14‐121‐cv Harrison v. Republic of Sudan
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2015
(Argued: March 11, 2016 Decided: September 22, 2016)
Docket No. 14‐121‐cv
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.
ON PETITION FOR REHEARING
Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.*
The Republic of Sudan petitions for panel rehearing or rehearing en
banc of this Courtʹs 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 ʺFSIAʺ).
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 Departmentʹs Office of Foreign Assets
Control. The petition is DENIED to the extent it seeks panel rehearing.
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
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____________________________
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. ____________________________
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
(ʺSudanʺ) to satisfy a judgment entered in favor of plaintiffs against Sudan in the
United States District Court for the District of Columbia (the ʺD.C. District
Courtʺ), 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.
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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 ʺPanel Opinionʺ). 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 FSIA, 28 U.S.C.
§§ 1130, 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 plaintiffsʹ
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:
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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 ʺhead of the ministry of foreign affairs,ʺ 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 plaintiffsʹ 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
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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 Sudanʹs
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 Departmentʹs Office of
1 Nearly a year and a half later, after this appeal had been argued and while the appeal was pending, Sudan made a Rule 60(b) motion in the D.C. District Court to set aside the default judgment. Motion to Vacate Memorandum & Opinion, Harrison v. Republic of Sudan, No. 1:10‐cv‐01689‐RCL (D.D.C. June 14, 2015), ECF No. 55. That court has not yet decided that motion.
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Foreign Assets Control (ʺOFACʺ) 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 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 ʺVienna Conventionʺ]. 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.
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I. Interpretation of § 1608(a)(3)
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 plaintiffsʹ position. Accordingly, we adhere to our prior
decision.
A. The Plain Language
The ʺstarting point in statutory interpretation is the statuteʹs plain
meaning, if it has one.ʺ United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000).
Section 1608(a)(3) of the FSIA reads: ʺService 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
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the ministry of foreign affairs of the foreign state concerned.ʺ 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 precluded the method chosen by
plaintiffs. A mailing addressed to the minister of foreign affairs via Sudanʹs
embassy in Washington, D.C., was consistent with the language of the statute
and could reasonably be expected to result in delivery to the intended person.3
2 As we discuss in the Panel Opinion, the FSIA provides for four methods of service. Harrison, 802 F.3d at 403. The method set forth in § 1608(a)(3) is the method at issue in this case. 3 An embassy is a logical place to direct a communication intended to reach a foreign country. As explained by the United States State Department, ʺan embassy is the nerve center for a countryʹs diplomatic affairs within the borders of another nation, serving as the headquarters of the chief of mission, staff and other agencies.ʺ Diplomacy 101, What Is a U.S. Embassy?, http://diplomacy.state.gov/ discoverdiplomacy/diplomacy101/places/170537.htm; see also Rux v. Republic of Sudan, No. Civ.A. 2:04CV428, 2005 WL 2086202, at *16 (E.D. Va. Aug. 26, 2005), affʹd on other grounds, 461 F.3d 461 (4th Cir. 2006) (underscoring the ʺinherent reliability and security associated with diplomatic pouches,ʺ which, ʺunlike the United States Postal Service, DHL, or any other commercial carrier, is accorded heightened protection under international law to ensure safe and uncompromised delivery of documents between countriesʺ (citing Vienna Convention, art. 27)). We do not suggest that service could be made on a minister of foreign affairs via other offices in the United States or another
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Plaintiffs literally complied with the statute ‐‐ they sent a copy of the summons
and complaint addressed to the head of the ministry of foreign affairs of Sudan.
The statute does not specify that the mailing be sent to the head of
the ministry of foreign affairs in the foreign country. If Congress had wanted to
require that the mailing be sent to the minister of foreign affairs at the principal
office of the ministry in the foreign country, it could have said so ‐‐ but it did not.
See Burrage v. United States, 134 S. Ct. 881, 892 (2014) (ʺThe role of this Court is to
apply the statute as it is written—even if we think some other approach might
ʹaccor[d] with good policy.ʹʺ) (quoting Commissioner v. Lundy, 516 U.S. 235, 252
(1996)); Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.
