FSIA: Jurisdictional Discovery

In Robert Lee Beecham et al. v. Socialist People's Libyan Arab Jamahiriya et al., No. 04-7037, the United States Court of Appeals for the District of Columbia on September 30, 2005, ruled on the case of representatives of those killed in the 1986 bombing of a discotheque in Germany who had brought suit against Libya invoking the terrorist exception to foreign sovereign immunity, 28 USC 1605(a)(7). Libya moved to dismiss arguing that plaintiffs had presented insufficient evidence to establish subject matter jurisdiction under the terrorist exception.

The district court ordered the parties to meet and confer and submit a joint report proposing a plan for conducting jurisdictional discovery. Libya appealed arguing that the court of appeals had jurisdiction to review the district court's order pursuant to the collateral order doctrine.

The court of appeals, in an opinion by Judge Randolph, dismissed the appeal for lack of jurisdiction. There was no prior case in which a court had exercised appellate jurisdiction over such an order. An order to participate in a discovery conference did not "by any stretch" resolve important issues in the case nor did it "conclusively determine" the scope of jurisdicitonal discovery. The order, just requiring Libya's lawyer to meet and confer, imposed no significant burden on Libya.

In response to Libya's argument that it should not be required to violate the district court's order and be held in contempt to establish appellate jurisdiction, the court of appeals wrote that it was not clear the district court would hold Libya in contempt as other sactions were available under Civil Rule 37(b). In any event, the law of the circuit was that a civil contempt order was not appealable as a final order.

The appeal was premature because there was a possibility that the parties might agree to a discovery plan at the conference. Only if the district court were to order jurisdictional discovery and clearly abused its discretion could there be appellate review. Such review, the opinion suggests, could only be by mandamus.   -   Thomas G. Corcoran, Jr., Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sat, 16:14:18 8 Oct 2005 / Embassy Law Link

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