                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-1376


TEOFILA OCHOA LIZARBE, in her individual capacity, and in
her capacity as the foreign personal representative of the
estates of Silvestra Lizarbe Solis, Gerardo Ocho Lizarbe,
Victor Ochoa Lizarbe, Ernestina Ochoa Lizarbe, Celestino
Ochoa Lizarbe and Edwin Ochoa Lizarbe; CIRILA PULIDO
BALDEON, in her individual capacity, and in her capacity as
the foreign personal representative of the estate of
Fortunata Baldeon Gutierrez and Edgar Pulido Baldeon,

                Plaintiffs - Appellees,

          v.

JUAN MANUEL RIVERA RONDON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:07-cv-01809-PJM)


Submitted:   September 2, 2010           Decided:   September 22, 2010


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Affirmed in part and dismissed in part by unpublished per curiam
opinion.


Timothy F. Maloney, Cary J. Hansel, Joseph M. Creed, JOSEPH,
GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for Appellant.
Natasha  Fain,  CENTER  FOR  JUSTICE  &  ACCOUNTABILITY, San
Francisco, California; Wade B. Wilson, Mark N. Bravin, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Plaintiffs Teofila Ochoa Lizarbe and Cirila Pulido Baldeon

brought this action under the Torture Victim Protection Act of

1991 (“TVPA”), see Pub. L. 102-256, 106 Stat. 73 (1992), and the

Alien Tort Statute (“ATS”), see 28 U.S.C. § 1350, seeking relief

from Defendant Juan Manuel Rivera Rondon for alleged war crimes

and   human   rights      violations         committed   in    the   1980s     against

plaintiffs’      family    members      by    Peruvian   military       forces    under

Rondon’s command.         Rondon moved to dismiss under Rule 12(b)(1)

for lack of subject matter jurisdiction, arguing that he was

entitled to immunity under the Foreign Sovereign Immunities Act

(“FSIA”),     see   28    U.S.C.   §§    1602-1611.           Additionally,      Rondon

argued that plaintiffs’ claims were barred by the statute of

limitations and their failure to exhaust remedies available in

Peru.   Rondon also raised numerous other grounds for dismissal

that are not at issue in this appeal.

      Relying on our decision in Yousuf v. Samantar, 552 F.3d

371, 381 (4th Cir. 2009), the district court concluded that the

FSIA does not apply to individual agents of a foreign government

and denied immunity to Rondon.                The district court also rejected

Rondon’s    statute      of   limitations        defense,     concluding      that   the

doctrine    of   equitable      tolling       applied    to    extend   the    10-year

limitations period for TVPA and ATS claims such that plaintiffs’

action, filed in 2007, was timely.                 Finally, the district court

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rejected Rondon’s assertion that plaintiffs failed to exhaust

available     remedies     in    Peru.     The     court    concluded          that:    (1)

Rondon     failed   to   demonstrate,      as    required     by    the    TVPA,       that

there were adequate remedies in Peru available to plaintiffs,

see Pub. L. 102-256, 106 Stat. 73, sec. 2(b); and (2) the ATS

contains no exhaustion requirement.

      Rondon    filed    this    interlocutory       appeal    to    challenge          the

denial of immunity under the FSIA, arguing that the denial of

sovereign immunity is an immediately appealable issue.                            Rondon

also sought review of the district court’s ruling on the statute

of limitations and exhaustion of remedies questions, urging us

to   exercise      our   discretionary        pendent   appellate         jurisdiction

over these issues.

      While the instant appeal was pending, the Supreme Court

granted certiorari to review this court’s opinion that the FSIA

does not shield individual foreign government agents from suit.

See Samantar v. Yousuf, 130 S. Ct. 49 (2009).                       Accordingly, we

placed Rondon’s appeal in abeyance pending a disposition from

the Supreme Court.

      On    June    1,   2010,    the    Supreme    Court     issued       a    decision

affirming this court’s holding in Samantar that an individual

foreign official sued for conduct undertaken in his official

capacity is not a “foreign state” entitled to immunity from suit

within the meaning of the FSIA.               See Samantar v. Yousuf, 130 S.

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Ct. 2278, 2289 (2010).               We then solicited additional briefing

from the parties addressing the effect, if any, of Samantar on

the instant appeal.



                                          II.

       This   court     may    exercise       jurisdiction     only     over   “final

decisions of the district courts,” 28 U.S.C. § 1291; see Catlin

v. United States, 324 U.S. 229, 233 (1945) (defining a “final

decision” as one that “ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment”),

and certain interlocutory orders, see 28 U.S.C. § 1292.                            The

Supreme Court has established a narrow exception to the final

judgment rule, permitting appeals from otherwise interlocutory

orders that “finally determine claims of right separable from,

and collateral to, rights asserted in the action.”                           Cohen v.

