U.S. Supreme Court. Photo: Mike Scarcella / NLJ

With nearly $315 million in damages at stake, the U.S. Supreme Court on Wednesday appeared divided over whether injured sailors and families of the 2000 USS Cole bombing gave proper notice of their lawsuit to the Republic of Sudan eight years ago.

The justices heard hourlong arguments in Republic of Sudan v. Harrison, stemming from a default judgment won by the Cole plaintiffs who claimed Sudan provided material support to al-Qaida and Osama bin Laden. The terrorist attack in Yemen killed 17 sailors and injured 39 others.

But during arguments, the justices struggled with an arcane issue that could force the Cole families—if they lose—to restart their long and difficult litigation under the Foreign Sovereign Immunities Act, or FSIA. Did they comply with the act by mailing notice of their complaint to Sudan’s embassy in the United States? Or were they required by the act and international law to send it to the foreign affairs minister’s address in Sudan?

Chief Justice John Roberts Jr. told White & Case partner Christopher Curran, representing Sudan, that his “first instinct” if he wanted to mail something to the head or cabinet member of a foreign country, would be delivering it to the embassy.

“I mean, the idea of mailing it to the foreign minister in some country and assuming it’s going to get there in any reasonable time, I think you’re much more—much more likely to reach them through the embassy,” Roberts said.

The key provision in the FSIA does not say to mail notice “at his own office,” Justice Elena Kagan told Curran. “And in the absence of that kind of language, there seems something special about the embassy situation. That’s just everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government.”

But Curran countered that embassies exist to serve diplomatic functions, “not to be a catch-all recipient for service of process or other things being sent to the foreign state.” He argued that the plain meaning of the service provision—that the mailing be dispatched to a specific person—requires that the mailing bear the address of that person.

“When Congress intended there to be an intermediary between the sender and the ultimate recipient, it said so,” said Curran, adding that Congress did so in another provision of the act, but not in the provision at issue in the high court.

Curran also argued that service on an embassy violates the Vienna Convention of Diplomatic Relations, which provides that the premises of the embassy or mission is “inviolable.” Curran received an argument boost from Assistant to the Solicitor General Erica Ross.

Williams & Connolly partner Kannon Shanmugam, representing the Cole families, told the justices that Sudan was trying to reverse a $300 million judgment based on “an unstated procedural requirement.” There is no requirement in the FSIA notice provision that the mailing be sent to the home country, he said.

Kannon Shanmugam, with Williams & Connolly, chatting before the start of Allison Jones Rushing’s confirmation hearing before the Senate Judiciary Committee to be U.S. circuit judge for the Fourth Circuit, on Oct. 17, 2018.

Justice Sonia Sotomayor said the foreign minister is not physically at the embassy except for occasional visits. “It seems a natural understanding under most due process concerns that you serve the person where you’re likely to find them,” she said.

The United States and 22 other countries do not accept service on their embassies, said Justice Stephen Breyer. “And to turn over to these countries, often very small, often without adequate legal advice, something that departs from a simple legal rule that everyone of them has followed in one form or another in the past is something that makes me nervous,” he said.

Shanmugam told Breyer there are steps a country can take: It does not have to accept service and can return the service packet immediately, and a country can object to any default judgment. He also said the justices could distinguish embassies from consulates and U.N. missions on the ground that embassies perform a unique function.

“The reason that we attempted service at the embassy was for the simple reason that, in 2004, Sudan was at the tail end of its Civil War and it was very hard even to find someone who would deliver a package to Khartoum with the requisite return receipt,” Shanmugam said. “And so this case really illustrates why this policy makes sense.”

“What would be the consequences in this particular case if you had to go back and if we were to rule against you and you succeed in achieving service [under another provision of FSIA]?” asked Justice Samuel Alito Jr. “Would Sudan appear?”

The case would have to start over, replied Shanmugam, and that would be particularly inequitable. The statute, he said, does not have the notice requirement sought by Sudan and Sudan had actual notice of the litigation. “We’re talking about an objection that was raised at the very last minute in response to turnover orders. And that would be the height of unfairness to the Cole victims.”

 

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