January 22, 2018 / 8:07 PM / in 3 months

4th Circuit splits with 2nd, rebuffs USS Cole bombing victims suing Sudan

(Reuters) - It has been more than 17 years since Al Qaeda bombers steered a boatload of explosives into the USS Cole, a warship refueling in Yemen. The attack killed 17 American sailors and injured 42 others.

Victims of the bombing have long alleged the Republic of Sudan enabled Al Qaeda’s attack. In March 2015, after more than a decade of litigation by survivors of the sailors killed on the USS Cole, U.S. District Judge Robert Doumar of Norfolk, Virginia, entered a default judgment against Sudan: $20 million in compensatory damages and $14 million in punitive.

On Friday, a three-judge panel at the 4th U.S. Circuit Court of Appeals vacated the judgment. Judges Harvie Wilkinson, Allyson Duncan and Steven Agee held Sudan did not receive proper notice of the suit (since split into individual cases), even though plaintiffs arranged for the clerk of the court to send a certified letter of service to the Sudanese foreign minister, via Sudan’s embassy in the United States. The 4th Circuit found that the Foreign Sovereign Immunities Act and the 1961 Vienna Convention on Diplomatic Relations require plaintiffs to serve officials of foreign governments in their own countries.

The appellate ruling obviously delays any final resolution of claims by the sailors’ families. Their lead lawyer, Andrew Hall of Hall Lamb Hall & Leto, said he will probably ask for reconsideration of the 4th Circuit decision but will also send notice of the suits to Sudanese officials in Khartoum so the case can begin again in the trial court. His side may face a tougher go if the suits end up being retried, though. Sudan’s lawyers at White & Case said in their brief to the 4th Circuit that Sudan, which was embroiled in a civil war when its embassy received notice of the sailors’ suit, will show up this time around “to demonstrate that it did not provide material resources or support to Al Qaeda for the Cole bombing,” the brief said.

But the 4th Circuit decision also has implications beyond the USS Cole case: It adds considerable urgency to Sudan’s pending petition for Supreme Court review of a 2nd Circuit ruling that reached precisely the opposite conclusion about the adequacy of service via a foreign sovereign’s U.S. embassy. The split between the circuits could not be more stark: The 2nd Circuit decision came in a suit by sailors injured in the USS Cole bombing, who were seeking to execute in New York a default judgment they won against Sudan in the District of Columbia. Those sailors, like the families in the case at the 4th Circuit, are represented by the Hall Lamb firm. White & Case represents Sudan in both cases.

The Supreme Court asked the U.S. solicitor general in October to provide a brief addressing the Sudanese petition. The Justice Department has not yet weighed in – but in amicus filings in both the 2nd and 4th Circuits, the U.S. government has sided with Sudan, arguing that the U.S. does not accept notice of private lawsuits in its overseas embassies so it cannot expect foreign sovereigns to be served at their U.S. ministries.

Sudan’s petition for Supreme Court review had asserted the 2nd Circuit ruling is at odds with decisions by the D.C., 5th and 7th Circuits. But the 4th Circuit opinion is a far more dramatic illustration of the split over serving foreign sovereigns via their U.S. embassies. The cases involve nearly identical claims and nearly identical means of service by the exact same plaintiffs’ firm – as Sudan will surely inform the Supreme Court in a supplemental brief.

Is this seemingly arcane question of how properly to serve notice of private litigation on a foreign sovereign important enough to warrant the Supreme Court’s attention? Sudan’s petition claims the issue arises in “potentially dozens” of cases a year. Libya, Saudi Arabia and the United Arab Emirates filed amicus briefs backing Sudan’s petition. Several law professors argued in an additional amicus brief that the 2nd Circuit decision “jeopardizes long-held principles of international law and diplomacy critical to the foreign policy of the United States.”

Plaintiffs’ lawyer Hall, on the other hand, said conservative justices may not be in any hurry to, in his words, “rewrite” the FSIA, which, according to Hall (and the 2nd Circuit), allows foreign sovereigns to be served via their U.S. embassies. “The question is, what does the Supreme Court want to do with this?” Hall said.

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