Beneficial      Indus.      Loan     Corp.,     337    U.S.    541,    546     (1949).

Although the denial of a motion to dismiss generally does not

qualify as a final order, see, e.g., Dotzel v. Ashbridge, 438

F.3d   320,     323   (3d     Cir.    2006),     “[o]rders     denying       sovereign

immunity are immediately appealable collateral orders,” Eckert

Int’l, Inc. v. Gov’t of the Sovereign Democratic Republic of

Fiji, 32 F.3d 77, 79 (4th Cir. 1994); see Rux v. Republic of

Sudan,    461    F.3d    461,      467   n.1    (4th    Cir.    2006)     (reviewing

interlocutory     appeal      of     denial    of   immunity   under     the    FSIA).

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Thus, this court has jurisdiction to review the district court’s

denial of immunity under the FSIA.

      Plaintiffs         contend        that       Samantar,        having       expressly

considered and rejected the same arguments advanced in district

court by Rondon, forecloses Rondon’s appeal of the denial of

immunity     under       the    FSIA.      We      agree     that    Samantar       clearly

forecloses Rondon’s argument that he is entitled to immunity

under the FSIA.

      In    response,          Rondon   makes      two    claims,      seizing      on   the

Supreme    Court’s       suggestion      that      individual       foreign     officials,

though     they    are     unprotected      by      the     FSIA,    may    still    enjoy

immunity under the common law.                     See Samantar, 130 S. Ct. at

2292-93.          First,       Rondon   contends         that,    even     if    statutory

immunity is not available to him under the FSIA, he is entitled

to common law immunity for any claims based on acts he performed

in his official capacity on behalf of the Peruvian government.

Second,    Rondon       asserts    that   he       raised    a   common    law    immunity

defense in the district court proceedings and that the question

of   immunity      is    therefore      properly      before     the     panel.      After

carefully reviewing the record of the proceedings, we conclude

that Rondon did not raise a common law immunity defense below.

We therefore affirm without addressing the question of whether

Rondon is actually entitled to assert immunity under the common

law as a defense.

                                               6
                                          III.

      An    order     denying      a    motion     to     dismiss         on    statute    of

limitations or exhaustion of remedies grounds is not immediately

appealable as a final order under 28 U.S.C. § 1291 or as a

collateral order under Cohen.                  Rondon does not suggest to the

contrary, but he asks the panel to exercise pendent appellate

jurisdiction     to    review          these     issues.         Pendent          appellate

jurisdiction is “a judicially-created, discretionary exception

to the final judgment requirement.”                    Rux, 461 F.3d at 475.              This

doctrine allows us to consider issues that would not otherwise

be   immediately        appealable             “when      such       issues        are      so

interconnected      with     immediately         appealable      issues          that    they

warrant concurrent review.”               Id.; see Swint v. Chambers County

Comm’n, 514 U.S. 35, 51 (1995).                  Pendent appellate jurisdiction

is   available      only     (1)        when     an      issue       is        “inextricably

intertwined” with a question that is the proper subject of an

immediate   appeal;     or    (2)       when    review     of    a    jurisdictionally

insufficient issue is “necessary to ensure meaningful review” of

an immediately appealable issue.                  Swint, 514 U.S. at 51.                   The

decision to exercise pendent appellate jurisdiction is “purely

discretionary.”        Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th

Cir. 2002).

     We decline to exercise pendent appellate jurisdiction over

the non-FSIA issues raised by Rondon.                     Because we affirmed the

                                           7
denial    of    FSIA    immunity    without     regard         to   the    statute    of

limitations     or     the   exhaustion   of   remedies          requirement,       these

issues are not inextricably intertwined with the question of

immunity under the FSIA, nor is our review of Rondon’s claim to

statutory      immunity      dependent    in   any    way        upon     the    non-FSIA

issues.     Finally, to the extent that Rondon urges us to review

the statute of limitations and exhaustion of remedies issues for

purposes of judicial economy, his argument is misguided.                             The

doctrine of pendent appellate jurisdiction is not focused on

efficiency;      it     is    “an   exception        of        limited     and     narrow

application      driven      by   considerations          of    need,     rather     than

efficiency.”     Rux, 461 F.3d at 475.



                                         IV.

     For the foregoing reasons, we affirm the district court’s

denial of immunity to Rondon under the FSIA.                            We dismiss the

appeal as to the remaining issues.



                                    AFFIRMED IN PART AND DISMISSED IN PART




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