Tag Archives: Strict Compliance

“Head of the Foreign Ministry” is Strictly Construed Under Section 1608(a)

October 8, 2014 By in Service of Process Tags: , , , , Leave a comment

In Barot v. Embassy of Republic of Zambia, No. CV 13-0451 (ABJ), 2014 WL 2443868 (D.D.C. June 2, 2014) – a case that I have discussed before – the court reaffirmed that strict compliance under section 1608(a) requires careful adherence to all of the service requirements. 

The plaintiff in Barot argued that sending service documents to the Zambia’s Ministry of Foreign Affairs complied with section 1608(a)(3)’s requirement that the documents be sent to “the head of the ministry of foreign affairs of the foreign state concerned.”  28 U.S.C. § 1608(a)(3).  The court disagreed, finding the service defective because “[t]he plain language of the statute requires that the service package be addressed to the head of the ministry, or the minister of foreign affairs, not to the ministry in general.”  Barot, 2014 WL 2443868, at *2.  The district court also rejected plaintiff’s argument that “no other court has required ‘head of’ or the name of the minister before there is proper service under section 1608(a)(3),” holding that such a contention “ignores the plain language of that section[] and . . . overlooks the fact that this issue has not been presented to a court before.”  Id. at *3.

Barot should serve as a reminder to plaintiffs that courts will not excuse even relatively minor defects in service on a foreign state under section 1608(a).  To the extent that a plaintiff is uncertain about service requirements under section 1608(a), the plaintiff should seek legal counsel to help ensure that service is perfected.

The Practical Impact of Strict Compliance Under Section 1608(a)

May 15, 2014 By in Service of Process Tags: , , , , Leave a comment

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.

Litigation Comment: Richardson v. Attorney General of the British Virgin Islands

November 22, 2013 By in Officials Tags: , , , , , , , , , , , Leave a comment

Another blog devoted to issues relating to foreign sovereigns in United States courts recently mentioned the case Richardson v. Attorney General of the British Virgin Islands, Civil No. 2008-144, 2013 WL 4494975 (D.V.I. Aug. 20, 2013).  See www.foreignsovereignblog.com.  Although Richardson is unusual because the foreign sovereign is appearing pro se, the case is indeed interesting for a number of reasons:

Capacity: Richardson addresses the circumstances under which a lawsuit against a foreign sovereign official should be deemed a lawsuit against the foreign sovereign itself.  Richardson, 2013 WL 4494975, at *2.  The official capacity issue frequently arises with respect to domestic government officials.   Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.  It is not a suit against the official personally, for the real party in interest is the entity”).  In Samantar, the Supreme Court recognized that it was an issue under the FSIA as well: “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”  Samantar v. Yousuf, 560 U.S. 305, 325 (2010), citing Graham, 473 U.S. at 166.  It is an issue that should be kept in mind whenever an attorney confronts a case against a foreign sovereign official.

Waiver: The Richardson court correctly held that a foreign state does not waive immunity simply by failing to appear in the matter.  Richardson, 2013 WL 4494975, at *4.  However, the court also accurately stated that a foreign state does waive immunity if it fails to assert immunity in a responsive pleading – which, according to a docket check, is what the pro se foreign sovereign defendant may just have done in a recent filing.  Id.  Richardson highlights that a foreign sovereign can actually increase the risk of waiver by appearing in the action, particularly if defense counsel is not familiar with the FSIA’s waiver rules.

Commercial Activity: In analyzing whether the plaintiff’s claims involved commercial activity, the Richardson court examined whether the conduct was “of a nature that a private person would undertake for profit.”  Richardson, 2013 WL 4494975, at *4.  The “for profit” test is controversial, particularly given the nature/purpose language in 28 U.S.C. section 1603(d).  However, there is a strong argument that whether or not an activity is the type customarily undertaken for profit is an appropriate factor to consider, and I address that issue here.

