While foreign states generally cannot be sued in a U.S. court, under the Foreign Sovereign Immunities Act (FSIA), parties can sue governments for certain crimes such as injury or death from an act of terrorism, if certain factors are present. The Department of State (State) is required by statute to serve notice of such suits or default judgments when other means for effecting service are not available, and charges plaintiffs a fee of $2,275 to complete this task. Plaintiffs in such cases may also qualify for compensation from a fund that Congress established called the U.S. Victims of State Sponsored Terrorism Fund.
In a report published 12 December, the Government Accountability Office (GAO) examines how State completes this service and the length of time it takes to complete requests, and whether State has implemented key controls for executing service requests promptly. GAO reviewed State regulations, guidance, case files, and data from 2007 through 2017; and interviewed State officials in Washington, D.C., the Czech Republic, Germany, and Switzerland, which handle the vast majority of cases. GAO assessed State’s controls against federal internal control standards.
The GAO investigation found that State notifies sovereign defendants of court proceedings under FSIA in a four stage process that has taken on average about five months to complete. State headquarters has overall responsibility for delivering legal documents but U.S. embassies and foreign governments play key roles as well. From 2007 through 2017, State completed 229 requests for delivery of legal documents in an average of about five months, but about 28 percent of the requests took longer than six months and seven requests took more than a year. Slow delivery could adversely affect a plaintiff’s ability to obtain compensation from a special victims’ fund that Congress set up in 2015.
State’s guidance and federal internal control standards require controls such as accurate and complete record-keeping, continuous monitoring, and analysis of data; however, GAO found that State lacks several key controls to manage its delivery of legal documents. First, State’s records are incomplete. For example, for 82 percent of the cases, State had no information about when it received court requests. Second, State did not monitor the progress of cases, resulting in slow service. This slow service led State to waive fees of about $57,000 because checks had expired. Third, State did not analyze case data to identify factors contributing to slow service, or establish timeframes for completing service. As a result, managers lack a sound basis for making decisions on how to improve timeliness. In June 2018, State took some actions based on GAO’s review to improve its performance, including preparing step-by-step guidance and developing a new record-keeping system, but further actions could fill the gaps that have impaired program performance.
GAO is making five recommendations to State, including that it update its record-keeping guidance to ensure its records are accurate and complete, monitor the progress of requests, periodically analyze data to identify causes of slow service and take corrective actions, and establish timeframes for completing service. State concurred with all five of GAO’s recommendations and identified actions it plans to take to address them. Along with the new record-keeping system, these actions include enhanced training, regular staff meetings, the introduction of continuous monitoring, and additional data points within the monitoring database.