7 FAM 950 SERVICE OF PROCESS

UNCLASSIFIED (U)

7 FAM 950

SERVICE OF PROCESS

(CT:CON-949; 11-10-2022)
(Office OF Origin: CA/OCS)

(CT:CON-949; 11-10-2022)

a. The Federal law governing service of process in civil cases is found in Rule 4, Federal Rules of Civil Procedure, Rule 4(f)(1) F.R.Cv. P. (28 U.S.C. Appendix Rule 4).

(f) Service Upon Individuals in a Foreign Country.

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.

b. Consular Role: Usually, the consular officer becomes involved in service of process requests in the following situations:

(1) General Information: Referring inquirers to the Department of State, Bureau of Consular Affairs Internet web page judicial assistance feature, Service of Legal Documents Abroad information, for a general overview;

(2) Notarial for Service by an Agent: Administering an oath or affirmation (7 FAM 850) for an affidavit of service by a private agent when service of process is accomplished by an agent in the foreign country such as an attorney or process server. (See 7 FAM 953.4);

(3) Notarial for Waiver of Service: Providing a notarial service when the person to be served executes an acknowledgment or affidavit on a voluntary waiver of service before a consular officer. (See 7 FAM 953.3 and 7 FAM 840);

(4) Letters Rogatory: (See 7 FAM 953.6). Transmitting letters rogatory to the Foreign Ministry of the host country under cover of a diplomatic note when service is attempted pursuant to letters rogatory (28 U.S.C. 1696; 22 CFR 92.54). Letters rogatory are forwarded to the U.S. embassy by the Department (CA/OCS/ACS) or forwarded directly by the requester. 7 FAM 953 provides a description of a variety of methods used to serve process abroad. Letters rogatory are also used for service of documents under the Foreign Sovereign Immunities Act (FSIA) (28 U.S.C. 1608) on an agency or instrumentality of the foreign government. Such cases are transmitted to posts by L/CA, which is responsible for the service provisions of the FSIA. (See 7 FAM 955).

c. Prohibition against Service of Process by U.S. Foreign Service Officers: Foreign Service officers are prohibited by Federal regulations (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding, unless directed by the Department. Such authorization is extremely rare, and requires authorization by CA and L/CA. Questions about the prohibition should be directed to L/CA. 7 FAM 954 provides information on service of subpoenas by consular officers pursuant to 28 U.S.C. 1783; 22 CFR 92.86.

7 FAM 952 PROVISO ON VIOLATIONS OF JUDICIAL SOVEREIGNTY

(CT:CON-358; 02-23-2011)

Certain countries have informed the Department that some methods of service constitute violations of their judicial sovereignty. On November 7, 2000, the Department of State notified the Administrative Office of U.S. Courts of the expressed concerns of these countries to service by mail. See the Department of State Internet page, Office of the Legal Adviser, Digest of International Law feature. See Memorandum of the Administrative Office of the U.S. Courts (November 6, 1980) at Cumulative Digest of United States Practice in International Law, 1981-1988, Department of State, Office of the Legal Adviser, 1447 (1994). (See 7 FAM 953.5 Service by International Registered Mail).

7 FAM 953 METHODS OF SERVICE OF PROCESS

7 FAM 953.1 Service by Letters Rogatory

(CT:CON-949; 11-10-2022)

Letters rogatory, also known as a "letter of request", is a request from a court in the United States to a court in a foreign country requesting international judicial assistance. In some countries service by letters rogatory is the only recognized method of service. Service of process by judicial authorities in the receiving State pursuant to letters rogatory from a court in the sending State is based on comity. Procedural requirements vary from country to country. See the Bureau of Consular Affairs web page guidance on "Preparation of Letters Rogatory", and our country-specific flyers for any peculiarities of particular countries, or consult the appropriate geographic division of the U.S. Department of State, Bureau of Consular Affairs, Office of American Citizens Services (CA/OCS/ACS). Letters rogatory are also used for compulsion of evidence. 7 FAM 931 provides a more extensive discussion about letters rogatory. 28 U.S.C. 1696 and Rule 4(f)(1) F.R.Cv. P. (28 U.S.C. Appendix Rule 4) and Rule 9(c) provide for service of process pursuant to letters rogatory. 7 FAM Exhibit 953.6 provides sample language to be used in transmitting letters rogatory through the diplomatic channel. 7 FAM 953.5 B provides a sample Certificate Returning an Executed Letter Rogatory.

