Can a plaintiff suing a foreign state under the Foreign Sovereign Immunities Act properly serve that foreign state by mailing the service package to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s embassy located in the United States?
This case asks the Supreme Court to decide whether plaintiffs can serve a foreign state under the Foreign Sovereign Immunities Act (“FSIA”) by addressing the service of process package to the state’s foreign minister and sending it to the foreign state’s embassy located in the United States. The plaintiff, the Republic of Sudan (“Sudan”), maintains that, under the FSIA, plaintiffs must serve a foreign state by sending the service of process package to the foreign minister at the ministry of foreign affairs located in that foreign state’s capital. Sudan contends that Article 22 of the Vienna Convention supports this interpretation because it precludes service “via” or “through” a diplomatic mission. However, the respondents—a group of victims of an al-Qaeda attack including named party Rick Harrison (“Harrison”)—contend that, although the FSIA requires plaintiffs to address and send their service of process mail to a state’s foreign minister, it does not direct plaintiffs to send the package to a particular location. Harrison asserts that, because the FSIA’s text unambiguously allows service through an embassy, the Vienna Convention does not apply in this case. This case has large implications for foreign relations, especially as regards to terrorism. A decision for Harrison may better compensate victims of terrorist attacks and restrict state-sponsored terrorism, whereas a decision for Sudan may better protect the United States as a foreign litigant and aid the effective function of embassies.
Questions as Framed for the Court by the Parties
Whether the Second Circuit erred by holding – in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
On October 12, 2000, the U.S.S. Cole was refueling in Aden, Yemen when it was bombed by members of al-Qaeda. Harrison v. Republic of Sudan (“Harrison II”), at 4. In 2010, the Respondents, Rick Harrison, other victims of the attack, and their families (“Harrison”) sued the Petitioner, the Republic of Sudan (“Sudan”) in the United States District Court for the District of Columbia (“D.C. District Court”) under the Foreign Sovereign Immunities Act (“FSIA”), which allows terrorist-attack victims to sue foreign countries for monetary relief when those countries provide material support to terrorist organizations. Id.; 28 U.S.C. § 1605A. Harrison alleged that Sudan was liable under the FSIA as it provided material support to al-Qaeda and therefore contributed to the terrorist attack on the U.S.S. Cole. Harrison II at 4–5.
In November 2010, Harrison served Sudan with a summons and complaint through registered mail to Sudan’s Minister of Foreign Affairs, via the Sudanese U.S. Embassy in Washington, D.C. Id. Harrison did not, however, serve Sudan through mail to the Ministry of Foreign Affairs in Khartoum, Sudan’s capital. Id.
In March 2012, after receiving no response, the D.C. District Court entered a default judgment against Sudan. Id. The court found that Harrison’s service was proper and awarded them $314,705,896. Id. Sudan did not appear in court nor contest the judgment following the award. Id. Thereafter, the judgment was registered in the United States District Court for the Southern District of New York, which then granted Harrison’s turnover petitions—orders to turn over Sudanese assets—against banks like Mashreqbank, BNP Paribas, and Credit Agricole Corporate and Investment Bank. Harrison v. Republic of Sudan ("Harrison I") at 6–7.
In January 2014, Sudan filed a notice of appearance and moved to appeal the turnover orders. Harrison II at 6. Sudan challenged the D.C. District Court’s judgment on personal jurisdiction grounds, contending that Harrison did not properly serve Sudan. Brief for the Respondents, Harrison et. al. at 10. Sudan argued that Harrison should have served the Foreign Ministry in Sudan’s capital, rather than the Sudanese embassy in the United States. Id.
The United States Court of Appeals for Second Circuit affirmed the lower court, concluding that Harrison properly served Sudan’s Minister of Foreign Affairs when they served the Sudanese U.S. Embassy. Harrison I at 16–18. The Second Circuit pointed to the plain language of FSIA’s service requirement, concluding that it was not necessary that service be mailed instead to the Ministry of Foreign Affairs in Khartoum. Id. at 17–18. The United States Supreme Court granted Sudan’s petition for writ of certiorari on June 25, 2018.
INTERPRETING THE FSIA’S SERVICE REQUIREMENTS
The Republic of Sudan argues that, under the FSIA, a party should not be able to obtain personal jurisdiction over a foreign state simply by dispatching service to the domestic embassy of the foreign state. Brief for the Petitioner, The Republic of Sudan at 24. Rather, Sudan contends, the FSIA requires that a party hoping to gain jurisdiction over a foreign state serve the head of foreign affairs in that state, in the absence of a special arrangement or an applicable international convention. Id. at 16–21. This, Sudan argues, is the most logical interpretation of the FSIA’s language, which provides that service is achieved by “address[ing] and dispatch[ing service] to the head of ministry of foreign affairs of the foreign state.” Id. Sudan maintains that under the “natural reading” of the text, mail should not be considered “addressed and dispatched” to a recipient unless it is sent to the physical location that the recipient is known to inhabit. Id. at 22. Sudan claims that the FSIA’s specification that service is completed on the date the mailing is received and signed further supports this understanding, because any other interpretation would allow service to be complete when the mailing reached and signed for at the foreign state’s domestic embassy instead of when the mailing was forwarded to its ultimate destination; an event which would unduly burden the recipient foreign state with a shorter time constraint for filing. Id.
