Case of the Day: Harrison v. Republic of Sudan

Aftermath of the Attack on the USS ColeThe case of the day is Harrison v. Republic of Sudan (N.D. Cal. 2013). The plaintiffs were members of the crew of the USS Cole and their spouses. They had sued the Republic of Sudan for providing material support to Al Qaeda in connection with the bombing of the Cole in 2000, and they obtained a default judgment for nearly $315 million. They then sought to begin collection proceedings in the Northern District of California. The question for the court was whether they had complied with 28 U.S.C. § 1610(c), which provides:

No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter.

Section 1608(e), in turn, provides:

No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section.

So the question was whether the plaintiffs had served a copy of the default judgment on Sudan in the manner prescribed by the FSIA. The plaintiffs requested the clerk of the court in Washington to mail the default judgment by registered mail, return receipt requested, to Sudan’s minister of foreign affairs, and the clerk certified that he had done so. 1 But there was no return receipt.

The judge held that the fact of the mailing satisfied 28 U.S.C. § 1608(a)(3). Is this right? It seems to me that the statute requires not just that the documents be mailed and a return receipt requested, but that the return receipt also be received. See Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53, 68 (D.D.C. 2007). This is the point of 28 U.S.C. § 1608(a)(4), which provides for service through diplomatic channels in the event that “service cannot be made within 30 days” by mail. If all that was required were mailing, then service could always, or nearly always, be made under § 1608(a)(3).

So it seems to me that the court got this one wrong. The plaintiffs should have been required to serve Sudan by diplomatic channels under 28 U.S.C. § 1608(a)(4) before proceeding to attempt to enforce their judgment.


  1. Note that the clerk’s certificate states only that the clerk sent the default judgment, not that he sent a copy of the FSIA, as required by 22 C.F.R. § 93.2, as construed by the court in Delizia v. Eritrea (S.D.N.Y. 2012).

Case of the Day: Delizia Ltd. v. Eritrea

The case of the day, Delizia Ltd. v. Eritrea (S.D.N.Y. 2012), is a short, fun decision. Delizia had a contract to sell $12 million dollars of equipment to the Eritrean Ministry of Defense. The Ministry stopped making payments. The contract had an agreement to arbitrate, so Delizia commenced an arbitration in Sweden. Eritrea did not participate in the arbitration, and an award entered in Delizia’s favor.

Delizia sought confirmation of the award. Eritrea defaulted, and the judge entered a default judgment against it. Delizia owned a commercial condominium unit in New York City (one of the tenants was the Marshall Islands’ permanent mission to the United Nations). Delizia sought to attach the Marshall Islands mission’s rent payments to Eritrea. Although Eritrea did not oppose Delizia’s request, the judge denied it on the grounds that Delizia had failed to comply with 28 U.S.C. § 1608(a), which requires service of a copy of a default judgment on the foreign state, because 22 C.F.R. § 93.2(e) requires that a copy of the FSIA itself be served with the default judgment. According to the clerk’s certificate of mailing, only the default judgment itself, not a copy of the statute, was served.

The judge also suggested that if Delizia did properly serve the default judgment on Eritrea and renewed its motion, it might run into difficulties because of the Vienna Convention, which, some courts have held, makes rental payments as immune from execution before they are deposited into the foreign state’s bank account as they are after they are deposited.