7 FAM 953.2 Multilateral Conventions on Service

(CT:CON-949; 11-10-2022)

a. Summary: The United States is a party to two multilateral treaties on service of process, the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (Hague Service Convention) (20 U.S.T. 1361; 658 U.N.T.S. 163, T.I.A.S. No. 6638; 28 U.S.C.A.) (Appendix following Rule 4 FRCvP) and the Inter-American Convention on Letters Rogatory (Inter-American Service Convention) and Additional Protocol. Procedures for service under these treaties are summarized below, and explained in greater detail in the Department of State, Bureau of Consular Affairs Internet web pages about the operation of the conventions. For questions regarding requests from foreign States for service of documents in the United States, (see 7 FAM 963).

b. Consular Role: If a requesting party encounters problems in dealing with the central authority of the host government in a country which is party to either convention, the consular officer may be requested to make appropriate inquiries of that central authority about the cause of the difficulty. Therefore, consular officers should attempt to establish rapport with the foreign central authorities and maintain the current name and address of the foreign central authority in countries where the conventions are in force.

7 FAM 954 SERVICE OF SUBPOENAS ON U.S. CITIZENS OR LEGAL PERMANENT RESIDENTS

7 FAM 954.1 Procedures

(CT:CON-949; 11-10-2022)

a. Authority: 28 U.S.C. 1783 provides for service of a subpoena on a U.S. citizen or lawful permanent resident of the United States. 22 CFR 92.86 provides that subpoenas may be served by consular officers. Note that U.S. law enforcement agency representatives at posts abroad may not have the authority to serve such documents. However, it may be prudent for a U.S. law enforcement agency representative to accompany the consular officer when service is made. See paragraph d below regarding safety of the consular officer and service of a subpoena. Subpoenas may not be served on host country nationals and third country nationals who are not U.S. citizens or U.S. Lawful Permanent Resident Aliens. (See 7 FAM 944).

b. How You Will Receive the Subpoena: Consular officers serve only Federal criminal subpoenas unless otherwise advised by the Department (CA/OCS), in coordination with L/CA. Occasionally, a consular officer may be instructed by the Department (CA/OCS) to serve a State criminal subpoena.

(1) If a post receives a request for service of a subpoena directly from a court in the United States or from United States government or private legal counsel, consult L/CA before taking any action. Post should notify L/CA immediately.

(2) Legal questions may be addressed by posts to L/CA.

c. Who May be Served: The consular officer usually receives a Federal criminal subpoena for service on a U.S. citizen or legal permanent resident, (sometimes referred to as LPR), from the Department (CA/OCS/ACS) by fax, scanned attachment to an email, or express delivery. Pouch transmittal generally should not be used in cases of service of a subpoena due to time constraints.

d. Safety of the Consular Officer and Serving a Subpoena: The Department (CA/OCS/ACS) will ask the U.S. Department of Justice and the Federal or state prosecutor if there is any reason to be concerned about the safety of the consular officer when making arrangements to serve the subpoena on the witness.

e. Timing of Service of Subpoena: A subpoena must be served as soon as possible. The date of the witness’s appearance, noted on the subpoena, is often only days away from the consular officer’s receipt of the documents. The facsimiles are to be given the same weight as originals once the FAX or email copies of the order and subpoena are received, and the subpoena must be served according to the Department’s instructions. Certified copies of the subpoena and the order will be sent subsequently to the consular officer by the fastest means available when feasible.

f. Instructions on How to Effect Service: The Department’s memorandum transmitted to accompanying the subpoena provides guidelines for service that include the residence and workplace address for the witness, along with instructions on how the subpoena should be served.