Harrison counters that the FSIA’s service procedures allow service on a foreign state to be completed by dispatching the mailing to the foreign state’s American embassy. Brief for the Respondents, Harrison et al. at 18. Harrison argues that, because the FSIA does not specify a location to which a party must “addres[s] and dispatc[h]”, an interpretation requiring service be sent to the foreign ministry would read an extra requirement into the statute unintended by Congress. Id. at 19–20. Harrison contends that, if Congress intended service to be complete only when delivered to a foreign ministry, it could have easily stipulated this requirement in the text of the statute. Id. In support of this argument, Harrison points to the fact that Congress did specify locations for other methods of service elsewhere in the FSIA. Id. at 22. Harrison further asserts that Congress typically specifies a location for service when that location is required by law for service to be effective and points to the existence of numerous statutes wherein Congress explicitly provides a location for service. Id. at 22–23. Finally, Harrison maintains that the FSIA’s requirement that service should be “addressed and dispatched” only means that a mailing need name a foreign state’s minister, not that it must be delivered to a specific location. Id. at 25–26.
THE VIENNA CONVENTION’S INVIOLABILITY PRINCIPLE
Sudan argues that permitting service on a foreign state through that state’s U.S. embassy is impermissible as it would violate the Vienna Convention, specifically Article 22. Brief for Petitioner at 31. Sudan interprets Article 22 of the Vienna Convention, which provides that “[t]he premises of the [embassy] shall be inviolable”, to prohibit parties from gaining personal jurisdiction over a foreign state through service at that foreign state’s U.S. embassy. Id. at 35–36. To support this assertion, Sudan cites a preliminary report on the Vienna Convention from the U.N. International Law Commission that stipulates service should not be made on the premises of U.S. embassies. Id. at 38–39. Sudan also argues that service through a foreign state’s U.S. embassy infringes on that foreign state’s sovereignty as it compels that foreign state to either appear or face a default judgment. Id. at 43–44. Sudan maintains that this principle of inviolability is especially important in view of the FSIA’s explicit provision that the statute should be read as not to conflict with existing international agreements. Id. at 34. Sudan further argues that the distinction between service “on” an embassy and service “via” an embassy is immaterial, because mailing service documents to an embassy in the U.S. functionally makes that embassy an agent for service, even in situations where the mailing is forwarded to the foreign state. Id. at 41–42.
Harrison counters that allowing service on a foreign state via that state’s embassy in the U.S. is actually consistent with the Vienna Convention’s inviolability principle. Brief for Respondent at 37. Harrison contends that mailing merely conveys information, and thus does not constitute the level of physical intrusion required to violate the sovereignty of a foreign state at its U.S. embassy. Id. at 44. Harrison also notes that because embassy staff must sign for the documents in order for them to take effect, service through an embassy does not impermissibly coerce the foreign state or intrude on the foreign state’s sovereignty. Id. at 38. Furthermore, Harrison relies on the Vienna Convention’s drafting history to argue that the International Law Commission intended to allow service through an embassy, pointing to when the Commission issued revised commentary stating that nothing in Article 22 “prevent[ed] service through post.” Id. at 40. Finally, Harrison asserts that barring service on a foreign state’s U.S. embassy as a rule of law would be inconsistent with other provisions of the FSIA, which allow service documents to be delivered to a foreign state’s U.S. embassy in certain circumstances. Id. at 49. Harrison also argues in the alternative that the text making the FSIA “[s]ubject to existing international agreements” only applies to subject-matter jurisdiction, not personal jurisdiction. Id. at 36.
BALANCING PRIVATE LITIGANT AND GOVERNMENT INTERESTS
The Veterans of Foreign Wars of the United States (“Veterans”) in support of Harrison argue that the United States should interpret the FSIA to allow service of process via embassies as civil damages would contribute to the full compensation of terrorist attack victims. Brief of Amicus Curiae of Veterans of Foreign Wars of the United States (“Veterans”), in Support of Respondent at 10. They assert that, if the Government does not allow this method of service, it will severely limit the ability of terrorism victims to obtain relief and force them to overcome challenges such as refiling lawsuits, re-litigating cases, and paying thousands of dollars in additional administrative fees. Id. at 7, 10–12. Similarly, a group of former U.S. Counterterrorism Officials (“U.S. Officials”) in support of Harrison contend that the Government should express more sympathy for terrorist victims. Brief of Amicus Curiae of Former U.S. Counterterrorism Officials, et. al., in Support of Respondent at 28. The U.S. Officials contend that allowing service via embassies will provide the most protection for terrorist attack victims by ensuring more opportunities to file lawsuits against foreign governments and recover monetary relief. Id.
