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Republic of Sudan v. Harrison

Oral argument transcript · No. 16-1094 · October Term 2018 · argued November 7, 2018 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 16-1094, Republic of Sudan versus Harrison. Mr. Curran. ORAL ARGUMENT OF CHRISTOPHER M. CURRAN ON BEHALF OF THE PETITIONER

Christopher M. Curran: Mr. Chief Justice, and may it please the Court: When we're talking about a mailing and a requirement that the mailing be addressed and dispatched to a specified person, we naturally understand that to require that the mailing bear the address of the person and be sent to that address. That plain meaning of 1608(a)(3) is reinforced by other features of the FSIA's service provisions. Specifically, when Congress intended there to be an intermediary between the sender and the ultimate recipient, it said so. It said that in (a)(4), where it addressed service through the U.S. Secretary of State. It said that in (b)(2), where it authorized the service through an agent in the (202) 628-4888 Official 1 United States. No counterpart in (a)(3).

Chief Justice Roberts: I have to say, if -- my first instinct if I wanted to mail something to the head or cabinet member in a foreign country, I would -- that would be my first thought: Why don't I deliver it to the embassy. I mean, the idea of mailing it to the foreign minister in some country and assuming it's going to get there in any reasonable time, I think you're much more -- much more likely to reach him through the embassy.

Christopher M. Curran: Yeah. Well, I -- I don't think that can be squared with the plain language of 1608(a)(3) or, again, the surrounding provisions of the FSIA's service provisions. A -- a foreign minister, the head of the Ministry of Foreign Affairs, does not have an office in -- in the diplomatic missions. So it literally would not be complying with the statutory language to send the mailing to that diplomatic mission. Some --

Justice Alito: Suppose somebody -- suppose somebody sent you a letter addressed to (202) 628-4888 Official 1 the White & Case office in New York City. I bet that would get to you, wouldn't it?

Christopher M. Curran: It might get to me. Yeah, it -- it should.

Justice Alito: Would that not be addressed -- would that not be addressed to you?

Christopher M. Curran: I -- I don't think it would be addressed and dispatched to me, no. My address is always held out as 701 13th Street, Washington, D.C. So that might -- that -- it might get to me, but it wouldn't be compliant with language -- with the statutory requirement like we see in (a)(3). And -- and -- and, Justice Alito, furthermore, 1608(c), with the return receipt requirement, how would that square if a package was sent to me in New York City? Would the recipient up there in the mailroom sign the return receipt? That hardly guarantees, that's hardly proof of, delivery to the ultimate recipient when it's going through an intermediary in that manner.

Justice Alito: But it just -- I'm not so sure that the "addressed and dispatched" (202) 628-4888 Official 1 language do the trick for you. I mean, if you went to any U.S. embassy around the world, I think you would see posted -- you would see mounted on the wall a picture of the Secretary of State, which signifies in a sense that the Secretary -- this is under the jurisdiction of the Department of State.

Christopher M. Curran: Under the jurisdiction. Well, Justice Alito, I guess I would draw an analogy. I -- I don't know what circuits you're the circuit justice for, probably the Third Circuit perhaps. Would -- would a package sent to a federal district court in New Jersey be addressed and dispatched to Your Honor? I think not, particularly if it -- if it's accompanied by a requirement that it be a return receipt that will be evidence of, proof of, delivery.

Justice Alito: Yeah, it might -- it might not be. But when -- when I was on the Third Circuit, my office was in Newark, but the headquarters of the court was in Philadelphia. And I used to get mail that was addressed to me, U.S. Court of Appeals, Market Street, Philadelphia. (202) 628-4888 Official

Christopher M. Curran: Yeah. We're -- we're talking about a statutory provision that has to be applied literally and strictly. I say strictly because the provision, 1608(a), unlike (b), particularly (b)(3), doesn't say actual notice, does it, or anything like that? And the -- the circuit courts have concluded almost uniformly that 1608(a) requires strict compliance. It's certainly not strict compliance to address a package to Newark for a Third Circuit judge.

Justice Kagan: But, Mr. Curran, I guess I'm wondering, the -- the statutory language does not say "at his own office." And -- and in the absence of that kind of language, I suppose this is maybe what the Chief Justice was -- was gesturing towards too, that there seems something special about the embassy situation that's not like one of these Third Circuit situations, that's just everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government.

Christopher M. Curran: Yeah, I -- I -- I don't (202) 628-4888 Official 1 agree with that. I -- I think anyone who's informed or looks into it would conclude that the embassies are there to serve as diplomatic functions, not to be a catch-all recipient for service of process or other things being sent to the foreign state. The -- and -- and we'll get into the Vienna Convention in a bit, but the diplomatic missions have a very specified and limited role. And it's -- and there's no suggestion in law or the -- the -- the U.N. conventions or otherwise that it's there to -- for the convenience of plaintiffs.

Justice Ginsburg: What -- what, in fact, happened? Was this notice sent to the foreign minister?

Christopher M. Curran: Well, that's a -- it's complicated, right? It was -- it -- it named a former foreign minister, and it said it was being sent to the Ministry of Foreign Affairs, but it was addressed and dispatched to the Sudanese embassy here in Washington, D.C., on Massachusetts Avenue.

Justice Ginsburg: My -- my question was, did the foreign minister, the addressee, (202) 628-4888 Official 1 receive this notice?

Christopher M. Curran: There's nothing in the record that tells us that he did.

Chief Justice Roberts: You say this was not -- the embassies are not there for the convenience of -- of people wanting to sue or plaintiffs, but they're there for the convenience of the host -- or the country, Sudan in this case, right?

Christopher M. Curran: And to facilitate diplomatic communications --

Chief Justice Roberts: Well, I --

Christopher M. Curran: -- between the countries.

Chief Justice Roberts: -- I would have thought it would be much more -- I mean, they tell us not -- I would have thought it would be much more convenient for them to get notice that they're going to be sued in the United States at the United States embassy. I mean, I would have thought, otherwise, it's -- you know, who knows, it's going to get lost or --

Christopher M. Curran: Yeah. Well, I --

Chief Justice Roberts: -- much more likely for them to hear about it if you give it (202) 628-4888 Official 1 to the embassy here.

Christopher M. Curran: Yeah, I think that the -- the amicus briefs that Your Honor has received, that this Court has received, from foreign states suggest otherwise. In fact, I think the reality is a foreign ambassador located in Washington, D.C., gets flummoxed at the prospect of receiving service of process. Doesn't know what to do with it, doesn't know what it's all about. They're generally not lawyers.

Chief Justice Roberts: Flummoxed?

Christopher M. Curran: Flummoxed.

Chief Justice Roberts: The --

Christopher M. Curran: Flummoxed.

Chief Justice Roberts: And somebody in Khartoum isn't?