(1) Personal Service: It is preferable that you serve the subpoena personally on the witness. People being served with a subpoena may not want to be served, and may try to avoid you. All your efforts to effect service should be carefully documented. This will be committed to an affidavit when you complete the RETURN portion of the subpoena. If you hand the subpoena to the person and he or she refuses to grasp it; drops it on the floor; has you give it to the secretary – they have been served. Even throwing it over the fence has been considered valid service when it was not possible to gain access to the individual any other way.

(2) Leaving the Subpoena for the Witness: While it is preferable to personally hand the witness the subpoena (or order to show cause, the copy of the court order, Government Travel Request (GTR) and any cash specified in the instructions), this may not always be possible. In such cases, a subpoena may be served by delivering it or leaving it for the party for whom it is intended. If the Department furnishes specific instructions for personal hand delivery and the consular officer is unable to carry them out, the officer should report to CA/OCS/ACS briefly the reasons and circumstances of alternative delivery.

g. Proof of Service: After service has been made, the consular officer must supply, in an affidavit executed before another consular or diplomatic officer, the information called for in the space on the subpoena marked “RETURN.” This is a no-fee service under Schedule of Fees item 58 (a). Promptly send the completed subpoena, with order attached, to the Department (CA/OCS) for relay to the clerk of the appropriate U.S. District Court. The consular officer must note in the “RETURN” space on the subpoena that this instruction (either to pick up the documents or to have the documents mailed) was given to the witness. Include this information when reporting to the Department that service was made.

h. Fees and Expenses of Witnesses: In Federal cases tender a GTR to the witness only at the time service is made. The GTR is for roundtrip air travel between the witness’s residence and the city where the court is sitting. Travel is to be at economy jet rates and no U.S. government funds shall be used to pay for first-class travel unless no other commercial service is reasonably available, or such travel is necessary for reasons of disability or medical conditions. Cash in the amount specified in the instruction must also be tendered to the witness at the time service is made. The U.S. Department of Justice (DOJ), Justice Management Division, Simplified Acquisitions Service Staff, processes requests from DOJ attorneys for witnesses located in foreign countries who require prepaid transportation and/or small cash advances. CA/OCS’s point of contact at the Justice Management Division, Simplified Acquisitions Service can be reached at 202-307-1954; fax: 202-307-1931. That office will send telegrams directly to U.S. embassies and consulates notifying posts of the U.S. Government’s need for the travel of the witness, providing points of contact in the U.S. Attorney and U.S. Marshal’s Offices and fiscal data against which the travel may be charged. CA/OCS/ACS will coordinate with the Federal prosecutor and the U.S. Department of Justice, Justice Management Division, Simplified Acquisitions Service Staff regarding fiscal data against which fees and expenses of witnesses should be charged in cases where the consular officer will be effecting service of the subpoena on the U.S. citizen or U.S. lawful permanent resident.

i. ETA of Witness: Inform the Department (CA/OCS/ACS) of the witness’s estimated time of arrival if known.

j. Post Expenses: A consular officer who will incur travel expenses in effecting service should contact the Department (CA/OCS/ACS) for an appropriation number and fund code against which the travel may be charged. The appropriation number and fund code will not be the same as those used for the GTR.

7 FAM 954.2 Civil and Administrative Subpoenas

(CT:CON-914; 05-18-2021)

Consular officers may receive requests for service of civil and administrative subpoenas. Refer such requests to the Department L/CA regarding the propriety of complying with such requests.

7 FAM 954.3 Service of Subpoenas On Host Country or Third Country Nationals or Institutions

(CT:CON-914; 05-18-2021)

a. Consular officers should be aware that some countries are particularly sensitive to service of administrative subpoenas or charging letters from U.S. administrative agencies, such as the Securities and Exchange Commission (SEC), Federal Trade Commission (FTC), Commodity Futures Trading Commission (CFTC), Internal Revenue Service (IRS), and others. Report to the Department (CA/OCS) any information available about proper methods of service of such documents in their host country.

b. A subpoena issued in the United States for service on a person other than a U.S. citizen or permanent resident alien has no force or effect outside the United States. Consular officers have no authority to serve subpoenas on non-U.S. citizens or permanent resident aliens. Promptly report such requests to the Department (L/CA) because often they have resulted in protests from host governments and should be avoided. The Department will inform the issuing authority of its error.

