Case of the Day: Sudan v. Harrison

USS Cole

The case of the day is Republic of Sudan v. Harrison (S. Ct. 2019). I’ve covered the case several times before; my post on the Second Circuit’s decision on Sudan’s petition for a rehearing was my most recent substantive look, and guest author Jared Hubbard reported more recently on the oral argument.

The case arose out of the bombing of the USS Cole. 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.

In its decision (by Justice Alito, joined by all of the justices except Justice Thomas), the Court focused on the plain text of the statute. The reasoning is not that interesting: the justices focused on what it means to “address” mail, what “dispatch” means, and so forth. Suffice it to say that the Court found that the statute, “most naturally read,” requires “that a mailing be sent directly to the foreign minister’s office in the minister’s home country.” The Court noted that its decision, which relied only on the text of the statute, avoided the need to decide whether, as the Executive asserted, the Second Circuit’s decision was inconsistent with the United States’s obligations under the Vienna Convention on Diplomatic Relations, under which an embassy is “inviolable.”

Because the case focused so strongly on the textual issues rather than the international law issues, it is similar to the decision in Jam v. International Finance Corp., the Supreme Court’s most recent look at the FSIA. Indeed, I had hoped that Justice Breyer might concur in today’s decision to emphasize the policies of the FSIA and of customary international law and the Vienna Convention rather than simply parsing the text. But no such luck.

To my mind, the most important points are the points about the use of embassies as destinations for service of process by mail. US practice is to refuse to accept service in such cases, by diplomatic note. But if the service is said to be complete upon receipt of the signed return receipt, probably signed by a mailroom clerk, then the method of service the plaintiffs used deprived Sudan to do what the United States does in similar cases, namely, to refuse to accept the service. And the Second Circuit’s unfortunate reasoning, which turned in part on ideas about sovereignty, and asked whether the embassy is more or less “sovereign” territory than the foreign state’s own territory, could not be allowed to stand without correction. My criticism of the lower court’s reasoning is in the prior post.

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