Sudan v. Harrison: How mailing a foreign embassy created a legal kerfuffle
Let’s say you want to sue someone. Along with writing a complaint and filing it with the court, you must be sure the person (or organization) you’re suing has “notice.” This is often done by having a court “serve” the defendant by mailing a copy of your complaint and other forms to a known address.
When suing a foreign country, however, things get a little more complicated.
On Wednesday, the Supreme Court will hear Republic of Sudan v. Harrison, which involves some of the quirks of suing foreign countries in U.S. federal court. The case arises from the 2000 bombing of the USS Cole, when dozens of American sailors were injured or killed by al Qaeda suicide bombers in a Yemini port. Several years later, a number of injured sailors and their spouses sued Sudan in federal court under the Foreign Sovereign Immunities Act (or FSIA), arguing that Sudan had supported al Qaeda in the attack and was partly liable for their injuries.
The FSIA generally bars lawsuits against foreign nations. But there are exceptions, including a “terrorism exception,” which allows suits against nations that provide “material support” for a terrorist act. To bring a successful suit, plaintiffs must follow specific rules, including rules on how to serve the foreign country. Section 1608(a)(3), for example, requires in certain situations that service “be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”
Based on this provision, the plaintiffs in this case requested that the clerk of the D.C. District Court serve Sudan’s foreign minister at the Sudanese embassy in Washington. The court mailed the papers to the embassy, but Sudan never responded. The plaintiffs moved for a default judgement, and the district court granted the plaintiffs’ request and awarded over $300 million in damages.
To claim their awarded damages, plaintiffs next petitioned that Sudanese assets held in certain banks be turned over. A New York federal court granted the petitions and issued several turnover orders. In 2014, four years after the initial suit and 14 years after the bombing of the USS Cole, Sudan entered the case for the first time to appeal these orders.
One of Sudan’s primary arguments then, that the state was not properly served, is now the central issue before the Supreme Court. Sudan makes two general points toward this argument. The first is that a “natural reading” of Section 1608(a)(3) requires service to be mailed, not to the local embassy, but “to the [foreign minister] at his or her official office in the foreign state’s capital.” The second is that the U.S. has interpreted Article 22 of the Vienna Convention on Diplomatic Relations—which declares diplomatic missions to be “inviolable”—to bar “service by mail on or through a diplomatic mission.” Sudan argues that the Supreme Court must give “great weight and substantial deference” to this view.
The plaintiffs disagree. They argue that Section 1608(a)(3) simply requires that service be addressed to the foreign minister and “does not mandate a particular location where the packet should be sent.” According to the plaintiffs, Sudan’s argument “would rewrite Section 1608(a)(3) to add a requirement that Congress knew how to include but chose to omit.” They also contend that “because the text of Section 1608(a)(3) is unambiguous, the Vienna Convention is irrelevant,” and even if it were relevant, “[m]ailing is not a trespass,” as “mail routinely arrives at embassies without raising questions under the Convention.”
Who has the better arguments? If it seems uncertain to you, that’s okay—even the circuit courts disagree. The Second Circuit, the court that considered Sudan’s appeal, sided with the plaintiffs. In its decision, the Second Circuit stated that although the interpretation of Section 1608(a)(3) “presents a close call,” it agreed with plaintiffs that “[n]othing 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.” The Second Circuit, however, did conclude that “service on an embassy or consular official would be improper,” but nevertheless found that because “process was served on the [foreign minister] at the foreign mission and not on the foreign mission itself or the ambassador,” the Convention did not apply.
Yet the D.C. and Fourth Circuits, among other courts, have reached the opposite conclusion. In one case, the D.C. Circuit rejected an attempt to mail service to “the Embassy in Washington, D.C., rather than at the Ministry of Foreign Affairs in Lusaka, Zambia, as [Section 1608(a)(3)] required.” Recently, the Fourth Circuit found the Second Circuit’s reasoning “weak and unconvincing” and decided that the United States’ interpretation of the Vienna Convention—in combination with Section 1608(a)(3)’s legislative history, “ambiguity” and given deference to the federal government’s view—meant that the statute prevented service to an “embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs.”
Now at the Supreme Court, this statutory riddle has pitted the federal government against some of its veterans. In August, the federal government filed an amicus brief, stating that although it “deeply sympathizes with the extraordinary injuries suffered by” the USS Cole victims, it agrees with Sudan that Section 1608(a)(3) prevents service to an embassy. The brief further explains that this view “is reinforced by the United States’ treaty obligations and diplomatic interests.” The government elaborates that “[f]ailing to protect mission inviolability within the United States would risk harm to the United States’ foreign relations” as it must ensure “that foreign states need not appear in domestic courts unless and until they are properly served” and that the U.S. receives “reciprocal treatment in courts abroad.”
Likewise, other nations filed briefs in support of Sudan. Notably, Saudi Arabia submitted an amicus brief expressing its “strong interest in preserving the inviolability of foreign missions.” This brief, as the New York Times recently noted, was curiously timed, given that it was filed “[n]ot long before Jamal Khashoggi was killed inside the Saudi Consulate in Istanbul.”
Amicus briefs were also filed supporting the American plaintiffs. The Veterans of Foreign Wars noted that if the Court were “to accept the position of Sudan, the Cole Victims would be required to re-file their lawsuit and litigate the case from scratch.” And a number of former counterterrorism officials and scholars raised pragmatic considerations, arguing in part that service through an embassy is unlikely to affect foreign relations and is often more effective than overseas correspondence.
This case presents an interesting puzzle for the Supreme Court. It asks the Court to interpret an imprecise statute and its relationship—if any—with the Vienna Convention on Diplomatic Relations. The Court may also need to consider whether the United States’ current interpretation of Article 22 of the Convention is relevant in resolving the case. Ultimately, the result may make victims of the USS Cole bombing start their case from the very beginning.
If circuit splits and varied amici are any indication, this case could reach a surprising conclusion with unique alliances or broad unanimity on the Court. As always, only time will tell.