The Peace Palace, den Haag.

Yesterday afternoon, I had the great pleasure of guest lecturing for a friend who teaches international management at the Henry W. Bloch School of Management at UMKC.  The topics we touched on ranged from general knowledge about the dispute resolution process (negotiation, mediation, arbitration, litigation…) to the Foreign Corrupt Practices Act.  A good chunk of my lecture described what I do during within a more broad description of how a lawsuit progresses:  The Hague Service Convention… I live in that treaty.

One student posed an incredibly pertinent question– preceded by the phrase “this is probably a stupid question, but…”

Well, first of all, there’s no such thing, I said.  If something doesn’t make sense, then the lesson is the problem– not your question.

“Okay.  Who is Hague?

I had to take a beat before answering, because the lesson and the assumptions underlying it were definitely the problem.  I very wrongly assumed that everybody knew what “The Hague” was.  After all, I visited there when I was six years old.  But then, very few people are lucky enough to spend part of their childhood abroad on Uncle Sam’s dime.  I really felt like a jerk.

My answer:  The Hague isn’t a ‘who’– it’s a ‘where’.  A gorgeous little city in the Netherlands, that just happens to be the primary seat of international law.

I went on to describe the International Court of Justice, the Hague Conference on International Law, and the International Criminal Tribunals for Rwanda and the former Yugoslavia.  Somehow the conversation turned to war crimes and international justice, and I was thrilled.  These students were not only highly interested and caring, but pretty knowledgeable to boot.

The feeling that I’d missed something so basic in the lesson was mercifully overcome by a worthwhile and unanticipated discussion.  If these students are any indication, a bit of optimism is in order.

Sleeping Child (circa 1893) by Rosina Emmet Sherwood.

An important term of art arises in Hague analysis, but the definition of the term varies depending on which treaty is being applied, and depending on who is defining it.  Both the Hague Adoption Convention (1993) and the Hague Child Abduction Convention(1980) are in force in the United States.  Both are intended to harmonize disparate legal doctrines in countries with different systems.  And both are intended to provide certainty in the legal protection of children.

In U.S. practice, however, they function quite differently.

The Abduction Convention requires member states to establish procedures for returning a child to his or her country of habitual residence after being removed from that country or wrongfully retained in another country.  Pretty straightforward stuff there– imagine a little girl was born in Korea, but has spent her entire six-year life in Illinois.  Her mother decides to take her back to Korea– and stay there– without her father’s consent.  Korea would be obliged to return the child to the U.S. pursuant to a valid Hague request.  If a German mother sends her son to spend the Christmas holiday with the father in Vermont– but Dad refuses to let him go home to Germany, U.S. authorities should force the boy’s return.  Not a lot of gray area there, although courts occasionally go beyond this straightforward analysis (see here for Fox Rothschild’s excellent criticism of a Third Circuit decision that reached a proper result– but with far too deep an inquiry into best interest).

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

The Adoption Convention uses the same terminology to define what constitutes an “intercountry adoption”.  If a family in Australia seeks to adopt an orphan from Italy, then permission must be sought from the Italian government via a Hague request.  But if the child’s mother emigrates with her to Australia and puts her up for adoption several months later, no such permission is necessary.  The child’s habitual residence changes upon the mother’s entry into Australia, and the Italian Central Authority for the Adoption Convention would rightly scratch its head in wonder, declining to even respond to a Hague request sent by an Australian magistrate.

But that same child is not afforded the same consideration if the mother emigrates to the United States.  U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  A preposterous reading, given the plain meaning of the words.  And that is precisely the way the rest of the world views the United States: preposterous.

In an average state family court, this really isn’t a problematic question.  If a child is in Missouri, and his parents aren’t around to take care of him, he’s under the jurisdiction of Missouri courts– regardless of his national origin or citizenship.  His domicile is Missouri.  As such, if an aunt or uncle or cousin seeks to adopt him, it’s very unlikely that the state would object, and it’s even more unlikely that any of the lawyers involved would invoke the Hague Adoption Convention to slow down the procedure.  Congratulations, new parents, on your new son or daughter.

But when those new parents seek permanent resident status or citizenship for the child, they run into a buzzsaw– a very preposterous buzzsaw.  The Department of Homeland Security (parent organization of the various customs & immigration services) will undoubtedly invoke the Adoption Convention– and the State Department’s incredibly warped definition of habitual residence– to refute the validity of the adoption and, consequently, dash any hope that the child can become an American citizen.

