Peter Kilburn was an American citizen who lived in Lebanon and worked as an instructor and librarian at the American University of Beirut. On November 30, 1984, he was abducted from his apartment; Hizbollah, a terrorist organization funded by Iran, claimed responsibility. In late 1985, the American government was approached by an intermediary who claimed to be acting on behalf of Kilburn’s captors and who sought a ransom for his return. For the next several months, the United States negotiated for Kilburn’s release.
On April 14,1986, while Kilburn was still in сaptivity, the United States conducted airstrikes on Tripoli, Libya, in retaliation for Libya’s involvement in the bombing of a Berlin nightclub that killed two American soldiers. Thereafter, Libya made it known that it wanted to purchase an American hostage to murder in revenge for the airstrikes. Sometime between April 14 and 17, the Arab Revolutionary Cells (ARC), a terrorist organization sponsored by Libya, bought Kilburn from Hizbollah for approximately $3 million and subsequently tortured him. On or about April 17,1986, ARC murdered Kilburn and left his body by the side of a road near Beirut, alongside the bodies of two British hostages. In a note found nearby, ARC claimed responsibility.
Blake Kilburn’s complaint, filed on June 12, 2001, alleged that his brother was the victim of hostage taking, torture, and extrajudicial killing, for which the defendants were respоnsible. The complaint sought recovery through multiple causes of action, including the Flatow Amendment, 28 U.S.C. § 1605 (note), and theories of wrongful death, battery, assault, false imprisonment, slave trafficking, torture, and intentional infliction of emotional distress. Although the complaint did not specify the legal sources of the latter causes of action, later pleadings asserted that they arose under state common law, foreign law, and international law, and that additional federal statutory causes of action might also be available.
The Iranian defendants did not appear, and the plaintiff sought a default judgment against them. That motion remains pending in the district court. The Libyan defendants did appear, and the parties agreеd to a limited course of jurisdictional discovery. Thereafter, the Libyan defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), contending that their sovereign immunity deprived the court of subject-matter jurisdiction, and pursuant to Rule 12(b)(6), contending that the plaintiff had failed to state a claim upon which relief could be granted. The district court denied both requests. • Sua sponte, the court also considered a question not raised by the parties — whether the plaintiff could assert a claim for punitive damages against defendant LESO — and answered in the affirmative. This appeal followed.
We begin with the question of the Libyan defendants’ sovereign immunity. The district court’s decision to deny their motion to dismiss plainly did not end the case; to the contrary, it permitted the case to go forward. Ordinarily, that would preclude our hearing this interlocutory appeal, because our jurisdiction is generally confined to “final decisions of the district court.” 28 U.S.C. § 1291; see id. § 1292 (permitting interlocutory appeals in certain circumstances not present here). Under the collateral order doctrine, however, an order qualifies as “final” under § 1291 if it: “(1) conclusively determine^] the disputed question, (2) resolved] an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
Under the FSIA, a foreign state is immune from the jurisdiction of American courts unless the case falls within one of a list of statutory exceptions (or as provided by international agreements). 28 U.S.C. § 1604; see id. §§ 1605-1607. If no exception applies, the district court lacks subject matter jurisdiction. Id. § 1604. If an exception does apply, the district court has jurisdiction. Id. § 1330(a); see World Wide Minerals, Ltd. v. Republic of Kazakhstan,
Congress amended the FSIA in the Antiterrorism and Effective Death Penalty Act оf 1996, adding an additional exception colloquially known as the “terrorism exception.” That exception denies sovereign immunity in any case:
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 provision 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....
28 U.S.C. § 1605(a)(7). This exception applies only if three additional criteria are also satisfied: the foreign state was designated a “state sponsor of terrorism” at the
“In order to preserve the full scope of sovereign immunity, the district court must make the ‘critical preliminary determination’ of its own jurisdiction as early in the litigation as possible.” Phoenix Consulting,
In their motion to dismiss, the Libyan defendants challenged both the legal and factual sufficiency of the plaintiffs claims. For the sake of clarity, we address these challenges separately in Parts III and IV. Our standard of review is de novo. See Price,
III
The Libyan defendants maintain that, even if the allegations of the complaint are true, they fail to bring this case within the compass of the terrorism exception. That contention is founded on two legal arguments regarding the scope of the exception.
