Harrison v. Republic of Sudan
| Decision Date | 23 September 2015 |
| Docket Number | Docket No. 14–121–cv. |
| Parties | Rick HARRISON, John Buckley, III, Margaret Lopez, Andy Lopez, Keith Lorensen, Lisa Lorensen, Edward Love, Robert McTureous, David Morales, Gina Morris, Martin Songer, Jr., Shelly Songer, Jeremy Stewart, Kesha Stidham, Aaron Toney, Eric Williams, Carl Wingate, Tracey Smith, as personal representative of the Estate of Rubin Smith, Plaintiffs–Appellees, v. REPUBLIC OF SUDAN, Defendant–Appellant, Advanced Chemical Works , aka Advanced Commercial and Chemical Works Company Limited, aka Advanced Training and Chemical Works Company Limited, Accounts & Electronics Equipments, aka Accounts and Electronics Equipments, et al., Defendants, National Bank Of Egypt, Credit Agricole Corporate and Investment Bank, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew C. Hall (Brandon Levitt, on the brief), Hall, Lamb and Hall, P.A., Miami, FL, for Plaintiffs–Appellees.
Asim Ghafoor, Law Office of Asim Ghafoor, Washington, D.C., for Defendant–Appellant.
Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.**
On October 12, 2000, an explosive-laden skiff pulled up alongside the U.S.S. Cole, which was docked for refueling at the port of Aden, Yemen, and detonated. Seventeen U.S. Navy sailors were killed in the attack, and forty-two wounded
. Fifteen of the injured sailors and three of their spouses brought suit in 2010 in the United States District Court for the District of Columbia (the “D.C. District Court”) under the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., alleging that al Qaeda was responsible for the attack and that the Republic of Sudan (“Sudan”) had provided material support to al Qaeda. In 2012, the D.C. District Court entered a default judgment against Sudan in the amount of $314,705,896.
Plaintiffs registered the default judgment in the United States District Court for the Southern District of New York, and then sought to enforce it against funds held by New York banks. The District Court below (Torres, J.) issued the three turnover orders before us.
We hold that (1) service of process on the Sudanese Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C., complied with the FSIA's requirement that service be sent to the head of the ministry of foreign affairs, and (2) the District Court did not err in issuing the turnover orders without first obtaining either a license from the Treasury Department's Office of Foreign Assets Control (“OFAC”) or a Statement of Interest from the Department of Justice (“DOJ”).
We affirm.
Plaintiffs-appellants are sailors and spouses of sailors injured in the bombing of the U.S.S. Cole, who brought suit against Sudan in the D.C. District Court on October 4, 2010, under 28 U.S.C. § 1605A, the terrorism exception to the FSIA, alleging that Sudan provided material support to al Qaeda, whose operatives perpetrated the attack on the vessel.1
Pursuant to 28 U.S.C. § 1608(a)(3), plaintiffs filed an Affidavit Requesting Foreign Mailing on November 5, 2010, asking that the Clerk of Court mail the summons and complaint via registered mail, return receipt requested, to:
S.App. at 66. As represented by plaintiffs, Deng Alor Koul was the Minister of Foreign Affairs of Sudan at the time.
On November 17, 2010, the Clerk of Court entered a Certificate of Mailing certifying that the summons and complaint were sent via domestic certified mail to the “head of the ministry of foreign affairs,” at the Sudanese Embassy in Washington, D.C., id. at 67, and that the return receipt was returned to the Clerk of Court and received on November 23, 2010. No attempt was made to serve Sudan at the Ministry of Foreign Affairs in Khartoum, the capital. Sudan failed to serve an answer or other responsive pleading within sixty days after plaintiffs' service, see 28 U.S.C. § 1608(d), and the Clerk of Court thus entered a default against Sudan.