Christopher M. Curran: Someone in Khartoum knows, ah, this is the kind of thing we see from time to time. We better get this to our legal team, the legal advisors team, or the Justice Department across the street. They -- they do have a full panoply of expertise there. These -- many of these diplomatic missions in Washington are skeleton staffs with (202) 628-4888 Official 1 an ambassador, one or two assistants, and -- and -- and a staff generally of -- of people of nationalities different from the sending country. So --

Justice Sotomayor: May I ask you the "address and dispatch" concept, much of the brief was centered around that being where the minister sits in the capital of the foreign state. But there are many countries where the minister -- the foreign minister doesn't necessarily sit in the capital. Or let's assume an emergency, something's happened at that minister's seat and he's now sitting --

Christopher M. Curran: Okay.

Justice Sotomayor: -- in a nearby building --

Christopher M. Curran: Yeah.

Justice Sotomayor: -- or in another city within the state. Or even he's decided he's going to come and spend three months in the United States. It's one of these ministers who thinks he should visit all foreign countries --

Christopher M. Curran: Yeah.

Justice Sotomayor: -- for an extended (202) 628-4888 Official 1 period.

Christopher M. Curran: Well, I --

Justice Sotomayor: Is "address and dispatch" to his home in the foreign state, to his normal place of business? What -- what -- what's -- how do we define it?

Christopher M. Curran: Yeah. Well --

Justice Sotomayor: If I'm writing this opinion --

Christopher M. Curran: Yeah.

Justice Sotomayor: -- because I don't actually think you mean to -- to say -- to add a phrase --

Christopher M. Curran: I don't mean to add a phrase.

Justice Sotomayor: -- at the foreign state's ministry or something.

Christopher M. Curran: It's -- it's where -- where -- where the foreign minister has an address, it's got to be sent. Now I think -- I think the fair reading when it says head of the foreign -- of the Ministry of Foreign Affairs, that's implying the -- an official address and not a home address. But if it -- there -- by the way, based on my research, there aren't (202) 628-4888 Official 1 many countries that have a minister of foreign affairs not in the state capital. I think there are about three. But let -- let's -- let's use an example. Let's take South Africa, where the minister of foreign affairs has offices in both Pretoria and Capetown, but -- but, coincidentally, they -- there's also a single mailing address, but -- but in that situation, I think it would be perfectly acceptable for the package to be sent to any one of those addresses because they are all addresses of the -- of the head of the foreign ministry. It's -- it's strictly a factual question, where is the address of the foreign minister? And in -- in --

Justice Sotomayor: What's his -- his or her official address, is that it?

Christopher M. Curran: I think it should be the official address, but -- but, again, here, it wasn't sent to any address of the foreign minister.

Justice Alito: When this statute was enacted, do you think Congress thought that sending something "Return Receipt Requested" to (202) 628-4888 Official 1 Khartoum, for example, was -- was a simple thing? It would be like sending something "Return Receipt Requested" to, I don't know where, someplace in the United States?

Christopher M. Curran: Yeah. Well, we have -- we have a rich record of the legislative history here, so we know a lot about what Congress, or -- or maybe more accurately, the State Department and the Department of Justice thought when they were drafting this statute in the mid-'70s. On -- on that point, Congress recognized that in many situations that return receipt might not be coming back, either due -- due to problems with the mail system, or a -- a declination of signing it in the foreign country. But Congress was -- was strategic, and this hierarchy they set up in 1608(a) has got number 4, which is a fail-safe option that is always available, can never be rejected.

Justice Alito: But I'm just asking about the practicalities of this. So I assume it would be this is before the era of FedEx and -- and all that, so did -- was there a simple (202) 628-4888 Official 1 way to do this with the U.S. Postal Service? And you --

Christopher M. Curran: Yes. Yes.

Justice Alito: -- you send a "Return Receipt Requested" and -- and it comes back from the far reaches of the world?

Christopher M. Curran: Yes, but it did require the cooperation of the mail service in the foreign country. And the reliability of that wasn't always assured for sure, because there are over 100 foreign countries that this thing could be mailed to, but, again, there is -- there is the catch-all. And -- and -- and -- and speaking of the legislative history, here, it powerfully confirms what I propose is the natural reading of 1608(a)(3), because Congress in the initial draft that, again, was sponsored by the Department of State contemplated delivery of the service package to the embassy in Washington, addressed to the ambassador or other head of the mission. And that led to a -- an immediate concern that it was transgressing the Vienna Convention and the inviolability of diplomatic (202) 628-4888 Official 1 missions. And -- and Congress and the Department of State, therefore, changed the statute to avoid any connection with the local embassy to service of process. And this is all spelled out. They issued a circular to every diplomatic mission in Washington in 1974 saying: Hey, we've got this draft bill, it talks about delivery to the ambassador. We're going to change that because we are aware of the concerns about the Vienna Convention.

Justice Ginsburg: And yet, when the question came up to a sister nation, the U.K., they said the Vienna Convention doesn't prohibit --

Christopher M. Curran: Yeah, Your Honor's probably referring to the Reyes case.

Justice Ginsburg: Yes.

Christopher M. Curran: Yeah. But that case is -- is quite different. That case did not involve service on a foreign mission. It involved service on the residency of a diplomatic agent who was then no longer in service and who did not enjoy immunity and there was no other way to serve that former (202) 628-4888 Official 1 diplomatic agent. And in the U.K. Supreme Court decision, the court expressly distinguished the situation with a service on a foreign state or the mission of a foreign state, saying that that was precluded by Section 12 of the U.K.'s 1978 immunity statute. So I don't think the Reyes case is -- is persuasive on -- on -- on the question we're addressing. But -- but Congress purposefully changed the -- the bill that became the FSIA to avoid any transgression of the inviolability of the diplomatic mission. And the reports, the parallel reports, the House report and the Senate report, are both very express in saying we're changing the statute to avoid the Vienna Convention problem and that's why there's no delivery.

Justice Ginsburg: But, on that, the -- the U.K. decision did -- did speak to the inviolability. They said inviolability doesn't send -- doesn't mean sending mail. It means intruding into the premises, let's say, having a police officer with an arrest warrant or a search warrant, that's what the inviolability (202) 628-4888 Official 1 of the mission --

Christopher M. Curran: I -- I agree. I agree that the logic of the U.K. Supreme Court's decision is problematic with respect to the Vienna Convention. But I think the -- the U.K. court felt that it was boxed in with some bad facts and that it had to provide a way to have service of process against that former diplomatic agent.

Justice Kagan: If I could take you back, Mr. Curran, to the text of the statute. I mean, one of the notable things about 1608(a)(4) which is not replicated in 1608(a)(3) is that 1608(a)(4) does specify an address. You know, it says addressed and dispatched by the Clerk of the Court to the Secretary of State in Washington, D.C.

Christopher M. Curran: Yeah. So what --

Justice Kagan: And -- and 1608(a)(3) does not say at his office in the Sudan.

Christopher M. Curran: Correct. So the question is, what inference do we draw from that contrast? And I submit that the -- the proper inference to draw is it confirms that everybody's thinking that the foreign minister (202) 628-4888 Official 1 gets served, whether it's the U.S. Secretary of State or the foreign, foreign minister, they're all getting served in their official offices in their home capital. I think it confirms that. Also -- and this -- this might sound a little strange, but --

Justice Kagan: I guess I don't really quite understand that, because, here, they clearly thought that they had to specify when they wanted to specify, you know, at his office on -- on -- in -- in Washington, D.C.