164, 176 (1994) (rejecting argument that aiding and abetting liability existed
because Congress did not use words ʺaidʺ and ʺabetʺ in statutory text and noting
that ʺCongress knew how to impose aiding and abetting liability when it chose to
do soʺ). In § 1608(a)(4), for example, Congress specified that the papers be
mailed ʺto the Secretary of State in Washington, District of Columbia, to the
attention of the Director of Special Consular Services,ʺ for transmittal to the
country maintained by the country in question, such as, e.g., a consular office, the countryʹs mission to the United Nations, or a tourism office.
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foreign state ʺthrough diplomatic channels.ʺ 28 U.S.C. § 1608(a)(4) (emphasis
added).
The United States argues that the FSIAʹs service provisions require
strict compliance, and that mailing the papers to ʺthe foreign minister at a place
other than the foreign ministryʺ is not authorized by the statute. Amicus Br. of
the United States at 3. The United States argues that ʺ[t]he most natural
understanding of [the statuteʹs] text is that the mail will be sent to the head of the
ministry of foreign affairs at his or her regular place of work ‐‐ i.e., at the ministry
of foreign affairs in the stateʹs seat of government.ʺ Id. at 2. This argument is
unpersuasive, as it would require us to read the words ʺat his or her regular
place of workʺ or ʺat the stateʹs seat of governmentʺ into the statute. See Dean v.
United States, 556 U.S. 568, 572 (2009) (courts must ʺordinarily resist reading
words or elements into a statute that do not appear on its faceʺ) (quoting Bates v.
United States, 522 U.S. 23, 29 (1997)).
The United States argues that our reading of § 1608(a)(3) is
undermined by other provisions in the statute. It argues that because the FSIA
permits the use of an authorized agent only in the context of service under §
1608(b)(2) ‐‐ the provision that deals with service on foreign state agencies and
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instrumentalities ‐‐ we should infer that ʺCongress did not intend to allow
service on a foreign state via delivery to any entity that could, by analogy, be
considered the foreign stateʹs officer or agent, including the stateʹs embassy.ʺ
Amicus Br. of the United States at 3. This argument rests on the premise that the
Panel Opinion requires an embassy to act as an agent of a foreign state. We did
not so hold, and, to the extent there is any doubt, we now clarify.
We do not hold that an embassy is an agent for service or a proxy for
service for a foreign state. There is a significant difference between serving
process on an embassy, and mailing papers to a countryʹs foreign ministry via the
embassy. Here, the summons and complaint were addressed to the Sudanese
Minister of Foreign Affairs, by name and title, at the Sudanese Embassy. The
embassy accepted the papers, signing for them and sending back a return receipt
to the Clerk of Court.4 The embassy could have rejected the mailing, but instead
it accepted the papers and then explicitly acknowledged receipt. Accordingly,
the papers were not served on the embassy as a proxy or agent for Sudan, but
they were instead mailed to the Minister of Foreign Affairs, in the most natural
way possible ‐‐ addressed to him, by name, via Sudanʹs embassy.
4 In its reply brief on its petition for rehearing, Sudan argues for the first time in this nearly six‐year old litigation that in fact the embassy did not receive the papers. We discuss this issue below.
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In short, while the language of the statute is not wholly
unambiguous, we believe that the better reading is that it did not require service
on the foreign minister at his or her regular place of work or in the stateʹs seat of
government. Hence, service on the foreign minister via the embassy was not
inconsistent with the wording of the statute.
B. Legislative History
We turn to the legislative history to see whether it sheds light on the
statutory interpretation question
As we noted in the Panel Opinion, while the 1976 House Judiciary
Committee Report makes clear that the statute does not permit service by ʺthe
mailing of a copy of the summons and complaint to a diplomatic mission of the
foreign state,ʺ see H.R. Rep. No. 94–1487, at 26 (1976), as reprinted in 1976
U.S.C.C.A.N. 6604, 6625, it does not address the question of mailing the papers to
the minister of foreign affairs via or care of an embassy. The Report provides,
Special note should be made of two means which are currently in use in attempting to commence litigation against a foreign state. . . . A second means, of questionable validity, involves the mailing of a copy of the summons and complaint to a diplomatic mission of the foreign state. Section 1608 precludes this method so as to avoid questions of inconsistency with section 1 of article 22 of the Vienna Convention on Diplomatic
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Relations, 23 UST 3227, TIAS 7502 (1972), which entered into force in the United States on December 13, 1972. Service on an embassy by mail would be precluded under this bill. See 71 Dept. of State Bull. 458‐59 (1974).
H.R. Rep. 94–1487, at 26.
