Case of the Day: In re Grand Jury Subpoena

You may have seen some intrigue in the news recently. The Special Counsel’s office was arguing an appeal in Washington. The case was under seal, and the subject matter was so super-secret that the court didn’t just close the courtroom, it closed an entire floor of the courthouse so that no one would know who was arguing the case, which might allow inferences about the identity of the parties. The speculation was that the case involved a grand jury subpoena—grand jury proceedings are secret by design. Who could be resisting a grand jury subpoena connected to the Special Counsel’s investigation? The President? Someone else particularly juicy? (more…)

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Read more about the article Sudan v. Harrison: The Oral Argument
USS Cole after the attack. Credit: Sgt. Don L. Maes, USMC

Sudan v. Harrison: The Oral Argument

Letters Blogatory contributor Jared Hubbard, who represented a group of amici arguing in favor of Sudan, was at the Supreme Court yesterday for oral argument in Sudan v. Harrison, and he shares the following report. To set the stage: victims of the USS Cole bombing sued Sudan for damages. The plaintiffs sought to serve process on Sudan by sending the summons by mail to the minister of foreign affairs, via the Sudanese embassy in Washington, under 28 U.S.C. § 1608(a)(3). Before the Second Circuit’s decision holding that the service was sufficient, I should have said that the service was obviously insufficient and that there is no good reason to stretch the statute to accommodate what the plaintiffs did here, since § 1608(a)(4) provides a foolproof method of service when § 1608(a)(3) doesn’t work. You may want to read SCOTUSBlog’s account of the argument. The transcript of the argument is also available.


I attended the argument in Sudan v. Harrison yesterday, and I thought Letters Blogatory readers might like a “hot take” from an admittedly biased source (I was counsel to several amici arguing in favor of Sudan).

At least four justices seemed to be in favor of reversal and of holding that service cannot be made on embassies. Justices Sotomayor and Breyer were concerned about the Vienna Convention as well as the practical difficulties involved in service on embassies. Justice Sotomayor pointed out that under our law, the summons is normally delivered to a person where that person is, and not to some subsidiary location. Justice Breyer also pointed out that no other country allows service of process on embassies, while he found at least 27 countries that actively do not allow such service. (more…)

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Case of the Day: Process and Industrial Developments v. Nigeria

The case of the day is Process and Industrial Developments Ltd. v. Federal Republic of Nigeria (D.D.C. 2018). P&ID sought confirmation of an arbitral award against Nigeria and its Ministry of Petroleum Resources. On P&ID’s motion, the court had set a briefing schedule that required Nigeria to respond to the petition for confirmation with all of its jurisdictional and substantive defenses. Nigeria moved to dismiss on grounds of foreign sovereign immunity. P&ID complained to the court that Nigeria had only sought dismissal on jurisdictional grounds. The judge agreed and ordered Nigeria to plead all of its jurisdictional and substantive defenses, and Nigeria took an interlocutory appeal. (more…)

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Case to Watch: Jam v. International Finance Corp.

The Supreme Court heard argument yesterday in Jam v. International Finance Corp. I wrote about the case last year. The issue in the case is simple. Under DC Circuit precedent construing the International Organizations Immunities Act, international organizations have immunity from suit to the same extent that foreign sovereigns had it in 1945, at the time of the enactment of the IOIA. Should the statute instead be construed to mean that international organizations have immunity from suit to the same extent that foreign sovereign have it today? In practice, the question seems to be: should international organizations be immune from suit for their commercial activities in the United States? (more…)

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Read more about the article Case of the Day: Hulton v. Bayerische Staatsgemaldesammlungen
Grenzen des Verstandes, by Paul Klee

Case of the Day: Hulton v. Bayerische Staatsgemaldesammlungen

The case of the day is Hulton v. Bayerische Staatsgemaldesammlungen (S.D.N.Y. 2018). Michael and Penny Hulton were the heirs of Alfred Flechtheim, a German Jew who was a prominent art collector before the war. Among other paintings, he had works by Beckmann, Gris, and Klee. When the Nazis came to power, Flechtheim fled to Paris, and as a result of Nazi persecution, he was “forced to place his property at the disposal” of Alfred Schulte, a “Nazi tax advisor.” Another Nazi, Alex Vömel, took over Flechtheim’s gallery.