Scope of Employment/Respondeat Superior: The Richardson court quotes the Fifth Circuit’s decision in Moran for the following proposition relating to the tort exception’s “scope of employment” requirement: “‘[T]he scope of employment provision of the tortious activity exception requires a finding that the doctrine of respondeat superior applies to the tortious act or omission committed by the officer or employee of the foreign state.’”  Richardson, 2013 WL 4494975, at *5, quoting Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 173 (5th Cir. 1994).  This again is an issue for a future post, but courts and attorneys in FSIA cases should be careful not to equate the tort exception’s “scope of employment” requirement with a respondeat superior analysis.  Under most circumstances the two are identical, but in certain situations there is a big difference.  Cf. Primeaux v. United States, 181 F.3d 876 (8th Cir. 1999) (en banc).

Political Subdivision: Richardson determined that BVI was a political subdivision of the United Kingdom for purposes of the FSIA.  Richardson, 2013 WL 4494975, at *10.  On its face that determination appears correct, but it is worth noting that there are not many cases under the FSIA addressing what is meant by the term “political subdivision.”  Under the right circumstances, the political subdivision issue is one that could involve very interesting litigation.

Strict Compliance: The Richardson court correctly held that a plaintiff must strictly comply with section 1608(a)’s service of process requirements.  See Richardson, 2013 WL 4494975, at *8; see also https://fsialaw.com/2013/11/07/the-ninth-circuits-substantial-service-error/.  However, Richardson is unusual in that the court appeared to hold that the strict compliance standard applied to the requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 658 U.N.T.S. 163 (“Hague Service Convention”).  See Richardson, 2013 WL 4494975, at *13; see also 28 U.S.C. § 1608(a)(2).  There are not many cases under section 1608(a)(2), but applying a strict compliance standard to the Hague Service Convention requirements appears to be a logical extension of FSIA service precedent.

Official Immunity: Official immunity is relatively straightforward when the Executive Branch files a suggestion of immunity.  See, e.g., Rosenberg v. Lashkar-e-Taiba, — F. Supp. 2d — , 2013 WL 5502851 (E.D.N.Y. Sept. 30, 2013).  Richardson provides an example of a court finding a foreign sovereign official immune even in the absence of a suggestion of immunity from the Executive Branch.  Richardson, 2013 WL 4494975, at *16; see also Samantar, 560 U.S. at 311 (discussing that, under the common law, a district court “had authority to decide for itself whether all the requisites for such immunity existed” in the “absence of recognition of the immunity by the Department of State”) (citations and internal quotations omitted).  A court determination of official immunity can be a useful tool for FSIA defense counsel in cases against officials or in situations where discovery is sought from foreign sovereign officials.

The Ninth Circuit’s Substantial Service Error

November 7, 2013 By in Service of Process Tags: , , , , , , , 1 Comment

This blog dedicated to FSIA jurisprudence begins, fittingly, by addressing the issue that confronts parties at the start of FSIA litigation: service of process.

On December 10, 2010, in Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir. 2010), the Ninth Circuit created a circuit split with respect to a significant issue relating to service of process under the FSIA.  The ruling has attracted little attention or commentary.  But the Peterson court’s decision was in error, and it should one day be challenged.

The basic rules relating to service of process under the FSIA are well known.   Service upon a foreign state is governed by 28 U.S.C. section 1608(a), whereas the requirements for service upon a foreign state agency or instrumentality are set forth in section 1608(b).  Until the Ninth Circuit’s decision in Peterson, the law was unambiguous: a plaintiff had to strictly comply with section 1608(a)’s requirements for service upon a foreign state.  See, e.g., Magness v. Russian Fed’n, 247 F.3d 609, 611 (5th Cir. 2001) (“strict compliance”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153-54 (D.C. Cir. 1994) (“strict adherence”); Gray v. Permanent Mission of People’s Republic of Congo to United Nations, 443 F. Supp. 816, 821 (S.D.N.Y. 1978), aff’d, 580 F.2d 1044 (2d Cir. 1978) (“strict compliance”); Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 253 (7th Cir. 1983) (strict compliance); see also O’Bryan v. Holy See, 490 F. Supp. 2d 826, 831 (W.D. Ky. 2005) (“Service of process on a foreign state must be effected in strict compliance with the provisions of section 1608(a).”).  By contrast, with regard to service upon an agency or instrumentality, courts agreed that substantial compliance was sufficient.  See, e.g., Magness, 247 F.3d at 616 (“substantial compliance with section 1608(b) is sufficient so long as the defendants have actual notice of the suit”); see also Semtek Int’l Inc. v. Info. Satellite Sys., CIV.A. 09-10183-RWZ, 2012 WL 831475 (D. Mass. Mar. 9, 2012) (“While service on a ‘foreign state’ under FSIA § 1608(a) must be accomplished in accordance with standard of ‘strict compliance,’ service on an agency or instrumentality of a foreign state under § 1608(b) requires only ‘substantial compliance.'”).

