Cert. Watch: Sudan v. Harrison
Posted on June 2, 2017
The case arose out of the terrorist attack on the USS Cole in Yemen 2000. Several sailors and their families sued the Republic of Sudan in the US District Court for the District of Columbia, alleging that Sudan had provided material report to al Qaeda, which had taken responsibility for the attack. The action ended with a $314 million default judgment against Sudan. The plaintiffs registered the judgment in the Southern District of New York and sought to enforce it. The court in New York entered several turnover orders, and Sudan appealed, arguing, among other things, that the judgment was void because it had not been validly served with process.
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.
The Second Circuit held “that the service complied with the FISA because it was sent to the Minister of Foreign Affairs by name, albeit via the embassy. Nothing in the statute, the court held, required service at any particular address.” The court later denied a motion for reconsideration, rejecting arguments from the United States that the decision put the US out of compliance with the Vienna Convention on Diplomatic Relations, which makes diplomatic premises “inviolable.”
I criticized the decision on several grounds, which I won’t review here, and so I am hopeful the Supreme Court will take the case. Several foreign states (Saudi Arabia, the UAE, the Libyan Government of National Accord) have filed amicus briefs in support of Sudan, and Austria has taken the same position by diplomatic note. An impressive group of scholars has done likewise, though the United States has not (yet?) weighed in. I’ll keep you posted.