An interesting case to be argued at the Supreme Court this week that pits the United States and the Republic of Sudan vs USS Cole victims families


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.

Absolutely, I agree. But I’m curious. Does the us code provision you cited re service expressly intend to derogate the US’s obligations under the convention?

I believe the U.S. Code is consistent.with the Vienna Convention. Frankly, I am not sure how the Second Circuit reached its conclusion.

Here is the relevant section of the Vienna Convention:

Article 22

1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

The last term, execution, specifically precludes service of legal process.

The following sections are from Title 22 of the United States Code:

§254a. Definitions

As used in this Act—

(1) the term “members of a mission” means—

(A) the head of a mission and those members of a mission who are members of the diplomatic staff or who, pursuant to law, are granted equivalent privileges and immunities,

(B) members of the administrative and technical staff of a mission, and

© members of the service staff of a mission,

as such terms are defined in Article 1 of the Vienna Convention;

(2) the term “family” means—

(A) the members of the family of a member of a mission described in paragraph (1)(A) who form part of his or her household if they are not nationals of the United States, and

(B) the members of the family of a member of a mission described in paragraph (1)(B) who form part of his or her household if they are not nationals or permanent residents of the United States,

within the meaning of Article 37 of the Vienna Convention;

(3) the term “mission” includes missions within the meaning of the Vienna Convention and any missions representing foreign governments, individually or collectively, which are extended the same privileges and immunities, pursuant to law, as are enjoyed by missions under the Vienna Convention; and

(4) the term “Vienna Convention” means the Vienna Convention on Diplomatic Relations of April 18, 1961 (T.I.A.S. numbered 7502; 23 U.S.T. 3227), entered into force with respect to the United States on December 13, 1972.

§254b. Privileges and immunities of mission of nonparty to Vienna Convention

With respect to a nonparty to the Vienna Convention, the mission, the members of the mission, their families, and diplomatic couriers shall enjoy the privileges and immunities specified in the Vienna Convention.

You really have to wonder why the papers weren’t served properly the very first time? Who ever was hired to do this has created a mess that should have been dealt with years ago. I’d have to wonder if their professional mistake was so egregious, that they should be prosecuted?

A reputable law firm should have known the proper method of serving a foreign state under international law. It is possible that a relatively inexperienced attorney might have made such a glaring mistake, but somebody higher up the ladder should have caught it.

Likely the mistake was one of inexperience or incompetence.

Link to oral argument transcripts.

An analysis of oral arguments at Scotusblog.

The author above analysis found that the intentions of the Justices were very hard to read based on oral arguments and opinions did not seem to fall on traditional partisan lines.

So basically, now we wait, likely for several months.

Interesting. What does it mean though if the agents of the embassy fail to assert their immunity? Is there not some volunteerism going on here in that an agent received and signed for the papers?

There are certainly analogs in law such as a right against self-incrimination that can be waived or a right trade mark that can be lost through lack of positive assertion.

The US already has strong policy in place against accepting papers served at embassies, so I find the position of the government interesting given that Sudan failed to assert this right until the moment they were ordered to start turning over assets.

The problem with that approach, which has been raised by counsel in the case, is that the Sudanese Embassy is minimally staffed. It consists of the Ambassador, his assistant and four American employees working in the mail room, administrative assistants, etc. Nobody knows exactly who accepted the mail and it almost certainly would have been one of the American employees. Very little chance the case would stand on that basis.

UPDATE

We have the decision in this case.

8 to 1 by Justice Alito, Justice Thomas dissents. The Second Circuit is reversed. The judgement against the Republic of Sudan is vacated.

The court rules that the Foreign Minister of Sudan should have been served directly at his office in Sudan, not through the Sudan Embassy in Washington, D.C. Since the service of the case by the Plaintiffs was invalid, the whole case must fall.

The Plaintiffs may refile their case, but must serve notice to the Foreign Minister properly this time. Sudan has indicated they will defend themselves in court against the Plaintiffs this time.

As I indicated in my OP, this is absolutely the correct decision and I concur with the majority opinion entirely.