Update on Sudan v. Harrison

Readers, here is a post from friend-of-the-blog Jared Hubbard, who is counsel to amici in Sudan v. Harrison, next term’s case on service of process under the FSIA.

I wanted to follow on from Ted’s excellent work in keeping us updated about foreign service of process with some additional information on the Sudan v. Harrison case, which was recently taken up by the Supreme Court. As full disclosure, I represent a group of international law professors who have appeared as amici curiae in support of Sudan’s position in the case.

The case involves how foreign states may be served under the Foreign Sovereign Immunities Act (“FSIA”). 28 USC § 1608(a)(3) says that service may be made “by sending a copy of the summons and complaint and a notice of suit … 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 statute says who service must be addressed to, but it is ambiguous about where it should be addressed.

In Sudan v. Harrison, the plaintiffs addressed it to the head of the ministry of foreign affairs care of the Sudanese embassy. When Sudan failed to appear, the district court entered a $314 million default judgment against Sudan (the claims relate to the bombing of the USS Cole in Yemen in October of 2000). When the plaintiffs tried to collect in New York, Sudan appeared and challenged service of process, asserting that the plaintiffs should have mailed service to the “head of the ministry of foreign affairs” at the Ministry of Foreign Affairs, and not at one of the country’s embassies.

Sudan also raised the issue that service on the embassy would violate the Vienna Convention on Diplomatic Relations (“VCDR”), which says that the premises of the embassy are inviolable, and that they may not be entered “except with the consent of the head of the mission.” Even the plaintiffs in the case do not dispute that service may not be made “on” the embassy, and that for service to occur, there must be “consent of the head of the mission.”

The Second Circuit found, however, that by mailing service to the head of the ministry of foreign affairs, service was occurring “via” the embassy, rather than “on” the embassy, and that by signing for receipt of the mail, the embassy had consented to accept service. The Second Circuit even rejected the US Government’s amicus brief interpreting the VCDR such that it prohibits service directed at an embassy, despite the Supreme Court’s requirement that the State Department’s view be afforded “great weight.”

In Kumar v. Sudan, the Fourth Circuit considered the exact same issue raised by different plaintiffs against Sudan, and rejected the Second Circuit’s reasoning, finding it “weak and unconvincing.” It found that while the FSIA was ambiguous, in light of the legislative history, the VCDR, and the State Department’s views, it should be interpreted to require that the head of the ministry of foreign affairs should be served at the Ministry of Foreign Affairs in the foreign state.

Petitions for certiorari were brought in both cases. In Harrison, the governments of the UAE, Saudia Arabia, and Libya, along with a group of international law professors, all filed amicus briefs supporting Sudan’s (and the State Department’s) position that service cannot be made on the embassy. Austria also issued a Note Verbal indicating its agreement. Prior to the Kumar decision, the Supreme Court invited the Solicitor General’s views on the Harrison petition.

In its amicus brief, which came out after Kumar, the United States reaffirmed that the FSIA and VCDR do not allow service of process to be directed to an embassy. But the US recommended that the Court take up Kumar for procedural reasons, or take up both cases and consolidate them for review (Kumar is a direct appeal from the district court’s denial of a motion to vacate while Harrison is an appeal of turnover orders, and there is a motion to vacate pending before the district court in that case).

On June 21, 2018, contrary to the United States’ recommendation, the Supreme Court granted certiorari in Harrison, while leaving Kumar’s petition pending. It is always difficult reading the tea leaves of the Supreme Court, but my personal hope is that this foretells a desire for a reversal of Harrison rather than an affirmance of Kumar. So far six sovereign nations (Sudan, UAE, Saudia Arabia, Libya, Austria, and the United States) have weighed in on this case and have uniformly rejected service of process “on”, “via”, or “through” embassies.

While the international community has come in on one side of this argument, there is a threat that if the Court agrees with the Second Circuit, the United States will be significantly out of step with longstanding principles of diplomatic relations. And as the United States itself has explained in its amicus brief, it routinely rejects service of process on US embassies and missions abroad. Foreign courts may not give as much respect to those rejections in future if the Supreme Court allows US plaintiffs to serve process “via” a country’s US embassy.

So this will be an interesting case to watch when it is argued before the Supreme Court later this year (likely in November).

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