Why is this?  I can only speculate, because the logic put forth in the State Department’s criteria offers little guidance (they say what the criteria are, not why those criteria exist).  But it isn’t hard to reach some very sad conclusions.

State Department photo.

Another “I get this question pretty regularly” post… and the answer is usually pretty good news, in comparison to a parent’s dreaded fear.

The question usually pops up in a listserv or at some bar function, but occasionally in a call from a lawyer who’s stumbled across this blog in a Google search:  “my client’s wife is threatening to leave him and take the kids back to (insert country name here)… what can I do?” 

Well, it depends on where the child is right now.  If she’s here, as indicated in your question, do everything you can to keep her here.  Set aside the threat to take her abroad, and focus on the threat to take her– anywhere.  Know too, though, that if it does happen, the situation may not be as grave as it seems.

In many cases, the inserted country name also happens to be on the list of countries who have implemented the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction— known more commonly as the Hague Child Abduction Convention (HCAC).  While the treaty may not prevent a child being taken out of the country, it aims to provide a streamlined mechanism by which she can be returned home.  So even if the child is taken abroad against the remaining parent’s wishes, the odds are better that she can be returned.  I wrote previously  about the mechanism for return of children once they’ve been abducted– or as the treaty also addresses, taken with permission but not returned as agreed.   That earlier post came about in order to distinguish the Child Abduction Convention from the Hague Service Convention.

In short, I stressed that the way to secure the prompt return of the child is to get local law enforcement to engage HCAC channels, rather than pursuing a custody order in a U.S. court– and enduring all of the procedural delays that such a petition entails.  Instead of treading water while a Hague Service Request is processed, it’s far more effective to raise a HCAC claim.

What I didn’t point out, though, were the preventive measures  necessary to avoid the need for a HCAC claim in the first place.

My first question, when I spoke to the most recent colleague who sought assistance, was “does the kid have a passport?”

If he does, keep it in a secure place– or if the threatening parent has it, notify the police and get them to contact the State Department so the passport can be flagged.

Absent a passport, the threatening parent won’t get very far. Sure, if the child has dual citizenship, a foreign-born (abducting) parent might try to get the other country to issue one, but flags can still be raised with the country’s diplomatic legation and U.S. law enforcement.  Again, if there’s a credible threat of abduction, make a stink about it.  Make noise.  Put both countries’ authorities on notice in the most vocal way possible.

Above all else, petition the local court for a custody order immediately, with whatever form of injunctive relief is available in that jurisdiction, and serve the action before the other parent leaves the U.S., with or without the child.  The more clear the court’s intent, the easier it will be later to demonstrate an abductor’s wrong-doing to foreign authorities.

Ministry of the Interior, Havana. Evaronalotti, via Wikimedia Commons.

With all the fanfare this month over the government shutdown and the Kansas City Chiefs’ coin-toss defeat in the AFC Championship, a little-noticed story out of the Trump Administration could prompt a tsunami of litigation (yeah, I’ve wanted to use that expression for a while now) against offshore companies doing business with Cuba.  I withhold comment here about the broader ramifications of such suits,* but an important element of the puzzle lies squarely within my wheelhouse, and it bears discussion.

Title III of the Helms-Burton Act (HBA) allows U.S. litigants whose Cuban property was expropriated following the 1959 Revolution– for the most part native Cubans who’ve emigrated north– to sue entities who have profited from that expropriated property.  An example: let’s say “Autohersteller GmbH“, a fictional German carmaker, wants to develop a parts plant outside Havana, and the Cuban state grants a 99-year lease to the land on which they build it.  Prior to 1959, the plot of land was owned by a group of citizens loyal to President Fulgencio Batista; after his overthrow, the Castro government seized the land and title thereto.

Sixty years later, those citizens and their kids now live in Fort Lauderdale, and if the Trump Administration reverses a quarter-century of waivers, they’ll be marching into the United States District Court for the Southern District of Florida and filing suit.  Not against the Cuban government– there’s no realistic mechanism for that.**

Instead, they’ll be suing Autohersteller GmbH for damages under Helms-Burton.  Again, set aside any discussion of the practical impacts of the statute; but recognize that the only proper way to serve that company in Germany is by filing a Hague Service Request.  That HBA establishes a cause of action (and, necessarily, jurisdiction) but does not override the procedural rules applicable to serving overseas defendants.  It does not supersede the mandatory and exclusive nature of the Hague Service Convention.  And it does not dispense with the defendants’ due process right to proper notice.

