https://www.supremecourt.gov/docket/docketfiles/html/public/16-1094.html (Supreme Court docket #16-1094)
Issue : Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
The Plaintiffs in the original case, survivors of USS Cole victims, sued the Republic of Sudan for complicity in the terrorist act. In doing so, they served the Republic of Sudan by certified mail delivered to the Embassy of the Republic of Sudan located in Washington, D.C. However, under the Vienna Convention on Diplomatic Relations, embassies are considered inviolate and may not be served and U.S. law is consistent with this position. The law requires that service be sent to the Foreign Minister of the country concerned, in the capital of the country concerned.
The Republic of Sudan did not respond to the lawsuit and the United States District Court entered a default judgement greater than $300,000,000. Plaintiffs subsequently began collection efforts. The Republic of Sudan countered the lawsuit by insisting the original judgement was invalid, because the country was never properly served, the service upon the embassy violating the Vienna Convention on Diplomatic Relation and U.S. law. However, the United States Court of Appeals for the Second Circuit, in contradiction to precedents set in other cases by the D.C. Circuit and two other circuits, ruled the device legal and upheld the judgement. The Republic of Sudan than filed a Petition for a Wirt of Certiorari with the Supreme Court.
The Supreme Court called for the views of the Solicitor General, who advised the Supreme Court to take the case and overrule the Second Circuit. The Supreme Court subsequently granted the Petition. At the merit briefing stage, the United States again filed a brief supporting overturning the Second Circuit.
The case goes to oral arguments this Wednesday.
I believe it would be proper for the Supreme Court to overturn the Second Circuit and vacate both the monetary judgement and the civil verdict against the Republic of Sudan. The United States must take its obligations under the Vienna Convention very seriously and failing to do so could have adverse consequences down the road for the United States. The United States Solicitor General is correct to argue as he has.
Plaintiffs would be able to renew their lawsuit against the Republic of Sudan. They would have to properly serve it this time and this time they will likely face a defense by the Republic of Sudan, but that is as it should be.
While our sympathies are certainly with the victim’s families/Plaintiffs, we must uphold the rule of law and our international obligations. The victims will still have redress going forward.