## Facts

- Relatives and personal representatives of 17 U.S. Navy sailors killed in the October 12, 2000 bombing of the USS Cole in Aden, Yemen, sued the Republic of Sudan for money damages.
- Plaintiffs alleged al-Qaeda committed the attack and that Sudan, while designated by the United States as a state sponsor of terrorism, provided material support and resources to Osama bin Laden and al-Qaeda that enabled the bombing.
- The complaint alleged Sudan’s support included financial assistance, shared investments, safe haven for operatives, permission for training camps, tax and other benefits for affiliated entities, use of Sudan’s diplomatic pouch to move explosives, and facilitation of explosives shipments to Yemen.
- Plaintiffs claimed Sudan’s support was a proximate cause of the sailors’ deaths, characterizing the bombing as an “extrajudicial killing.”
- In the Eastern District of Virginia, Sudan moved to dismiss, arguing (among other grounds) sovereign immunity and lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).
- The district court largely denied the motion, concluding the FSIA terrorism exception applied, and Sudan took an interlocutory appeal from the denial of immunity.

## Issues

1. Whether the complaint’s allegations brought the case within the FSIA terrorism exception, 28 U.S.C. § 1605(a)(7) (as then in force), thereby removing Sudan’s sovereign immunity and supplying subject-matter jurisdiction.
2. Whether § 1605(a)(7) required plaintiffs, at the jurisdictional pleading stage, to allege “but-for” causation between Sudan’s conduct and the USS Cole bombing.
3. Whether, on interlocutory appeal from a denial of sovereign immunity, the court of appeals could review portions of the district court’s order beyond immunity-related determinations.

## Decision

- The Fourth Circuit affirmed the district court’s denial of Sudan’s motion to dismiss to the extent it rejected Sudan’s sovereign immunity defense under the FSIA terrorism exception.
- The court held the complaint alleged sufficient facts, taken as true at the pleading stage, to place the claims within § 1605(a)(7), including death caused by an extrajudicial killing and a causal connection to Sudan’s alleged provision of material support.
- The court rejected Sudan’s argument that plaintiffs had to establish a strict “but-for” causation showing at the motion-to-dismiss stage to invoke the terrorism exception.
- The court dismissed the remainder of Sudan’s interlocutory appeal for lack of appellate jurisdiction insofar as it sought review of issues not encompassed within review of the immunity denial.

## Legal Principles

- Under the FSIA, a foreign state is presumptively immune, and a U.S. court has jurisdiction only if a statutory exception applies; the terrorism exception (as then codified at 28 U.S.C. § 1605(a)(7)) removes immunity for certain damages actions for death caused by acts such as “extrajudicial killing,” when statutory prerequisites are met (including state-sponsor designation and U.S.-national victim/claimant requirements).
- At the jurisdictional pleading stage in an FSIA case, courts accept well-pleaded factual allegations as true and ask whether the facts alleged, if proven, would bring the case within an FSIA exception; detailed, nonconclusory allegations of material support may suffice.
- For § 1605(a)(7), a plaintiff must allege a causal nexus consistent with the statutory “caused by” language; the Fourth Circuit declined to require a rigid “but-for” causation showing at the motion-to-dismiss stage.
- A denial of FSIA sovereign immunity is immediately appealable, but interlocutory appellate jurisdiction generally extends only to immunity-related questions, not unrelated defenses or merits issues.

## Conclusion

The Fourth Circuit permitted the USS Cole families’ suit against Sudan to proceed past the motion-to-dismiss stage, holding the pleaded allegations plausibly invoked the FSIA terrorism exception and defeated sovereign immunity, while limiting interlocutory review to the immunity determination.


Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006)