Serving Process at the Embassy in FSIA Cases…..Not So Fast, Says the Fourth Circuit

Under the Foreign Sovereign Immunities Act (FSIA),  American citizens are permitted to sue the limited number of foreign states that the U.S. State Department has designated as “State Sponsors of Terrorism” in a United States court if the plaintiff’s injury was caused by the state’s support of a terrorist organization.

But how do you get personal jurisdiction over the foreign state?

The Fourth Circuit, in Kumar v. Sudan, recently held that the FSIA does not permit service of process by mail to a foreign government’s embassy in the United States and consequently the Fourth Circuit vacated a $34 million default judgment entered against Sudan for damages related to Sudan’s alleged provision of material support to the al-Qaeda operatives who carried out the bombing of the U.S.S. Cole in 2000.

The FSIA provides that such service may be effectuated 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.”

In Kumar, plaintiffs attempted to serve the government of Sudan under by mailing the relevant materials to the head of the Sudanese ministry of foreign affairs at the address of the Sudanese embassy in Washington DC. The Fourth Circuit held that this method of service did not comply with the requirements of the statute.

Although the court acknowledged that the statute “does not specify a geographic location for the service of process,” it reasoned that service at the embassy was likely impermissible under the plain language statute because the head of a foreign government’s ministry of foreign affairs “is rarely – if ever – present” at their embassy.

The court found that the FSIA’s legislative history — namely a congressional report that noted that the statute was designed to eliminate service “to” or “on” an embassy in order to avoid inconsistencies with the United States’ obligation to ensure the “inviolability” of foreign embassies under the Vienna Convention — supported the conclusion that service by mail to a foreign embassy was insufficient to obtain personal jurisdiction in an FSIA action.

An amicus brief from the U.S. government took the position that service at an embassy does not satisfy the FSIA’s service requirements, and that such service is, in fact, inconsistent with the Vienna Convention. And, the government’s brief noted that the State Department routinely takes the position that personal jurisdiction is lacking when process is served on it through US embassies overseas.

Notably, a petition for certiorari on whether the FSIA permits service on a foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States is currently pending before the U.S. Supreme Court in Sudan v. Harrison.  The Kumar Court’s decision is in line with decisions out of the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits, but in direct conflict with the 2nd Circuit, which held that mailing process to the minister of foreign affairs via the relevant embassy in the United States was permissible because it “could reasonably be expected to result in delivery to the intended person.”