Case No. 16-1094 | 2d Cir.
Preview by Taylor Dowd
The U.S.S. Cole, a naval destroyer, was bombed in Port of Aden, Yemen on October 12, 2000, killing 17 American sailors and injuring 42. Al Qaeda claimed responsibility for the bombing. In 2010, injured sailors and their spouses brought suit against the Republic of Sudan (“Sudan”), alleging the country supported Al Qaeda. They served Sudan by certified mail requesting return receipt to Sudan’s Minister of Foreign Affairs, but addressed the service to the Embassy of the Republic of Sudan in Washington, DC. After a default judgment was entered against Sudan, the country claimed that the court lacked personal jurisdiction because of improper service.
The question before the court is whether under the Foreign Sovereign Immunities Act (“FSIA”) serving Sudan via its diplomatic mission was proper. The FSIA lists the acceptable methods of serving foreign states or their political subdivisions in U.S. courts. If there is not a special arrangement or convention with which to comply, plaintiffs must “send[] a copy of the summons and complaint and a notice of suit, together with a translation . . . 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.” 28 U.S.C. § 1608(a)(3) (2018).
Whereas the Second Circuit concluded service was proper because § 1608(a)(3) of the FSIA is silent on location requirements, Sudan argues that a “natural reading” of the statute indicates that the head of the ministry of foreign affairs should be served in their “official office” in their country’s capital. Brief for Petitioner at 2–3, Republic of Sudan v. Harrison, No. 16-1094 (U.S. filed Aug. 15, 2018). Sudan also argues that the Vienna Convention provision stating that “[t]he premises of the mission shall be inviolable,” Vienna Convention on Diplomatic Relations and Optional Protocols art. 22, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, forbids service on or through a diplomatic mission. The respondents, however, assert that reports and foreign courts have found the Vienna Convention provision to not prevent service by mail on a diplomatic mission.
Although the Second Circuit found that the Embassy of the Republic of Sudan accepted the documents, Sudan challenges this with evidence that the documents were actually received in a Maryland town and that the identity of the signatory is not clear.
The implications of this case are intensified by the United States’ stance as amicus curiae that serving the embassy violated the Vienna Convention, and that holding otherwise could negatively affect U.S. foreign relations. According to the United States, upholding the service in this case would not only cause a treaty violation, but could also compromise the United States’ arguments for improper service in the future because it does not accept service through its embassies.