Case weighed by justices hinges on lawsuit mailing
WASHINGTON — The Supreme Court on Wednesday debated whether to overturn a nearly $315 million judgment against Sudan stemming from the 2000 bombing of a naval destroyer.
The question the justices are being asked to answer is where notice of the lawsuit against Sudan should have been mailed: to its embassy in Washington or its Foreign Ministry in the country’s capital, Khartoum.
It wasn’t clear how the justices would rule.
The U.S. government has weighed in on the side of Sudan and against victims of the October 2000 bombing of the USS Cole, which killed 17 sailors and injured dozens of others. In the case the justices were hearing, a group of injured sailors sued Sudan in a U.S. court, arguing that Sudan had provided support to al-Qaida, which claimed responsibility for the attack in Yemen.
In order to alert Sudan to the lawsuit, the group mailed the required notice to the Sudanese Embassy in Washington. Sudan never responded, and a court entered an approximately $315 million judgment against the country. Sudan wants that judgment thrown out, arguing that notice of the lawsuit should have been sent overseas. President Donald Trump’s administration agrees.
LITTLE SIGN OF SPLIT
The case did not seem to be one that would split the court along ideological lines. Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan seemed to approve of sending notice of the lawsuit to the embassy. Roberts said that his “first thought” if he wanted to send mail to a foreign official would be: “Why don’t I deliver it to the embassy?” Kagan, meanwhile, told lawyer Christopher Curran, who was arguing on behalf of Sudan, that “everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government.”
But Erica Ross, arguing on behalf of the Trump administration, told the justices that the United States doesn’t accept notice of lawsuits at its embassies abroad and that the U.S. has an interest in seeing foreign countries “brought into our courts only under the same circumstances that we ask abroad.”
Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch and Brett Kavanaugh expressed an inclination to side with the United States and Sudan. Sotomayor said it seemed natural to notify a foreign minister of a lawsuit “where you’re likely to find them,” not at an embassy where they aren’t regularly present.
A 1976 law, the Foreign Sovereign Immunities Act, lays out how to properly notify another country of a lawsuit filed in a U.S. court. If other agreements between the countries don’t exist, the law says, the notice should be “addressed and dispatched … to the head of the ministry of foreign affairs of the foreign state concerned.”
Lawyers for Sudan and for the U.S. government say the best reading of the law is that it requires the notice to be sent to the foreign minister in the foreign country. They also point out that an international treaty called the Vienna Convention on Diplomatic Relations, which the United States signed, has been interpreted as prohibiting notice of a lawsuit being mailed to an embassy.