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September 25, 2016
  Harrison v. Republic of Sudan
Case Name: Harrison v. Republic of Sudan

Headline: Second Circuit Denies Sudan's Request for Rehearing in U.S.S. Cole Bombing Case, Despite United States' Amicus Brief in Support

Area of Law: International

Issue(s) Presented: Whether service of process to a foreign state's embassy in Washington D.C. is consistent with the Federal Sovereign Immunities Act and Vienna Convention.

Brief Summary: In 2000, the bombing of the U.S.S. Cole in the Port of Yemen injured and killed numerous American sailors. Sailors and spouses of sailors harmed or killed in the explosion sued Sudan under the Federal Sovereign Immunities Act (FSIA), alleging that Al Qaeda was responsible for the attack and that Sudan had provided material support to Al Qaeda. The suit was brought in the D.C. District Court and, at plaintiffs' request, the Clerk of the D.C. District Court served the summons and complaint on Sudan by mailing the papers to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C. Return receipt came back to the Clerk of Court six days later, but Sudan did not substantively respond to the complaint. After the requisite time had elapsed without an answer or other responsive pleading, the Clerk of Court entered a default judgment against Sudan in the amount of $314,705,896. The judgment was later registered in the Southern District of New York, which issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs. Sudan then filed a notice of appearance and appealed the turnover orders to the Second Circuit, which affirmed them. Sudan filed a petition for panel rehearing or rehearing en banc, and the United States filed an amicus brief in support of Sudan's petition. The request for panel rehearing was denied, on grounds that although it was a "close call," the better reading of the FSIA favored the plaintiffs. To read the whole opinion, please visit http://www.ca2.uscourts.gov/de...5d3f5/1/hilite/


Extended Summary: The Federal Sovereign Immunities Act ("FSIA" or "the Act") contains specific provisions to maintain the integrity of foreign relations. One of those provisions dealing with sufficient service of process is at issue in this case. This provision states that service shall be made upon a foreign state "by sending a copy of the summons and complaint and a notice of suit...to the head of the ministry of foreign affairs of the foreign state concerned." The statute does not specify a particular location to which the papers must be sent.

In its amicus brief supporting Sudan, the United States argued that mailing the papers to "the foreign minister at a place other than the foreign ministry" is not authorized by FSIA. The court disagreed, explaining that "a mailing addressed to the minister of foreign affairs via Sudan's embassy in Washington, D.C. was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person."

The court further disagreed with Sudan's and the United States' contention that this interpretation placed the United States in violation of the Vienna Convention. In particular, the United States had argued that this interpretation would "complicate international relations by subjecting the United States (and other countries) to service of process via any of its diplomatic missions throughout the world." The court explained that here, process was served to the Minister of Foreign Affairs at the foreign mission, and not on the foreign mission itself or the ambassador. "The papers were specifically addressed to the Minister of Foreign Affairs via the embassy, and the embassy sent back a return receipt acknowledging receipt of the papers," the court explained. "We do not preclude the United States (or any other country) from enforcing a policy of refusing to accept service via its embassies." Sudan's acceptance of the service papers, however, constituted consent to this form of service.

The court also rejected Sudan's factual argument that the mailing was never accepted because the signatures on the return receipt were illegible. The court stated that this argument had been raised too late for consideration at this stage of the case.

Finally, the Second Circuit addressed the argument that the district court had erred in issuing the turnover orders without first obtaining a license from the Treasury Department's Office of Foreign Assets Control ("OFAC"). The Court explained that, although a OFAC license is normally required before attaching assets from a foreign state that have been frozen under certain sanction regimes, here a license was not required because the funds at issue in all three turnover orders were already subject to turnover pursuant to the Terrorism Risk Insurance Act. Accordingly, the court denied the petition to the extent it sought panel rehearing. (It did not address the request for rehearing en banc.)

Panel: Circuit Judges Lynch and Chin; District Judge Korman, sitting by designation

Argument Date: 03/11/2016

Date of Issued Opinion: 09/22/2016

Docket Number: No. 14-121-cv

Decided: Petition for panel rehearing denied

Case Alert Author: Hannah Bartges

Counsel: Andrew C. Hall, Lamb and Hall, P.A., for Plaintiffs-Appellees Harrison, et al., Christopher M. Curran, White & Case, LLP, for Defendant-Appellant Republic of Sudan, and David S. Jones (Assistant U.S. Attorney) for the United States of America as Amicus Curiae.

Author of Opinion:
Judge Chin

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/25/2016 09:44 PM     2nd Circuit  

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