Opinion analysis: Court rules for Sudan in dispute over service in USS Cole lawsuit

A lawsuit by victims of the bombing of the USS Cole received a setback today at the Supreme Court. The victims are trying to hold the government of Sudan responsible for providing support to the al Qaeda bombers who killed 17 sailors and injured 42 more in 2000, but the justices ruled that the plaintiffs failed to give the Sudanese government proper notice of their lawsuit because they mailed their complaint to the Sudanese embassy in Washington, D.C., instead of sending it to the Sudanese government in Sudan. The ruling means that the plaintiffs will now have to go back to the drawing board and try to serve the Sudanese government again.

Under a federal law, the Foreign Sovereign Immunities Act, foreign governments generally cannot be sued in U.S. courts. But the FSIA contains a variety of exceptions, including one for countries – like Sudan – that have been designated as state sponsors of terrorism. When an exception does apply, the FSIA instructs plaintiffs on how to serve foreign governments with their complaints: In the provision at issue in this case, the FSIA directs the plaintiffs to have the clerk of the court where the complaint is filed send both the summons and complaint (along with a translation) to “the head of the ministry of foreign affairs of the foreign state concerned.”

The dispute centered on whether the victims complied with the FSIA when they sent their summons and complaint to the Sudanese embassy in Washington. Sudan did not answer the complaint at first, and a federal court entered a default judgment of over $300 million against it. Later on, when a federal court in New York ordered banks to turn over Sudanese assets held in the United States to pay the judgment, the Sudanese government argued that the summons and complaint had been sent to the wrong place: The victims should have sent the documents to the minister of foreign affairs in Khartoum, Sudan’s capital. But a federal appeals court rejected that argument, and the Supreme Court agreed to weigh in.

Today the Supreme Court, by a vote of 8-1, reversed. In an opinion by Justice Samuel Alito, the court reasoned that “the most natural reading” of the FSIA is to require the summons and the complaint to go “directly to the foreign minister’s office in the foreign state.” The court emphasized that the statute requires that the summons and the complaint be “addressed and dispatched” to the foreign minister. “A letter or package is ‘addressed’” to someone, the court explained, “when his or her name and ‘address’ is placed on the outside of the item to be sent.” And we normally think of an address, the court continued, as the place where someone lives or works. Because a foreign state’s embassy in the United States is “neither the residence nor the usual place of business of that nation’s foreign minister,” we would not normally think of them as the foreign minister’s address.

The same is true, the court added, for the term “dispatched.” “A person who wishes to ‘dispatch’ a letter to X will generally send it directly to X at a place where X is customarily found,” rather than sending it “in a roundabout way, such as by directing it to a third party who, it is hoped, will then send it on to the intended recipient” – as the plaintiffs in this case did. `

Interpreting the FSIA to require the summons and complaint to be sent to the Sudanese foreign minister in Khartoum, rather than at the Sudanese embassy in Washington, “also has the virtue of avoiding potential tension” with both the federal rules governing civil lawsuits and the Vienna Convention on Diplomatic Relations, the court explained.

When Congress passed the FSIA, the federal rules governing the service of a complaint on an overseas defendant in a civil lawsuit were “virtually identical” to the FSIA. If the plaintiffs’ interpretation were correct, the court pointed out, “then it would appear to be easier to serve the foreign state than to serve a person in that foreign state” – which, the court suggested, would be “an odd state of affairs.”

The Vienna Convention on Diplomatic Relations provides that a country’s embassy cannot be entered without the ambassador’s permission – a principle known as inviolability. The federal government has long maintained, the court noted, that this principle prohibits exactly what happened here: service of a foreign country by sending the complaint to the country’s embassy in the United States. Indeed, the court continued, the federal government filed a “friend of the court” brief in this case supporting Sudan and expressing “concern” that a victory for the plaintiffs would endanger the United States’ practice of not accepting service at U.S. embassies when the federal government is sued overseas.

The court then turned to the plaintiffs’ argument that it would be “the height of unfairness” to throw out the judgment in their favor now, 19 years after the bombing of the USS Cole, “based on the highly technical argument belatedly raised by” Sudan. The court sympathized with the plaintiffs’ “exasperation” and “recognized that enforcing compliance” with the FSIA “may seem like an empty formality in this particular case.” “But there are circumstances,” the court emphasized, “in which the rule of law demands adherence to strict requirements even when the equities of a particular case may seem to point in the opposite direction” – and this case, with its “sensitive diplomatic implications,” is one of them. And in any event, the court concluded, today’s ruling is not “the end of the road” for the plaintiffs, but instead a ruling that they must try to serve Sudan again.

Justice Clarence Thomas dissented. “Given the unique role that embassies play in facilitating communications between states,” he explained, “a foreign state’s embassy in Washington, D.C., is, absent an indication to the contrary, a place where a U.S. litigant can serve the state’s foreign minister.” “Because there is no evidence in this case suggesting that Sudan’s embassy declined the service packet addressed to its foreign minister,” Thomas would have held that the plaintiffs had complied with the FSIA.

This post was originally published at Howe on the Court.