Harrison v. Republic of Sudan
838 F.3d 86
| 2d Cir. | 2016Background
- Plaintiffs (sailors and spouses injured in the 2000 USS Cole bombing) obtained a default judgment in the D.C. District Court against the Republic of Sudan under the FSIA terrorism exception (§ 1605A) for $314,705,896.
- The D.C. Clerk mailed the summons, complaint, and later the default judgment to Sudan’s Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C.; the embassy returned a signed receipt.
- Sudan did not respond within § 1608(d)’s time period; the D.C. court entered default judgment and found service proper.
- The judgment was registered in the Southern District of New York, which issued three turnover orders directing banks to turn over Sudanese assets. Sudan then appeared and appealed.
- This Court previously affirmed the turnover orders, holding service via the embassy addressed to the Foreign Minister satisfied § 1608(a)(3) and that the turnover could proceed without an OFAC license where the TRIA applied. Sudan sought panel and en banc rehearing; the panel denied the rehearing petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mailing service addressed to the foreign minister via the country’s embassy satisfies FSIA § 1608(a)(3) | Service to the named Minister via the embassy complies with the statute’s requirement to address and dispatch to the head of the ministry of foreign affairs | § 1608(a)(3) requires mailing to the minister at the ministry in the foreign state (seat of government); serving via an embassy is impermissible and risks violating the Vienna Convention | Court held § 1608(a)(3)’s text does not require mailing to a particular location; mailing to the minister via the embassy (and embassy acceptance) satisfied service requirements |
| Whether service via an embassy violates the Vienna Convention’s inviolability and immunities | Plaintiffs: service addressed to the minister via embassy, accepted by embassy, is not service on the mission and does not breach the Vienna Convention | Sudan & U.S. (amicus): permitting service via embassies conflicts with the U.S. policy and Vienna Convention obligations, and risks other states serving the U.S. via its missions | Court held no conflict: the Vienna Convention bars service on a mission or diplomat as agent, but here papers were addressed to the minister and embassy consented by accepting delivery; acceptance = consent; states may still instruct missions to refuse such deliveries |
| Whether the court should consider Sudan’s factual challenge that the package was not delivered | Plaintiffs: record shows delivery and receipt; challenge too late | Sudan: signatures illegible and asserts package never arrived; factual dispute about delivery | Court refused to consider the late factual challenge—raised first on appeal and on reply brief—and noted such challenges require district-court factfinding |
| Whether OFAC license was required before enforcement/turnover of blocked assets | Plaintiffs: TRIA § 201(a) authorizes execution against blocked assets without OFAC license where TRIA applies | U.S. (on rehearing) argued FSIA § 1610(g) does not override OFAC licensing requirements and OFAC rules must be followed | Court clarified: where TRIA § 201(a) applies it displaces OFAC licensing (TRIA’s ‘‘notwithstanding’’ language); § 1610(g) alone does not displace OFAC licensing—if TRIA does not apply, an OFAC license is required |
Key Cases Cited
- United States v. Dauray, 215 F.3d 257 (2d Cir. 2000) (statutory interpretation starts with plain meaning)
- Burrage v. United States, 134 S. Ct. 881 (U.S. 2014) (courts apply statute as written)
- Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (U.S. 1994) (Congress must use clear text to impose liability)
- Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004) (diplomats and those with diplomatic immunity are not proper agents for service under FSIA)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (U.S. 1989) (FSIA is sole basis for jurisdiction over foreign states in U.S. courts)
- Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (U.S. 1982) (executive-branch views get great weight but are not conclusive)