7 FAM 955 SERVICE PURSUANT TO THE FOREIGN SOVEREIGN IMMUNITIES ACT

(CT:CON-914; 05-18-2021)

a. 28 U.S.C. 1608, the Foreign Sovereign Immunities Act of 1976 (FSIA) (28 U.S.C. 1330, 28 U.S.C. 1602) provides for service of process on a foreign state with the assistance of the Department of State in an action where the foreign state is a defendant and where service cannot be effected by the other methods prescribed in the Act. (See 22 CFR 93). Information about the service provisions of the FSIA is available from the Department of State, Bureau of Consular Affairs Internet page:

See …

FSIA Checklist for Plaintiffs

Service Provisions of the FSIA

b. L/CA Action Office: Requests for service of FSIA cases are referred to posts only by the Department, Bureau of Consular Affairs, Overseas Citizens Services, Office of Legal Advisor for Consular Affairs (L/CA). Such cases are rare, but complex, demanding special attention on the part of the consular officer. Contact the Department (L/CA) immediately regarding any request sent directly to the consular officer by a U.S. court or attorney before taking any action.

c. Consular Role: The consular officer is required to effect service on the defendant foreign state by diplomatic note. Proof of service is made by attaching a certified copy of the Embassy’s note to the second set of documents (summons, complaint, and notice of suit) and returning those documents, with the note, to the Department (L/CA) for relay to the clerk of the court. 7 FAM Exhibit 955c provides a sample certification using the prescribed wording.

d. Not Discretionary: Service pursuant to the FSIA is a statutory obligation; the consular officer may exercise no discretion in complying with the Act. 7 FAM Exhibit 955d provides an excerpt of a Circular Diplomatic Note of December 10, 1976, apprising foreign missions of the Act. The officer must report to the Department (L/CA) the date the documents were received by the embassy, the date they were transmitted to the foreign ministry, and the date the executed request was sent to the Department (L/CA) for relay to the court. This report must also give the invoice, registry, and pouch numbers by which the documents were returned to the Department (L/CA).

e. Model Diplomatic Note Transmitting FSIA Case: The diplomatic note transmitting the documents to the Foreign Ministry should conform generally to the following language, formatted as required by the Department’s Correspondence Handbook, 5 FAH-1, or the Secretariat Handbook. L/CA will adjust the text as appropriate in transmitting it to the U.S. Embassy, after clearing our instruction with L/CA, L/DL and the appropriate regional bureau desk.

Sample Text of Diplomatic Note

[Complimentary Opening]

The Embassy of the United States has the honor to refer the Foreign Ministry to the lawsuit entitled [title of lawsuit], in which the Government of [name of country] is a defendant. The case is pending in the United States District Court, [District], [City, State], docket number [Docket Number]. The Embassy herewith transmits a summons and complaint. This note constitutes service of these documents upon the Government of [name of country] as contemplated in Title 28, United States Code, Section 1608(a)(4).

Under applicable United States law, a defendant foreign state in a lawsuit must file an answer to the complaint or some other responsive pleading within 60 days from the date of service of the complaint (that is, the date of this note) or face the possibility of having judgment entered against it without the opportunity of presenting evidence or arguments in its behalf. Accordingly, the Embassy requests that the enclosed summons and complaint be forwarded to the appropriate authority of the Government of [name of country] with a view towards taking whatever steps are necessary to avoid a default judgment.

Please note that under United States law and procedure, neither the Embassy nor the Department of State is in a position to comment on the present suit. Under the laws of the United States, any jurisdictional or other defense including claims of sovereign immunity must be addressed to the court before which the matter is pending, for which reason it is advisable to consult an attorney in the United States.

