U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Sudan Must Pay $315 Million to Victims of USS Cole Terror Attack

Andrew Hall was born in a coal cellar during the Warsaw Uprising against Nazi Germany. It was, perhaps, a foretelling birth: Hall has gone on to make his name as an attorney by fighting against terrorists and corrupt regimes. The goal? Make them pay for their crimes -- in cash.

So far, he's had incredible success, winning cases against state sponsors of terror such as Iraq and Libya. In 2012, he won a $315 million award against Sudan for its involvement in the bombing of the USS Cole. Hall's winning record held up again this Wednesday, as the Second Circuit affirmed the ruling against the Republic of Sudan.

A Terrorist Attack and a Default Judgment

The al-Qaeda attack on the USS Cole, an American naval vessel refueling in Yemen, left 17 sailors dead and 42 wounded. Fifteen of those sailors teamed up with Hall to sue Sudan for providing material support for the attack. Sudan, under Colonel Omar al-Bashir, had developed close ties with terrorists groups, even inviting Osama bin Laden to the country in the 1990s.

The country did not, however, bother responding to the USS Cole survivors' suit. In 2012, the district court of D.C. entered a default judgment against Sudan for $314,705,896. Hall and the survivors registered the judgment in the S.D.N.Y. and sought to enforce it against banks holding Sudanese funds.

Serving a Sovereign

Once the survivors went after the country's cash, Sudan took notice. It appealed the judgment to the Second Circuit, arguing that it had never been properly served and that the D.D.C. improperly failed to consult the Office of Foreign Asset Control and the Department of Justice before issuing a default ruling.

How exactly does one go about serving an entire country? Under the Foreign Sovereign Immunities Act, which waives foreign sovereign immunity from crimes of terrorism, there is only four ways to serve a foreign state and they must be followed in order. If there are special arrangements for service with that state, follow those. If not, go with any applicable international conventions. Those don't apply? Send a copy of the summons, complaint and notice, along with translation, by certified mail to the heard of the ministry of foreign affairs.

It was that third method that the survivor's tried and the Second Circuit ruled that service was sufficient. Though the FSIA later says service must be on the Minister of Foreign Affairs, as opposed to the ministry, the court rejected Sudan's argument that service was required to go to the Minster's main office in Khartoum. Simply put, if Congress had wanted plaintiffs to pay for international post, "it could have said so," the court ruled. Sending notice to the D.C. embassy was consistent with the statute and reasonable.

No Need for a License

The court also quickly disposed of Sudan's claims that the Office of Foreign Asset Control and DOJ were not properly consulted. Judgment holders under the Terrorism Risk Insurance Act need not obtain an OFAC license prior to suit. Further, the district court did not need to seek a statement from the DOJ before turning over Sudanese assets when it relied on the persuasive authority of earlier DOJ statements.

That means the nearly $315 million dollar ruling against the Republic of Sudan stands, to be split between the survivors of the USS Cole attack and, of course, their terror-fighting attorney.

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