As we noted in the Panel Opinion, the report fails to make the
distinction at issue in the instant case, between “[s]ervice on an embassy by mail,ʺ
id. (emphasis added), and service on a minister or foreign affairs via or care of an
embassy. The legislative history does not address, any more than does the
statutory text, whether Congress intended to permit the mailing of service to a
foreign minister via an embassy. What it does make clear, however, is that
Congress was concerned about the interaction of this provision and Article 22 of
the Vienna Convention. Accordingly, we must consider the Vienna Convention,
which we discuss below.
C. Judicial Interpretation
Before turning to the Vienna Convention, we consider the case law
on the statutory interpretation issue.
As we noted in the Panel Opinion, we are not alone in our reading of
§ 1608(a)(3). In Wye Oak Technology, Inc. v. Republic of Iraq, the Eastern District of
Virginia held that ʺSection (a)(3) does not impose a requirement that an
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otherwise proper service package must be delivered to a particular destination.ʺ
No. 1:09cv793, 2010 WL 2613323, at *5 (E.D. Va. June 29, 2010), affʹd on other
grounds, 666 F.3d 205 (4th Cir. 2011). There, the court held that service via an
embassy is sufficient to satisfy the FSIA as long as the service is directed to the
Minister of Foreign Affairs. Id. at *5‐6. The Eastern District of Virginia also so
held in Rux v. Republic of Sudan. 2005 WL 2086202, at *16 (ʺThe text of § 1608(a)(3)
does not prohibit service on the Minister of Foreign Affairs at an embassy
address. Indeed, the statute does not prescribe the place of service, only the
person to whom process must be served.ʺ). It is true, as Sudan argues, that these
were district court opinions, but Sudan has not cited any case, district court or
otherwise, holding that the mailing of papers addressed to the minister of foreign
affairs via an embassy does not comply with the statute.
None of the cases relied on by Sudan or the United States
undermines our reading of § 1608(a)(3). In four of the cases, the plaintiffs served
the papers on the embassy or the ambassador, without addressing them to the
minister of foreign affairs. See Barot v. Embassy of the Republic of Zambia, 785 F.3d
26, 28‐29 (D.C. Cir. 2015) (service package addressed to embassy); Autotech Techs.
LP v. Integral Research & Dev. Corp., 499 F.3d 737, 741 (7th Cir. 2007) (no record of
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service but counsel submitted affidavit stating document had been served ʺon
the embassy in Washington, D.C.ʺ); Alberti v. Empresa Nicaraguense De La Carne,
705 F.2d 250, 253 (7th Cir. 1983) (service package addressed to ambassador);
Ellenbogen v. The Canadian Embassy, No. Civ.A. 05‐01553JDB, 2005 WL 3211428, at
*2 (D.D.C. Nov. 9, 2005) (service package addressed to embassy). Consequently,
those plaintiffs did not comply with the statute.
In another case, we interpreted a different provision of the FSIA,
§ 1608(b)(2), and held that persons entitled to diplomatic immunity are not
proper agents for service under the FSIA. Tachiona v. United States, 386 F.3d 205,
222 (2d Cir. 2004) (holding that § 1608(b)(2) does not authorize service on foreign
officials present in United States as agents for a private political party). Tachiona
did not address the issue before us. In two other cases, the opinions do not say
to whom the papers were addressed. See Lucchino v. Foreign Countries of Brazil, S.
Korea, Spain, Mexico, & Argentina, 631 F. Supp. 821, 826 (E.D. Pa. 1986); 40 D 6262
Realty Corp. v. United Arab Emirates Govʹt, 447 F. Supp. 711 (S.D.N.Y. 1978).
Section 1608(a)(3) explicitly provides that service on a foreign
sovereign must be ʺaddressed and dispatched by the clerk of the court to the head
of the ministry of foreign affairs of the foreign state concerned.ʺ 28 U.S.C.
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§ 1608(a)(3) (emphasis added). Cases involving mailings not so addressed are
not controlling. We adhere to our conclusion that the plain language of
§ 1608(a)(3) does not foreclose the plaintiffsʹ method of service.
II. The Vienna Convention
Sudan and the United States contend that the Panel Opinion places
the United States in violation of the Vienna Convention. They contend that the
Panel Opinion will complicate international relations by subjecting the United
States (and other countries) to service of process via any of its diplomatic
missions throughout the world, despite its long‐standing policy to refuse such
service. As a preliminary matter, we note that these arguments were not
properly raised in Sudanʹs initial briefs. Nonetheless, we exercise our discretion
to consider the arguments, and we reject them.