Christopher M. Curran: Yeah, but they -- they didn't say C Street in Foggy Bottom, right?

Justice Kagan: Well, you know, close enough.

Christopher M. Curran: So under the plaintiff's -- yeah, but under the plaintiff's theory, oh, if it's not precluded, then any other indirect method of service is okay too. So maybe you can send it to the White House knowing that Secretary Pompeo visits there occasionally. I -- I don't think -- I don't think that -- that's the answer. But -- but, furthermore, the 1973 legislative history suggests that, at that (202) 628-4888 Official 1 time, pre-FSIA, some courts were analogizing service on a foreign state with service on a foreign corporation. There's even a -- a decision by the Second Circuit that has Judge Friendly on the -- on the court that reaches that exact conclusion, that it's -- the analogy is to a foreign corporation. Well, that concern and -- and the possibility that someone could try to serve a foreign corporation through a U.S. state Secretary of State was a legitimate concern at the time, and may have motivated the further specification that we're talking about, the Secretary of State in Washington, D.C., not a secretary of state in Austin, Texas. And -- and as Your Honor may know, in the Magness case, that's exactly what the plaintiffs tried to do. They tried to serve process on a foreign state through the Texas secretary of state in Austin. So Congress may have been trying to clarify that that's not acceptable. Now, on -- on the Vienna Convention, there's -- there's one other point I'd like to make. The -- the -- the scholars that we cited (202) 628-4888 Official 1 and the case law that we cited indicate that inviolability also addresses any effort to assert jurisdiction at a diplomatic mission. We -- we think that's pretty established. Now our friends suggest that we perhaps were -- and maybe the SG's office as well -- were trying to obscure the 1958 commentary, which suggested that service could be done by mail, compliant with the Vienna Convention. I -- I -- I reject any suggestion we were obscuring anything. Our -- our brief addresses in great depth the Japanese proposal voiced by Mr. Takahashi that was proposing that the actual text of the Vienna Convention, Article 22, be changed to allow service by mail. That proposal was roundly rejected. It was withdrawn and never adopted. So the language of Article 22 as adopted by -- at the Vienna Convention, by the committee of the whole, indicates that the attendees at the convention recognized that service by mail would be a transgression of a foreign minister's inviolability, the foreign mission's (202) 628-4888 Official 1 inviolability. Mr. Chief Justice, I'd like to, unless -- unless there are other questions, I'd like to reserve the rest of my time for rebuttal.

Chief Justice Roberts: Thank you, Mr. Curran. Ms. Ross. ORAL ARGUMENT OF ERICA ROSS FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Erica L. Ross: Mr. Chief Justice, and may it please the Court: I'd like to start off where Mr. Curran left off, which is how other states understood the Vienna Convention when it was actually enacted. I think we -- we see this through, as he also mentioned, the legislative history and really the drafting history of the FSIA itself because, when Congress considered this issue, this very issue, it initially had service by mail to an ambassador, which everyone understood to be service by mail to the embassy, in the first draft of the FSIA. And that was, in fact, rejected, as Mr. Curran noted, precisely because of this concern of (202) 628-4888 Official 1 inconsistency with the Vienna Convention. And the way that Congress knew that there was this concern was that other states, in fact, came to the State Department and said that this was a problem. And that's where you get the 1974 statement to the missions at Washington, D.C., that Mr. Curran also referred to. Now I think there is --

Justice Alito: If the -- if the Court were to rule against you on this, how would the interests of the United States be harmed?

Erica L. Ross: Your Honor, Justice Alito, I'm glad you asked that question. That's exactly where I was going to go next, which is that the United States does not accept service by mail on one of its embassies abroad, and that is true even if a mailroom employee signs for the package. So, in that instance, the United States sends back a diplomatic note, it informs the sender that we do not consider that to be proper service under international law, we will not be appearing in court, and we will not be honoring a default judgment.

Justice Kavanaugh: What -- (202) 628-4888 Official

Justice Alito: Why -- why is that -- go ahead.

Justice Kavanaugh: Why doesn't it? Why doesn't the United States accept it?

Erica L. Ross: The United --

Justice Kavanaugh: What's the harm?

Erica L. Ross: So the United States doesn't accept it, Your Honor, because it's not consistent with the Vienna Convention and with international law more generally.

Justice Kavanaugh: But is there a more particular harm that comes from accepting it at an embassy?

Erica L. Ross: Your Honor, I think there is an administrability harm. Now, of course, I think the violation of international law is itself sufficient.

Justice Kavanaugh: I understand that, but I'm more --

Erica L. Ross: But even moving on from that, I think that the harm is that the United States has embassies all over the world, obviously, and sort of deputizing each of those to accept service on behalf of the United States is quite problematic. (202) 628-4888 Official 1 It's even more problematic if you accept a standard like the one that my friend suggests at page 34 of their brief, which is that service would be permissible at any place likely to have a direct connection to the foreign ministry. That would open up consulates, for example. There are countries that have 40 consulates in the United States. And so, if similar treatment were extended to the United States abroad, you could see that there would be a variety of places where service would be made. And that, obviously, from an administrability standpoint is quite problematic.

Justice Alito: I still don't -- I don't quite understand it in practical terms, although I see your point about the consulates, but say that the United States is sued in -- in Germany, and if process is served on the embassy in Germany, I assume that the embassy there would promptly send it to the State Department in Washington. But I also suspect that the State Department in Washington would send it back to the embassy in Germany to -- because if -- if (202) 628-4888 Official 1 it was necessary to go into a German court, somebody would have to find attorneys to go into the court to represent the United States in the foreign country.

Erica L. Ross: Justice Alito, I'm not sure that's actually how it would work in practice.

Justice Alito: Well, okay. Yeah, how would it work?

Erica L. Ross: So my understanding, Your Honor, is that the Office of Foreign Litigation actually in Washington, D.C., oversees all of that foreign litigation, and so it makes perfect sense in our system that we would want that to be coming --

Justice Alito: Okay.

