On May 19, 2014, the United States Supreme Court invited the Solicitor General to file a brief in OBB v. Sachs (No. 13-1067), a case that I have previously discussed. Given that Sachs involves the key issue of attribution under the FSIA — an issue that has not be addressed by the Supreme Court for over thirty years — it will be very interesting to see the Solicitor General’s response to the CVSG.
Two recent decisions reaffirm the need for a plaintiff’s strict compliance with the service requirements set forth in 28 U.S.C. section 1608(a). Although I have addressed the standard for service upon a foreign state before, the new decisions demonstrate the practical effect of a strict compliance standard in FSIA litigation.
First, in Barot v. Embassy of Republic of Zambia, CV 13-0451 (ABJ), 2014 WL 1400849 (D.D.C. Apr. 11, 2014), the district court held that the plaintiff failed to comply with section 1608(a)(3)’s requirement that service of process must “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). Instead of addressing the package to the head of the foreign ministry, the plaintiff addressed the mailing to the “Embassy of Zambia, P.O. Box 50069, Lusaka City, Zambia.” Barot, 2014 WL 1400849, at *5. While the district court noted that it “would be inclined to overlook such a technical error” in another context, the court held that section 1608(a) requires strict compliance and that the service attempt “did not comply with the strict terms of section 1608(a)(3).” Id. at *5-6.
Second, in Doe v. Holy See, CIV.A. 13-128, 2014 WL 1329985 (E.D. La. Apr. 2, 2014) (a case in which I am one of the attorneys for the foreign sovereign), the district court held that service of the original complaint did not strictly comply with section 1608(a) when the complaint had been amended before service was accomplished. The court held that “the plaintiff’s attempted service of process failed to strictly comply with the FSIA’s service requirements in 28 U.S.C. § 1608(a) because the plaintiff failed to serve the operative amended complaint [and] did not serve a translation of the operative complaint.” Id. at *6.
The strict compliance standard requires plaintiffs to follow the rules set forth under section 1608(a) and the underlying federal regulations. When a plaintiff fails to do so, there is a good chance that the plaintiff will be compelled to return to square one.