The D.C. Circuit holds in Rodriguez v. Pan American Health Org., 24-7135 (D.C. Aug. 14, 2026), that while an interlocutory right of appeal arises from denial of immunity under the International Organizations Immunities Act (IOIA) under the collateral-order doctrine, there is no corresponding right of appeal for a defendant from an order allowing jurisdictional discovery.
“In 2018, a group of Cuban doctors sued the Pan American Health Organization (PAHO),” an NGO headquartered in Washington, DC, “alleging that it cooperated in a human trafficking scheme” related to a program where Cuban healthcare professionals are loaned out to Brazil, referred to as “medical missions.” Plaintiffs alleged that these transfers were for the most part involuntary. “They asserted claims under the Trafficking Victims Protection Act (TVPA), which forbids various forms of human trafficking,” and sought certification of a class action.
PAHO moved to dismiss the action on the face of the complaint, arguing that “even if the complaint’s allegations were true, it was immune from suit under the International Organizations Immunities Act (IOIA).” The district court denied that motion, holding that the plaintiffs alleged a claim that plausibly fell within the “commercial activity” exception of the Act, incorporated from the Foreign Sovereign Immunities Act (FSIA). The defendant appealed this denial to the D.C. Circuit, which affirmed.
On remand, the defendant filed a second motion to dismiss, also on immunity grounds, rebutting the plaintiff’s “commercial activity” allegations with its own evidence, i.e., a “factual” motion to dismiss. This time out, the district court ordered jurisdictional discovery for the plaintiffs “to further develop the details of PAHO’s conduct and clarify whether that conduct was ‘commercial activity carried on in the United States’ such that the court could exercise jurisdiction.” The defendant appealed the grant of jurisdictional discovery on the
The D.C. Circuit dismisses the appeal of the discovery order. “We conclude that we lack jurisdiction because the discovery order is not effectively ‘final’ under the collateral order doctrine” derived from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
Typically, because IOIA immunity is an “immunity from litigation burdens as well as from the entry of adverse judgments,” a denial of immunity entitles the defendants to an interlocutory appeal of right. Indeed, the panel allows that if the defendant were to appeal a second denial of a motion to dismiss, the D.C. Circuit would have appellate jurisdiction.
This case, the panel notes, “requires us to decide whether, and when, defendants are also entitled to appeal jurisdictional discovery orders targeted at resolving their entitlement to IOIA immunity. Like the denial of a motion to dismiss, pretrial discovery orders generally are not immediately appealable.” While the circuit had once granted such an interlocutory appeal in Nyambal v. International Monetary Fund, 772 F.3d 277 (D.C. Cir. 2014), the panel notes that it was decided in the specific context of a case where the district court had granted the discovery without performing the gatekeeping function of “determining whether the plaintiff had made any well-founded allegations that IOIA immunity did not apply.”
The panel here holds that immediate review of a jurisdictional discovery order is not available under the collateral order doctrine “at least where (1) the order is issued after a judicial determination that the complaint adequately pleads an immunity exception, (2) the defendant files a factual motion to dismiss disputing those factual allegations, and (3) the discovery addresses the theories the court has found adequately pleaded by the complaint.”
Under the above-outlined conditions, a discovery order fails the Cohen requirement that “the order be effectively unreviewable after final judgment.” In contrast to denial of a motion to dismiss on the merits, responding to discovery “is not comparable to the burden of being forced to litigate the merits of a suit. In a case like this one, the defendant faces the burden of answering discovery related to factual questions the defendant itself placed in dispute to support its immunity claim, after a court determined that the plaintiff adequately pleaded an exception to IOIA immunity—a determination that is itself appealable (and was appealed here).”
The panel also notes that such discretionary district court orders are seldom reversed. “[I]mmediate appellate review of a category of orders is unlikely to have much utility when the type of order is unlikely to be reversed on appeal . . . . [O]ther circuits have cited the fact that a type of order is subject only to abuse-of-discretion review as a mark against immediate appeal because it suggests ‘the likelihood of reversal is too negligible to justify’ the costs of immediate appellate review.”
And if such discovery orders were automatically appealable on the grounds of litigation burden, however modest, then “[t]aken literally, that approach would suggest not just that every jurisdictional discovery order is immediately appealable, but also that any order of any type entered against a potentially immune defendant is immediately appealable unless and until the immunity issue has been finally resolved.” This would give the defendant claiming immunity unlimited opportunities to take appeals during the history of a case. (The panel notes that the present case has been appealed twice and is in its eighth year, with a motion to dismiss still pending.)
On the other hand, “potentially immune defendants [are not] without recourse against overbroad discovery orders. If a district court orders jurisdictional discovery without first identifying well-pleaded allegations that an exception to immunity applies, leading to the type of fishing expedition at issue in Nyambal, immediate review is available.” A defendant may also seek certification of an interlocutory appeal under 28 U.S.C. § 1292(b), and in extreme cases even a writ of mandamus.
The panel holds that it lacks jurisdiction over this appeal. The discovery requests were tailored to the specific transactions that the plaintiffs contended fell the commercial activity exception. “Our determination that the discovery targets that theory confirms that immediate appeal is inappropriate.”
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