United States Court of Appeals, District of Columbia Circuit
Argued: March 16, 2015.
Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-00451).
Denise M. Clark argued the cause and filed the briefs for appellant.
Laina C. Lopez argued the cause and filed the brief for appellee.
Before: ROGERS and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Rogers, Circuit Judge.
Rogers, Circuit Judge: Dolores Barot appeals the dismissal of her complaint for failure to effect service of process as required under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608(a)(3). That Act confers upon the district court responsibilities with regard to the sensitive task of service of process on a foreign government, yet in this case the district court itself was responsible for a substantial portion of the mistakes in service. Because Barot's attempts at service came so close to strict compliance with the Act as to demonstrate a good faith effort at timely compliance amidst the sometimes confusing directions from the district court, we conclude, in view of the resulting prejudice to Barot and the absence of any relevant prejudice to the Embassy of Zambia of allowing a further effort at service, that dismissal was too extreme a remedy. Accordingly, we reverse and remand the case for the district court to permit Barot to effect service in compliance with section 1608(a)(3).
In order to sue a foreign state or one of its political subdivisions, a plaintiff must effect service in compliance with the Foreign Sovereign Immunities Act. See 28 U.S.C. § 1608(a); Fed.R.Civ.P. 4(j)(1). The Act provides four methods of service in descending order of preference. First, " by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision." Id. § 1608(a)(1). Second, " by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents." Id. § 1608(a)(2). Third,
by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of 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 concerned . . . .
Id. § 1608(a)(3). And fourth, if none of the first three methods works, a plaintiff can serve the appropriate documents through the Department of State. Id. § 1608(a)(4). Because neither of the first two methods was available to Barot, both parties agree that the third method was required.
When serving a foreign sovereign, " strict adherence to the terms of 1608(a) is required." Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154, 308 U.S. App.D.C. 86 (D.C. Cir. 1994). In Transaero, a plaintiff attempted to sue the Bolivian Air Force -- a political subdivision of the Bolivian state -- by mailing service to the Bolivian Ambassador and the Air Force itself, instead of " to the head of the ministry of foreign affairs of the foreign state." Id. at 153 (quoting 28 U.S.C. § 1608(a)(3)). This court held that neither substantial compliance, nor actual notice, sufficed under section 1608(a)(3) because Congress had mandated " service of the Ministry of Foreign Affairs, the department most likely to understand American procedure." Transaero, 30 F.3d at 154.
Barot is a former employee of the Embassy of Zambia in Washington, D.C. After her employment was terminated in 2009, she filed a complaint with the Equal Employment Opportunity Commission, ...