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Court Returns Proof of Service to Sender in Terrorist Bombing Case

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By William Vogeler, Esq. on January 24, 2018 11:03 AM

After al Qaeda bombed a U.S. ship on Oct. 12, 2000 -- killing 17 sailors and injuring dozens more -- the survivors fought back through lawsuits against Sudan for supporting the terrorists.

As the plaintiffs navigated the judicial system, however, they ran into an obstacle: the United States of America. The government opposed some of the sailors' claims because of a technical issue: service of process.

A trial judge ruled that service by mail to the Sudanese embassy in the U.S. was sufficient. In Kumar v. Reublican of Sudan, a federal appeals court reversed and remanded.

Sovereign Immunity

Traditionally, foreign governments are immune from civil liability. But Congress authorized such suits under the "terrorism exception" of the Foreign Sovereign Immunity Act in 2004.

The plaintiffs won a $314 million judgment against Sudan, and then Congress passed the National Defense Authorization Act for 2008. It authorized additional damages under the FSIA, so the plaintiffs filed a new complaint against Sudan.

They served the country's minister of foreign affairs by mail to the Sudanese embassy in Washington, D.C. Sudan did not respond, and a federal judge entered default judgments.

Sudan then filed a motion to vacate the defaults, but the judge denied the request. On appeal to the U.S. Fourth Circuit Court of Appeals, the main issue was whether service was effective.

Not In the U.S.

The appeals court said the service should have been made on the minister in Sudan, not in the U.S. The judges gave "substantial" deference to the U.S. attorneys, who recognized the problem in the case.

Allowing service to the government's representative at "any geographic location" would be "an extreme position," the appellate court said.

"That view cannot be consistent with Congress' intent: otherwise, service via General Delivery in Peoria, Illinois could be argued as sufficient," the panel said.

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