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Second Circuit Denies Rehearing In U.S.S. Cole Case And Adheres To Decision That Service of Process on Sudanese Embassy in D.C. Is Sufficient For Personal Jurisdiction Under FSIA

This case — Harrison v. Republic of Sudan — arose from the bombing of the U.S.S. Cole in the port of Aden, Yemen, in 2000.  Sailors and spouses of sailors injured in the explosion brought suit against Sudan in the D.C. District Court under the terrorism exception to the Foreign Sovereign Immunities Act, alleging that al Qaeda was responsible for the attack and that Sudan had provided material support to al Qaeda.

The action was commenced in October 2010, and, in November 2010, the summons and complaint were served on the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C.  No attempt was made to serve Sudan at the Ministry of Foreign Affairs in Khartoum, the capital.

Sudan failed to serve an answer or other responsive pleading within sixty days after plaintiffsʹ service, and a default was entered against Sudan.

On March 30, 2012, after a hearing, the D.C. District Court (Lamberth, J.) entered a default judgment against Sudan in the amount of $314,705,896.   Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 51 (D.D.C. 2012).  It also determined that service on Sudan had been proper.

On April 20, 2012, the Clerk of the Court mailed a copy of the default judgment to Sudanʹs Minister of Foreign Affairs, again via the Sudanese Embassy in Washington, D.C., and the judgment was thereafter registered in the Southern District of New York.

In December 2013 and January 2014, the Southern District issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs.  It was only after the last of these three turnover orders was entered that Sudan finally filed a notice of appearance, on January 13, 2014.  The same day, Sudan appealed the turnover orders to the Second Circuit.

In affirming the turnover orders, the Second Circuit held that service of process on the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C. was sufficient to meet the requirements of the FSIA.  Harrison v. Republic of Sudan, 802 F.3d 399, 406 (2d Cir. 2015).

Thereafter, Sudan filed a petition for rehearing.  In its petition, Sudan argued, among other things, that plaintiffs had not adhered to the requirements under the FSIA for service of the summons and complaint, and therefore that the judgment against it violated the Vienna Convention on Diplomatic Relations.

While Section 1608 of the FSIA provides for four different methods of service, the method set forth in § 1608(a)(3) was the method at issue in this case.

That section provides as follows:

ʺService in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state . . . by sending a copy of the summons and complaint and a notice of suit . . . 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.ʺ

Three days ago, on September 22, 2016, the Second Circuit issued its decision denying rehearing.  Acknowledging that its interpretation of § 1608(a)(3) was a “close call,” the Second Circuit nonetheless adhered to its earlier decision, stating that the plaintiffs’ position was supported by the plain language of the statute, its legislative history, and judicial precedent.

Looking at the plain text of the statute, the Second Circuit held that nothing in the statute required that the mailing be sent to the head of the ministry of foreign affairs in the foreign country, and that “[i]f Congress had wanted to require that the mailing be sent to the minister of foreign affairs at the principal office of the ministry in the foreign country, it could have said so ‐‐ but it did not.”  The Second Circuit stated that

“On its face, the statute does not specify a location where the papers are to be sent; it specifies only that the papers are to be addressed and dispatched to the head of the ministry of foreign affairs.  Nothing in § 1608(a)(3) requires that the papers be mailed to a location in the foreign state, or indeed to any particular address, and nothing in the statute precluded the method chosen by plaintiffs.  A mailing addressed to the minister of foreign affairs via Sudanʹs embassy in Washington, D.C., was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.  Plaintiffs literally complied with the statute ‐‐ they sent a copy of the summons and complaint addressed to the head of the ministry of foreign affairs of Sudan.”

Rejecting the argument that § 1608(a)(3) does not allow for service upon an “authorized agent” of the defendant, the Second Circuit stated that”[w]e do not hold that an embassy is an agent for service or a proxy for service for a foreign state.”  The court explained that “[t]here is a significant difference between serving process on an embassy, and mailing papers to a countryʹs foreign ministry via the embassy”:

“Here, the summons and complaint were addressed to the Sudanese Minister of Foreign Affairs, by name and title, at the Sudanese Embassy.  The embassy accepted the papers, signing for them and sending back a return receipt to the Clerk of Court.4  The embassy could have rejected the mailing, but instead it accepted the papers and then explicitly acknowledged receipt.  Accordingly, the papers were not served on the embassy as a proxy or agent for Sudan, but they were instead mailed to the Minister of Foreign Affairs, in the most natural way possible ‐‐ addressed to him, by name, via Sudanʹs embassy.”

Accordingly, the Second Circuit, while recognizing that the language of the FSIA is somewhat ambiguous, concluded that the statute “did not require service on the foreign minister at his or her regular place of work or in the stateʹs seat of government,” and therefore that service on the foreign minister via the embassy did not run afoul of the FSIA.

In so doing, the Second Circuit did not credit the argument — raised by the United States, in its amicus brief — that permitting the summons and complaint in FSIA actions to be served via a country’s embassy violates the Vienna Convention and thus “complicate[s] international relations by subjecting [countries, including the United States] to service of process via any of its diplomatic missions throughout the world.”  The Second Circuit held that while the Vienna Convention provides that ʺ[t]he premises of the mission shall be inviolable,ʺ and that ʺ[a] diplomatic agent shall . . . enjoy immunity from [the host stateʹs] civil and administrative jurisdiction,ʺ these provisions merely “preclude service of process on an embassy or diplomat as an agent of a foreign government.” Here, however, “process was served on the Minister of Foreign Affairs at the foreign mission and not on the foreign mission itself or the ambassador.”

Nor did the Second Circuit find merit in the U.S.’s argument that the court’s decision undermines the U.S. policy of ʺconsistently reject[ing] attempted service via direct delivery to a U.S. embassy abroad.”   Indeed, the Second Circuit stated emphatically that “[n]othing about our decision affects the ability of any state to refuse to accept service via its embassies,” but pointed out that “[h]ere, Sudan did not elect to follow any such policy.  It did not reject the service papers, as it could have done easily, but accepted them.”

The court further reasoned that Section 1 of Article 22 of the Vienna Convention provides that a mission may “consent” to entry onto its premises.  By accepting the service papers, instead of rejecting them, and by explicitly acknowledging receiving them, Sudan “consented” to the service of the summons and complaint on its Minister of Foreign Affairs via Sudan’s embassy in Washington, D.C.

Consent aside, the Second Circuit found that the policy concerns that animate the “inviolability of the embassy” provision of the Vienna Convention simply do not exist here:

“An important reason for the inviolability of the embassy premises is that the embassy is, to some degree, an extension of the sovereignty of the sending state …. To send officers into the embassy to serve papers would thus be akin to sending officers into the sovereign territory of the sending state itself.   There is nothing offensive, however, about mailing a letter into the sovereign territory of a foreign state …. We therefore find it difficult to understand how mailing a letter to the Foreign Minister of a country in care of that countryʹs embassy in Washington ‐‐ particularly given that the embassy remains free to refuse delivery if it so chooses ‐‐ can be considered a grave insult to the ʺindependence and sovereigntyʺ of the embassyʹs premises.”