A
The defendants’ first argument is that § 1605(a)(7) requires, as a matter of jurisdiction, a causal connection between the foreign state’s alleged acts and the victim’s alleged injuries. Stated at that level of generality, the defendants are plainly right. The section provides an exception tо sovereign immunity in any case in which money damages are sought for injury or death “that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act.” 28 U.S.C. § 1605(a)(7) (emphasis added). As we are generally required to give effect to every statutory term, Duncan v. Walker,
It is here, however, that we part company with the defendants. They contend not merely that § 1605(a)(7) requires a causal connection, but that it specifically requires “but for” causation: that is, an allegation (and, ultimately, evidence) that “but fоr” Libya’s actions, Peter Kilburn would not have been purchased, tortured, or killed. The defendants apparently regard “but for” as a particularly restrictive standard of causation, and insist that nothing less will do.
In Grubwit, jurisdiction turned on the meaning of the Extension of Admiralty Jurisdiction Act, which provides that the admiralty jurisdiction of the United States “shall extend to ... all cases of damage or injury ... caused by a vessel on navigable water.” 46 U.S.C. app. § 740 (emphasis added). Rejecting the contention that “caused by” means that the damage must be close in time and space to the activity that caused it, the Court held that the phrase means only “what tort law has traditionally called ‘proximate causation.’ ” Grubart,
The essence of the Libyan defendants’ argument is that here there is a “need or justification” for imposing an additional hurdle beyond proximate cause, and that “but for” cause is the appropriate hurdle. They offer the following hypothetical:
A terrorist organization is supported by two foreign states. One specifically instructs the organization to carry out an attack against a U.S. citizеn. Can the state which only provides general support, but was not involved with the act giving rise to the suit, also be stripped of its immunity?
Reply Br. at 13. “The answer” to this hypothetical, the defendants assert, “clearly must be no.” Id. Libya’s argument fails to persuade for several reasons.
First, we are not moved by the plight of Libya’s hypothetical foreign state. We see no reason why there would be a greater justification for — or why Congress would have a greater interest in — protecting a party haled into court under § 1605(a)(7) than one trying to resist admiralty jurisdiction. After all, the only defendants that are subject to § 1605(a)(7) in the first place are those that the State Department
Second, § 1605(a)(7) permits actions for injuries caused by “material support” of terrorist acts by such state sponsors, and, as Congress recognized, such support is difficult to trace. As the House Report on the terrorism exception stated:
[Sjtate sponsors of terrorism include Libya, Iraq, Iran, Syria, North Korea, Cuba, and Sudan. These outlaw states consider terrorism a legitimate instrument of achieving their foreign policy goals. They have become better at hiding their material support for their surrogates, which includes the provision of safe havens, funding, training, supplying weaponry, medical assistance, false travel documentation, and the like. For this reason, the Committee has determined that allotving suits in the federal courts against countries responsible for terrorist acts ... is luarranted.
H.R. Rep. No. 104-383, at 62 (1995) (emphasis added). Accordingly, the more likely situation is not Libya’s hypothetical, involving one direct and one general state sponsor, but rather the case in which multiple foreign states claim to be providing only “general support.” Such a case, in which application of a “but for” standard to joint tortfeasors could absolve them all, is precisely the one for which courts generally regard “but for” causation as inappropriate. See Prosser & Keeton, at -266-67.
Third, Libya’s hypothetical (and its argument) deals solely with a claim based on a state’s general “material support” for a terrorist organization. But “the provision of material support” for a terrorist act is only one of the predicates for the § 1605(a)(7) exception. Foreign states also lose immunity for acts (of torture, extrajudicial killing, or hostage taking) “engaged in by an official, employee, or • agent” of the state itself. 28 U.S.C. § 1605(a)(7). Libya.makes no argument at all as to why a restrictive standard of causation should be imposed in direct action cases, yet the statutory phrase “caused by” applies equally to every § 1605(a)(7) case.
Finally, we underline that the only issue before us here is jurisdictional causation, because § 1605(a)(7) is solely a jurisdictional provision. Cicippio-Puleo,
In this case, there is no doubt that the plaintiffs allegations satisfy the proximate cause standard. The complaint alleges that, after the United States bombed
B
The Libyan defendants also advance a second argument in favor of a restrictive view of § 1605(a)(7). Noting that the statute denies sovereign immunity for claims involving injury caused by “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act,” 28 U.S.C. § 1605(a)(7) (emphasis added), they insist that to come within this provision, a state’s material support must go directly for the specific act (e.g., torture) that gives rise to the claim. In the instant case, the defendants contend that § 1605(a)(7) requires the plaintiff to allege (and, ultimately, to provе) that Libya directly funded ARC’s purchase, torture, and murder of Peter Kilburn — not just that Libya provided material support to ARC.