Erica L. Ross: -- to the Secretary of State in Washington, D.C., if at all, and in that case, under diplomatic note we -- rather than through direct mail service. But I think it's important to note that all of these questions sort of get to this idea that, well, it might make sense for service on an embassy, maybe that will, in fact, reach the foreign minister. But I think, in addition to the textual point that (202) 628-4888 Official 1 Mr. Curran made, which is, in subsection (b)(2) of the statute, when Congress expected an agent to accept service in the United States, that was actually spelled out in the statute. It's also true that in subsection (b)(3), again, another provision governing foreign agencies and instrumentalities but not governing foreign states, there is a provision for methods of service that are reasonably calculated to provide actual notice. And so I think, when Congress wanted a looser, sort of whatever will actually get it back to the intended recipient standard, it actually said so. And we see that, again, in subsection (b)(3). I would also point out that there was some discussion about subsection (a)(4) of the statute. Now I -- I think Mr. Curran spoke about the -- the many reasons why Congress might have included Washington, D.C., in (a)(4) without the -- the similar statement or express statement in (a)(3). I would also just note that in the prior draft of the legislation that we've been discussing this morning, the -- service was to (202) 628-4888 Official 1 be made on an ambassador rather than -- or did not expressly say on the embassy, but everyone understood that to be where it would be. And that's, in fact, why other nations raised objections to the United States, and why the United States asked -- or -- or why the State Department suggested a change to the statute. And so I think, similarly, it sort of makes sense in the evolution of the statute to understand that when Congress moved service from the ambassador, which was understood to be at the embassy, quite literally across oceans to the foreign minister, it was similarly understood to be at the foreign ministry rather than at the -- the embassy in the United States, again, because that's something that was specifically rejected.

Chief Justice Roberts: You say --

Justice Sotomayor: I --

Chief Justice Roberts: Go ahead.

Justice Sotomayor: As I understand it, 1608 is already a lower bar than what the United States itself asks for when it is sued or what other nations ask for when they're sued. So it's already different process than (202) 628-4888 Official 1 -- a lower process than what's normally acceptable. So what difference does it make that it's different than what you do now?

Erica L. Ross: So, Your Honor, two responses to that, one practical, one legal. My practical understanding is that attempted service by mail to the embassies -- to United States embassies abroad happens nearly every day, and so that is actually a very large concern for us as a practical matter, whereas attempted service by mail to the State Department is actually much less frequent, just on the practicalities. As a legal matter, obviously, we think that the United States has a reciprocity interest in having foreign litigants or foreign sovereigns brought into our courts only under the same circumstances that we ask abroad. I don't think that there's a way to -- to read (b)(3) that doesn't permit service by mail to the foreign state, but -- to the foreign ministry in the foreign state, and so I think our reciprocity interests really come in where we think the text is clear under (a)(3) that you can't serve on an embassy, but -- but (202) 628-4888 Official 1 if, you know, there's any ambiguity there, that's where we think our reciprocity interests should be brought to bear. I would note more generally I think the United States' interests here are not only in reciprocity; they're also in consistency and predictability, which is something that this Court noted in Helmerich is especially important in the context of foreign sovereign immunity because we are bringing foreign sovereigns into our courts.

Chief Justice Roberts: But if I could ask you to pause just for a moment. You -- you -- you say in your brief on the -- the Vienna Convention that foreign nations would be affronted by sending a letter -- someone sending a letter to their embassy. I -- I -- I just don't understand. I understand the idea that they don't want police officers coming and knocking on the door and saying I've got a search warrant or -- or whatever. But it's hard to imagine someone's reaction to getting a letter in the mail to be that they're affronted by it.

Erica L. Ross: Mr. Chief Justice, I don't (202) 628-4888 Official 1 think this is an ordinary letter. This is a jurisdiction-asserting summons. It's quite literally the sovereign of the United States sort of exerting its hand into the embassy and saying you better show up in court or we're going to enter a default judgment against you.

Chief Justice Roberts: It's not literally them inserting their hand. It's putting the letter in the mailbox -- mail, right?

Erica L. Ross: Your -- Your Honor, again, I think it's not just a regular letter. It is a letter that has -- or a summons that has very serious judicial consequences. And so I think it is not just your regular dropoff of mail. But I think that we --

Justice Kagan: But why -- why is it any more of an affront if you send it to one place than if you send it to the other?

Erica L. Ross: Well, Justice Kagan, the foreign minister -- or the foreign ministry abroad is not protected by the Vienna Convention, and so there isn't this idea that you have inviolability of those premises. So that is the way that -- that states are more (202) 628-4888 Official 1 likely to expect to get the service, particularly -- and (a)(4) was discussed earlier -- if it comes through diplomatic channels under (a)(4).

Justice Kagan: There's a regulation that suggests that the State Department under (a)(4) can -- can serve to the embassy if the foreign state otherwise -- if the foreign state so requests or if otherwise appropriate? So is that also a violation of the Vienna Convention?

Erica L. Ross: It's not, Your Honor. Two points on that. The first is that under -- again, as a practical matter, that happens quite infrequently. That is really in extreme circumstances where we either don't have an embassy abroad and don't have a protecting power that can deliver the summons. But, on the -- the legal matter, under Vienna Convention Article 41, Section 2, diplomatic channels, which are a well-established way of states communicating with each other, never violate mission inviolability, so that simply isn't a concern. And I think this is an important point, that (a)(4) is both always available and (202) 628-4888 Official 1 never a violation of diplomatic immunity. So it is not as though Respondents will not be able to ultimately complete service in this case or in any case. It is simply a question of how that service is, in fact, delivered. And, again, we think on --

Justice Ginsburg: But how does -- how does that work, mechanically, the (a)(4)? So there's a quest -- request for the Secretary to send what used to be called a letter rogatory; is that what it is?

Erica L. Ross: Well, so -- so what would happen in practice, Justice Ginsburg, is that the litigant would ask the State Department to serve abroad. It would have to show that it had not -- that (a)(1) and (a)(2) were not available and that service under (a)(3) was not successful, meaning that the return receipt did not come back. And then the State Department, in the usual case, will send the materials after ensuring that they're correct or -- you know, satisfy all the statutory requirements, will send those materials to the United States embassy abroad, which will in turn transmit it (202) 628-4888 Official 1 to the foreign ministry in the foreign state.

Chief Justice Roberts: Thank you, counsel.

Erica L. Ross: Thank you.

Chief Justice Roberts: Mr. Shanmugam. ORAL ARGUMENT OF KANNON K. SHANMUGAM ON BEHALF OF THE RESPONDENTS

Kannon K. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court: Sudan seeks to reverse a $300 million judgment in favor of the USS Cole victims based on an unstated procedural requirement. Sudan argues that the Cole victims improperly served their complaint by sending it to the Sudanese Embassy, a component of the foreign ministry, where it was signed for and accepted. The relevant provision of the FSIA does not contain Sudan's requirement that the complaint be sent to the address of the headquarters of the foreign ministry in the foreign state. And even if the relevant provision were ambiguous, Sudan's proposed interpretation is not necessary to comply with the Vienna Convention, which does not prohibit (202) 628-4888 Official 1 service by mail at an embassy. Consistent with the plain language of the FSIA, the court of appeals correctly held that service in this case was proper and its judgment should be affirmed. I'd like to start --

Justice Sotomayor: I've done a little bit of research on the service of process rules in the 50 states, and in virtually every one of them, in some manner or form, it basically says serve the person or the entity where they live, where they're doing business. Now you would say this is doing business in the embassy. But since it's being addressed to the foreign minister, he is not physically there except for an occasional visit. It seems a natural understanding under most due process concerns that you serve the person where you're likely to find them.