Plaintiffs, do it the right way, and remove at least one obstacle to an eventual verdict.


* Just Google “Helms-Burton III” to see much debate on the issue.  It’s a doozy.

** Cuba is not party to the Hague Service Convention, and it’s highly doubtful that Cuban courts would entertain Letters Rogatory in such a case anyway.

Of all the impactful moments I’ve experienced on overseas CLE programs, one stands out above the rest.  Our group of American lawyers was given a special tour of the Supreme Court of the United Kingdom (yes, they’ve had one for nearly ten years).  We had visited the main courtroom– complete with an invitation to sit in the justices’ chairs– the Privy Council Chamber, the court’s suite of offices… and then, they offered to show us the law library.  Even in the modern age, what with our easy access to millions of texts at our fingertips, it seems like all lawyers enjoy the atmosphere of a library, so it wasn’t a hard sell to get us to follow.

In front of us, inscribed in backlit glass, were some of the great maxims of the law.  From Cicero, Plato, Aristotle, and St. Paul, even Disraeli.  Prominent among them, though, was this, in part:

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

At the heart of Westminster, within the seat of Britain’s judicial authority, and just yards from the oldest legislative house on Earth, was Dr. King.  It was– in the very literal sense– breathtaking.  Here was quoted not only an American, but an American prisoner who conveyed his thoughts from an Alabama jail cell, his words the very first thing British justices see when they enter to study.  The magnitude of this cannot be overstated.

This must be our creed, not only as Americans but as members of the wider human polity.  We have to recognize that inescapable network of mutuality, lest our whole garment of destiny unravel.

One of the odd quirks about serving an offshore defendant is the very routine possibility that plaintiff’s counsel could be contacted by the defense before a foreign authority notifies anyone that service has even been effected.   A hypo, to illustrate…

Dieter from Düsseldorf signs a contract with Pete from Peoria to supply Pete’s company with machine parts.  Everybody knows that German manufacturers are incredibly efficient– while their machine parts are of outstanding quality– and Pete is thrilled to have a well-coordinated supply chain.  The parts come as scheduled for about six months, when all of a sudden, bupkiss.  Nothing.  Nichts.  Dieter doesn’t answer the phone, he ignores Pete’s frantic emails (DUDE, WHERE IN THE HELL ARE MY PARTS?!), and Pete has to furlough his entire workforce until an alternate supplier can be found.  The obvious result, given Dieter’s recalcitrance?  A lawsuit.

Pete’s lawyer, Larry, needs to serve the summons & complaint for damages on Dieter in Germany.  He hires me to assist, and we send a properly formatted Hague Request to the Central Authority for Nordrhein-Westfalen.  It arrives on the 8th of January, and the good folks at the Oberlandesgerichts Düsseldorf have service effected about a month later.  On February 14th, Pete’s lawyer gets a curious email from a colleague, indicating that she represents Dieter and would like an extension of the deadline to answer.

Sure, Larry says.  But… hang on a second.

My phone rings, and Larry asks if I can shoot him a copy of the proof of service on Dieter.

Nope, I reply.  Haven’t gotten it yet.

Larry is justifiably perplexed, and Dieter’s lawyer thinks she’s got an advantage.  [Gee, Larry, you don’t even know your defendant’s been served?]

Well, no.  He doesn’t.  He has no way of knowing because the Central Autority hasn’t told anybody.  And this is perfectly normal, especially if the defendant is in China or Mexico or India (my trifecta of “this’ll take a while” countries).

The timeline:

  • January 8– request arrives at the Central Authority
  • February 8– service is effected
  • February 14– opposing counsel contacts Larry
  • March 11– a completed Hague Certificate lands in my mailbox
  • An hour later– Larry has a PDF of the Certificate to file with the forum court

That sequence of events happens all the time, and it has no bearing on the effective date of service or the deadline by which a defendant must answer.

It also doesn’t subject the plaintiff to dismissal if the proof takes several weeks or months to come back from the Authority.*  Rule 4(l)(3) is a nice safe harbor in this regard: “Failure to prove service does not affect the validity of service.” What seems to be a delicate situation really isn’t.  Any time a plaintiff has to rely on the caprices and inefficiencies of a foreign bureaucracy, courts have to give them latitude (thus my affection for FRCP 4 and its recognition of Hague realities).

The takeaway from all this:  relax.  Proof is coming.


* I filed a request in India in September, 2017.  The papers were served in November– a mere two months on, which is surprisingly quick in India.  But the Certificate arrived over Labor Day weekend.  That’s in September, for the uninitiated.  A full ten months elapsed before the plaintiff could prove that the defendant had been served.

