The U.S. Supreme Court cited the “venerable” mailbox rule as set forth in the Restatement of the Law Second, Contracts, in support of its holding that, in order to serve civil process on a foreign state under § 1608(a)(3) of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1608(a)(3), a service packet naming the head of the foreign state’s ministry of foreign affairs had to be mailed directly to the foreign minister’s office in the minister’s home country; a mailing to the foreign state’s embassy in the United States was insufficient.
In Republic of Sudan v. Harrison, No. 16-1094 (March 26, 2019), victims of the terrorist bombing of the USS Cole in Yemen on October 12, 2000, sued the Republic of Sudan under the FSIA, alleging that Sudan provided material support to the terrorist organization that carried out the bombing. “At [the victims’] request, the clerk of the court sent the service packet, return receipt requested,” to Sudan’s minister of foreign affairs at the Sudanese Embassy in Washington, D.C. After the clerk certified that a signed receipt was returned, but Sudan failed to appear, the victims obtained a default judgment against Sudan; the victims subsequently obtained three orders in the U.S. District Court for the Southern District of New York requiring certain banks to turn over Sudanese assets in order to satisfy the judgment. “Sudan made an appearance for the purpose of contesting personal jurisdiction,” alleging that “§ 1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the United States.”
The U.S. Court of Appeals for the Second Circuit rejected Sudan’s argument and affirmed the District Court’s orders, reasoning that the FSIA was ‘“silent as to a specific location where the mailing [was] to be addressed,’” and that ‘“the method chosen by [the victims] . . . was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.’”
In an eight-to-one decision, the U.S. Supreme Court reversed and remanded, holding that, under the “most natural reading,” § 1608(a)(3) required that a mailing be sent directly to the foreign minister’s office in the minister’s home country; the service packet had to “bear the foreign minister’s name and customary address and . . . be sent to the minster in a direct and expeditious way”; and “the minister’s customary office [was] the place where he or she generally work[ed], not a farflung outpost that the minister [might] at most occasionally visit.”
Associate Justice Samuel A. Alito, writing for the majority, reasoned that, under Restatement of the Law Second, Contracts § 66—which discussed portions of the mailbox rule—“there [was] a presumption that a mailed acceptance of an offer [was] deemed operative when ‘dispatched’ if it [was] ‘properly addressed,”’ but that “no acceptance would be deemed properly addressed and dispatched if it lacked, and thus was not sent to, the offeror’s address (or an address that the offeror held out as the place for receipt of an acceptance).” The court explained that “a foreign nation’s embassy in the United States [was] neither the residence nor the usual place of business of that nation’s foreign minister and [was] not a place where the minister [could] customarily be found,” and, while a mailing to the embassy might eventually be forwarded to the appropriate address, the statute’s use of the term “dispatch” connoted sending it directly.
Read the case here.