As courts have found – and as I have previously successfully argued in FSIA litigation – there are weighty reasons underlying the more careful treatment of foreign states with respect to service of process.  Most importantly, application of a strict compliance standard comports with the statutory scheme.   For example, in the absence of a special arrangement or an international convention, section 1608(a) requires service upon the “head of foreign affairs of the foreign state concerned” – a requirement that is absent in Section 1608(b).  See 28 U.S.C. § 1608(a)(3); compare 28 U.S.C. § 1608(b).  In the event service by mail upon the foreign minister fails, service is permitted only through diplomatic channels – a procedure also absent in Section 1608(b).  See 28 U.S.C. § 1608(a)(4); compare 28 U.S.C. § 1608(b).  The adoption of high-level procedures in Section 1608(a)’s service provisions reflects Congress’s determination that service upon a foreign state has greater political and diplomatic significance, requiring a more exacting standard of compliance.  See Note, Service of Process Under the Foreign Sovereign Immunities Act of 1976: The Arguments for Exclusivity, 14 Cornell Int’l L. J. 357, 362 (1981) (“The utilization of diplomatic service when other methods fail [under Section 1608(a)], instead of court-ordered service [as permitted under Section 1608(b)], indicates an unwillingness on Congress’s part to entrust the courts with power to deal with foreign states and subdivisions.”).

The same holds true with Section 1608(a)’s notice of suit requirement, which is absent from section 1608(b).  The notice of suit was a “new document” created by Congress, unique to service upon foreign sovereigns and designed “to minimize potential irritants to relations with foreign states.”  H.R. Rep. No. 94-1487, at 11.  The notice of suit’s requirements are separate and distinct from notice requirements imposed by other rules.  See 28 U.S.C. § 1608(a); 22 C.F.R. § 93.2 (detailing notice of suit requirements).  The notice of suit reflects the added importance attached to service on foreign states and the need to minimize irritants to foreign relations, which both require service in accordance with the statute’s provisions.  See Arthur L. George, A Practical and Theoretical Analysis of Service of Process under the Foreign Sovereign Immunities Act, 19 Int’l Law. 49, 75 & n.177 (1985) (notice of suit required under Section 1608(a) demonstrates Congress’s “sensitivity to the need for greater delicacy in suits against foreign states themselves as opposed to their agencies and instrumentalities”).

In addition, the legislative history of Section 1608(a) – unlike the legislative history of Section 1608(b) – states that the Section 1608(a) service provisions provide the “exclusive procedures” for service upon a foreign state.  H.R. Rep. No. 94-1487, at 24; cf. H.R. Rep. No. 94-1487, at 25 (no “exclusive procedures” language in discussion of section 1608(b) provisions).  The “exclusive procedures” language “simply does not support a finding that anything less than strict compliance will suffice under the law.”  Magness, 247 F.3d at 615; see also Finamar Investors, 889 F. Supp. at 117 (same).

By contrast, section 1608(b) contains relatively informal service procedures that are akin to service provisions for foreign individuals and corporations under Rules 4(f) and (h)(2) of the Federal Rules of Civil Procedure rather than to service upon foreign states.  See, e.g., 28 U.S.C. § 1608(b)(3)(C) (permitting service “as directed by order of the court consistent with the law of the place where service is to be made”); see also George, supra, at 55 (stating that the service options under section 1608(b) “are more numerous and offer more flexibility than those of section 1608(a).”).  Indeed, section 1608(b)(3) explicitly allows a range of service options “if reasonably calculated to give actual notice.”  As several courts have found, the “actual notice” language in section 1608(b)(3) shows “that Congress was there concerned with substance rather than form; but the analogous subsection of Section 1608(a) says nothing about actual notice.”  Transaero, Inc., 30 F.3d at 154; see also Magness, 247 F.3d at 616 (same); Finamar Investors, 889 F. Supp. at 117 (same).

