In order for the Hague Service Convention (HSC) to govern the legal formalities of notifying defendants of claims against them, you’ve got to know where the defendant can be found. An address is critical to service anywhere, on any defendant, but it can be particularly challenging when it comes to serving U.S. servicemembers stationed abroad– as well as when it comes to serving their dependents* or civilian support staff stationed with them. It’s especially daunting when those folks live on a U.S. military installation in Germany or Italy or Japan or… any number of other far-flung locales.
A few years ago, I addressed some issues surrounding service on military personnel in two posts:
- Serving U.S. Servicemembers Abroad, and
- Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.
Bottom line, it’s tough. And in many cases, service simply can’t be effected by “regular” means, either because the GI has no discernible address, or because local (foreign) officials either cannot or will not coordinate with U.S. military authorities to arrange for service. But I’ve had a recurring issue pop up several times of late, dealing with the assertion that an Armed Forces Post Office (APO) or Fleet Post Office (FPO) or DPO (Diplomatic Post Office) address is sufficient to trigger the applicability of the HSC.
My response: no.
The HSC only applies when the defendant’s address is known… straight out of Article 1: “This Convention shall not apply where the address of the person to be served with the document is not known.” Pretty simple stuff. But things really get complicated if the address is not known, or where somebody gets the idea that APO equals Hague validity. It just isn’t so.
An APO/FPO/DPO address is a creation of the United States Government– specifically the Department of Defense in cooperation with the United States Postal Service, not foreign postal services– so it cannot be considered a “foreign” address. Its formatting is roughly similar wherever an American is stationed or deployed around the world, and it carries a ZIP code. It provides no information whatsoever to foreign officials as to where they might physically find the defendant in order to serve pursuant to local law. Ultimately, it fails to even indicate that the defendant resides anywhere, much less in the particular country at issue. Generally speaking, U.S. servicemembers receive mail from home primarily via their APO or FPO address; the only way they can receive mail via the host country’s postal service is by using a civilian street address or post office box away from the U.S. military installation. Likewise, the servicemember’s dependents (ie: spouses and children) receive their mail via APO channels.
- If the defendant’s address is something like “E Company, 2/506th PIR, APO NY 09055″, then all bets are off.
- If, conversely, the defendant’s address is something like “198 Rue de Mons, 7011 Mons, Belgium” it can be done. That’s an actual street address that can be found on Google Maps and is readily accessible by a local huissier de justice tasked with serving the papers.**
Why? Because APO addresses are attached to an organization, rather than a location. In today’s military, they generally include a post office box number, so the conclusion that they aren’t connected to an actual abode is even more obvious. I don’t know of a process server or judicial officer anywhere in the world who is willing to attempt personal service on an individual at a post office box. Such an undertaking would rely on exquisite timing and monumentally good luck, in that the person serving must encounter the defendant precisely when s/he accesses her/his mailbox. But if that box has no relation to their local mail system, it just won’t work.
Put that address on a Hague Service Request (colloquially, a USM-94)? Fuhgeddaboudit. It ain’t gonna happen.
So what is a litigator to do?
Well, first, undertake a diligent search to ascertain whether the defendant has a civilian address (ie: off-post, off-base… what’s referred to as “on the economy” in military parlance). If you get one, great, proceed to Hague channels (see the Seconda Parte story above).
If you don’t, move for leave to serve by mail at the APO/FPO/DPO address– even if it’s not in the rules. Don’t worry about running afoul of Hague restrictions. If you don’t have anything but an APO address, Hague restrictions don’t apply.
Then, just to make sure all bases are covered (I contend that mail service alone is insufficient under Mullane), move for leave to serve electronically— email, Facebook, Twitter, etc. There’s a significant line of federal case law that approves of electronic service, and a few states here and there are picking up on the logic.*** Use it if you have no other choice.
* Spouses, children, step-children, or other family members stationed abroad with the solider/sailor/airman/Marine. Like me, as a kid.
** My family lived at 198 Rue de Mons for a year after we arrived in Belgium for my dad’s three-year assignment with the Army in the late 1970s. We never got a single piece of U.S. mail there. Instead, all of our mail from Grandma and Sears & Roebuck went to the Old Man’s APO address (the Old Man was not a paratrooper, for the record) and cut out the Belgian postal service entirely. I doubt Grandma ever knew about the 198. Sears… well, if they’d known, they’d be omniscient and thus still operational.
*** Much of that case law is in error where the Hague Service Convention actually applies. See Ted Folkman’s series on the disastrous Gurung decision, his White Whale. Where all you have is an APO… fret not.