Kannon K. Shanmugam: Justice Sotomayor, I --

Justice Sotomayor: And that's not at most embassies, except in the rare visits which are very big state things, so I -- I -- I'm not sure that you can avoid reading "addressed and (202) 628-4888 Official 1 dispatched" as having some sense that this is a place where this person is regularly to be found, not merely where his entity has -- does some transactional business occasionally.

Kannon K. Shanmugam: Justice Sotomayor, I take your point about state service rules, but I think that that cuts in our favor and not against us. In our brief at page 23, we cite a number of federal provisions that are to the same effect, that in a wide range of contexts, ranging from FDA notices to the Longshoreman's Act, various federal statutes and rules specify places where documents should be served. They specify residences or businesses or last known addresses. And, in fact, Federal Rule 4(i)(1)(b) specifies that service of documents on the United States should go to the Attorney General of the United States at Washington, D.C. And so it certainly is true that, ordinarily, one would serve documents at, you know, a home or an official address, but, ordinarily, that address is specified. And where it is not specified, our submission here (202) 628-4888 Official 1 is a quite modest, straightforward, textual one. It is that the embassy is an official address of the foreign ministry. It is a component, an extension, of the foreign ministry. It is certainly true, as Justice Alito suggested, that if you walk into any American embassy, you're likely to see a picture of the Secretary of State. If you go to their website, you'll see the seal of the Secretary of State. If you go to the website on Sudanese --

Justice Sotomayor: But we can't ignore that it's not the place where the person usually is. And that concept, I think, is the essence of due process.

Kannon K. Shanmugam: But I don't think that you can get that out of the phrase "addressed and dispatched." I think that the outer bounds of due process --

Justice Sotomayor: Well, "addressed and dispatched" has a very sense of urgency. You're going to send it to the person and not to some far distant place from where that (202) 628-4888 Official 1 person may be on occasion.

Kannon K. Shanmugam: But, Justice Sotomayor, as you are well aware, the outer bound of due process, the familiar Mullane standard, is the notion that it must be reasonably calculated to give notice. And our standard gives effect to that because, as you will be aware from our brief, we think that the phrase "addressed and dispatched" requires the service pack to be sent in an expeditious manner. Now we think --

Justice Sotomayor: Isn't it -- isn't it strange to think that we have the Vienna Convention that protects the embassy from a service processor knocking on the door and hand-delivering something, but you can go in by mail and place a burden on the embassy by requiring either that it put it in its diplomatic pouch or hand-deliver it or do something else, do the mailing for you, to the foreign minister? Isn't that the exact kind of burden that the convention was intended to avoid?

Kannon K. Shanmugam: I do not think that there is anything strange about the distinction (202) 628-4888 Official 1 between a process server on the one hand and service by mail on the other. If you take a look at the critical piece of drafting history, the 1958 revised commentary, which really is the definitive commentary of the International Law Committee on the Vienna Convention, in the paragraph on which we rely, the very paragraph, they draw precisely this distinction. And the reason I would submit that they draw this distinction -- and this is also captured in Lord Sumption's opinion for the U.K. Supreme Court in Reyes -- is that there is something relating to dignitary interests about personal service, the notion that some person is going to turn up at the embassy or skulk around at the embassy and wait for someone to arrive so that they can hand them a document. That interferes with the functions of the embassy in a way that a mailing does not.

Justice Breyer: All right. But I -- I have a question. And Sumption's a good judge, and so I read that and paid attention to that, but I agree with you, it's textual. That's your argument. And I find it (202) 628-4888 Official 1 ambiguous, so we'll assume it's ambiguous. I look to purpose, Justice Sotomayor did, and I -- I cut that a little against you because you had mentioned -- left one word out of your beginning. You said you want a $300 million judgment. You left out the word default. It was a default judgment. And, of course, that's the concern, that's the purpose concern, that they have one ambassador, an assistant, and four people working in the mail room who are all American citizens and never even been to the country. And they don't know what to do. And you only have 60 days to answer. Okay? And so who knows what's going to happen to that piece of paper in many embassies. More than 60 days before they even get it over in their country. All right? But purpose, I'll give you something on that, because that's not my question. Then I -- I thought: Well, can't get too far on purpose. Not sure about consequences. What about history and tradition? And there I asked my law clerk to go look up what other countries do, and this is what I found. (202) 628-4888 Official 1 I found -- of course, we have five here, Austria, Libya, Saudi Arabia, the UAR, and the Sudan, and they all say we do it the State Department's way. Then Canada, the same. Belgium, the same. Twenty-two countries have signed a -- a -- a -- a convention which says, in the absence of an existing agreement, service on a foreign country must be to the Ministry of Foreign Affairs. Okay? That's -- so we got 22 more. And then I tried to find one the other way. Couldn't find one. Well, Sumption. And what Sumption was about is what he said. It was about a former ambassador of service in his residence. And they say foreign states are different. And then there's some language that helps you. And then I looked to what we did here, and what we did here is that Congress wanted to do it your way, and State wrote them a letter, and nobody says that that Vienna Convention on inviolability is clearly yours or clearly theirs. What they say is there's an issue about it. And because -- and there is an issue. (202) 628-4888 Official 1 And because there is an issue, they said to Congress, the state, don't do it, this isn't the way we do it. And after the state wrote them that letter, they changed the law. They dropped the language that said you can serve an embassy. Okay? So, so far, I have U.S. history. I have at least 22 -- 27 countries. I could find nothing the other way, except arguable dictum in a case that involves something else. Now I put that long question to you because I want to give you a chance to say no, I'm wrong, there are 32 countries who do it differently, or whatever you want to say.

Kannon K. Shanmugam: Well, I'm not going to say you're wrong, Justice Breyer, but I will address what I think were really the three parts of your question: first, text; second, policy; and, third, the practice of other countries. So, with regard to the text, as you know, our submission is quite simple. It's not that this is an ambiguous provision. It's that it's a broad provision. And the best evidence of that is that in the very next paragraph, (202) 628-4888 Official 1 (a)(4), a location is specified and all of the statutes and rules that we cite in our brief, a location is specified. And so, if there is not a location, that does not connote ambiguity. It connotes breadth. And the embassy is, in the words of Justice Kagan, something special. It is the extension of the foreign ministry in the United States. And so it is quite a modest step to say that that is an address at which service of process to the foreign minister is proper. Now, on the issue of policy, I think that the best response to your concern about policy -- and I acknowledge that there was a default judgment in this case, though no one can dispute that Sudan had actual notice of this case and, of course, more than actual notice of the ongoing Cole litigation, which had been going on for many years, but even if you put that aside, the simple response to all of the policy considerations offered by my colleagues on the other side is that, under (a)(3), it is completely within the control of the foreign state whether to accept (a)(3) service not only at its embassies but more (202) 628-4888 Official 1 generally. And I would urge this Court to take a look at the policy of the United States, which we cite in our brief and we provide a correct website in our supplemental letter, it's a very brief document, which makes clear that not only does the United States not accept service at its embassies; it would not accept mail service even at the State Department. The sole ways in which the United States accepts service, if you look at page 2 of the current version of the policy, is either through diplomatic channels or through the Hague service convention, which is what (a)(2) refers to. All we are saying is that if this Court gives full effect to the language of subsection (a)(3), a country can adopt such a policy and implement such a policy. And if, for instance, some letter or package got inadvertently signed for, the country could send it back immediately. That is, of course, not what took place here. In all three of the lawsuits, Sudan signed the receipt. You can take a look (202) 628-4888 Official 1 at the Joint Appendix at page, I believe, 74, and see the return receipt for yourself. And so a country can avoid (a)(3) service, if it so chooses, either altogether or at the embassies. Now, with regard to the practice of other countries, I would certainly acknowledge that (a)(3) is an unusual provision under any of our interpretations. Service of process by mail is not provided under the laws of many other countries. It is true that a number of countries do provide for service of process by mail on diplomatic personnel where it's a complaint against diplomatic personnel, and that is, of course, the upshot of the law in the U.K., as Lord Sumption discusses in paragraph 15 of his opinion. But I think that that illustrates why the government's interest in this case is unfounded. U.S. law has been non-reciprocal since the FSIA was enacted in 1976. U.S. law has permitted service of process by mail where many other countries do not. And yet there is no evidence of some form of retaliation against the United States, and I think it is highly (202) 628-4888 Official 1 unlikely, with all due respect --