It is unclear whether Vömel, Schulte, or someone else disposed of the Paintings; Plaintiffs merely allege that the Paintings were sold in Germany after Flechtheim’s flight. Flechtheim apparently never returned to Germany, dying in London in 1937.

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Case of the Day: Helmerich & Payne v. Venezuela

The case of the day is Helmerich & Payne International Drilling Co. v. Bolivarian Republic of Venezuela (D.C. Cir. 2018). I’ve written about the case several times before, most recently in a post on the Supreme Court’s 2017 decision. Guest poster Ira Ryk-Lakhman also wrote a more extensive overview of the Supreme Court’s decision. Here is my brief description of the facts from the prior posts:

Helmerich & Payne, an Oklahoma oil company, operated in Venezuela through subsidiaries incorporated under Venezuelan law. Beginning in 2007, its subsidiary made contracts with the Venezuelan state oil company, PDVSA, for the use of the subsidiary’s drilling rigs. But PDVSA quickly fell behind on payments under the contract. PDVSA did, however, promise that payments would be forthcoming, and H&P’s subsidiary completed the work under the contract. The subsidiary then prepared its equipment to be removed from the country, but the Venezuelan government then sent its national guard to prevent removal of the equipment and to force the negotiation of new contractual terms. Venezuela issued press releases stating that the drilling rigs had been nationalized. The government later issued a decree of expropriation and some Hugo Chavez-flavored anti-American press releases. Venezuela brought two eminent domain actions in its courts, supposedly to compensate H&P’s subsidiary. But the subsidiary never received service of process in the first case, and the second case was stayed indefinitely. H&P sued Venezuela and PDVSA. The defendants argued the claim was barred by the FSIA and under the act-of-state doctrine.

In the Supreme Court, the question was the pleading standard that applies when a plaintiff pleads a case within the expropriation exception to FSIA immunity. The holding: “[T]he expropriation exception grants jurisdiction only where there is a valid claim that ‘property’ has been ‘taken in violation of international law.’ § 1605(a)(3). A nonfrivolous argument to that effect is insufficient.”

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Case of the Day: Dahman v. Embassy of Qatar

The case of the day is Dahman v. Embassy of the State of Qatar (D.D.C. 2018). El-Sayed Dahman, an Egyptian national who lived in Virginia, was employed by the Qatari Embassy as its chief accountant. When he turned 65, the Embassy discharged him. There was no question that his age was the reason for the discharge—both the Ambassador and the Director of Human Resources said so in writing. Qatar evidently had a policy of firing employees when they reached what it regarded as the retirement age. Dahman sued under the Age Discrimination in Employment Act. Qatar defaulted, and on a motion for default judgment, the court had to determine whether Qatar had foreign sovereign immunity.

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Case of the Day: EIG Energy Fund v. Petroleo Brasileiro

The case of the day is EIG Energy Fund XIV, LP v. Petroleo Brasileiro, S.A. (D.C. Cir. 2018). The case arose out of the Petrobras scandal in Brazil, in which Petrobras, the state oil company, allegedly defrauded EIG and other investors who sank millions into a major oil extraction project off the Brazilian coast, only to suffer losses when corruption in the Brazilian government and in Petrobras killed the project. The details of the alleged corruption aren’t important for our story. What’s important is that several EIG entities brought actions against Petrobras, and Petrobras asserted that it was immune from jurisdiction under the FSIA. The question was whether Petrobras’s commercial activity had caused a direct effect in the United States.

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Case of the Day: Azadeh v. Iran

The case of the day is Azadeh v. Government of the Islamic Republic of Iran (D.D.C. 2018). Asfaneh Azadeh sued the Iranian government, asserting she was wrongfully imprisoned for months and was tortured in prison. She served process via diplomatic channels under 28 U.S.C. § 1608(a)(4), without first attempting service on the Iranian foreign ministry under 28 U.S.C. § 1608(a)(3). The court’s guidebook for service abroad seemed to permit this, saying:

The countries of Iran and Iraq have not objected to service by mail. However, many attempts at service by mail or courier are unsuccessful. Therefore, it is okay for an attorney to request service directly through diplomatic channels (28 U.S.C. § 1608(a)(4)) without attempting service under any other provision first.

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