Case of the Day: Kumar v. Sudan (With a Circuit Split!)
Posted on January 22, 2018
Under the FSIA, if you are suing a foreign sovereign and there is no special arrangement for service, and if you can’t make service under an applicable treaty such as the Hague Service Convention, you have to serve process “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.” 28 U.S.C. § 1608(a)(3).
Perhaps the Sudanese postal service is not very good, or perhaps they didn’t want to wait for service through the diplomatic channel; for whatever reason, plaintiffs in the USS Cole litigation have tried to serve process on Sudan by sending the documents to the Sudanese foreign minister via Sudan’s American embassy. Is this permissible?
The natural reading of the statute, or at least the naive reading, is that you should serve the documents on the foreign minister at the foreign ministry. That’s where they keep the foreign minister. And surely the statute does more than require the plaintiff to put the Minister’s name on the envelope and send it to an arbitrary address. But in today’s case of the day, Kumar v. Sudan (4th Cir. 2018), the court held that there was an ambiguity in the statute about whether service on the Foreign Minister can be served by mail addressed to the embassy.
I suppose the court’s point about an ambiguity is right on a purely textual level, though I’m not so sure on a practical level. And I fear that treating the statute as ambiguous will lead to more disputes about what should be a straightforward exercise. But the court was able to resolve the ambiguity in this case by pointing to legislative history that clearly showed Congress’s intent not to allow service at a foreign embassy, which, Congress thought, might be inconsistent with the Vienna Convention on Diplomatic Relations and its protection of the inviolability of embassies.
The decision is particularly at interesting because it is at odds with Harrison v. Sudan, a Second Circuit case I covered last year. In Harrison, the court allowed this method of service, on what I thought were dubious grounds. At the very practical level, the Harrison court’s attribution of importance to the fact that the embassy did not refuse to receive the papers in the mail seems clearly wrong, since you never know what an envelope contains until you open it. At a much higher level of abstraction, the court’s reasoning about sovereignty—if it’s not offensive to mail a summons to a foreign ministry in the foreign country itself, it can’t be offensive to mail the summons to an embassy, which is less sovereign in some sense than the foreign country’s own territory. You can read my criticisms of the holding in the prior post.
The petition for cert. in Harrison is pending, and Sudan has attracted several amici (one of the amicus briefs, on behalf of Libya, was written by friend of Letters Blogatory Jared Hubbard). The Court has called for the views of the Solicitor General. Now that there is a real circuit split on this, I think the chances for a grant of cert. have gone up substantially. I expect there will be a supplemental brief on the new decision shortly, though I say that without having any practical experience of my own of such things in the Supreme Court.