J. Lyman Stone, Esq. of Memphis. (“Bruiser” to his friends– and enemies.)

A few weeks back, a personal injury lawyer in Memphis* called to ask how he could serve a defendant in Switzerland.**   I told him that the Swiss have a fairly straightforward view of the Hague Service Convention, and that there was only one effective way of getting the job done: an Article 5 request to the right Cantonal Central Authority.  No muss, no fuss, you get a proof back in a matter of two or three months.

“But how do they do it?” he asked.

Well, says I, it varies by Canton (not exactly a federal state, but not exactly a county either).  It’s usually a local public prosecutor or some other judicial officer who carries it out.  Frankly, though, it doesn’t matter, because as long as you submit a properly completed Request, the proof the Authority sends back to you is like Kevlar.  Again, no muss, no fuss.

“But do they actually serve it personally on the defendant?”

If he’s home, yeah.  If he’s not, they might try him again later, but in quite a few cases, they slap a Post-It note on his door and tell him to come down to the police station or the post office to pick up a sheaf of documents.  If he doesn’t do it within a certain time frame, they drop the docs in the mail and deem him served anyway.  The philosophy is this: when a judicial officer tells a Swiss citizen to come and get an envelope, they comply.

At that, he told me that wouldn’t fly.  Tennessee rules require personal, in-hand service, so the Swiss would have to do better than that.

Ahem, huh?

He insisted that it’s a Tennessee case, so Tennessee rules control how it’s done, and they would just have to get it done right.  Or we would just have to find another way.

I gently pushed back, reminding him that Tennessee law doesn’t have extraterritorial reach.  Not only that, Sandra Day O’Connor and colleagues said the Convention is mandatory doctrine— you can’t go around it.  There simply isn’t another way; you can’t just hire a guy in Zurich to do it for you. (Yes, you can request personal, in-hand service under Article 5(b). That doesn’t mean they have to do it.)

But he insisted.  Look, I said, this is basic level, 1L ConLaw stuff… the Hague Service Convention is a treaty of the United States.  It overrides everything else except the Constitution.  The Supremacy Clause?  Remember?

And the next question made my jaw drop.

“You got any case law to back that up?”

To back up the proposition that a treaty overrides state law?

“Yeah.”

Um, no, I don’t have any case law to back that up.  I have THE CONSTITUTION OF THE UNITED STATES. 

To break it down into digestible chunks…

Article VI, Para. 2
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, 

(Hey, look!  The Hague Service Convention is a treaty, made under the authority of the United States!)

shall be the supreme law of the land;

(Any questions so far?)

and the judges in every state shall be bound thereby,

(Sorry, your honor.)

anything in the Constitution or laws of any State to the contrary notwithstanding.

(Uh oh.  Roy Moore must just be apoplectic about that one.)

So, no, Bruiser.  Tennessee law doesn’t control how a Tennessee action is served on a defendant in Switzerland.  The Hague Service Convention does.  So in turn, Swiss law does.

And for the record, you’re wrong about your own rules.  Tenn. R. Civ. P. 4A mirrors Fed. R. Civ. P. 4(f), and they both specifically defer to the Convention.  Even if they didn’t, the Convention still overrides whatever state mandates might enter the picture because the Supremacy Clause says so.

So you, counsel, have a golden opportunity to thwart this guy and his B.S. antics if he brings up such a silly argument:

Leo F. Drummond, Esq., also of Memphis.***  He represents very mean people.

The Supremacy Clause is a thing.  And it’s called that for a reason.  Bank on it.


* No, it wasn’t actually Memphis.  Names have been changed to protect identities.  To be sure, this probably isn’t an accurate analysis of Tennessee rules, but that’s beside the point here.  For the record, the image up top is Mickey Rourke as Bruiser Stone in The Rainmaker, which is an absolute goldmine for Ethics CLE programmers, and one hell of a movie in its own right.  Bruiser was Matt Damon’s boss until he had to skip town and avoid a whole mess of trouble.

** Nope.  Not really Switzerland either.  This is illustrative, folks.

*** Yep.  Angelina Jolie’s dad.

 

The Mall, London. Union Jacks galore. “Ed g2s” via Wikimedia Commons.

It’s been a while since Civ Pro class, so here’s a quick FRCP refresher.  A claim for relief– which is to say, just about any complaint filed in federal court– has to be short.  And plain.  See Rule 8.

