Here is an update to an earlier cert. watch on an interesting service of process question under the FSIA. There are now two petitions before the Supreme Court, Republic of Sudan v. Harrison, No. 16-1094, and Kumar v. Republic of Sudan, No. 17-1269. The question in both is whether you can serve process on a foreign state under the FSIA (28 U.S.C. § 1608(a)(3)) by mailing the summons and complaint to the foreign minister in care of the foreign state’s embassy or consulate, rather than by mailing the summons and complaint to the foreign minister at the foreign ministry.
I gave substantive views on the issues in a post from September 2016. Perhaps the key point, in my view, is this:
Given that the plaintiffs could have effected service via the diplomatic channel, if not by mail to Khartoum rather than to the embassy, what important value justifies rejecting the executive’s construction of the Vienna Convention, or taking a position that is at least in tension with the approach the State Department takes to attempts to serve the United States abroad?
In other words, why stretch the plain meaning of the statute needlessly, or why put the courts at odds with the executive branch, when there is another method of service available if service to the ministry of foreign affairs fails?
Kumar was, as far as we can tell from the docket, discussed at the Court’s conference of June 14, though no order has issued. Harrison was to have been discussed on the 14th, too, but it has been redistributed for the conference of June 21. The Solicitor General’s office has filed an amicus brief arguing that the Court should grant cert. but that Kumar is a better vehicle review than Harrison.
I will keep you posted on this interesting issue.
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