Case of the Day: Owens v. Sudan

Bombing of the US embassy in Kenya
The bombing of the US embassy in Kenya. Credit: FBI

The case of the day is Owens v. Republic of Sudan (D.D.C. 2015). James Owen and the other plaintiffs were victims of the 1998 US embassy bombings in Africa. Owens had a default judgment against the Republic of Sudan and the Islamic Republic of Iran. Under the FSIA, a default judgment has to be sent to the foreign state using one of the FSIA methods of service before the plaintiff can execute on the judgment. 1 The plaintiffs sought an order determining that a reasonable amount of time had passed and that they had properly given the required notice of the judgment.

Sudan argued that a reasonable time had not passed because the judgment had not yet made its way through the appellate process and was not final and non-appealable. In federal practice, a judgment creditor can execute on a final judgment even while it is on appeal, but Sudan was suggesting a different rule for foreign sovereign judgment debtors in light of the FSIA’s “reasonable amount of time” requirement.

Sudan spent some time discussing what makes a judgment a “final judgment.” Ordinarily, we use the term to mean a judgment that is appealable, as opposed to an interlocutory judgment. Clearly the judgment here was final in that sense. But to the extent “final judgment” could be taken to include some requirement about exhaustion of appellate remedies, Sudan’s argument failed on textual grounds, as the statute, 28 U.S.C. § 1610(c), didn’t use the word “final” at all, referring only to a reasonable time passing after entry of the judgment. Sudan asserted that a finality requirement (in the sense of exhaustion of appellate rights) should be read into the statute because of international comity concerns, because under 28 U.S.C. § 2414, foreign country judgments against the United States are payable only after the Attorney General certifies that they are “final” in that sense. Sudan claimed that our courts should not treat foreign sovereigns sued here less favorably than they treat the United States when sued abroad, but the court drew a different conclusion from the statutes: the presence of a finality requirement in one but not the other was evidence that Congress did not intend the two situations to be treated in the same way. Anyway, I think Sudan’s comparison was not apt, because § 2414 comes into play when the United States voluntarily pays a judgment from its treasury, whereas § 1610(c) comes into play when a foreign sovereign has failed to pay a judgment voluntarily and the judgment creditor is seeking to proceed against its assets in the United States by way of a writ of execution.

Sudan also pointed to some legislative history indicating the State Department’s view that the FSIA should be read consistently with the European Convention on State Immunity, which does impose a finality requirement that includes exhaustion of appellate rights. But the judge was not persuaded, both because the State Department’s view was not really as strong as Sudan claimed and because the text of the statute was plain.

Last, Sudan claimed that a reasonable time had not passed because the court might grant its pending motion to vacate the judgment. But § 1610(c) is about the passage of time, the judge noted, not about the surmounting of particular procedural hurdles. True, Sudan had a real reason to be concerned that its assets could be seized to satisfy a judgment that might in the end be vacated. But the proper approach is to seek a stay of execution under FRCP 62(b). That would, of course, require Sudan to provide security to the plaintiffs, which is probably precisely why it will not happen.

Notes:

  1. As the judge held, this requirement applies even in state-sponsored terrorism cases, notwithstanding Gates v. Syrian Arab Republic, 755 F.3d 568, 575 (7th Cir. 2014), a case to the contrary.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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