The FSIA is the sole basis for obtaining jurisdiction over a foreign
state in the courts of the United States. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434 (1989). As noted above, the ʺlegislative history
of the FSIA demonstrates unequivocally that the Act was not intended to affect
the immunity of ʹdiplomatic or consular representatives,ʹʺ that was established
under the Vienna Convention and customary international law. Tachiona, 386
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F.3d at 222‐23 (quoting H.R. Rep. 94–1487, at 21). ʺUnder the terms of [the
Vienna Convention], the United States, in its role as a receiving state of foreign
missions, is obligated to protect and respect the premises of any foreign mission
located within its sovereign territory.ʺ Bennett v. Islamic Republic of Iran, 604 F.
Supp. 2d 152, 159 (D.D.C. 2009), affʹd, 618 F.3d 19 (D.C. Cir. 2010).
The Panel Opinion does not conflict with the Vienna Convention.
The Vienna Convention provides that ʺ[t]he premises of the mission shall be
inviolable,ʺ and that ʺ[a] diplomatic agent shall . . . enjoy immunity from [the
host stateʹs] civil and administrative jurisdiction.ʺ Vienna Convention, arts. 22,
31; see also H.R. Rep. 94–1487, at 26 (ʺService on an embassy by mail would be
precluded under this bill.ʺ). We acknowledge that these provisions preclude
service of process on an embassy or diplomat as an agent of a foreign
government, as there would be a breach of diplomatic immunity if an envoy
were subjected to compulsory process. See Tachiona, 386 F.3d at 222 (noting that
ʺthe inviolability principle precludes service of process on a diplomat as agent of
a foreign governmentʺ); 40 D 6262 Realty Corp., 447 F. Supp. at 712 (holding that
the FSIAʹs legislative history makes clear that service by mail on an embassy is
precluded under the Act). Accordingly, service on an embassy or consular
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official would be improper. But that is not what happened here. Rather, process
was served on the Minister of Foreign Affairs at the foreign mission and not on
the foreign mission itself or the ambassador. The papers were specifically
addressed to the Minister of Foreign Affairs via the embassy, and the embassy
sent back a return receipt acknowledging receipt of the papers.
The United States explains that it ʺconsistently rejects attempted
service via direct delivery to a U.S. embassy abroad. When a foreign court or
litigant purports to serve the United States through an embassy, the embassy
sends a diplomatic note to the foreign government indicating that the United
States does not consider itself to have been served properly.ʺ Amicus Br. of the
United States at 6. Our holding does not affect this policy. We do not preclude
the United States (or any other country) from enforcing a policy of refusing to
accept service via its embassies. We have previously recognized that ʺ[w]ere the
United States to adopt exceptions to the inviolability of foreign missions here, it
would be stripped of its most powerful defense, that is, that international law
precludes the nonconsensual entry of its missions abroad.ʺ 767 Third Ave. Assocs.
v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295, 300‐01 (2d
Cir. 1993). The United States may continue to instruct its embassies to follow this
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protocol, and so may any other country with a foreign diplomatic embassy.
Nothing about our decision affects the ability of any state to refuse to accept
service via its embassies.
Here, Sudan did not elect to follow any such policy. It did not reject
the service papers, as it could have done easily, but accepted them. In these
circumstances, where plaintiffs mailed the documents addressed to the Sudanese
Minister of Foreign Affairs via the embassy, and the embassy explicitly
acknowledged receipt of the documents, the requirements of the statute were
met.
Significantly, the Vienna Convention provides that a mission may
ʺconsentʺ to entry onto its premises. Section 1 of Article 22 of the Convention
provides that: ʺThe premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent of the head of the
mission.ʺ Vienna Convention, art. 22 (emphasis added). Here, the Sudanese
Embassyʹs acceptance of the service package surely constituted ʺconsent.ʺ
Instead of rejecting the service papers, Sudan accepted them and then, instead of
returning them, it explicitly acknowledged receiving them. These actions, we
conclude, constitute consent.