In addition to the summons and complaint, the Embassy is enclosing a “notice of suit” prepared by the plaintiff, which summarizes the nature of the action which has been filed against the government, and the factual allegations on which the case is based. The notice of suit includes a copy of pertinent United States laws concerning sovereign immunities.

[Complimentary Closing]

f. Status Reports: Posts should communicate with L/CA by email with reports about the status of the request. To ensure the prompt completion of service requests, L/CA monitors the status of service requests and periodically analyzes service request data, including identifying causes of delays and recommending corrective actions as appropriate.

g. Proof of Service: The embassy should affix the consular certification to a certified copy of the diplomatic note transmitting the summons, complaint and notice of suit (or default judgment) to the Foreign State. Fax an advance copy to L/CA at 202-485-8033 or transmit a scanned copy by email. The original/certified copy should be sent via express courier service to L/CA for transmittal to the U.S. court.

h. Response by the Foreign Government: Any response by the foreign government to the U.S. Embassy diplomatic note should be conveyed to L/CA, with a consular officer certification of any diplomatic note. Under United States law and procedure, neither the Embassy nor the Department of State is in a position to comment on the present suit. Under the laws of the United States, any jurisdictional or other defense including claims of sovereign immunity must be addressed to the court before which the matter is pending, for which reason it is advisable for the foreign government to consult an attorney in the United States.

7 FAM 956 SERVICE IN SECTION 340 INA CASES

(CT:CON-127; 01-26-2006)

a. Consular officers must deliver, or assist in delivering, to designated persons documents relating to proceedings pursuant to 8 U.S.C. 1451 (Section 340 of the Immigration and Nationality Act (INA), in the cancellation of certificates of naturalization when such documents are received from duly authorized officials of the Federal courts.

b. Responsibility for providing detailed instructions on the procedure for delivering such documents rests with the court or with the U.S. attorney concerned; consular officers must follow such instructions carefully. 7 FAM Exhibit 956 provides; a sample certificate of service, affidavit of consular officer serving process, and affidavit of second consular officer (or diplomatic officer), which constitute proof of service.

7 FAM 957 SERVICE AT REQUEST OF CONGRESS OR U.S. GOVERNMENT AGENCIES

(CT:CON-914; 05-18-2021)

Consular officers have no authority to serve legal process, such as subpoenas or citations, in connection with congressional investigations, on persons in their consular districts, nor may they serve such process at the request of U.S. Government agencies other than the Department of State. Refer to the Department (L/CA) all requests for such service. (See 22 CFR 92.91).

7 FAM 958 SERVICE ON U.S. MILITARY PERSONNEL ABROAD

(CT:CON-949; 11-10-2022)

a. Neither the Department of Defense (DOD) nor the military departments have a uniform policy concerning the service of civil or criminal process on military personnel abroad or at sea. DOD and its components, however, in accordance with applicable policies and procedures, will allow and assist in the service of civil process on their personnel in certain circumstances, to be initially determined by the staff judge advocate of the appropriate DOD component. Significantly different policies and procedures apply to service of criminal process. For guidance on cases concerning civil or criminal service of process on U.S. military personnel, consult with CA/OCS, which will contact DOD for instructions.

b. Relevant “Status of Forces” agreements in some countries may prohibit local authorities from serving American judicial process on U.S. military installations.

c. Commanders may impose restrictions upon persons entering their installations, limiting the service of process to registered mail or service outside the military installation.

d. Generally, commanders or other officials in charge when contacted about service of process on an employee will bring the matter to the attention of the individual and will determine whether he or she wishes to accept service voluntarily. If the individual does not desire to accept service, the party requesting such service will be notified and will be advised to follow the procedures prescribed or recognized by the laws of the foreign country.

e. In countries party to The Hague Service Convention or Inter-American Service Convention and Additional Protocol, the foreign Central Authority may attempt to accomplish service under the applicable Convention if the prevailing Status of Forces agreement (SOFA) permits access to the base. Installation commanders may impose reasonable restrictions upon persons who enter their installations to serve process. It may therefore be necessary for the foreign Central Authority to effect service on the individual outside the installation. Some foreign Central Authorities may decline jurisdiction over cases involving U.S. military personnel depending on the SOFA agreement applicable (if any).

f. Likewise, a request for service on U.S. military personnel pursuant to letters rogatory may prove difficult as the foreign court may decline jurisdiction. It may be necessary to retain the services of a private attorney or other agent to effect service on the individual outside the U.S. military installation. Service by registered mail is also another option.

g. Inquirers may be directed to the Judge Advocate General’s office for the appropriate branch of the U.S. military at the U.S. base abroad for further guidance (See Judge Advocate General Corps).

