On September 22, 2016, the US Court of Appeals for the Second Circuit affirmed its prior decision in Harrison v. Republic of Sudan that service of process on the Sudanese Minister of Foreign Affairs by registered mail to the Sudanese Embassy in Washington, DC complied with the Foreign Sovereign Immunities Act (FSIA) requirement that service be sent to the head of the ministry of foreign affairs ( (2d Cir. Sept. 22, 2016)).

The plaintiffs commenced an action against the Republic of Sudan alleging that Sudan had provided material support to al Qaeda, which perpetrated the bombing of the U.S.S. Cole in the port of Aden, Yemen. The plaintiffs, sailors and spouses of sailors injured in the explosion, requested that the US District Court for the District of Columbia serve the summons and complaint on Sudan by mailing the papers to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C. The Clerk of Court sent the papers by registered mail and several days later received the return receipt. Sudan failed to respond to the complaint. The district court entered default judgment and awarded damages.

Plaintiffs registered the judgment in the US District Court for the Southern District of New York, and the Southern District issued three turnover orders, directing certain banks to turn over Sudan's assets to the plaintiffs. Sudan appealed to the Second Circuit, which held that service of process on the Minister of Foreign Affairs via the Sudanese Embassy was sufficient to meet the requirements of the FSIA. Sudan filed the instant petition for panel rehearing or rehearing en banc. The Second Circuit denied the petition to the extent that it sought rehearing.

Section 1608(a)(3) of the FSIA states that service may be made on 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 the ministry of foreign affairs of the foreign state concerned." (28 U.S.C. § 1608(a)(3).) On its face, the statute does not specify a location where the papers are to be sent. Because nothing in the text requires the mailing to be sent to the ministry of foreign affairs in the foreign country, the Second Circuit ruled that sending the papers to the ministry of foreign affairs via the embassy was sufficient. The court did not hold that an embassy was an agent for service of process or a proxy for service for a foreign service. Here, the papers were directly addressed to the Minister of Foreign Affairs at the embassy, and the embassy accepted the papers and explicitly acknowledged their receipt.

The Second Circuit also considered the legislative history of the statute, and found that it did not address the question of mailing the papers to the minister of foreign affairs via an embassy. Similarly, the court could not find any case law holding that service in this manner failed to comply with the statute.

Next, the Second Circuit ruled that service by mail to the minister of foreign affairs via the embassy was not a violation of the Vienna Convention. The court noted that forcing service to be accepted in this manner might breach the inviolability of foreign missions, but in this case, the embassy voluntarily accepted service and acknowledged receipt of the complaint. It would have been within the Sudanese Embassy's power to refuse delivery. By accepting the service package, the embassy also consented to entry onto its premises.

The Second Circuit refused to consider Sudan's factual argument that the package may have never reached the embassy because Sudan raised this issue for the first time on appeal.