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The Vienna Convention ʺrecognized the independence and
sovereignty of mission premises that existed under customary international law.ʺ
767 Third Ave. Assocs., 988 F.2d at 300. An important reason for the inviolability
of the embassy premises is that the embassy is, to some degree, an extension of
the sovereignty of the sending state. See United States v. Gatlin, 216 F.3d 207, 214
n.9 (2d Cir. 2000). To send officers into the embassy to serve papers would thus
be akin to sending officers into the sovereign territory of the sending state itself.
There is nothing offensive, however, about mailing a letter into the sovereign
territory of a foreign state. Indeed, that is the very procedure that Sudan and the
State Department urge is the preferred and required practice. We therefore find
it difficult to understand how mailing a letter to the Foreign Minister of a
country in care of that countryʹs embassy in Washington ‐‐ particularly given that
the embassy remains free to refuse delivery if it so chooses ‐‐ can be considered a
grave insult to the ʺindependence and sovereigntyʺ of the embassyʹs premises.
Indeed, the embassy is extended somewhat less sovereignty than the
actual territory of the sending state. See McKeel v. Islamic Republic of Iran, 722 F.2d
582, 588 (9th Cir. 1983) (ʺA United States embassy, however, remains the territory
of the receiving state, and does not constitute territory of the United States.ʺ); see
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also Jordan J. Paust, Non‐Extraterritoriality of ʹSpecial Territorial Jurisdictionʹ of the
United States: Forgotten History and the Errors of Erdos, 24 YALE J. INTʹL L. 305, 312
(1999) (ʺ[A] U.S. embassy in foreign state territory is not U.S. territory and is not
within the territorial jurisdiction of the United States, any more than a foreign
embassy within the United States is foreign territory or within the territorial
jurisdiction of a foreign state.ʺ). While the precise degree to which the
sovereignty of the embassy is less than a stateʹs control over its own territory is
subject to debate, it is evident that an embassy is not more sovereign than the
territory of the sending state itself.
It is with some reluctance that we diverge from the Executive
Branchʹs interpretation of the Vienna Convention, and of the potential effect of
the Convention on the interpretation of the FSIA. It is appropriate to give the
governmentʹs interpretation of the Vienna Convention ʺgreat weightʺ ‐‐ and we
do ‐‐ but the State Departmentʹs views are ʺnot conclusive.ʺ Sumitomo Shoji Am.,
Inc. v. Avagliano, 457 U.S. 176, 185 (1982). For the reasons stated above, we do not
find those views persuasive.
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III. The Factual Argument
In its reply in support of its petition for rehearing, Sudan argues that
the evidence does not support a finding that the mailing was accepted by Sudan
or delivered to the Sudanese Minister of Foreign Affairs. It argues that the
signatures on the return receipt are illegible and it makes a factual argument that
the package never reached the embassy.
Sudanʹs factual challenge to the service of process comes too late, for
three independent reasons. First, Sudan raises the factual arguments for the first
time on appeal. ʺ[I]t is a well‐established general rule that an appellate court will
not consider an issue raised for the first time on appeal.ʺ In re Nortel Networks
Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (quoting Bogle‐Assegai v.
Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)).
Second, the factual challenge to service requires factfinding.
ʺ[F]actfinding is the basic responsibility of district courts, rather than appellate
courts, and . . . the Court of Appeals should not . . . resolve[] in the first instance
[a] factual dispute which ha[s] not been considered by the District Court.ʺ
DeMarco v. United States, 415 U.S. 449, 450 n.* (1974). The factual challenge
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should have been raised during the five years that the case was pending in the
district courts.
Third, even on appeal, Sudan did not raise the factual challenge
until its reply brief in support of its petition for rehearing. It did not raise the
issue in its briefing of the main appeal or in its initial submission on this petition
for rehearing. See Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (ʺArguments
may not be made for the first time in a reply brief.ʺ).
Accordingly, the factual challenge is not properly before us.
IV. The Requirement of an OFAC License
The United States also seeks to clarify the Panel Opinion with
respect to when a license from OFAC is required. In the Panel Opinion, we held
that the District Court did not err in issuing turnover orders without first
obtaining either an OFAC license or a Statement of Interest from the Department
of Justice. See Harrison, 802 F.3d at 406‐07. This holding was based on the United
Statesʹ position in previous Statements of Interest that § 201(a) of the Terrorism
Risk Insurance Act (ʺTRIAʺ), Pub. L. No. 107–297, 116 Stat. 2322, 2337 (codified at
28 U.S.C. § 1610 note), permits a 28 U.S.C. § 1605A judgment holder to attach
assets that have been blocked pursuant to certain economic sanctions laws
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without obtaining an OFAC license. The Panel Opinion included language,
however, that may have suggested that § 1610(g) of the FSIA might permit a
person holding a judgment under § 1605A to attach blocked assets without an
OFAC license. Harrison, 802 F.3d at 407‐08. This is not the case and thus we now
clarify our ruling.
