On September 23, 2015, the US Court of Appeals for the Second Circuit in Harrison v. Republic of Sudan held that service of process on the Sudanese Minister of Foreign Affairs through the Sudanese Embassy in Washington, DC complied with the Foreign Sovereign Immunities Act's (FSIA's) requirement that service be sent to the head of the ministry of foreign affairs (No. 14-121-cv, (2d Cir. Sept. 23, 2015)).

This case arises out of a terrorist attack in 2000 at the U.S.S. Cole in Aden, Yemen that resulted in the deaths of 17 US Navy sailors and wounded 42 others. Several injured sailors and spouses brought suit in 2010 in the US District Court for the District of Columbia. Under the FSIA terrorism exception, they alleged that the Republic of Sudan provided material support to al Qaeda, who was responsible for the attack.

Pursuant to 28 U.S.C. § 1608(a)(3), the plaintiffs filed an Affidavit Requesting Foreign Mailing on November 5, 2010 and requested the Clerk of Court to mail the summons and complaint by registered mail, return receipt requested, to the Minister of Foreign Affairs at the Sudanese Embassy in Washington, DC rather than the Minister of Foreign Affairs at the Ministry of Foreign Affairs in Khartoum, Sudan. The Clerk of Court entered a Certificate of Mailing that the summons and complaint were sent and the return receipt was returned. On March 30, 2012, the DC District Court entered a default judgment against Sudan for $314,705,896. The plaintiffs then requested that the Clerk mail notice of the default judgment to Sudan, which was certified mailed in April 2012.

On October 2, 2012, the plaintiffs registered the default judgment in the US District Court for the Southern District of New York and sought to enforce it against New York banks holding frozen Sudanese assets. On June 28, 2013, the DC District Court entered an order that post-judgment service had been effectuated, and that enough time had elapsed following entry of judgment to seek attachment and execution. The plaintiffs then filed a series of petitions in the SDNY seeking turnover of Sudanese assets, which the court granted. The plaintiffs served these petitions, again, to the Minister of Foreign Affairs at the Sudanese Embassy in Washington, DC.

On January 13, 2014, Sudan filed a notice of appearance and appealed, arguing that service of process was improper and that the SDNY erred in issuing turnover orders without obtaining a license from the Treasury Department's Office of Foreign Assets Control (OFAC) or a Statement of Interest from the Department of Justice.

In an issue of first impression in the Second Circuit, the court concluded the plaintiffs complied with the plain language of the FSIA's service of process requirements under 28 U.S.C. § 1608(a)(3). The Second Circuit rejected Sudan's argument that service should have been sent to Sudan's Minister of Foreign Affairs in Khartoum and held that service of process on the Sudanese Minister of Foreign Affairs at the Sudanese Embassy complied with the FSIA's requirement that service be sent to the head of ministry of foreign affairs. Because Sudan was not a party to an international convention on service of judicial documents and the plaintiffs did not have a special arrangement for service with Sudan, the first two methods of service under section 1608 were unavailable.

Instead, the plaintiffs served Sudan under section 1608(a)(3), which provides for service on the head of the ministry of foreign affairs of the foreign state. Looking at the statutory language, the court found literal compliance with the statute. The Second Circuit also noted the statute is silent as to a specific location where the mailing is to be addressed (compared to section 1608(a)(4) which specifies a mailing to Washington, DC), and therefore nothing in section 1608(a)(3) requires the papers to be mailed to a foreign state. The court's analysis of the sparse case law and legislative record also supported this position.

The court also held that the service of the turnover petitions and post-judgment motions were not governed by the heightened standards of section 1608(a), but only needed to adhere to the notice provisions of the federal rules.

Finally, the court found that the district court did not err in ordering the turnover of sanctions-controlled assets without an OFAC license or Statement of Interest because judgment holders under the Terrorism Risk Insurance Act of 2002 were exempt from this OFAC requirement.