The U.S. Department of State is charged, under the Foreign Sovereign Immunities Act (FSIA), with handling service of process upon a foreign state or political subdivision through diplomatic channels. The Act specifies that when service of process upon a foreign state cannot otherwise be effected under FSIA, the clerk of court may dispatch a request to the Secretary of State, attn: Director of Special Consular Services, for service upon a foreign state defendant. The Department of State's service functions under the FSIA are currently administered by the Office of Legal Affairs, Overseas Citizens Services, CA/OCS/L.
To avoid confusion and common mistakes, please take note of the following items before submitting a request for service under FSIA 1608(a)(4).
- The defendant must be a foreign state or political subdivision, as defined in section 1603 of the Act, not an agency or instrumentality of a foreign state (to be served under section 1608(b) of the Act). The U.S. Department of State does not serve natural persons under the FSIA.
- The Act requires plaintiff to have first attempted service under sections FSIA 1608(a)(1), (2) and (3) before proceeding to section 1608(a)(4). Thus, the U.S. Department of State requires a statement in writing from the plaintiff or the clerk certifying that these attempts were made or were otherwise not applicable.
- The Act allows for service under FSIA 1608(a)(4) only after 30 days have passed since service was attempted under section 1608(a)(3) (by any form of mail requiring a signed receipt). The U.S. Postal service and private courier services can deliver documents to virtually any location. Plaintiffs should attempt service under FSIA 1608(a)(3) unless a foreign state has specifically objected to service by mail. To determine whether a particular country objects to service by mail, please see our country-specific judicial assistance information.
- There should be two copies of either (a) the summons, complaint, and notice of suit or (b) a default judgment and notice of default (depending on the request).
- The summons sheet and the notice of suit should state a 60 day (not 20 day) response time for the defendant. The summons should also be signed and dated.
- The notice of suit (or default judgment) should conform to the requirements of 22 CFR 93.2 (the statute specifically refers to notice of suit "in a form prescribed by the Secretary of State by regulation"). The notice of suit must contain a copy of the FSIA.
- All documents requested to be transmitted must be translated into the official language of the foreign state to be served.
- In cases involving allegations of terrorism, plaintiffs should refer to section 1605A(a)(2)(iii) regarding arbitration requirements (however, we defer to the court as to the adequacy of any action taken by the plaintiffs in fulfillment of this requirement).
- The Act requires the clerk of court dispatch the documents; however, a plaintiff may provide written confirmation that the court allowed plaintiff to act for the Clerk (after docketing).
- All requests for service under FSIA 1608(a)(4) should be addressed to:
CA/OCS/L, SA-17, 10th Floor
Washington, DC 20522-1710
- As of July 13, 2010, the U.S. Department of State charges, in accordance with 22 CFR 22.1, a $2,275 fee for each instance of service upon a defendant in each case where service is requested under the FSIA. The fee must be paid via cashier’s check to the “U.S. Department of State” or the U.S. Embassy or Consulate involved. For example, requests for service upon Iran or its political subdivisions the check should be made out to “U.S. Embassy Bern.”
- Plaintiff’s counsel who have a pending request for service under FSIA 1608(a)(4) may contact the Office of Legal Affairs (CA/OCS/L) at Ask-OCS-L@state.gov to inquire about the status of their request.
- Clerks who may have further questions regarding these issues may wish to refer to memos from the Administrative Office of U.S. Courts, dated, Nov. 7, 2000, May 20, 1982 and Nov. 6, 1980. The Federal District Court of the District of Columbia has also published an Attorney Manual for Service of Process on a Foreign Defendant, and the Federal District Court for the Southern District of New York has created a publication, Foreign Mailing Instructions, both of which reference the Foreign Sovereign Immunities Act.
- If possible, avoid stapling at least one of the two copies and instead use appropriately sized paper clips or binder clips.
- Should the Department need to contact plaintiff’s counsel for any reason, we suggest the request letter always include an appropriate email address for plaintiff’s counsel.
- Cashier’s checks should be issued as close to the date of transmission to the Department as feasible. An expired or otherwise unacceptable cashier’s check may delay service.