However, the United States Government (“Government”) in support of Petitioner counters that allowing service via embassies will hampers its ability to defend itself in foreign litigation. Brief of Amicus Curiae of the United States (“the Government”), in support of Petitioner at 24. The Government explains that currently, it does not recognize service when such service is delivered to a U.S. embassy overseas. Id. at 10, 25. Therefore, the Government is concerned that allowing service on foreign state embassies in the U.S. will result in reciprocal treatment abroad. Id. at 10, 25. This treatment, the Government contends, will limit its ability to argue improper service when it receives service via overseas U.S. embassies. Id. at 10. The Government emphasizes that the defense of improper service is important to U.S. foreign policy as the country currently faces approximately 1,000 lawsuits in over 100 foreign states. Id. at 25–26. The Kingdom of Saudi Arabia (“Saudi Arabia”) adds that, without reciprocal treatment, America will faces severe consequences when service is made on remote U.S. embassies and outposts—which may not notify the U.S. of the lawsuit—thus resulting in default judgments and enforcement actions. Brief of Amicus Curiae of the Kingdom of Saudi Arabia (“Saudi Arabia”), in support of Petitioner at 19.
CONSTRICTING TERRORISM VERSUS FULLY FUNCTIONING EMBASSIES
The U.S. Officials argue that allowing service on foreign states via embassies located in the U.S. will aid in the movement to curb state-sponsored terrorism by encouraging civil litigation against state sponsors of terrorism. Brief of Amicus Curiae of Former U.S. Counterterrorism Officials, et. al. (“U.S. Officials”), in Support of Respondent at 28. The U.S. Officials explain that although there are only four foreign governments—Iran, Syria, North Korea, and Sudan—that are considered state sponsors of terrorism, they contribute to a large percentage of terrorist organizations’ operating budgets. Id. at 32. Without these large budgets, the U.S. Officials contend, terrorist organizations’ will have to contend with transferring funding through more complicated, less secure means, which will negatively impact their abilities to operate. Id. at 30–31. The U.S. Officials argue that civil litigation will be particularly effective against terrorist activity as American courts impose incredibly large awards against state sponsors of terrorism. Id. at 33. As an example, the U.S. Officials point to previous civil litigation against Iran, which they contend made a “noticeable impact” on al-Qaeda, even if it did not completely end the Iran’s sponsorship of the group. Id. at 33–34. Thus, U.S. Officials assert, allowing service via embassies will preserve this “terror-fighting tool.” Id. at 28.
The United Arab Emirates writing in support of Petitioner asserts that allowing service on foreign states via their U.S. embassies will disrupts a core practical function of embassies—receiving diplomatic communications. Brief of Amicus Curiae of the United Arab Emirates, in support of Petitioner at 6–7. The United Arab Emirates contends that allowing service via embassies will force mailroom employees to search through all communications to intercept litigious mail and hypothesizes that embassies will eventually be forced to refuse any mail. Id. at 9–10. Saudi Arabia agrees, arguing that embassies may refuse to accept mail as a way to prevent low-level employees from acting as official state representatives and mistakenly accepting service. Brief of Amicus Curiae of the Kingdom of Saudi Arabia, in support of Petitioner at 16. Saudi Arabia cautions that this result would freeze diplomatic communications that are necessary to an embassy’s functioning. Id. The Government of National Accord, State of Libya (“Libya”) adds that these concerns are heightened for developing and transitional countries. Brief of Amicus Curiae of Government of National Accord, State of Libya (“Libya”), in support of Petitioner at 3. In these situations, Libya argues, developing countries often hire transitional staff to work at their embassies and are often unable to provide strong guidance to such staff members, given their home country disruptions. Id. at 4. This makes it unrealistic for these particular countries to receive timely and reliable service via their embassies. Id. at 4. Given this, Libya cautions, transitional countries are more likely to suffer default judgment by missing service mailed to their embassies, which will be detrimental to their developing economies. Id. Alternatively, Libya argues, even if an embassy did reliably transmit the service of process, practical concerns could arise regarding the date of service, creating unnecessary disputes and ambiguity in future litigation. Id
- Amy L. Howe: Solicitor General Recommends a Grant (sort of) in Sudan Service Case, Howe on the Court (May 23, 2018).
- Hayley Fowler: High Court to Decide Service Row In USS Cole Bombing Case, Law360 (June 25, 2018).