The United States’ Foreign Sovereign Immunities Act of 1976 (FSIA) ¹ is the exclusive basis for a U.S. court to exercise jurisdiction over a foreign state defendant (or a political subdivision of that state). ² To that end, the FSIA lays out the procedural steps, including service of process on the defendant state, required before a foreign state may be sued in U.S. courts. ³

A new U.S. Supreme Court decision, Republic of Sudan v. Harrison, interpreted one of the FSIA’s procedural steps related to service of process, which is the procedure that provides a foreign state with notice of a legal action against it. ⁴ Section 1608 of the FSIA sets out four methods a plaintiff may use to accomplish service upon a foreign state defendant. ⁵ A majority of the Court found that one of these methods, service by mail with signed receipt under section 1608(a)(3), requires a plaintiff to mail a service packet ⁶ directly to the defendant state’s foreign minister’s office in the minister’s home country. ⁷ Mailing to the foreign state defendant’s embassy in the United States does not suffice. This holding has important implications for sovereigns sued in U.S. courts and for persons or entities that might wish to sue a foreign sovereign in U.S. courts. Without valid service, a U.S. court cannot exercise jurisdiction over a foreign sovereign, and the case cannot proceed.

I. BACKGROUND

In the aftermath of al Qaeda’s suicide bombing of the U.S.S. Cole, several survivors and their family members (respondents) sued the Republic of Sudan. They alleged that Sudan provided material support to al Qaeda for the attack. ⁸

The respondents mailed a service packet to Sudan’s Minister of Foreign Affairs at the Sudanese Embassy in the United States and received a signed return receipt. Yet Sudan failed to appear in court, which entered a $314 million default judgment against it. Sudan entered an appearance and appealed, challenging the validity of service. ⁹

The appellate court rejected Sudan’s argument that service under the FSIA required that the service packet be sent to its foreign minister in Sudan rather than to the Sudanese Embassy in the United States. Because the statute was silent as to where the mailing must be sent, the appellate court reasoned, the respondents’ method was consistent with the FSIA’s language and could be reasonably expected to result in delivery of service to the Sudanese foreign minister. ¹⁰Another 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”?¹²The 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 addressedand 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

For these reasons, the Court concluded that the “most natural reading” of section 1608(a)(3) requires that the service package be sent directly to the foreign minister’s office in the minister’s home country. ²¹

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.

For foreign sovereigns that may be sued in a U.S. court and for persons or entities wishing to sue a foreign sovereign in a U.S. court, the Court has importantly clarified that service by mail with signed receipt under section 1608(a)(3) requires a plaintiff to mail a service packet directly to the defendant state’s foreign minister’s office in the minister’s home country. Only then may a U.S. court exercise jurisdiction over a foreign sovereign and the case proceed.

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.

Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. In addition, this information was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any U.S. federal, state or local tax penalties that may be imposed on such person.

Attorney Advertising—Sidley Austin LLP, One South Dearborn, Chicago, IL 60603. +1 312 853 7000. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships, as explained at www.sidley.com/disclaimer.