Procedural Requirements with Big Impacts: November 7 Oral Arguments

The Supreme Court heard arguments in Republic of Sudan v. Harrison on November 7, 2018, where it is being asked to resolve a circuit split on whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act (FSIA) can serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail to the foreign state’s embassy in the United States, notwithstanding differing provisions under the Vienna Convention on Diplomatic Relations (VCDR). The U.S. Courts of Appeals for the District of Columbia, Fifth Circuit, and Seventh Circuit have all held “no,” while the Second Circuit in the present case has held that plaintiffs may be allowed to serve a foreign state in this way.

           The case arises out of the October 2000 bombing of the USS Cole that killed 17 sailors, injuring dozens more, for which a group of victims and their families sued Sudan, alleging that it had provided support to al-Qaida, who claimed responsibility for the attack. Read CNN’s fast facts article for background on the attack. The argument for petitioner – Republic of Sudan – is that the proper interpretation of §1608(a)(3), as held by the District of Columbia, Fifth, and Seventh Circuits, is that someone suing a foreign state needs to send process directly to the head of the ministry. In support of that position, counsel for petitioner argued that there is no language in §1608(a)(3) that explicitly provides for service through an intermediary, and the specific statutory provision should be applied literally and strictly.  The respondent – Rick Harrison – countered that the Second Circuit properly held that he could send process through an intermediary, in this case the Sudanese Embassy. They further alleged that Sudan was using an unstated procedural requirement to avoid paying the $300 million judgment to Harrison and the other victims of the attack on USS Cole. The Associated Press and LMT Online have more on the arguments.

           The Court also heard arguments in another circuit-split case involving a question of statutory interpretation, Culbertson v. Berryhill, which centers around 42 U.S.C. § 406(b)’s 25-percent cap on fees relating to the representation of individuals claiming Social Security benefits. The cap provides that an attorney can take a contingent fee of no more than 25 percent of the claimant’s past-due benefits. The Sixth, Ninth, and Tenth Circuits have held that the 25-percent cap applies only to fees relating to representation in court, whereas the Fourth, Fifth, and Eleventh Circuits have held that the 25-percent cap applies to the maximum aggregate amount of proceedings, whether there are solely court proceedings or both administrative and court proceedings. The petitioner, Culbertson, argued that the phrase at issue – “such representation” – should be read to mean that § 406(b)’s cap applies only to representation fees for work done before a court. Respondent Barryhill, acting commissioner of Social Security, argued that limiting the cap on fees to past-due benefits as they apply to court proceedings would open the door to attorneys being able to collect the 25-percent representation fee from proceedings in multiple jurisdictions. UVA Today has more on Culbertson, and The Jurist covers both of the cases argued on Wednesday November 7, 2018.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


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