Section 1605 of the FSIA creates exceptions to the general blanket
immunity of foreign states from the jurisdiction of U.S. courts, including the
ʺterrorism exception,ʺ 28 U.S.C. § 1605A, which Congress added to the FSIA in
1996 to ʺgive American Citizens an important economic and financial weapon
against . . . outlaw statesʺ that sponsor terrorism. H.R. Rep. No. 104–383, at 62
(1995). This exception allows courts to hear claims against foreign states
designated by the State Department as ʺstate sponsor[s] of terrorism.ʺ See
Calderon–Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 996 (2d Cir. 2014).
The TRIA was enacted to aid victims of terrorism in satisfying
judgments against foreign sponsors of terrorism. Section 201(a) of the TRIA,
which governs post‐judgment attachment in some terrorism cases, provides, in
relevant part:
Notwithstanding any other provision of law . . . , in every case in which a person has obtained a judgment against
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a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) (as such section was in effect on January 27, 2008) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.
TRIA § 201(a) (codified at 28 U.S.C. § 1610 note) (emphasis added).
Sudanese assets in the United States are subject to such a block,
pursuant to sanctions that began with Executive Order 13067 in 1997 and are
now administered by OFAC and codified at 31 C.F.R. Part 538. Ordinarily,
unless a plaintiff obtains a license from OFAC, he is barred from attaching assets
that are frozen under such sanctions regimes. The Panel Opinion held that,
based on previous statements of interest made by the United States, blocked
assets that are subject to the TRIA may be distributed without a license from
OFAC. Harrison, 802 F.3d 408‐09.
The Panel Opinion framed the issue, however, as ʺwhether § 201(a)
of the TRIA and § 1610(g) of the FSIA, which authorize the execution of § 1605A
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judgments against state sponsors of terrorism, permit a § 1605A judgment holder
to attach blocked Sudanese assets without a license from OFAC. Id. at 407‐08.
The Panel Opinion should not have included the reference to
§ 1610(g) of the FSIA. Section 1610(g)(2) of the FSIA, while providing that certain
property ʺshall not be immune from attachment,ʺ does not contain the TRIAʹs
same broad ʺnotwithstanding any other provision of lawʺ language. Therefore, it
does not override other applicable requirements, such as the requirement of an
OFAC license before the funds may be transferred. To be clear, when the TRIA
does not apply and the funds at issue are attachable by operation of the FSIA
alone, an OFAC license is still required.
In this case, plaintiffs obtained a terrorism judgment from the D.C.
District Court pursuant to § 1605A of the FSIA. The Southern District of New
York then issued three turnover orders. The first two orders specified that they
were issued pursuant to 28 U.S.C. § 1610(g) but did not mention the TRIA. Only
the third order specified that assets were ʺsubject to turnover pursuant to § 201 of
the Terrorism Risk Insurance Act of 2002.ʺ Joint App. at 76. While the district
court did not explicitly discuss whether the funds at issue in the December 12
and 13, 2013 orders were subject to turnover pursuant to the TRIA, based on our
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review of the record, which includes the complaint and judgment in the D.C.
District Court proceedings, and the turnover petition and orders in the
proceedings below, we conclude that the funds were subject to turnover
pursuant to the TRIA. Plaintiffs have ʺobtained a judgment against a terrorist
party on a claim based upon an act of terrorism,ʺ the blocked assets are the assets
of that terrorist party, and, accordingly, those assets ʺshall be subject to execution
or attachment in aid of execution in order to satisfy [plaintiffsʹ] judgment to the
extent of any compensatory damages for which such terrorist party has been
adjudged liable.ʺ See TRIA § 201(a) (codified at 28 U.S.C. § 1610 note). Because
the funds at issue in all three turnover orders were subject to turnover pursuant
to the TRIA, plaintiffs were not required to obtain an OFAC license before
seeking distribution.
CONCLUSION
For the foregoing reasons, the petition, to the extent it seeks panel
rehearing, is DENIED.
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