Justice Breyer: Well, I didn't talk about retaliation, you see? So now where I am is -- because I -- you'll see what I'm going to say in a second, but -- but I -- I think that -- that, yeah, maybe my purposing was -- I'm not sure how overstated, because I do worry about these small embassies, but text, you can't get me too far. You -- I mean, it's -- it is ambiguous. But I still have the simple fact that every other country in the world has a different policy and we did too. And now you point out correctly that there are other ways that they could get to this same policy elsewhere in the statute if they want to. And the problem is -- and I -- maybe I -- I mean this seriously, and I don't mean it to be facetious -- Botswana perhaps does not have a lawyer like you. And to turn over to these countries, often very small, often without adequate legal advice, something that departs from a simple legal rule that every one of them has followed in one form or another in the past is something that makes me nervous. (202) 628-4888 Official

Kannon K. Shanmugam: Well, let me then offer a fourth answer --

Justice Breyer: Yeah. All right.

Kannon K. Shanmugam: -- which is that you ought not to be nervous about that because there are things that countries can do in your Botswana hypothetical. One thing they can do is, if the package gets transmitted to the foreign ministry and someone sees it and says we should not have accepted service, it could be returned immediately. And applying ordinary principles of rescission, we're aware of at least one district court decision in which a court has said: Well, you returned it right away, and so we're going to treat this as if service was not effective. But I think more importantly -- and, again, there is evidence of this in the lower court case law -- if a country after the fact does not, in fact, transmit the service packet appropriately, the country can come in and object to any default or to a subsequent default judgment in the country --

Justice Sotomayor: But those are all subject to the discretion of the district (202) 628-4888 Official 1 court. They're not rules of -- they're not absolute rules.

Kannon K. Shanmugam: But I think --

Justice Sotomayor: What happens -- I -- I hate to use a country, but let's assume a country that's more than 24-hour mailing away, and they only have a pouch once a week, it gets to them, they send it back, it's now going to take whatever amount of time to come back, and the judge says no, waiting a month, waiting six weeks is just too much time. That doesn't respect the dignitary expectations of all other states, including this one, of the United States, that --

Kannon K. Shanmugam: For the record, I'm sure that Justice Breyer --

Justice Sotomayor: -- that kind of serve --

Kannon K. Shanmugam: -- I'm sure Justice Breyer did not intend to malign Botswana. I think in the case of a --

Justice Sotomayor: No, no --

Justice Breyer: Moreover, I know a very good lawyer in Botswana, actually. (Laughter.) (202) 628-4888 Official

Justice Breyer: And I worked with her for quite a while. But the point is I'm just taking that as a -- it could be a totally wrong example, and what that is, is that there are many countries that don't have the resources to figure out what a default judgment means, to figure out where they're going to go and they -- and to know who to transmit things to, and the chances are just much greater that the right authorities will get the piece of paper if you send it to the ministry, which is likely to be better staffed in their own country.

Kannon K. Shanmugam: I mean, perhaps. So I think you could still have the risk of the same problem under Petitioner's and the United States' interpretation because, after all, the practical reality is that it's not the foreign minister himself or herself who's going to be responding to this lawsuit. It's going to be the equivalent of our Office of Foreign Litigation. So there's going to be a routing issue regardless. The service packet has to get to the right place.

Justice Alito: Well, on that --

Kannon K. Shanmugam: But, Justice (202) 628-4888 Official 1 Sotomayor --

Justice Alito: -- on the routing issue, Mr. Shanmugam, could you tell me exactly what rule you would like us to apply? In your brief, you say it -- it must be sent to a location that is likely to have a direct line of communication to the foreign minister. So would that apply to every consulate? Would it apply to the Number 2 person in the embassy, the Number 3 person in the embassy? They all have a direct line of communication.

Kannon K. Shanmugam: I -- I think that the -- the better view is that if it is an official address of the foreign ministry that is likely to have a direct line of communication -- and I think Mr. Curran agrees that it has to be an official address, so a home address or other address would not qualify -- I think that that would satisfy our standard. But I think that if this Court were concerned about that breadth -- and I'll explain in a minute why the Court shouldn't be -- it could draw a line around embassies because embassies certainly perform the full (202) 628-4888 Official 1 panoply of functions of the foreign ministry and if you take a look at --

Justice Gorsuch: Well, but, counsel, if we're concerned about the text --

Justice Ginsburg: Mr. Shanmugam, can we back up? And this is -- are we -- we talking about a question of personal jurisdiction? What is the basis of subject matter jurisdiction in these suits?

Kannon K. Shanmugam: So the basis for subject matter jurisdiction is the waiver of immunity. And, in fact, there is a federal cause of action uniquely for victims of terror attacks against state sponsors of terrorism under Section 1605(a). It is true that this issue of service goes to personal jurisdiction under -- I believe it's Section 1330(b). And so this is a personal jurisdiction issue. I do want to say one last thing in response to Justice Alito before I forget, and that is that, you know, if the Court is concerned about consulates and U.N. missions, again, the Court could distinguish embassies on the ground that embassies perform a unique (202) 628-4888 Official 1 function. And, of course, a country could adopt a policy of not accepting service at its consulates or at the U.N. mission. As a practical matter, I don't think it's going to matter very much, and we did look at the case law, and I think we found around three cases where parties have attempted service at consulates or U.N. missions. And I think the reason it wouldn't matter is that if there is an available address in the United States, i.e., the embassy, there's not going to be any need to attempt service on the consulate or on the U.N. mission in New York rather than in Washington, D.C. And I do think that one factual point here bears emphasizing. This method of service was first attempted by my co-counsel, Mr. Hall, in the Rux case in 2004. The reason that we attempted service at the embassy was for the simple reason that, in 2004, Sudan was at the tail end of its Civil War and it was very hard even to find someone who would deliver a package to Khartoum with the requisite return receipt. And so this case really illustrates (202) 628-4888 Official 1 why this policy makes sense. It makes sense because the embassy is, indeed, the extension of the foreign ministry in the United States, and it can choose how it wants to process or transmit a service package when it is accepted. There's no requirement that it use a diplomatic pouch. And in 2018, there are faster ways of making the transmission. Justice Sotomayor --

Justice Sotomayor: Are you asking us to -- are you suggesting that the U.N. embassy would be a place to effect service under this provision?