The distinctions in the service provisions are “neatly tailored to the differences between ‘foreign states’ and ‘agencies or instrumentalities.’  The latter, typically international commercial enterprises, often possess a sophisticated knowledge of the United States’ legal system that other organs of foreign governments may lack . . . .”  Transaero, Inc., 30 F.3d at 154; see also H.R. Rep. No. 94-1487, at 25 (foreign states may be “unfamiliar with U.S. law or procedures”).  Given Congress’s adoption of procedures to ensure service upon a foreign state which would both “minimize potential irritants to relations with foreign states” and take into consideration a foreign state’s lack of sophistication (H.R. Rep. No. 94-1487, at 11), leniency in section 1608(a) cases “would disorder the statutory scheme.”  Transaero, Inc., 30 F.3d at 154.  Accordingly, in keeping with the language, structure and legislative history of the FSIA, service upon foreign states requires strict compliance.

The Peterson court failed to address any of these issues.  Even worse, there is no indication that the court was ever advised of the relevant case law or legislative history.  Iran did not appear in the Peterson case, and neither the third-party’s answering brief nor the United States’ amicus brief addressed the standard applicable to service under section 1608(a).

Deprived of the benefit of adversarial briefing on the standard applicable to service of process, the Peterson court relied on Straub v. A P Green, Inc., 38 F.3d 448 (9th Cir. 1994), which had stated in a section 1608(b) case that “[w]e formally adopt a substantial compliance test for the FSIA.”  Id. at 453.  Citing Straub, Peterson stated that the “Ninth Circuit has adopted a substantial compliance test for the FSIA’s notice requirements; a plaintiff’s failure to properly serve a foreign state defendant will not result in dismissal if the plaintiff substantially complied with the FSIA’s notice requirements and the defendant had actual notice.”  But Straub was a case under section 1608(b), and therefore is not precedent on the standard applicable under section 1608(a).  See Straub, 38 F.3d at 451 (holding that defendant was “an instrumentality of a foreign state”); id. at 452-53 (addressing solely whether service had been effected under sections 1608(b)(2) and (b)(3)).  This was, in fact, the oral ruling of the United States District Court for the District of Oregon in John V. Doe v. Holy See (a case in which I represented the foreign sovereign defendant), where the court adopted a strict compliance standard notwithstanding the Ninth Circuit’s decision in Straub: “I believe that Straub intends to be a holding about the appropriate standard under subsection (b) or, more particularly, under subsection (b)(3), and that in the broader language in one sentence of that opinion isn’t an intention by the Ninth Circuit to decide a very important issue that wasn’t before the court in any way.”  Oral Transcript of February 5, 2004 Hearing, at 30 (on file with author).

In the aftermath of Peterson, it appears that district courts in the Ninth Circuit may no longer believe they have the flexibility to adopt a strict compliance standard under section 1608(a).  Cf. FSM Dev. Bank v. Arthur, 11-CV-05494-LHK, 2012 WL 1438834, at *4 (N.D. Cal. Apr. 25, 2012) (“Under the Ninth Circuit’s ‘substantial compliance’ test, which is binding on this Court, the pivotal factor is whether the defendant receives actual notice and was not prejudiced by the lack of compliance with the FSIA”) (emphasis in original).  That is a shame, because an important development in FSIA jurisprudence – and the creation of a circuit split – should be based upon reasoned legal analysis rather than a court error arising from the unusual non-adversarial posture of the relevant appellate proceedings.

If and when the issue presents itself again in the Ninth Circuit, Peterson should be challenged.  And if the challenge is carefully done, Peterson could be – and should be – reversed.