Avinesh Kumar v. Republic of Sudan (Agee 01/19/2018): The Fourth Circuit held that delivering process to a foreign nation’s embassy and identifying the head of that nation’s ministry of foreign affairs as the recipient does not satisfy the Foreign Sovereign Immunity Act’s requirement that the mailing be addressed and dispatched to the head of the foreign state’s ministry of foreign affairs. More precisely, process is not properly “addressed and dispatched to” the head of the ministry of foreign affairs as required by 28 U.S.C. § 1608(a)(3) when it is delivered to the foreign state’s embassy in Washington, D.C., regardless of whether the intended recipient is properly identified as the head of the ministry of foreign affairs. Because the appellees’ attempted service of process did not comply with this statutory requirement, the district court lacked personal jurisdiction over Sudan; thus, the Fourth Circuit reversed the district court’s order denying Sudan’s motion to vacate, vacated the default judgments entered against Sudan, and remanded the case with instructions. Full Opinion
United States of America v. Michael Lawrence Maynes, Jr. (Wilkinson 01/18/2018): The Fourth Circuit held that the district court’s jury instruction defining “fraud,” as the term is used within the federal sex trafficking statute, was sufficient because it tracked the language of the statute and properly conveyed to the jury that only material misrepresentations could contribute to a violation of the statute by means of fraud. The court also rejected the defendant-appellant’s challenge to the sufficiency of the evidence because there was evidence to support each element of each of the appellant’s sex trafficking convictions. Lastly, the court held that the district court’s decision to limit the extent to which the appellant’s attorney could cross-examine the trafficked women at issue on their past sexual histories did not violate the Confrontation Clause of the Sixth Amendment and was within the district court’s discretion because such testimony had the potential to be highly prejudicial but only marginally relevant. Accordingly, the Fourth Circuit affirmed the appellant’s convictions. Full Opinion
United States of America v. Edgar Searcy (Diaz 01/18/2018): The Fourth Circuit held that the four-year “catch-all” statute of limitations Congress enacted for federal civil actions, 28 U.S.C. § 1658(a), does not apply to civil commitment proceedings initiated by the government under the Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 4248. The court reasoned that § 1658(a) is a gap-filling provision that contains an important limiting phrase, “except as otherwise provided by law,” and that the timing of a civil commitment proceeding delineated in § 4248 is “otherwise provided by law,” specifically, the custody requirement of the civil commitment statute which states that proceedings must be initiated while the person is in custody of the federal government. Moreover, the court did not believe that civil commitment proceedings were the sort of “civil action” Congress had in mind when it enacted § 1658(a). Accordingly, the Fourth Circuit affirmed the district court’s decision to deny the appellant’s motion to dismiss the civil commitment proceeding and to have the appellant committed to the custody and care of the Attorney General. Full Opinion
Alexis Degidio v. Crazy Horse (Wilkinson 01/18/2018): The Fourth Circuit held that it is improper for a litigant to move to compel arbitration late in the litigation process after employing a prolonged merits-based strategy. In this case, an exotic dancer and other class members sued their employer for misclassifying them as independent contractors and underpaying them, and the employer attempted to defend on the merits before moving to compel arbitration. The court reasoned that arbitration should be used as an efficient alternative to litigation, not as an insurance policy in an attempt to give the defendant a second opportunity to evade liability. In this case, because the defendant-appellant’s actions violated the legislative intent of the Federal Arbitration Act, the Fourth Circuit affirmed the district court’s decision to deny the appellant’s motion to compel arbitration and remanded for further proceedings consistent with the opinion. Full Opinion
United States of America v. Donald Covington (Biggs 01/18/2018): The Fourth Circuit held that the crime of unlawful wounding under West Virginia law, W. Va. Code § 61-2-9(a), is categorically a crime of violence under the force clause of § 4B1.2 of the United States Sentencing Guidelines. Because the district court erroneously held otherwise and therefore did not consider the defendant-appellee to be a career offender when calculating his prison sentence, the Fourth Circuit vacated the sentence imposed by the district court and remanded for resentencing. Full Opinion
In re: Jarius Phillips (Niemeyer 01/16/2018): The Fourth Circuit held that if a criminal defendant seeks to present a claim to the district court in his or her successive habeas petition that was raised in the first federal application for a writ of habeas corpus, that defendant has not made a prima facie showing that the successive habeas application would allege a claim that was not presented in a prior application, as is required by 28 U.S.C. § 2244(b). In so doing, the court rejected the defendant-appellant’s argument that although he “raised” a claim based on Miller v. Alabama, 567 U.S. 460 (2012) in his 2013 habeas application, the claim had not been “presented” then because Miller’s new rule had not yet been made retroactively applicable to cases on collateral review. Accordingly, the Fourth Circuit denied the appellant’s motion seeking authorization to file a successive habeas application. Full Opinion
Avinesh Kumar v. Republic of Sudan, No. 16-2267
Decided: January 19, 2018
The Fourth Circuit held that delivering process to a foreign nation’s embassy and identifying the head of that nation’s ministry of foreign affairs as the recipient does not satisfy the Foreign Sovereign Immunity Act’s (“FSIA”) requirement that the mailing be addressed and dispatched to the head of the foreign state’s ministry of foreign affairs. More precisely, process is not properly “addressed and dispatched to” the head of the ministry of foreign affairs as required by 28 U.S.C. § 1608(a)(3) when it is delivered to the foreign state’s embassy in Washington, D.C., regardless of whether the intended recipient is properly identified as the head of the ministry of foreign affairs. Because the appellees’ attempted service of process did not comply with this statutory requirement, the district court lacked personal jurisdiction over Sudan; thus, the Fourth Circuit reversed the district court’s order denying Sudan’s motion to vacate, vacated the default judgments entered against Sudan, and remanded the case with instructions.
