More on the DNC Lawsuit: Serving Assange
Posted on April 23, 2018
On Friday I wrote about the FSIA issues raised by the DNC’s lawsuit against Russia, the Trump campaign, et al. There is is one more Letters Blogatory angle to the new suit. One of the defendants is Julian Assange, whom I’ve written about before. My feelings on Mr. Assange are of the same kind as my feelings about President Trump, i.e., not warm. So again, without discussing the merits of the claims or the political wisdom of the suit, here are some comments on the tricky service of process issues the DNC will face. You know this already, but just as a reminder, Mr. Assange is holed up in the Ecuadoran embassy in London, because though he is very quick to pass judgment on others, he skipped bail and refuses to appear in an English court to answer charges against him. The Ecuadorans recently hatched a scheme to get him out of the embassy: they first granted him Ecuadoran citizenship and then sought to give him diplomatic status. The UK refused to accept him as an Ecuadoran diplomat. There is a question about whether, in light of these facts, the UK is now obligated to allow Assange safe passage to Ecuador, but if that’s so, then Assange and Ecuador will be exploiting a strange and unintended loophole. In any case, there is no indication he is headed to Ecuador anytime soon. In the meanwhile, Ecuador, again embarrassed by Mr. Assange’s shenanigans, has cut his access to the internet, and for purposes of this post I assume that that hasn’t changed.
Okay, so what should the DNC do? Here’s an overview.
Both the United States and the United Kingdom are parties to the Hague Service Convention, a multilateral treaty on service of process in civil or commercial cases. The Convention is exclusive, which means that when it applies (as it does in this case), you have to serve process using one of the methods that it authorizes, or that it at least permits.
The Convention authorizes one main method of service, namely, service via a central authority appointed by each state that is party to the Convention. So a US plaintiff may seek to serve process on a defendant in the UK by delivering the documents to the UK’s central authority, with a request for service. The UK central authority will then serve the documents using a method prescribed by its own law (unless the plaintiff requests a different method).
Here, the central authority method might be effective, but it might not. Mr. Assange has made it clear he is not coming out of the embassy. And the embassy’s premises are inviolate. UK officials cannot enter without permission. So Ecuador would have to consent for the central authority method to work. I can’t predict whether Ecuador would cooperate.
The Convention permits several alternate methods of service. Because it permits but does not affirmatively authorize these methods of service, the DNC could use them only if US procedural law authorizes them. Two of the methods, personal service by a person competent under UK law and service by postal channels, are indeed authorized by US procedural law. A US court has discretion to authorize alternate methods of service such as service by email, but there is some dispute about whether service by email is permitted by the Convention. If the Convention permits it, then a US judge may authorize it. But if the Convention forbids it, then a US judge cannot authorize it (since the US judge lacks the power to authorize a method of service that would violate the Convention).
Some countries object to alternate methods of service, and it seems clear that in those countries service by email is never permissible if the Convention applies (though many US courts have held to the contrary). But the UK has not objected, and so the permissibility of service by email will turn on your views about whether email is part of the “postal channel,” which is the key phrase in Article 10(a) of the Convention. I have given reasons for thinking that it is not in light of the Universal Postal Convention, but I could be wrong.
But service by email would probably fail in this case anyway, given that the Ecuadorans are not allowing Mr. Assange access to the internet. A US judge, in these circumstances, would be wrong in my view to authorize service by email, since email would not provide reasonable assurance that Mr. Assange would receive the notice.
Service by a person competent under UK law raises the same problems as service by the central authority: the premises of the embassy are inviolable, so a UK solicitor, or a process server hired by a solicitor, could effect service only with the consent of the Ecuadoran government.
Unless you have reason to think the Ecuadorans are going to cooperate, perhaps the best hope for service under the Convention is service by mail. I am not sure whether the embassy is allowing Mr. Assange to receive mail, but there is some indication that it does. So the DNC could simply mail him the summons and complaint, as long as it is careful to follow the procedural requirements of FRCP 4(f)(2)(C)(ii). In short, the mail should be addressed and sent by the clerk of court, not the DNC itself, and it should be sent by a form of mail requiring a return receipt (perhaps registered mail is best, though the cases support the view that a private courier such as Fedex would work, too; the USPS offers an international overnight service that I like to use for service of process purposes, since it avoids any questions about whether private firms are providing a postal service). No guarantees of success here, though. Suppose Assange refuses to accept the mail, and thus there is no signed receipt? A US court could authorize service of mail without such a receipt, if it felt there was sufficient reason to think the mail would reach Mr. Assange.
Pro tip: if it were me, I would probably try these methods in combination. And I might send a request to Ecuador via its central authority under the Inter-American Convention on Letters Rogatory (with Additional Protocol). And if he has a lawyer he’s in touch with, I might seek leave to serve process on the lawyer.