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

In other words, NOTICE PLEADING.  Now, if you are fortunate enough to practice in a Notice Pleading state, good on ye.  This stuff applies to your whole practice.  In Fact Pleading states like mine… not much you can do to avoid lengthy pleadings entirely, but still… keep it short, Counsel.  Or as short as possible.

Missing the magic words in Rule 8 is pretty costly when a defendant must be served abroad.  With only a couple of exceptions, translation of service documents is mandatory in any foreign country that (1) is party to the Hague Service Convention and (2) didn’t once have the Union Jack flying over it.  So if you have a 120-page complaint, plan on writing a very large check to the translators– five figures, easy.  If you have seven hundred pages of patents as exhibits, it could be six figures.

Remember that we don’t get paid by the word, but translators do.  There’s a very easy way to keep that translation bill down, and that’s by adhering to 8(a)(2) with a vengeance.

Repeat after me:  SHORT. PLAIN.  SHORT.  PLAIN.

SHORT.  PLAIN.  

Stop it with the War & Peace thing, Tolstoy.

[This post is a mere 253 words long– not counting the rule text.  That is intentional.]

Boeing 787 Dreamliner N787BX. José A. Montes via Wikimedia Commons.

A client emailed me recently with a question that she already knew the answer to, but needed a little affirmation regardless.  The answer to this one is so stunningly simple as to warrant a “hey, am I crazy here, or what?” message, sort of like trying to remember if your wife likes creamy or crunchy peanut butter.  No, really, I should remember, but self-doubt creeps in and jumbles the whole adventure.

Her perfectly reasonable question, paraphrased:

I have an offshore corporation to serve in a federal case, but the company’s president is coming to the States, so I can just serve him here, right?  I heard something about that the first day of law school– somebody served on a plane in U.S. airspace, or some such?

I responded, “Nope.  You’re not crazy.  If the forum court’s rules allow service on an officer within the United States, you’re gold– no matter where the corporation is domiciled*– and the Hague Service Convention is rendered inapplicable.  Federal rules do allow it, and I imagine the lion’s share of state rules (if not all of them) do likewise.”

Specifically, I give you a quick rundown of FRCP 4(h)…

Rule 4. Summons

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or

[Emphasis added.  As are all emphases indicated in further rule cites.  Don’t be silly.]

“But wait!” says defense counsel, who hasn’t really thought the matter through.  “This is a (German, Chinese, Australian… pick one) company.  You have to serve it in its home country, and that means you have to go by Hague rules.”

Well, no, it doesn’t.  Not by a long shot.

Rule 4(h) goes on…

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

And, proceeding to 4(f)(1)…

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

Okay, fine.  The Hague Service Convention applies any time you’re serving in a Hague country.  But note the 800-pound gorilla in the room:  if you’re serving the defendant here in the U.S., you’re not serving at a place “not within any judicial district of the United States” (forgive the double-negative).

Male western lowland gorilla from Tiergarten Nürnberg. Altaileopard, via Wikimedia Commons. (This gorilla is domiciled in Germany, you’ll notice.)

You’re serving IN THE UNITED STATES, so the Hague Service Convention…  DOES. NOT.  APPLY.

By its own terms (Article 1):

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

If you’re tagging the company president on a Dreamliner** from LAX to O’Hare, you aren’t serving abroad… and there’s no “occasion to transmit” anything.

Sorry, defense-counsel-who-hasn’t-really-thought-the-matter-through.  Your client is on the hook.


* Remember– domicile goes to jurisdiction more than manner of service.  Although the two concepts are closely related, the Venn Diagram only overlaps a smidge.

** The Boeing 787 is my favorite airliner ever, which is saying something, given that I flew on a PanAm 747 when I was five (that was trippy).  The Dreamliner is quiet, it’s comfortable, it’s humidified!  I also have a good friend who is a mechanic at a major American airline (you could just capitalize that last word and add an S to figure out which one)… he hates the “Plastic Princess.”  A maintenance headache, apparently.  Still, a wonderful flight experience from the passenger’s perspective.  And job security for mechanics.

USS Cole, DDG 67.  [U.S. Navy photo.]
Anybody who knows me well… knows my political leanings.  They’re no secret, but they’re usually immaterial to this blog so I leave them out of commentary almost entirely.  Full disclosure– I’m a labor Democrat, as evidenced by my first job after college, staffing a  labor Democrat in the United States Senate.*  It should surprise precisely no one that I disagree with the sitting president on just about everything.  So a couple of weeks ago, my inbox and text messaging app were flooded with “hey, whaddya think of this?” messages on the Administration’s position regarding a lawsuit against the Sudanese government.