See:

HHS/OCSE’s A Caseworker’s Guide to Child Support and the Military (which includes information about service of process);

Cook, The Armed Services And Model Employer Status For Child Support Enforcement: A Proposal To Improve Service Of Process, Thesis, The Judge Advocate General's School, United States Army, Charlottesville, VA (1996);

A Guide to Child Support Enforcement Against Military Personnel, Serving the Soldier, (February 1996), Administrative and Civil Law Department, Legal Assistance Branch, the Judge Advocate General’s Legal Center and School, U.S. Army, Charlottesville, VA 22093-1781;

Barber, Soldiers, Sailors and the Law, Family Advocate, ABA Family Law Section, Vol. 9, No. 4, 38, 41 (Spring 1987).

7 FAM 959 SERVICE ON DEPARTMENT OF STATE PERSONNEL

(CT:CON-127; 01-26-2006)

a. Official Capacity: See 7 FAM 980 and 22 CFR 172 for service on U.S. State Department personnel in their official capacity.

b. Personal Capacity: The Department is not an agent for the service of process upon its employees with respect to purely personal, non-official litigation. Service is usually attempted by private litigants by international registered mail, return receipt requested, or by an agent, usually a foreign attorney retained for that purpose. The Department recognizes that its employees overseas should not use their official positions to evade their personal obligations and will counsel and encourage Department employees to accept service of process in appropriate cases. (See 22 CFR 172.2(d)).

7 FAM Exhibit 953.1 (A)
SAMPLE OF A DIPOMATIC NOTE TRANSMITTING LETTERS ROGATORY

(CT:CON-949; 11-10-2022)

(Appropriate complimentary opening)

The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs and requests the Ministry’s aid in transmitting the enclosed request for international judicial assistance to the appropriate judicial authority of the Republic of Argentena.

The Circuit Court for the Fifth District of California has transmitted the annexed letter rogatory in the matter of Syvia Maria Gomez de Suarez v. Jose Antonio Munoz Rivas. The case is a civil matter pending before the Circuit Court for the Fifth District of California concerning a motion for divorce. The letter rogatory requests that service of process be effected upon Jose Antonio Munoz Rivas at the address listed in the letter rogatory, 1258 Avenida Colombia, Buenos Aires, Argentina. The Circuit Court has provided funds to reimburse any costs incurred in executing the letter rogatory.

The Embassy is grateful for the Ministry’s assistance in the interests of justice. Be assured that the Circuit Court will provide similar assistance to the judicial authorities of Argentina. The Embassy would appreciate being kept advised of the progress of the letter rogatory specifically the date it is assigned to the appropriate judicial authority for service.

(Appropriate complimentary closing)

GUIDE FOR PREPARATION OF A DIPLOMATIC NOTE TRANSMITTING LETTERS ROGATORY

In addition to following standard guidelines for preparation of a diplomatic note, be sure to:

1. Include the name of the court which has action in the case.

2. Specify the names of the litigants.

3. Indicate whether the case involves a civil or criminal matter.

4. Specify what type of case is involved (brief details).

5. Mention the type of action to be effected (service of process/obtaining evidence).

6. Name the person to be served or deposed.

7. Include the full address given in the letter rogatory.

8. Indicate the arrangement for payment of costs of service.

9. Specify the concern for the pursuit of justice.

10. Volunteer reciprocal assistance.

11. Request that the Ministry keep the post informed of progress in execution of the request.

(For instructions on how to format a diplomatic note, see the Department's Correspondence Handbook, 5 FAH-1 .)