[Originally published at vikinglaw.us]
A particular quirk arises in serving a defendant if he or she is a U.S. servicemember stationed abroad. For the most part, I explain to clients that such an objective is a tough one, so they might have to simply wait until the defendant returns to the United States. [This is not, as one might assume, due to the Servicemembers Civil Relief Act (formerly the Soldiers & Sailors Civil Relief Act, 50 U.S.C. §§ 3901-4043). That statute stays proceedings, tolls statutes of limitation, and provides a host of other protections to uniformed defendants, but it does not address service of process.]
Defendants must, of course, be served according to the rules of the forum court. But when a servicemember is stationed in another country, they can only be served within the strictures of applicable international agreements. The Hague Service Convention is chief among the governing treaties, but no less important are individual Status of Forces Agreements (SOFAs), which govern access to U.S. installations by civilians and local authorities.
Herein lies the quandary, with several contradictory components. Unless the defendant has a discernible civilian address (that is, not located on a U.S. installation), standard methods of service will be unavailable.
- Hague service is not available without an address. If a defendant lives in a barracks or other on-post* housing, then they simply don’t have an address. Of course, “1234 Eisenhower Drive” or simply “Building 2375” may be valid for telling friends where to gather for a social engagement, but the addressing system is most likely unknown to local authorities (both civil authorities and the post office). It has no legal effect, and can change by the simple act of a clerk.
- Even if the defendant does have a discernible on-post address, mail is generally not delivered to such an address, and local judicial authorities would most likely be denied access to the post under the governing SOFA. That said, I have had soldiers served where local officials coordinate with the post Provost Marshal to have the defendant meet the serving officer at the gate. (Process servers, where they exist, are afforded very little accommodation by post security.)
- Forget about serving them at the office, especially if “the office” is an artillery range. Even if a local judicial officer does gain access, those officers generally avoid serving anybody at work.
- The Posse Comitatus Act prohibits the use of Army and Air Force chains of command for civil purposes, and various Naval regulations likewise create insurmountable roadblocks. Urban myth advises that a plaintiff simply needs to ask a JAG (Judge Advocate General) office to effect service but this simply isn’t accurate.
So what is a plaintiff to do? Several options are available, although odds of success are lower than with service on a non-military defendant.
- Wait. Simply hold onto the summons until the defendant returns from his tour of duty overseas, and serve him upon his arrival stateside. Of course, the court must be made aware of the hurdles to proper notice, so an order excusing non-service may be issued to protect the plaintiff from dismissal.
- Request leave to serve via U.S. mail at his known APO or FPO (Army/Air Post Office or Fleet Post Office) address.** APO/FPO addresses are not tied to geography like a street address is. If a unit stationed in Germany is temporarily transferred to Kuwait, a soldier’s address may not change–or if it does, the APO staff in Germany will automatically forward his mail to the new address as a matter of course. In short, the soldier will get his mail.
- Request leave to serve by electronic mail.** All U.S. personnel are issued email addresses for official use, and they are generally permitted to use those addresses for personal communication while stationed abroad. Moreover, given the ubiquity of free email servers, it is nonsensical for an active duty defendant to argue that he/she does not have a personal email account. And like APO/FPO addresses, email addresses are tied to an individual, rather than to a physical location, so treaty considerations are less daunting. (E-mail’s acceptance as a means of effective service is growing, slowly but surely.)
- If the defendant happens to live in civilian housing (“on the economy”) and his address can be ascertained, serve via traditional channels. This may come in different forms, so significant brainstorming is necessary.
Serving a G.I. isn’t as easy as serving other defendants, but it may still be possible with creative thinking.
* The author is an Army brat. An Army installation is referred to as a post, and it is painful to call it anything else. Not a fort, not a base, and certainly not a campus. With all respect to the Air Force, Navy, and Marine Corps, you’ll have to substitute your own terminology on this one. Post, base, installation… you get the idea.
** Use of APO/FPO mail or of U.S. military e-mail servers may run afoul of the Posse Comitatus Act. The issue has not been addressed in case law as of this writing.