Letters Blogatory contributor Jared Hubbard, who represented a group of amici arguing in favor of Sudan, was at the Supreme Court yesterday for oral argument in Sudan v. Harrison, and he shares the following report. To set the stage: victims of the USS Cole bombing sued Sudan for damages. The plaintiffs sought to serve process on Sudan by sending the summons by mail to the minister of foreign affairs, via the Sudanese embassy in Washington, under 28 U.S.C. § 1608(a)(3). Before the Second Circuit’s decision holding that the service was sufficient, I should have said that the service was obviously insufficient and that there is no good reason to stretch the statute to accommodate what the plaintiffs did here, since § 1608(a)(4) provides a foolproof method of service when § 1608(a)(3) doesn’t work. You may want to read SCOTUSBlog’s account of the argument. The transcript of the argument is also available.

I attended the argument in Sudan v. Harrison yesterday, and I thought Letters Blogatory readers might like a “hot take” from an admittedly biased source (I was counsel to several amici arguing in favor of Sudan).

At least four justices seemed to be in favor of reversal and of holding that service cannot be made on embassies. Justices Sotomayor and Breyer were concerned about the Vienna Convention as well as the practical difficulties involved in service on embassies. Justice Sotomayor pointed out that under our law, the summons is normally delivered to a person where that person is, and not to some subsidiary location. Justice Breyer also pointed out that no other country allows service of process on embassies, while he found at least 27 countries that actively do not allow such service.

Justice Gorsuch focused on the lack of a limiting principle in the plaintiffs’ position: there is no textual way to limit the plaintiffs’ arguments to service on embassies but to exclude consulates, UN delegations, trade offices, or tourist bureaus that fall under the ambit of a foreign ministry. He also pointed out that 28 U.S.C. § 1608(a)(4) provides for service by diplomatic channels, but that the plaintiffs seemed to want to use § 1608(a)(3) to to accomplish service by diplomatic channels, since the documents would be transmitted back to the foreign state by diplomatic pouch. Justice Kavanaugh noted that the plaintiffs could have served process under § 1608(a)(4), which would have avoided the Vienna Convention and diplomatic difficulties, and that the plaintiffs were unable to point to a single instance when service under § 1608(a)(4) was unsuccessful.

The Chief Justice and Justices Alito and Kagan, however, seemed to think that as a matter of common sense, service via an embassy might be the best way to accomplish service. The Government had persuasive arguments explaining how such service was neither effective in getting things to the right people nor in the best interests of the United States from an international law and reciprocity standpoint; it’s unclear how these arguments may impact these justices’ analysis.

The Justices asked several questions about actual notice. The plaintiffs did make an actual notice argument in their oral argument, although they had not previously argued—and the underlying decisions had not held—that actual notice was sufficient under § 1608(a)(3). Indeed, circuit courts have uniformly held that actual notice is irrelevant under § 1608(a), and have relied on the fact that “section 1608(a) says nothing about actual notice,” see Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994), while § 1608(b) (governing agencies and instrumentalities of foreign states) does make actual notice relevant in some cases. This issue was not fully briefed by the parties, and it would be a significant departure both from the previous circuit court rulings (all of which are in accord on this issue) and international law for the Court to conclude that actual notice is sufficient to serve a foreign state.

While it is of course impossible to predict the outcome based solely on oral argument, I am somewhat more confident than is SCOTUSBlog that the Court will reverse and hold that service is not permitted on the embassy. Based upon the discussion by the Court, I think it is likely that they will conclude that the text of the statue is ambiguous, but that given the deference to the United States Government’s interpretation of the Vienna Convention, service should not be permitted on the embassy, and that if service cannot be made on the foreign ministry, then service can be made by § 1608(a)(4).