838 F.3d 86 (2nd Cir. 2016), 14-121-cv, Harrison v. Republic of Sudan

Docket Nº:14-121-cv
Citation:838 F.3d 86
Opinion Judge:Chin, Circuit Judge
Party Name: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-...
Attorney:ANDREW C. HALL (Roarke Maxwell, on the brief), Hall, Lamb and Hall, P.A., Miami, Florida, for Plaintiffs-Appellees. CHRISTOPHER M. CURRAN (Nicole Erb, Claire A. DeLelle, on the brief), White & Case LLP, Washington, D.C., for Defendant-Appellant. DAVID S. JONES, Assistant United States Attorney (B...
Judge Panel:Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.[*]
Case Date:September 22, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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838 F.3d 86 (2nd Cir. 2016)

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

14-121-cv

United States Court of Appeals, Second Circuit

September 22, 2016

Argued March 11, 2016

Page 87

The Republic of Sudan petitions for panel rehearing or rehearing en banc of this Court's decision holding that service of process on the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C., was sufficient to meet the requirements of the Foreign Sovereign Immunities Act (the " FSIA" ). The United States, as amicus curiae, supports the Republic of Sudan and seeks clarification on the issue of whether § 1610(g) of the FSIA overrides the requirement of a license from the Treasury Department's Office of Foreign Assets Control. The petition is DENIED to the extent it seeks panel rehearing.

ANDREW C. HALL (Roarke Maxwell, on the brief), Hall, Lamb and Hall, P.A., Miami, Florida, for Plaintiffs-Appellees.

CHRISTOPHER M. CURRAN (Nicole Erb, Claire A. DeLelle, on the brief), White & Case LLP, Washington, D.C., for Defendant-Appellant.

DAVID S. JONES, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America as Amicus Curiae.

Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.[*]

OPINION ON PETITION FOR REHEARING

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Chin, Circuit Judge

On September 23, 2015, we affirmed three orders of the United States District Court for the Southern District of New York (Torres, J. ) directing certain banks to turnover assets of defendant-appellant Republic of Sudan (" Sudan" ) to satisfy a judgment entered in favor of plaintiffs against Sudan in the United States District Court for the District of Columbia (the " D.C. District Court" ), in the amount of $314,705,896. Sudan petitions for panel rehearing or rehearing en banc, supported by the United States of America, as amicus curiae.

After further briefing and argument, upon due consideration, we adhere to our decision to affirm. The petition is DENIED to the extent it seeks panel rehearing.

BACKGROUND

The facts and procedural history are set forth in our September 23, 2015 opinion, familiarity with which is assumed. See Harrison v. Republic of Sudan, 802 F.3d 399 (2d Cir. 2015) (the " Panel Opinion" ). We summarize the background as follows:

This case arises from the bombing of the U.S.S. Cole in the port of Aden, Yemen, in 2000. Sailors and spouses of sailors injured in the explosion brought suit against Sudan in the D.C. District Court under the

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FSIA, 28 U.S.C. § § 1330, 1602 et seq., alleging that al Qaeda was responsible for the attack and that Sudan had provided material support to al Qaeda.

The action was commenced in October 2010, and, at plaintiffs' request, the Clerk of the D.C. District Court served the summons and complaint on Sudan in November 2010 by mailing the papers to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C. The papers were sent via registered mail, return receipt requested to: Republic of Sudan

Deng Alor Koul

Minister of Foreign Affairs

Embassy of the Republic of Sudan

2210 Massachusetts Avenue NW

Washington, DC 2008

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," via the Sudanese Embassy in Washington, D.C., 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 by mail to the address of 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. At the request of plaintiffs, on April 20, 2012, the Clerk of the Court mailed a copy of the default judgment by registered mail, return receipt requested, to Sudan's Minister of Foreign Affairs, via the Sudanese Embassy in Washington, D.C. While it does not appear that the receipt was returned, plaintiffs submitted proof that the mailing was delivered.

The judgment was thereafter registered in the Southern District of New York. In December 2013 and January 2014, the Southern District issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs. It was only after the last of these three turnover orders was entered that Sudan finally filed a notice of appearance, on January 13, 2014. The same day, Sudan appealed the turnover orders to this Court.1

In affirming the turnover orders, we held that service of process on the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C., was sufficient to meet the requirements of the FSIA. Harrison, 802 F.3d at 406. We also held that the District Court did not err in issuing the turnover orders without first obtaining a license from the Treasury Department's Office of Foreign Assets Control (" OFAC" ) or a Statement of Interest from the Department of Justice. Id. at 407.

On October 7, 2015, Sudan filed this petition for panel rehearing or rehearing

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en Banc. Although it had not appeared in the earlier proceedings, the United States filed an amicus brief in support of the petition on November 6, 2015. After further briefing, we heard argument on March 11, 2016. We now deny the petition to the extent it seeks panel rehearing.

DISCUSSION

Sudan and the United States argue that the Panel Opinion misinterprets § 1608(a)(3) of the FSIA and puts the United States in violation of its obligations under the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227 (entered into force in United States Dec. 13, 1972) [hereinafter " Vienna Convention" ]. In its reply brief, Sudan also makes the factual argument that the summons and complaint were not actually delivered to the embassy. Finally, as to the issue of the requirement of an OFAC license, the United States argues that the FSIA does not override the requirement of an OFAC license. We address each of these issues in turn.

I.

Interpretation of § 1608(a)(3)

Sudan and the United States argue that the Panel Opinion incorrectly interprets § 1608(a)(3) of the FSIA. We acknowledge that the statutory interpretation question presents a close call, and that the language of § 1608(a)(3) is not completely clear. Nonetheless, for the reasons discussed below, we believe, as a matter of statutory construction, that the better reading of the statute favors plaintiffs' position. Accordingly, we adhere to our prior decision.

A.

The Plain Language

The " starting point in statutory interpretation is the statute's plain meaning, if it has one." United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000). Section 1608(a)(3) of the FSIA reads: " Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state . . . by sending a copy of the summons and complaint and a notice of suit . . . 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." 28 U.S.C. § 1608(a)(3).2

On its face, the statute does not specify a location where the papers are to be sent; it specifies only that the papers are to be addressed and dispatched to the head of the ministry of foreign affairs. Nothing in § 1608(a)(3) requires that the papers be mailed to a location in the foreign state, or indeed to any particular address, and nothing in the statute...

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