On October 12, 2000, the guided-missile destroyer U.S.S. Cole was attacked while refueling in the port of Aden, Yemen. 17 American sailors were killed, 39 were injured. Al-Qaeda claimed responsibility for the attack; the Republic of Sudan was (and is) thought to have aided al-Qaeda. On November 7, 2018, 38 years later, the Supreme Court heard oral arguments in a suit brought by some of the injured sailors, their families, and the families of some of the sailors who died. How it got there, why it got there, and the litigation posture taken by the federal government is quite the story. It’s a bit long but well worth knowing.
Let’s start with how the case got to the Supreme Court. In 2004, Harrison, a firefighter and machinist on the Cole and other plaintiffs (both people injured in the attack or family members of service people who died) filed a lawsuit against the Republic of Sudan under the Foreign Sovereign Immunities Act (FSIA) seeking damages as the result of the attack under the theory that the Sudanese government aided and abetted al-Qaeda. FSIA puts great emphasis on the “immunities” part of its name: it bars most lawsuits against foreign governments in U.S. courts. But there is an exception: countries, like Sudan, who have been designated by the U.S. government as state sponsors of terrorism. FSIA also details how to serve a complaint (the document that starts a lawsuit, laying out what you say happened and why you should win your case) on a foreign government. The statute provides that one way is to have the clerk of the court where the complaint is filed send the summons (the document that says you have been sued) and the complaint (with translation) to “the head of the ministry of foreign affairs of the foreign state concerned.”
And that is exactly what happened. The complaint, filed in the District of Columbia federal court, was sent to the Sudanese minister of foreign affairs in care of the Sudanese embassy on Massachusetts Avenue in Washington, DC, and someone at the embassy signed for it. When Sudan did not respond in 60 days (the time limit set forth in the federal rules), plaintiffs asked for and obtained a default judgment (a judgment given when the defendant fails to reply) of $315 million. The case moved to New York where court orders which required several banks to unfreeze Sudanese assets to pay the judgment were challenged by Sudan. The case had finally got the Sudanese government’s attention.
Sudan lost before the district court in New York and before the Second Circuit. They petitioned the Supreme Couret to hear the case. The issue presented before the Court was this, courtesy of our friends at SCOTUSblog:
Issue(s): 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. CVSG: 05/22/2018.
Let’s unpack that.
(1) As long-time readers of this blog know, circuit splits–circuit courts that have come down on different sides of an issue–makes it far more likely that a case will be taken. So here we have a split between the 2nd Circuit and the DC, 5th, and 7th Circuits.
(2) CVSG–Call for the View of the Solicitor General–is definitely something to pay attention to. The Court asks the Solicitor General, the office in the Department of Justice that argues for the government before the Supreme Court, to express their views on a case that they are not a party to. It is technically a request but it always gets a response. The Solicitor General is sometimes referred to as the “10th Justice”; its views are given extra weight.
(3) Notice that the issue is not the default judgment, only how the complaint was served on Sudan “in care of” or “via” its diplomatic mission in the U.S. “despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.” So we have both FISA and a treaty in play.
So that’s the “how” it got there. And what was the government’s position?
They sided with Sudan.
The government is afraid that if service can be done through embassies rather than through the State Department (and its foreign equivalents) that the U.S. could be served anywhere through its many embassies and consulates. The government agreed with Sudan that under FSIA and international law the complaint had to be served in Khartoum, Sudan’s capital. To do otherwise would breach the “inviolability” of embassies. Embassies are foreign territory so, the government argues, serving legal process violates that status. It is telling that Saudi Arabia, Libya, and the United Arab Emirates filed briefs arguing the same.
The Cole victims called the government’s position “mindboggling” in their brief. The U.S. has a strict policy never to accept service at embassies and that has never failed over 40 years, so, they argue, there is no cause for worry. There is also the plain justice of the case: Sudan ignored it until it threatened to cost them $315 million, and Sudan could be using the service argument as an end around a case that they really knew about. The Cole victims would have to start all over if Sudan wins. And they also made the point that in 2004 when the suit was filed, Sudan was in a state of civil war, so service in Khartoum would have been nearly impossible.
You can follow the ebb and flow (and there was a lot of it) in the SCOTUSblog post on the argument here. Of course, the justices use oral argument to question both sides, often trying to test the limits of each side’s argument and do the “what if” scenarios. You can decide for yourselves how the Court will come down on this case, but at the end of the hour of oral argument, it did not look particularly good for the Cole plaintiffs, who left the Court angry and hurt, if only because the government sided with Sudan.
Here’s hoping the Court finds a way through.