U.S. Supreme Court

How to sue a foreign government? US sides with Sudan in Supreme Court review of USS Cole judgment

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USS Cole/Wikimedia Commons.

Questions about service of legal papers could topple a $315 million default judgment against Sudan in a suit claiming the country supported al Qaida before its members bombed the USS Cole in Yemen, killing 17 U.S. sailors and injuring 42 others.

The United States is supporting Sudan’s position in the case argued before the U.S. Supreme Court on Wednesday, report NPR, the Wall Street Journal, the Washington Post and the New York Times. The plaintiffs are 15 injured sailors and three spouses.

At issue is a provision of the Foreign Sovereign Immunities Act that says lawsuits against foreign governments should be “addressed and dispatched” to “the head of the ministry of foreign affairs of the foreign state concerned.”

Sudan contends the legal papers should have been served at its foreign ministry in Khartoum, the capital of Sudan. Instead, the suit was served at Sudan’s embassy in Washington, D.C., where the foreign minister does not have an office. That meant the Sudanese government was never properly notified of the lawsuit, according to a lawyer for Sudan, White & Case partner Christopher Curran.

A lawyer for the Department of Justice agreed. The United States does not accept service of lawsuits at its embassies, and doing so would undermine embassy protections in the Vienna Convention on Diplomatic Relations, said the lawyer, Assistant Solicitor General Erica Ross.

The Wall Street Journal highlights this exchange between Chief Justice John G. Roberts Jr. and Curran (which begins on page 9 of the transcript):

“I would have thought it would be much more convenient for them to get notice that they’re going to be sued in the United States at the United States embassy,” Roberts said.

“In fact,” Curran replied, “I think the reality is a foreign ambassador located in Washington, D.C., gets flummoxed at the prospect of receiving service of process. Doesn’t know what to do with it, doesn’t know what it’s all about. They’re generally not lawyers.”

“And somebody in Khartoum isn’t” flummoxed? Roberts asked.

Curran replied that, in Khartoum, there is “a full panoply of expertise.”

The case is Republic of Sudan v. Harrison.

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