Supreme Court Decides Republic of Sudan v. Harrison et al.

On March 26, 2019, the U.S. Supreme Court decided Republic of Sudan v. Harrison et al., No. 16-1094, holding that the Foreign Sovereign Immunities Act of 1976 (FSIA) requires a mailing to be sent directly to the foreign minister’s office in the foreign state to perfect service. 28 U.S.C. §1608(a)(3).

Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U.S.C. §§1604, 1605–1607. If a suit falls within one of these exceptions, FSIA provides for personal jurisdiction “where service has been made under section 1608.” 28 U.S.C. §1330(b). In particular, it sets out in hierarchical order the methods by which “[s]ervice . . . shall be made.” 28 U.S.C. §1608(a). The third method includes “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.” §1608(a)(3).

Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. At respondents’ request, the clerk of the court sent the service packet, return receipt requested, to Sudan’s Minister of Foreign Affairs at the Sudanese Embassy in the U.S. The clerk certified that the service packet had been sent and certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan.

Sudan filed a notice of appeal and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the U.S. The Second Circuit affirmed, reasoning that the statute was silent on where the mailing must be sent and that the method chosen was consistent with the statute’s language and could be reasonably expected to result in delivery to the foreign minister.

The Supreme Court reversed. The Court emphasized that, although this was not the only plausible reading of the statutory text, the most natural reading of the Act’s language is that service must be mailed directly to the foreign minister’s office in the foreign state. A letter or package is “addressed” to an intended recipient when his or her name and “address” is placed on the outside of the item to be sent. And the noun “address,” in the sense relevant here, means “the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.” A foreign nation’s embassy in the U.S. is neither the residence nor the usual place of business of that nation’s foreign minister. Similarly, to “dispatch” a letter to an addressee connotes sending it directly. It is also significant that service under §1608(a)(3) requires a signed returned receipt to ensure delivery to the addressee. Additionally, this interpretation of §1608(a)(3) avoids potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations.

Justice Alito delivered the opinion of the Court in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Thomas filed a dissenting opinion.