Case of the Day: Harrison v. Sudan
Posted on September 30, 2015
The plaintiffs had attempted service, correctly, under 28 U.S.C. § 1608(a)(3), which provides for service:
if service cannot be made under paragraphs (1) or (2) [i.e., by a special arrangement between the parties or by an applicable convention such as the Hague Service Convention], 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 …
The plaintiffs asked the clerk to mail the documents to Sudan’s Foreign Minister at Sudan’s embassy in the United States rather than at the offices of the Foreign Ministry in Khartoum. The clerk did as requested and received a return receipt. The question in the case was whether the FSIA required the documents to be addressed to the Foreign Minister at the offices of the Foreign Ministry in the foreign state, or whether it’s enough to address the documents to the foreign minister at some other address, for example at the foreign state’s embassy in the United States.
One twist in the case was that at the time of the service, due to the political situation in Sudan, the embassy was controlled by the opposition, and thus the Ministry of Foreign Affairs would not have received actual notice of the suit based on service made at the embassy. But this twist arose only at oral argument, and the court, correctly I think, refused to consider this assertion, which was outside the record.
The court noted that nothing in § 1608(a)(3) required the summons and complaint to be served on the minister of foreign affairs at a particular address, while, in contrast, § 1608(a)(4), which provides for summons via the diplomatic channel, requires the summons and complaint to be sent to the Secretary of State “in Washington, District of Columbia.” Moreover, some lower courts had already held that § 1608(a)(3) could be satisfied if the documents were served on a minister of foreign affairs at his country’s embassy. And the court rightly observes that (leaving that odd twist aside) the chances of getting the documents to the minister of foreign affairs through the diplomatic pouch is probably greater than the change of getting it to him by mail to Khartoum.
On the other hand, I wonder if the court goes a step too far when it asserts that the cases invalidating service under § 1608(a)(3) involve service on the wrong person rather than service at the wrong address. What about Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 (D.C. Cir. 2015)? In Barot, the plaintiff provided the clerk with the name of the minister of foreign affairs and the address of the ministry of foreign affairs in Lusaka. The clerk served the documents at the Zambian embassy in Washington, and later served the documents by mail to the address of the ministry of foreign affairs in Lusaka, though improperly labeled the “Embassy of Zambia.” Granted, in Barot it’s not clear that any of the attempts at service contained the name of the minister of foreign affairs, though the plaintiff had provided the name to the clerk. Although the ruling was in favor of Barot and gave her another chance to make service (as the mistakes were really mistakes of the clerk and the marshal, not of the plaintiff), nevertheless the court found the service ineffective. Would the DC Circuit have found the service in today’s case valid? I am not so sure. And I think that is a relevant question, as the underlying judgment was from the District of Columbia, not the Southern District of New York. As the Second Circuit pointed out, Sudan had belatedly sought to vacate the judgment by motion in Washington, but the court refused to stay the appeal pending the outcome of that motion. Maybe Sudan would have been better off attacking the judgment in Washington than in New York.