In short: “Trump Administration Sides With Sudan Against USS Cole Survivors In Lawsuit

As much as I love NPR (labor Democrat, remember?), that’s an awfully unfair and inaccurate headline– and it only feeds the fire and ire emanating from the White House Press Office against what they consider fake news.  It’s clickbait.

Now, I hate agreeing with this White House on anything, but here, I have to line up with that side.  [Note to NPR and other left-leaning outlets– particularly Vox: knock it off with the clickbait— you’re just making reasoned arguments more difficult.  Fox News pulls that crap all the time, which is why its credibility is so low outside a hardcore base.]

For starters, the Administration didn’t side with Sudan in the suit– it sided with Sudan on the procedural question of how Sudan was served, which was the correct position to take.  I’ll get to why in a minute.

The saving grace for me (so I can sleep at night while agreeing with the White House) is that the whole idea probably irked the President to no end.  Odds are, this is one of those things they decided not to tell him about before the DoJ’s amicus brief, but if they did, he probably took the knee-jerk/non-lawyer position that NPR took in its headline: the Sudanese are bad people, they played a role in killing American sailors, and they should pay.

The vast majority of Trump’s supporters and detractors (which is to say, everybody, including me) thinks similarly.

But that isn’t how a lawsuit works, and I’m sure someone explained to the President that if Americans can do that to the Sudanese government in our courts, then foreigners can do that to the U.S. government in their courts.  For the record, the Obama Administration took the same position for the same reason.  Both are right.

So how should the plaintiffs have done it?  It ain’t that complicated, really.  The Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.) lays out a succinct hierarchy of steps to properly serve a foreign government.  Specifically, §1608(a) lists four methods for serving a foreign government, in a particular order (text recycled from my earlier post on the FSIA’s service component):

§1608(a): Government Defendants

  1. If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy.  No arrangement?  On to #2.
  2. If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations.  Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
  3. If that doesn’t work, or if no treaty is in place, try mailing it, as long as the foreign government doesn’t object to mail service in a treaty.   A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.**  Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
  4. If 30 days have passed, and you don’t have a delivery receipt, fill out a Notice of Suit (available from the State Department) and send duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note.  This is particularly hairy if the defendant lacks diplomatic relations with the U.S.

Now, as to the USS Cole suit against Sudan (the subject of the current controversy), we can kick the first two options to the curb straightaway.  There’s no contract (the claims sound in tort, after all), so no special arrangement exists.  And Sudan isn’t party to the Hague Service Convention, so treaty methods are out, too.

Logically, the Cole plaintiffs went to §1608(a)(3)…

(3) if service cannot be made under paragraphs (1) or (2), by 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…

Here’s where it gets controversial.  “(T)o the head of the ministry of foreign affairs of the foreign state concerned…”

The Cole plaintiffs purported to serve Sudan by registered mail** at the Sudanese Embassy in Washington, D.C.

Oops.

The NPR article was clear to point out that the “question is one that only a lawyer could love,” but the simple fact is that lawyers fumbled this one, and that’s why the families involved are going to have to go back to square one.  Plaintiffs’ counsel didn’t dig a little deeper into the statute to make sure they were doing it right.  For the record, I don’t know who represented the plaintiffs here and, frankly, I don’t want to know, but they should have called in some outside help.

This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.***  It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.  All the plaintiffs had to do here was to send the summons and complaint from the Clerk’s office, by courier, requiring a signed receipt, to the Foreign Minister in Sudan.  Yes, that would have probably failed, but §1608(a)(4) provides a final– and nearly always workable– method of serving by diplomatic note.

This isn’t a case of the Trump Administration screwing over a group of grieving Navy families.  This is about proper lawyering, and what can happen when a seemingly innocuous procedure isn’t given the attention it requires.  Service matters— even if Vox minimizes its importance in a snarky subtitle.****

 


* This is not bragging.  Regardless of party, Capitol Hill staffers are notoriously underpaid, have thankless jobs, and in many cases, see their Congressional work become roadblocks to later job possibilities in the private sector.  It ain’t a glamour detail.

** I wonder if the Clerk of Court was involved, as it must be under FRCP 4(f)(2)(C)(ii), but that’s not the issue here.

***  Thomas, J. in dissent, maybe.

**** “It centers on where to send legal papers. Seriously.”