Although the defendants pose this as an independent restriction on the scope of § 1605(a)(7), it is closely tied to their causation argument and suffers from some of the same defects. On the one hand, imposing a jurisdictional requirement that a state sponsor’s financial assistance to a terrorist organization must be directly traceable to a particular terrorist act would likely render § 1605(a)(7)’s material support provision ineffectual. Money, after all, is fungible, and terrorist organizations can hardly be counted on to keep careful bookkeeping records. On the other hand, the requirement that the plaintiffs injury be “causеd by” the provision of material support — in the sense of proximate causation, see swpra Part III.A — should ameliorate most concerns about remoteness. Any further concerns will likely be addressed by the substantive law that governs the applicable cause of action. See generally Doe v. Dominion Bank of Washington N.A.,
In any event, Libya’s textual argument has no application here. The plaintiff does not allegе that Libya merely provided material support to ARC, but rather that it specifically funded and directed Peter Kilburn’s purchase and murder. See Oakley Deck ¶ 16; see also id. ¶¶ 6,11-14; Compl. ¶ 23. Indeed, the plaintiffs claims rest not only on a theory of material support, but also on a theory of agency. The plaintiff asserts that ARC was not just some independent organization that Libya provided with funds, but rather an “agent” of Libya. See Oakley Deck ¶ 14. In statutory terms, plaintiffs allegation is that Peter Kilburn’s
IV
We turn next to defendants’ challenge to the factual basis for the district court’s jurisdiction. As explained above, if a defendant invoking sovereign immunity challenges “the factual basis of the court’s jurisdiction,” the court “must 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.” Phoenix Consulting,
Contrary to defendants’ assertion, the district court understood its responsibilities in this regard. See Kilburn v. Republic of Iran, 277 F.Supp.2d. 24, 29-30, 33 (D.D.C.2003) (citing Phoenix Consulting,
“ ‘In accordance with the restrictive view of sovereign immunity reflected in the FSIA,’ the defendant bears the burden of proving that the plaintiffs allegations do not bring its case within a statutory exception to immunity.” Phoenix Consulting,
It is equally plain that the Libyan defendants have so far satisfied neither a burden of production nor their required burden of persuasion. They submitted no affirmative evidence whatsoever to show that they fall outside the terrorism exception. They did not, for example, file an affidavit denying that their agents purchased or killed Peter Kilburn. Cf. Phoenix Consulting,
What the defendants did do, instead, was to point out what they see as “contradictions” between the plaintiffs claims and some passages in the CIA and State Department documents. These asserted cоntradictions primarily involve reports that multiple terrorist organizations had claimed responsibility for hostage taking in Lebanon during the relevant period. Although the defendants do not explain the significance of these reports or what they contradicted, presumably the defendants believe the reports suggest that a Libyan-sponsored organization did not carry out the acts in question. But the reports do not deny that a Libyan-sponsored organization purchased or killed Peter Kilburn; nor do they suggest that such an organization was not a proximate cause of those acts, even if not the sole cause. In fact, it is not apparent that the asserted “contradictions” have any relevance at all to this eаse.
