Supreme Court Circuit Split Watch – Fourth Circuit’s Decision in Kumar v. Sudan, on Proper Service of Foreign States in the U.S.

By Michael Wein


The Fourth Circuit Court of Appeals three weeks ago issued a reported opinion in Kumar et al. v. Sudan, addressing how and where a foreign country may be served under 28 U.S.C. § 1608(a)(3), which allows, in pertinent part, service by mail “requiring a signed receipt[] to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” This case traces to the U.S.S. Cole bombing in 2000, when 17 Navy sailors lost their lives in a terrorism act against the servicemen and women docked in Yemen.   While al Qaeda claimed responsibility as the source of the bombing, Sudan’s material support for the terrorist organization, was a focus of civil suits holding the country responsible in the tragedy.   As Sudan similarly did in the face of civil suits filed in the District Court for the District of Columbia, (tracing to the 1998 Embassy Bombings in Tanzania and Kenya also by al Qaeda), Sudan felt that the proper response was apparently to not respond at all.[i]

This civil suit originated in the Eastern District of Virginia, with service mailed to the Sudanese embassy in Washington, D.C. The envelope was accepted by someone at the embassy, who signed the certified mail receipt. The litigation went on, without response from the defendant, for over a decade, on Sudan’s responsibility. After delays, (including intervening Congressional Acts amending the Foreign Sovereign Immunity Act (FSIA) and its “terrorist exception”), the $34 million-dollar default judgment was entered in March of 2015.  Slip Op. at 17. [ii] A little more than 30 days later, Sudan sought to challenge the judgment, entered its appearance in the matter and moved to vacate the default judgment, contending in part that mailing the service to the Sudanese embassy did not comport with § 1608.  Id. at 18. The district court denied Sudan’s motion to vacate.

In the Fourth Circuit this time, in an opinion by Judge Agee, reversed, vacated the default judgment and remanded the case, reasoning that service of process was not accomplished by mailing the embassy:

Because the Appellees’ method of serving process did not comport with the statutory requirements of 28 U.S.C. § 1608(a)(3), we hold the district court lacked personal jurisdiction over Sudan. Accordingly, we reverse the district court’s order denying Sudan’s motion to vacate, vacate the judgments, and remand with instructions.


In view of the ambiguity in § 1608(a)(3) as to the place of service, we conclude the legislative history, the Vienna Convention, and the State Department’s considered view to mean that the statute does not authorize delivery of service to a foreign state’s embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs. Put another way, process is not properly “addressed and dispatched to” the head of the ministry of foreign affairs as required under § 1608(a)(3) when it is delivered to the foreign state’s embassy in Washington, D.C. We recognize that this holding adds to the existing tension between the courts of appeals’ interpretations of § 1608(a)(3), but it aligns with the greater weight of those holdings.

Id. at 14, 30-31 (citations omitted) (emphasis added).

Thus, the Certworthy issue based on the ambiguity of the statute, is not necessarily what is proper service with an unusual recalcitrant foreign state in the role of defendant,  but whether service under § 1608 (a)(3) is sufficient under the third “hierarchical” subsection of the statute, to the U.S. embassy of a foreign government.  Options one and two usually suffice through “any special arrangement…between Plaintiff [and Defendant]” or “by delivery…in accordance with an applicable international convention on service judicial documents.”  See 28 U.S.C. § 1608(a)(1) and (2).    So you have to at least try to go through public diplomatic channels first, and if subsection (3 is being wrongly interpreted as being “too easy,” it could reduce the vitality of the other subsections.

The statute has a further “last” option of subsection (4) of service via “signed receipt,” but requires that the Court in a process similar to substitute service requests done in regular litigation with recalcitrant defendants, issue the service after the first 3 options are exhausted or not applicable and order the “Secretary [of State, Director of Special Consular Affairs] shall send transmit [a] copy of the papers through diplomatic channels to the foreign state [with proof of transmittal].”  See 28 U.S.C. § 1608(a)(4).  Thus, because of the ordered schema involved, the whole of the statute need to be considered, and why the State Department’s interpretation in this case, may be relevant.

