Overview
Proper service of process is critical in litigation involving foreign sovereigns, including litigation to obtain an enforceable judgment. The Fourth Circuit recently held that the Foreign Sovereign Immunities Act (FSIA) does not permit service of process by mail to a foreign government’s embassy in the United States. In Kumar v. Sudan, 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 US Supreme Court is currently reviewing the question of service of process on a foreign embassy in another case involving Sudan, Sudan v. Harrison, in which the Second Circuit reached a contrary holding.
The FSIA is the US statutory codification of the international law principle of sovereign immunity. In addition to provisions governing subject-matter jurisdiction, immunity, and exceptions to immunity, the FSIA sets forth a detailed methodology for service of foreign governments and their agents and instrumentalities. The Federal Rules of Civil Procedure confirm that foreign governments may only be served in accordance with the methodology identified in the FSIA. See Fed. R. Civ. P. 4(j)(i).
The FSIA creates a hierarchical methodology for service on foreign governments. See 28 U.S.C. § 1608(a). The best option for US litigants is to agree in advance with a foreign sovereign on a “special arrangement” for service of process. If no special arrangement is available, service must be made in accordance with an international treaty governing service, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, if the United States and the relevant foreign government are signatories.
Where neither of the first two methods of service is available, the FSIA authorizes service by mail, but with additional conditions. Specifically, 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.” See 28 U.S.C. § 1608(a)(3).
In Kumar, plaintiffs attempted to serve the government of Sudan under Section 1608(a)(3) 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.
The court first observed that the statute is ambiguous as to whether delivery at the relevant embassy is permissible. On the one hand, the court acknowledged that the text of Section 1608(a)(3) “does not specify a geographic location for the service of process.” On the other hand, the court observed that because the head of a foreign government’s ministry of foreign affairs “is rarely – if ever – present” at their embassy, service at the embassy is “in tension with” the language of the statute.
Having concluded that the plain language of Section 1608(a)(3) did not resolve the interpretive question, the Fourth Circuit held that other tools of interpretation – the FSIA’s legislative history, the views of the State Department, and the United States’ international obligation to ensure the “inviolability” of foreign embassies under Article 22 of the Vienna Convention on Diplomatic Relations (the Vienna Convention) – each supported a conclusion that the requirements of Section 1608(a)(3) are not satisfied by delivery by mail to a foreign embassy.
Among other things, the Fourth Circuit cited a House of Representatives report on the FSIA noting that Section 1608(a)(3) was designed to preclude service “to” or “on” an embassy in order to avoid inconsistencies with the United States’ Vienna Convention obligations. The court rejected the argument that service on a foreign minister “via” an embassy should be distinguished from service on the embassy itself. The court also afforded “substantial deference” to the State Department’s view, expressed in an amicus brief from the US government, that service at an embassy does not satisfy Section 1608(a)(3) and is inconsistent with the Vienna Convention. The government’s brief also noted that the State Department routinely refuses to recognize attempts to serve process on the US government through US embassies overseas.
In the other case involving Sudan, Sudan v. Harrison, in which the US Supreme Court is currently reviewing the question of service of process on a foreign embassy, the Second Circuit reached a contrary holding. In Harrison, the Second Circuit 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.” In Kumar, the Fourth Circuit concluded that the Second Circuit’s reasoning in Harrison was “weak and unconvincing,” and noted that the Fourth Circuit’s holding was consistent with the approaches taken in the DC Circuit and the Seventh Circuit. Although the United States has yet to file an amicus brief with the US Supreme Court in Harrison, its amicus brief in Kumar characterized the Second Circuit’s holding as “legally erroneous.” In addition, a number of foreign governments have filed amicus briefs with the US Supreme Court to indicate their support for Sudan’s position. The Supreme Court is not expected to decide Harrison until later in 2018.
While the rules of service of process on a foreign sovereign may seem arcane and technical, they must be navigated carefully in any US lawsuit involving foreign governments, regardless of the merits of the underlying dispute. Otherwise, a plaintiff risks dismissal on procedural grounds that are avoidable. We will continue to monitor developments on this issue in the Harrison case and elsewhere.
