On November 8th, 2018, the Supreme Court of the United States heard oral argument in Republic of Sudan v. Harrison, a case on appeal from the United States Court of Appeals for the Second Circuit. The Supreme Court granted the petition of writ of certiorari to resolve a circuit split on whether service of process to an embassy is sufficient when a foreign state is a party to a lawsuit. Under 28 U.S.C. § 1608(a) service on a foreign state can be rendered in a number of ways, among them, “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”
In October, 2000, the U.S.S. Cole was destroyed by Al-Qaeda; 17 American Navy sailors were killed and 42 were injured. In 2010, some of the injured sailors and their spouses filed suit against the Republic of Sudan (“Sudan”) in the United States District Court for the District of Columbia. The plaintiffs brought suit under an exception in the Foreign Sovereign Immunities Act (“FSIA”), which authorized a federal cause of action for victims of “state-sponsored terrorism.” (28 U.S.C. § 1605(a)). The plaintiffs alleged that Sudan had provided material support to Al-Qaeda.
The Clerk of the Court served Sudan by sending the summons and complaint to the head of Sudan’s Ministry of Foreign Affairs, which was sent via certified mail to the Sudanese embassy in Washington, D.C. The clerk filed a returned receipt. No papers were sent directly to Sudan’s Ministry of Foreign Affairs in Khartoum, Sudan.
Sudan failed to respond to the mailing within sixty days, as required under 28 U.S.C. § 1608(d). On March 30th, 2012, upon finding that Sudan was not entitled to immunity and that the District Court for the District of Columbia had jurisdiction over the claim, the Court entered a default judgment against Sudan for approximately $314 million in damages. The judgment was then registered in the Southern District of New York; the district court issued turnover orders to several banks holding Sudanese government assets, so that the assets could be directed to the plaintiffs. In response to the turnover orders, Sudan filed a notice of appearance and appealed the judgment to the United States Court of Appeals for the Second Circuit, citing lack of proper service as reason to vacate the default judgment.
Service on a foreign state in a suit governed by FSIA is outlined by 28 U.S.C. § 1608(a), which lists four hierarchical methods of service. Finding that the methods in § 1603(a)(1)-(2) were unavailable, the plaintiffs attempted to serve Sudan in compliance with § 1608(a)(3) by sending the required papers in an envelope addressed to the head of the ministry of foreign affairs. The Second Circuit found service on the embassy to be sufficient under FSIA; however, this ruling was in contrast to the District of Columbia, Fifth, and Seventh Circuits, which required that process must be sent directly to a foreign state’s ministry of foreign affairs, rather than through an embassy in the United States.
On appeal to the Supreme Court, Sudan maintained that, since the plaintiffs had not sent its papers to the Ministry of Foreign Affairs in Sudan, service in this particular suit was improper. Moreover, in its briefs and oral argument before the Court, Sudan argued that service to the embassy was a violation of Article 22 of the Vienna Convention on Diplomatic Relations (“VCDR”), which states that embassies are inviolable and should be “immune from search, requisition, attachment or execution.” Among other parties, the United States filed an amicus brief siding with Sudan, arguing that Congress had intended for FSIA to be compliant with VCDR. The United States noted that, when served by mail at its embassies, the State Department’s policy was to return the mail to the sender and inform the sender that the United States would not considered itself to have been properly served. The United States argued that, due to the sheer number of embassies around the world, a ruling against the Republic of Sudan would open U.S. embassies to an administrative nightmare.
During oral arguments, the Supreme Court Justices questioned the Sudanese counsel’s assertion that the plain meaning of § 1608(3) could not include mail to the embassy. Chief Justice Roberts, Justice Alito, and Justice Kagan each reasoned that, since the embassy is considered a point of contact for the representative state, it would seem natural that mail addressed to the ministry of foreign affairs could reach it via the embassy. Justices also questioned the interpretation of Article 22 of the VCDR that serving process on an embassy would be considered a violation. Chief Justice Roberts stated it was understandable that an embassy would not and should not be subject to a search warrant “[b]ut it’s hard to imagine someone’s reaction to getting a letter to the mail to be … affronted by it.”
Attorneys for the victims of the U.S.S. Cole bombing noted that § 1608(a)(3) only specified that the service packet should be addressed to the head of the ministry of foreign affairs, and did not specify a location. Furthermore, § 1603(a)(4), the following provision, specifies that if service could not be rendered according to § 1603(a)(3), then the papers should be mailed to “the Secretary of State in Washington, District of Columbia.” Canons of statutory interpretation thus require the inference that, if service on a ministry of foreign affair’s headquarters is not explicitly required, then service on an embassy logically would be permitted.
Justices also questioned the plaintiffs’ counsel on the traditional requirement that process be served where the party is most likely to be. Often, the Justices noted, heads of ministries of foreign affairs seldom visit their countries’ embassies around the world. As Justice Sotomayor stated, the embassy is “not the place where the [official] usually is. And that concept, I think, is the essence of due process.” Justice Kavanaugh stated that, if the Supreme Court were to find service on an embassy insufficient, litigation would not stall. Parties could still resort to § 1608(a)(4) and serve papers on the Secretary of State in Washington D.C. who would then transmit them via diplomatic channels to the foreign state.
The Justices will be contemplating the legislative history of FSIA, the textual interpretation of FSIA, and the executive branch’s obligations under the VCDR in order to be an effective member of the international community. Ruling against Sudan, as mentioned by the United States’ briefs, would open U.S. embassy staff around the world to handling legal matters for which they may not have the training to properly handle. The Justices will be well aware of this potential administrative burden. Despite the awkward optics of the United States opposing victims of al-Qaeda, the Court ultimately may find it best to defer to the needs of a functioning executive branch.