However, the Fourth Circuit recognized its interpretation on the location of service to be a split with other circuits, namely the Second Circuit, and explained the status of this “existing tension”:

A petition for certiorari in Harrison is currently pending before the Supreme Court, and the question presented squarely raises the issue of whether subsection (a)(3) and the Vienna Convention allow service of process “by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs ‘via’ or in ‘care of’ the foreign state’s diplomatic mission in the United States.” Pet. for a Writ of Cert. at i, Republic of Sudan v. Harrison, No. 16-1094 (U.S. Mar. 9, 2017). Shortly before we heard oral argument in this case, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States. Republic of Sudan v. Harrison, 138 S. Ct. 293 (2017) (mem.). At present, the Solicitor General has not filed its brief.

Id. at 32.

As noted in Kumar, the circuit split is apparent on this issue involving the Second, Fifth, Seventh, and D.C. Circuits (as well as now the Fourth), and the Supreme Court on October 2, 2017 requested a CVSG (Call for Views of the Solicitor General) in Republic of Sudan v. Harrison, the  case from the Second Circuit also involving Sudan.  This time table will likely permit consideration by the Supreme Court of the legal issue, not this session, but for potential oral arguments in October Term, 2018.   Copies of the Harrison Briefing documents are available on SCOTUSBLOG.

It is, however, presently unclear: (1) when the Solicitor General will be submitting their CVSG (which usually range 6-12 months after being requested), and (2) even when submitted and after permitting any supplemental filings to be done in response, if the Supreme Court will schedule for a Certiorari conference before the last conference in June 2018 before the Court breaks for summer recess.  The timing of the Certiorari conference could also conceivably be complicated, in awaiting for the Kumar case to be done in consideration and in conjunction with Harrison, when both are fully before the Supreme Court.

Perhaps unsurprisingly on January 30, 2018, counsel for Sudan in the Harrison case, filed a Second Supplemental Filing noting Kumar as attached authority that “deepens—and makes express—the Circuit Split”[iii]  Given the Solicitor General’s significant involvement in Kumar, including as Amici requesting the Fourth Circuit reverse, they would very likely ask the Supreme Court grant Certiorari review on the legal issue of whether service is permissible on a foreign government on the U.S. Embassy of that country, under the service statute, and in accord with the Vienna Convention. The recommendation of the Solicitor General, is traditionally afforded great weight in the Supreme Court, though is not determinative.  However, as part of the CVSG recommendation, it is uncertain if the Solicitor General’s office would find Harrison and/or Kumar, to be the best vehicle to resolve the circuit split.


[i]  As noted in an appeal from the $10.2 billion default judgment in Owens et al. v. Sudan, later reduced in the D.C. Circuit Court of Appeals this past July, to $5.9 billion, Sudan’s reasons for not timely challenging the civil suits was as follows:

In its motion, Sudan submitted a three-page declaration from Maowia Khalid, the Ambassador of Sudan to the United States, explaining its failure to participate in much of the litigation. First, the Ambassador asserted Sudan’s ongoing domestic problems, including natural disasters and civil war, rendered it unable to appear. […] Second, the Ambassador said a ‘fundamental lack of understanding in Sudan about the litigation process in the United States’ accounted its prolonged absence from the litigation. […] The district court soundly rejected both reasons. On Sudan’s domestic troubles, the district court noted that “[s]ome of that turmoil . . . has been of the Sudanese government’s own making,” but, regardless of blame, Sudan could not excuse at least six years of nonparticipation without sending a single communication to the court.  The court further doubted the credibility of Sudan’s alleged ignorance of U.S. legal procedure. After all, Sudan had used this excuse to escape an earlier default in the same litigation, and the “fundamental-ignorance card cannot convincingly be played a second time.”

Owens v. Sudan, 864 F.3d 751, 819 (D.C. Cir. 2017) (internal citations omitted).

[ii] An earlier version of the litigation had concerns of res judicata, and eventually was reversed in 2013 by the Fourth Circuit, which led to the most recent 2015 judgment. See Clodfelter v. Republic of Sudan, 720 F.3d 199 (4th Cir. 2013).

[iii] As noted in Sudan’s Second Supplemental Filing in Harrison, “Kumar underscores, and makes express, the unequivocal circuit split regarding the proper interpretation of § 1608(a)(3). The conflict between the circuits as to what constitutes effective service under § 1608(a)(3) could hardly be more square: Kumar and Harrison involved the same underlying incident, the same service method, and the same subsection of the same statute. But the Second and Fourth Circuits have reached opposing outcomes on the same legal question, with the Fourth Circuit aligning with prior decisions by the D.C., Fifth, and Seventh Circuits.”



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