Another appellate court in a case presenting a similar service issue, however, held the opposite: Section 1608(a)(3) does not authorize service on a foreign embassy.11
II. THE SUPREME COURT’S DECISION
To resolve the conflicting interpretations, the Supreme Court addressed the question “is [service under section 1608(a)(3)] satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States”?12 The Court concluded that service is not satisfied in those circumstances.
The Court focused on the plain text of the FSIA:
- First, the Court considered the plain meaning of section 1608(a)(3), which requires service to be effected “by any form of mail requiring a signed receipt, to be addressed and dispatched … to the head of the ministry of foreign affairs of the foreign state concerned.”13 It considered the word “dispatch” to connote sending a letter directly to a recipient.14 The Court defined the word “address” to mean “a residence or place of business.”15 Because a foreign nation’s embassy in the United States is neither a residence nor the usual place of business of the foreign minister, service on a foreign nation’s embassy did not entail sending a letter directly to the foreign minister. A minister’s customary office is the place he or she works, “not a farflung outpost” abroad, visited “at most occasionally.”16
- Second, the Court examined section 1608(a)(3) in its statutory context, particularly in relation to section 1608(c), which sets out the rules for when service occurs. Under each rule, service occurs “only when there is a strong basis” to conclude that the foreign official will “very shortly thereafter” receive the service packet and know what do next.17 A mailroom employee, in a U.S.-based embassy, could not be relied on to provide that notification. Accordingly, a harmonious reading of sections 1608(a)(3) and (c) requires that the service packet be sent to a foreign minister’s office in his or her home country.18
- Third, the Court observed that a contrary reading of section 1608(a)(3) would make it easier to serve a foreign minister than a foreign individual. Service on a foreign individual requires a signature by the addressee or other evidence of delivery to the addressee.19 Service on a foreign minister through that foreign state’s embassy would not bear the signature of the foreign minister.20
III. IMPLICATIONS OF THE DECISION
The Court focused on resolving the appellate courts’ conflicting interpretations of section 1608(a)(3). At the same time, its decision avoided a potential conflict with the international law obligations of the United States over whether service of process on an embassy is an impermissible intrusion on the “inviolability” of foreign missions under the Vienna Convention on Diplomatic Relations.22 By holding that service by mail with signed receipt under section 1608(a)(3) cannot be validly made on a foreign embassy, the Court’s decision “has the virtue of avoiding potential tension” with the Convention.23 Applying the Court’s ruling should not present any question of compliance with the Convention in the future.
1The FSIA is codified at 28 U.S.C. §§1330, 1132, 1391(f), 1441(d), 1602-1611. Foreign states are immune from suit in U.S. courts, unless an exception to immunity provided by the FSIA applies. See 28 U.S.C. §§1604, 1605-1607.
2See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).
328 U.S.C. §1608(a).
4See Republic of Sudan v. Harrison, 587 U.S. ̲ ̲ ̲ (2019).
5Specifically, section 1608 sets out, in hierarchical order, four methods to accomplish service: first, by special arrangement for service between the complainant and the foreign state; second, if no special arrangement is available, then by the rules in an applicable convention on service of judicial documents; third, if service cannot be made under the foregoing two methods, by mail requiring signed receipt to the ministry of foreign affairs; or, fourth, if service cannot be made within 30 days under the third method, then by mail requiring a signed receipt to the Director of Special Counselor Services and through diplomatic channels. See 28 U.S.C. §1608(a) (emphasis added).
6A service packet includes a copy of the summons and complaint.
7Harrison, 587 U.S. at 1. Justice Thomas dissented. See Republic of Sudan v. Harrison, 587 U.S. ̲ ̲ ̲ (2019) (Thomas, J., dissenting).
8Id. at 3.
9Id. at 3-4.
10Harrison v. Republic of Sudan, 802 F.3d 399, 404-06 (2d Cir. 2015); see also Harrison v. Republic of Sudan, No. 14-121cv, slip op. at 6, 9-10 (2d Cir. 2016) (denying petition for rehearing en banc).
11Harrison, 587 U.S. at 5 (referring to Kumar v. Republic of Sudan, 880 F. 3d 144 (2018), cert. pending, No. 17-1269).
12Harrison, 587 U.S. at 1.
1328 U.S.C. § 1608(a)(3) (emphasis added); Harrison, 587 U.S. at 5-6.
14Harrison, 587 U.S. at 7.
15Id. at 6-7.
16Id. at 9.
17Id. at 12.
18Id. at 12.
19Rule 4 of the Federal Rules of Civil Procedure.
20Harrison, 587 U.S. at 13-14.
21Id. at 1, 17.
22Id. at 14.
23Id. at 13.
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