On March 30, 2012, after a hearing, the D.C. District Court (Lamberth, J. ) entered a default judgment against Sudan in the amount of $314,705,896, Harrison v. Republic of Sudan, 882 F.Supp.2d 23, 51 (D.D.C.2012), and found, inter alia, that service on Sudan had been proper, id. at 28.2 Following entry of the default judgment, plaintiffs filed a second Affidavit Requesting Foreign Mailing, requesting the Clerk to mail notice, this time of the Order and Judgment and the Memorandum Opinion entered by the D.C. District Court, by registered mail, return receipt requested. The Clerk certified in April 2012 that the documents had been mailed to Sudan's Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C. Sudan again failed to appear or contest the judgment.
On October 2, 2012, plaintiffs registered the judgment in the Southern District of New York, seeking to execute against respondent banks holding Sudanese assets frozen pursuant to the Sudan Sanctions Regulations, see 31 C.F.R. Part 538, and on May 9, 2013, plaintiffs filed a Notice of Pending Action.
On June 28, 2013, following a motion by plaintiffs, the D.C. District Court entered an order finding that post-judgment service had been effectuated, and that sufficient time had elapsed following the entry of judgment and the giving of notice of such judgment to seek attachment and execution, pursuant to 28 U.S.C. § 1610(c).3 On September 20, 2013, the district court below entered a similar order, finding both that sufficient time had passed since entry of the default judgment, and that service of the default judgment had been properly effectuated. Sudan failed to challenge these orders.
Plaintiffs then filed a series of petitions in the Southern District seeking turnover of Sudanese assets, including against Mashreqbank, BNP Paribas, and Credit Agricole Corporate and Investment Bank. The District Court granted the petitions, issuing turnover orders on December 12, 2013, December 13, 2013, and January 6, 2014, respectively. Plaintiffs served all three petitions, as well as their § 1610(c) motion, by U.S. mail addressed to Sudan's Minister of Foreign Affairs—at that point Ali Ahmed Karti, who had replaced Deng Alor Koul as represented by plaintiffs—via the Embassy of Sudan in Washington.
Sudan filed its notice of appearance on January 13, 2014, only after all three turnover orders were entered by the District Court below. The same day, Sudan timely appealed.4
Two issues are presented: (a) whether service of process on the Sudanese Minister of Foreign Affairs via the Sudanese Embassy in Washington complied with the requirement of 28 U.S.C. § 1608(a)(3) that service be sent to the head of the ministry of foreign affairs, and (b) whether the District Court erred in issuing turnover orders without first obtaining either an OFAC license or a DOJ Statement of Interest explaining why no OFAC license was required.
The FSIA provides the sole means for effecting service of process on a foreign state. See 28 U.S.C. § 1608(a) ; H.R.Rep. No. 94–1487, at 23 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6622 (). Four methods of service are prescribed, in descending order of preference. 28 U.S.C. § 1608(a)(1)(4). Plaintiffs must attempt service by the first method, or determine that it is unavailable, before attempting subsequent methods in the order in which they are laid out.
The first method is service “in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision.” Id. § 1608(a)(1). In the absence of such a special arrangement, the statute next permits service “in accordance with an applicable international convention on service of judicial documents.” Id. § 1608(a)(2). If neither of these first two methods is available, plaintiffs may proceed according to the third method, which permits service “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of 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 concerned. ” Id. § 1608(a)(3) (emphasis added). Finally, the statute provides that if service cannot be made under the first three paragraphs, service is permitted as a last resort “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state.” Id. § 1608(a)(4).
Here, it is undisputed that service in conformity with the first two methods was unavailable, because plaintiffs have no “special arrangement” for service with Sudan, and because Sudan is not a party to an “international convention on service of judicial documents.” Id. § 1608(a)(1)-(2). Thus, § 1608(a)(3) was the preferred method of service, and plaintiffs effectuated service in accordance with this paragraph. In the underlying litigation in the D.C. District Court, the Clerk of Court sent process by U.S. mail, return receipt requested, to the Minister of Foreign Affairs, Deng Alor Koul, via the Embassy of Sudan in Washington, D.C.
As an initial matter, plaintiffs complied with the first three clauses of 28 U.S.C. § 1608(a)(3). First, service could not be made under paragraphs (1) or (2) of § 1608(a). Second, plaintiffs directed the Clerk of Court to include in the service package a copy of the summons and complaint, and notice of suit, and the...
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