On October 12, 2000, Al Qaeda bombed a United States Navy guided-missile destroyer, the U.S.S. Cole, as it was refueling in the Port of Aden in Yemen. Seventeen American sailors were killed and forty-two more were injured as a result of the bombing. For almost a decade, family members of the United States sailors killed in the bombing pursued litigation in federal court against the Republic of Sudan for its alleged support of Al Qaeda. In 2004, family members filed a complaint in the United States District Court for the Eastern District of Virginia against Sudan under the “terrorism exception” of FSIA. Sudan failed to enter appearances or otherwise defend the suit, and the district court held Sudan liable and awarded compensatory damages to the plaintiffs.
The plaintiffs appealed the district court’s denial of their claim for additional damages. While this appeal was pending, Congress passed the National Defense Authorization Act for Fiscal Year 2008, which repealed the prior FSIA terrorism exception to foreign state immunity, reenacted the exception’s immunity-stripping language, and created a new substantive cause of action under the FSIA that authorizes recovery of noneconomic damages, including solatium and punitive damages. The plaintiffs filed a new complaint under the amended FSIA in April of 2010; because this new action was highly related to the plaintiffs’ pending appeal, the Fourth Circuit dismissed the appeal to allow the district court to adjudicate the plaintiffs’ amended FSIA claim.
In order to effectuate service of process pursuant to 28 U.S.C. § 1608(a)(3) for the April 2010 complaint, the clerk of court sent the requisite documents via certified mail, return receipt requested, in an envelope addressed to the head of the ministry of foreign affairs for Sudan. Importantly, however, service was not mailed to the minister’s office in Sudan; rather, it was mailed to the Sudanese Embassy in Washington, D.C. Sudan did not enter an appearance or file any responsive pleadings, and the district court entered default judgment orders against Sudan under FSIA. Sudan subsequently entered an appearance and filed a motion to vacate the default judgments, attacking the validity of the district court’s personal jurisdiction over the case for, among other things, improper service of process. The district court denied this motion, and Sudan timely appealed.
The crux of Sudan’s argument on appeal was that the district court lacked personal jurisdiction over it because the plaintiffs-appellees did not properly effectuate service of process as required under FSIA. Specifically, Sudan contended that mailing service to the Sudanese embassy in Washington, D.C., did not satisfy 28 U.S.C. § 1608(a)(3) and contravened the 1961 Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, which stated that a foreign state’s diplomatic mission is inviolable. Thus, because the district court lacked personal jurisdiction over it, Sudan argued, the default judgments entered against it were void.
The Fourth Circuit began its analysis by examining the language of § 1608(a)(3), which allowed service by mail “requiring a signed receipt to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” From this text, the court framed the central issue to be resolved as whether delivering process to a foreign nation’s embassy and identifying the head of that nation’s ministry of foreign affairs as the recipient satisfies subsection (a)(3)’s requirement that the mailing is “addressed and dispatched to the head of the ministry of foreign affairs of the foreign state.” As a threshold matter, the court stated that Congress intended the language of § 1608(a)(3) to be strictly construed, and that courts do not have discretion in widening the means by which service of process may be effectuated on foreign states.
Ultimately, the Fourth Circuit held that subsection (a)(3) could not be satisfied by delivery of process to a foreign state’s embassy, regardless of whether the intended recipient is properly identified as the head of the ministry of foreign affairs. To reach this conclusion, the court noted that while it was true that subsection (a)(3) did not specify delivery only at the foreign ministry in the foreign state’s capital, the appellees’ conclusion that service at the embassy satisfied subsection (a)(3) was unsupported. Because the foreign minister is rarely – if ever – at the embassy, the court stated that the notion of serving the foreign minister at a location removed from where he or she actually works is at least in tension with Congress’ objective, even if it is not strictly prohibited by the statutory language.
The court then looked to the Vienna Convention for guidance, noting that Congress knew and considered the Convention’s obligations in drafting FSIA. The Vienna Convention protects the inviolability of diplomatic agents, and the court had to consider and resolve the question of whether the Vienna Convention’s inviolability provision prohibited the application of subsection (a)(3) in the manner that allows service of process delivered to a foreign nation’s embassy in the United States. The Fourth Circuit answered in the affirmative and noted that the State Department’s interpretation of subsection (a)(3), which is accorded substantial judicial deference, followed the same conclusion.
Accordingly, because the appellees’ attempted service of process did not comply with § 1608(a)(3)’s requirements, the district court lacked personal jurisdiction over Sudan; thus, the Fourth Circuit reversed the district court’s order denying Sudan’s motion to vacate, vacated the default judgments entered against Sudan, and remanded the case with instructions.
Raymond J. Prince