V
In addition to challenging the district court’s jurisdiction, the Libyan defendants also sought dismissal pursuant to Rule 12(b)(6), contending that the plaintiff had failed to state a claim upon which relief could be granted. The district court denied that motion and, at the same time and sua sponte, held that defendant LESO could be subject to punitive damages if it were ultimately found liable. The Libyan defendants seek review of both decisions. In particular, they note that this circuit has recently held that one of the causes of action plaintiff asserted, the Flatow Amendment, 28 U.S.C. § 1350 (note), does not “creat[e] a private right of action against a foreign government.” Cicippio-Puleo,
Denial of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is not ordinarily subject to interlocutory appeal. It is neither a final decision nor a proper subject for appeal under the “collateral order” doctrine. Price,
The leading case on pendent appellate jurisdiction is Swint v. Chambers County Commission,
In Gilda Marx, Inc. v. Wildwood Exercise, Inc.,
The other circuits have taken a different path, saying that they will take pendent appellate jurisdiction only when one or both of the Swint conditions appear,
This case does not fit any of those rubrics. Whether state tort law properly provides the plaintiff with a cause of action, for example, is not inextricably linked with, or necessary for meaningful review of, the proper scope of jurisdictional causation under § 1605(a)(7). To the contrary, as we noted in Part III, these are analytically distinct questions. Nor can the cause of action question fairly be characterized as an antecedent or threshold issue. The question of whether the plaintiff has a cognizable cause of action (and what that cause of action might be) is not a question separate from the merits; it is the merits. See Steel Co. v. Citizens for a Better Env’t,
It is true that we did, in one case, decide to take pendent jurisdiction over a merits question (whether the Washington Metropolitan Area Transit Authority was subject to the District of Columbia’s Freedom of Information Act), in order to avoid what we described as a “difficult” state sovereign immunity question. See KiSKA Constr. Corp.-U.S.A v. WMATA,
The Libyan defendants complain that, if we decline to take pendent jurisdiction over the non-immunity rulings, they may be required to go through an entire trial on a complaint that may eventually be determined to have no cognizable cause of action. This possibility would concern us, of course, had we not already concluded that the defendants lack immunity from this litigation. In light of that conclusion, however, the Libyan defendants are in the same position as any others. To permit an appeal of the denial of a Rule 12(b)(6) motion merely because it might spare the defendants the pain of trial would greatly expand the “small category of decisions” subject to the collateral order doctrine, Swint,
We do not dispute that both the district court and the parties would benefit from advance knowledge of this circuit’s view as to whether the plaintiff has a cause of action against the defendants. But the Supreme Court has rejected that as a sufficient reason to permit appeal on a theory of pendent jurisdiction.
Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals. If courts of appeals had discretion to append to a Cohen-authorized appeal from a collateral order further rulings of a kind neither independently appealable nor certified by the district court, then the two-tiered arrangement § 1292(b) mandates would be severely undermined.
Swint,
In the final balance, whether or not we have authority to exercise pendent appellate jurisdiction in this case, there is no question that we have discretion to decline to do so. See Sparrow v. United Air Lines, Inc.,
VI
. We affirm the district court’s determination that it had subject-matter jurisdiction to adjudicate the plaintiffs claims against the Libyan defendants. We decline to exercise appellate jurisdiction over defendánts’ other challenges.
Notes
. The defendants also sought, and the district court denied, dismissal on the ground that the court’s exercise of personal jurisdiction over them violated the due process clause of the Fifth Amendment. Although the defendants recognize that this circuit has held that "foreign states are not 'persons' protected by the Fifth Amendment,” Price v. Socialist People's Libyan Arab Jamahiriya,
. “But for” causation may be restrictive in some circumstances, such as the multiple actors example discussed in the text below. See Prosser & Keeton on the Law of Torts 66-67 (5th ed. 1984). Often, however, it is viewed as an expansive theory. See, e.g., Pryor v. American President Lines,
. Prosser suggests that a standard like “but for” is particularly ill-suited to direct action cases. See Prosser & Keeton, at 266 (stating that the “but for” rule fails in the following case: “A stabs C with a knife, and B fradures C's skull with a rock; either wound would be fatal, and C dies from the effects of both”).
. Compare Gould, Inc. v. Pechiney Ugine Kuhlmann & Trefimetaux,
. See Phoenix Consulting,
. Some of those asserted contradictions do not appear to relate to Peter Kilburn. For example, although the defendants point to a CIA report that five terrorist organizations had claimed responsibility for hostages taken in Lebanon in March of 1984, see CIA, Terrorism Review 735 (Apr. 8, 1985) (attached to Defs.’ Mot. to Dismiss, App. D), Kilburn was not kidnapped until November of that year. Others do not appear to relate to the Libyan defendants. For example, although the defendants stress a State Department document stating that Kilburn was originally kidnapped by Islamic Jihad (presumably in contradiction to the allegation that the original kidnapping was by Hizbollah), see Department of State, Unclassified Documents 3 (attached to Defs.’ Mot. to Dismiss, App. F), the complaint does not allege that Libya played a role in the original kidnapping. Nor does the document address the complaint's contention that Islamic Jihad and Hizbollah are one and the same. See Compl. ¶ 4.
. See Limone v. Condon,
. See Rein,
. See, e.g., National R.R. Passenger Corp. v. ExpressTrak, L.L.C.,
. See Jungquist,
. See Griggs v. WMATA,
. In another interlocutory appeal, Simpson v. Socialist People’s Libyan Arab Jamahiriya,
. Compare also Long, 173 F.3d at 893, 895 (distinguishing Steel Co. and holding that the availability of a statutory cause of action may be determined before deciding the "quasi-jurisdictional" question of Eleventh Amendment immunity), with Steel Co.,
. See Swint,