Kannon K. Shanmugam: I think it would satisfy our statutory text -- our statutory text argument. And I heard Justice Gorsuch turning to that. Let me address that directly.

Justice Gorsuch: Well, yes -- yes. I would think textually, you'd have a very difficult time drawing a line around embassies. I mean, you -- you suggest we might do that. I suppose we can do just about anything. But, textually, I don't see how you make that argument.

Kannon K. Shanmugam: Well -- (202) 628-4888 Official

Justice Gorsuch: I would think consulates, trade offices, tourism offices that are part of the ministry would all be included, I would think, under your interpretation.

Kannon K. Shanmugam: Well, I think our textual argument is that at least the verb "dispatched" connotes some notion of expeditiousness and promptness, and we're all in agreement about the relevant dictionary definitions. And I think with an embassy, ex-ante, I think it is reasonable to think that it's going to get to the foreign minister because of the direct line of communication and because embassies are directly in communication with foreign ministries all the time.

Justice Gorsuch: Well, I'm positing all sorts of different kinds of entities that are also --

Kannon K. Shanmugam: But I --

Justice Gorsuch: -- directly in communication with and responsible to ultimately the foreign minister. So I'm not sure textually how I wouldn't qualify.

Kannon K. Shanmugam: Well, I think it's (202) 628-4888 Official 1 just that it is less likely to arrive in an expeditious manner if you send it to a tourist office and the like. That may very well not be a component of the foreign ministry. I think we're in agreement, again, that it has to be an official address of the foreign ministry at a minimum. I do want to say --

Justice Gorsuch: A second question if I might.

Kannon K. Shanmugam: Sure.

Justice Gorsuch: What do we do about the fourth subsection, which does specify diplomatic means, addressed to the Secretary of State, if you -- if you failed under 3, you go to 4, and 4 says then you send it to the secretary of state here in Washington, the United States Secretary of State, and -- and the Secretary will then use diplomatic means to get it to the appropriate folks. And when Congress speaks so clearly about the question of diplomatic means in one place, we tend to usually think it's excluded elsewhere. What do we do about that?

Kannon K. Shanmugam: Well, I don't think that that hurts us, and, in fact, I think that (202) 628-4888 Official 1 (a)(4) helps us in numerous respects. The first is, of course, the plain text argument that, there, Congress specified a location for the initial delivery to the --

Justice Gorsuch: I understand that argument. That's not my question.

Kannon K. Shanmugam: Yes. And I -- I think to be sure, (a)(4) is, you know, the fallback. It is potentially available. In the Kumar case where the Fourth Circuit rejected our interpretation, we're in the process of attempting service right now under (a)(4) and working with the State Department to do that. And the way that (a)(4) service operates is that you deliver the service packet first to the Secretary of State. Interestingly, and somewhat responsive to Mr. Curran's point, you know, the Secretary of State has a lot of buildings even in Washington, D.C. And the State Department on its website for the last --

Justice Gorsuch: All right. All right. Now let's -- let's get to the question, all right?

Kannon K. Shanmugam: Yeah. Well, I'm -- (202) 628-4888 Official 1 I'm -- I'm -- I'm not meaning to filibuster. I -- I just -- I want to make sure that the Court understands how this actually operates.

Justice Gorsuch: We understand that the State Department is large. My question is just, it speaks there that the Secretary will then use diplomatic means to get the service effected.

Kannon K. Shanmugam: Correct.

Justice Gorsuch: And there is an express discussion of diplomatic means.

Kannon K. Shanmugam: Correct.

Justice Gorsuch: And its presence in (4) would suggest its absence in (3) was not accidental under our normal canons of interpretation. Now I'm telling you something you already know.

Kannon K. Shanmugam: Well, it's a --

Justice Gorsuch: So what's the -- what's the answer to it?

Kannon K. Shanmugam: That's a somewhat different argument, I think, from the arguments that Sudan and the United States have made, and so let me address it directly.

Justice Gorsuch: Let's -- let's say I (202) 628-4888 Official 1 disagree with that.

Kannon K. Shanmugam: Yeah. So I -- I don't think that the reference to diplomatic channels in any way excludes service at diplomatic premises, and that's for the simple reason that I think diplomatic channels has a very well-defined meaning at law. And if you take a look at --

Justice Gorsuch: But -- but -- but -- but your reading of (3) is that it has to get to the foreign minister. And the only way it can get to the foreign minister, you say it will happen effectively and with great dispatch, if I give it to the embassy and maybe a few other places. So you are using diplomatic means there, aren't you?

Kannon K. Shanmugam: Well, we are -- I -- I -- I would hesitate to say that we're using diplomatic means other than in the very generic sense, Justice Gorsuch, which is to say that in any form of (a)(3) service, you know, you are going through the foreign ministry. The question is, how are you going through the foreign ministry? And, indeed, if you take a look at the (202) 628-4888 Official 1 regulation, if you're interested in (a)(4), I think the government's own regulation is quite informative. It's 22 CFR 93.1. It's cited in the briefs. And it --

Justice Gorsuch: You're counting on (a)(3) that -- that the embassy's going to send it through a diplomatic pouch or otherwise to the foreign ministry, right?

Kannon K. Shanmugam: Or some other means. But, again, diplomatic channels, it's a defined term and it refers to communication from one sovereign to the other. You know, that is what diplomatic channels means. And so, if you look at the relevant regulation, it sets out the various ways in which that occurs. And it is certainly true, as Ms. Ross said, that the -- that the -- probably the most common way this occurs is that the State Department sends a service packet to the United States Embassy in Khartoum, and it attempts to deliver the service packet.

Justice Kavanaugh: As a practical matter, as a practical matter, is that hard to accomplish? In other words, the system going (202) 628-4888 Official 1 forward, if we were to say you can't do it at embassies, is there a problem going under that mechanism?

Kannon K. Shanmugam: Well, you know, the problem is that I don't think it's necessarily certain that you'll be able to attain service. We're certainly hopeful that we will be able to attain service under (a)(4) in the Kumar case, but, again, you know, this Court has to give effect to Congress's judgment.

Justice Kavanaugh: Are you aware of any problems trying to effectuate service generally under (a)(4)?

Kannon K. Shanmugam: Well, I think it could break down if there is not --

Justice Kavanaugh: It could, but are --

Kannon K. Shanmugam: -- if there's not a diplomatic relationship.

