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.
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
- 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.
- 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.
- 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.
- 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.
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.”