Foreign Sovereign Immunities Act

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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.”

Woman in Gold, Gustav Klimt, 1907

Here we go again.  Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality).  There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…

THAT.  DOES.  NOT.  WORK.

Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim.  Very likely after Rule 4(m)’s 90-day deadline passes (uh oh).  Your client will be less than amused.  So don’t even try.  No, really.

Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me.  I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold.  It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.

Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like the Green Lantern), launches a lawsuit against the gallery that purports to own it.  Because the gallery is owned by the Austrian government, the Green Lantern says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate.  And litigation begins in earnest.

Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series.  I’m Norwegian, so it would have looked like this:

But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie.  Why the mental torture?

BECAUSE HOLLYWOOD SCREWS UP THE RULES.

There’s no way in hell that the real Randy Schoenberg got it done that way.*  Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.

If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion.  And that includes time enough to open and pour a Stiegl to consume upon completion.

In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(b).  That statute, in turn, raises the question of how service is effected in Austria.  Simply put, a Letter Rogatory.  End of options before resorting to diplomatic note.

And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly.  It staggers the imagination.

Seriously…  just do this.

* I emailed the man himself.  Randy, dude, how’d you really do it?  No answer.  I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.

Thomas Hobbes, the guy who foisted the sovereignty concept on generations of political philosophy nerds. John Michael Wright - National Portrait Gallery (thus Public Domain) - via Wikimedia Commons.
Thomas Hobbes, the 17th century English guy who foisted the sovereignty concept on generations of political philosophy nerds.  Let’s all blame him for this, shall we?   John Michael Wright – National Portrait Gallery (thus Public Domain) – via Wikimedia Commons.

Your defendant is a foreign government.  Or a monarch.  Or a foreign diplomatic mission.  A consul with a diplomatic passport.  A company owned (at least in part) by a foreign state.  (You get the point.)  You’ve done all the analysis necessary to convince a court that jurisdiction is appropriate under the Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.)– the terrorism exception and the commercial activity exception come to mind– but in order to start the proceedings, you have to put the defendant on notice of the claim.  So, how do you get them served?

Honestly, it’s not markedly different from serving a foreign individual or private company based abroad.  But there are a few particularities involved, and they can all be found in 28 U.S.C.  §1608.

The first question:  is the defendant a government (either a state* or one of its political subdivisions), or is it an instrumentality (a seemingly private entity owned by the state)?

Governments are served under §1608(a), and instrumentalities under §1608(b).  Each section lays out a hierarchy of steps.  Simply start with #1 and march your way down the list until you hit an option that works.  If you reach the end of the list and don’t have it done, we should chat, because you’ve probably missed something and are likely facing dismissal.

§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.

[Here ends the list.  No more options.]

§1608(b):  Agency/Instrumentality Defendants

  1. If the agency or instrumentality has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are less rare than with governments, especially if the drafting attorneys know about the first item in my big list of Five Things.  No arrangement?  On to #2.
  2. If the instrumentality has a U.S. agent or officer that can be served in the U.S., hand them the documents.  Alternatively, if a treaty relationship exists with the foreign country, follow the treaty just like above.
  3. If neither of those work, (A) try a Letter Rogatory, (B) try mailing it– with the same warnings as above, or (C) “as directed by the court consistent with the law of the place where service is to be made.”  Honestly, I don’t see how (C) is going to work if none of the above fit the bill, but more odd things have happened in my line of work.

[Here ends the list.  Options are even more limited, because the diplomatic avenue is omitted.]

There’s more to it, of course, but fortunately, the lion’s share of suits against foreign governments will begin and end with the Hague Service Convention.  On the surface, it might seem daunting, but not that much more complicated than a private defendant.

 

* “State” here refers to a sovereign.  Rather an odd concept for Americans, who conceptualize sovereignty on a split-screen basis.  Yeah, Missouri is a sovereign state, but it’s not a nation.  Yeah, the U.S. is a nation and a sovereign, but it derives its sovereignty from the consent of the governed through the respective 50 st…  ah, heck, I could ramble on all day.  Point is, in most other countries, “the state” means the national government.  And when we talk about “states-party” in treaty-speak, we mean member nations.

** In federal cases, remember the Rule 4(f)(2)(C)(ii) requirement that the mailing originate from the Clerk of Court, rather than from counsel.  Remember, too, that if mail service is precluded under the foreign country’s declarations to the Hague Service Convention, it’s invalid for this step.