Justice Kavanaugh: Does it --

Kannon K. Shanmugam: I mean, that's the bottom line, right, is that if there is not a diplomatic relationship, there are not going to be diplomatic channels. But I think, tellingly, the regulation (202) 628-4888 Official 1 for (a)(4) service contemplates the possibility of service of process at the embassy in the United States of the foreign state, which I think belies the notion that this is somehow forbidden by the Vienna Convention.

Justice Breyer: In your research, did you find a single example, any example of someone tried (a)(4) and they couldn't get it done?

Kannon K. Shanmugam: I'm not aware of an example. I can't say that I've actually researched that specific question, but, of course, we're interpreting above all a federal statute here. And Congress established a hierarchy. And, Justice Breyer, to the extent that (a)(3) is unusual, I think the telling fact is that Congress preferred (a)(3) service to (a)(4) service.

Justice Kavanaugh: But you're saying --

Justice Breyer: I thought it was usual. My -- my point, which you seem to agree with, is the research shows it's not -- oh, the (a)(3) you mean to the embassy is usual? (202) 628-4888 Official

Kannon K. Shanmugam: Well --

Justice Breyer: Unusual, I mean.

Kannon K. Shanmugam: -- no, I took your question to be whether I'm aware of any cases of (a)(4) service failing --

Justice Breyer: Yeah.

Kannon K. Shanmugam: -- so that a party is completely out of luck.

Justice Breyer: That's right.

Kannon K. Shanmugam: And I think that if there would be such a case, it would be in a context in which the United States has no diplomatic relations and, therefore, there are no diplomatic channels. And, of course, that's not an unlikely possibility in the event of a state sponsor of terrorism, which is, after all, the context in which (a)(3) is most likely to be significant.

Justice Sotomayor: How many of them have embassies in the United States where there's no diplomatic relations?

Kannon K. Shanmugam: Well, I think that that is, you know, to be fair, an -- an unusual situation. And it certainly is true that there, with any luck, one of these mechanisms (202) 628-4888 Official 1 is going to succeed. And (a)(4) does exist as a fallback.

Justice Kavanaugh: But the point --

Kannon K. Shanmugam: But, of course, our whole point about the inequity --

Justice Kavanaugh: Counsel, the point -- the point you're making is it's not a big deal to allow service at an embassy, even though the United States objects and even though, as Justice Breyer points out, no other country appears to allow that. And -- and my response in addition to that is, is it really a big deal to, from your perspective going forward, I know about this case, but going forward as a system, to go through the (a)(4) mechanism rather than (a)(3) at -- at an embassy?

Kannon K. Shanmugam: Well, I would flip that around and say that it's not a big deal to permit service on the embassy under (a)(3) --

Justice Kavanaugh: But that --

Kannon K. Shanmugam: -- precisely because a country can adopt a policy and simply decide not to accept (a)(3) service.

Justice Kavanaugh: But the -- but I (202) 628-4888 Official 1 -- if I were starting afresh like the Chief Justice's first question, I -- I might agree with you, but the United States and all the countries in the Vienna Convention all seem to say, actually, it is a big deal.

Kannon K. Shanmugam: But I think that there are two separate questions. The first is, does the Vienna Convention prohibit service of process by mail? And there I would respectfully submit that all of the relevant indicia -- the language of Article 22, the drafting history, the commentary, including the U.K. Supreme Court's decision in Reyes -- point in our favor. The second is, what is the current practice of other countries? And while it is certainly true that (a)(3) is unusual with regard to lawsuits against foreign sovereigns, I don't think that it's as unusual with regard to lawsuits against diplomatic personnel, like the lawsuit at issue in Reyes. So the idea of service of process by mail is not somehow alien. It's just that Congress, in adopting (a)(3), did do something a little bit unusual in providing a mechanism (202) 628-4888 Official 1 for service of process by mail, even for litigation against foreign sovereigns.

Justice Alito: What would be the consequences in this particular case if you had to go back and if we were to rule against you and you succeed in achieving service under (a)(4)? Is there any indication that Sudan would appear?

Kannon K. Shanmugam: Well, I think that's a question for Mr. Curran, but we would certainly have to start over in this case. And I think that the reason why that is particularly inequitable here is because, in this case, we would essentially be held to have failed to serve properly by failing to comply with a requirement that does not appear on the face of the statute and in a context in which Sudan unquestionably had actual notice of the litigation. And, again, as this case comes to the Court, it comes to the Court on the assumption that Sudan accepted service here, notwithstanding Sudan's late effort to cast doubt on that proposition. And so, notwithstanding Sudan's judgment to accept (202) 628-4888 Official 1 service under (a)(3), we would have to start over at this late phase. And we're not even talking about an objection that was raised in the underlying litigation. We're talking about an objection that was raised in the very -- at the very last minute in response to turnover orders. And that would be the height of unfairness to the Cole victims. The judgment of the Second Circuit should be affirmed.

Chief Justice Roberts: Thank you, counsel. You have two minutes remaining, Mr. Curran. REBUTTAL ARGUMENT OF CHRISTOPHER M. CURRAN ON BEHALF OF THE PETITIONER

Christopher M. Curran: Justice Alito, Sudan is committed to appearing and defending itself. It believes that the default judgment was ill-founded. It has substantial defenses, and it would like to contest the charges.

Justice Alito: Is there -- you want to suggest that the -- the government of Sudan had forgotten about the Cole incident or didn't realize that this litigation was going on? (202) 628-4888 Official

Christopher M. Curran: Well --

Justice Alito: It didn't get notice? It didn't know that this litigation was going on?

Christopher M. Curran: Well, we -- we do have a bona fide concern about the way the service package was sent, right? Page A-75 of the Joint Appendix shows -- is the Postal Service record, and it shows that the package was not actually delivered to the embassy but, in fact --

Justice Ginsburg: But that's not the --

Christopher M. Curran: -- was delivered to the --

Justice Ginsburg: The question is, did Sudan have actual notice? Mr. Shanmugam said a few times --

Christopher M. Curran: Yeah. But --

Justice Ginsburg: -- it did. And -- and you're not contesting that, in fact, Sudan had notice?

Christopher M. Curran: We can't contest that someone at the embassy knew about the case through plaintiff's counsel. We have no idea (202) 628-4888 Official 1 whether responsible people in Khartoum knew about the litigation. So it depends --

Justice Breyer: Did they know about it before the 60-day period for replying and preventing the default judgment passed?

Christopher M. Curran: I don't know and there's nothing in the record on that. But, again, actual notice --

Justice Breyer: Well, you know -- you know that they knew as of -- as of when? The process is mailed. They have to return it. Sixty days later they're eligible for a default, and default was entered. Okay?

Christopher M. Curran: Yes.

Justice Breyer: Now do we know when they really knew about it, before the default or after the default?

Christopher M. Curran: Yeah, I think it was after the motion for default judgment but before the default judgment itself, okay? That's -- that's my assessment of the record. My -- my colleague, Mr. Shanmugam, advocates a reading of 1608(a)(3) that is broad and unpredictable and leaves too much creativity for plaintiffs and courts. (202) 628-4888 Official

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:05 a.m., the case was submitted.)