UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

SETH CHARLES (KLEIN) BEN HAIM, et al., )

)

Plaintiffs, )

)

v. ) 08-cv-520 (RCL)

)

ISLAMIC REPUBLIC OF IRAN, et al., )

)

Defendants. )

)

MEMORANDUM AND ORDER REGARDING SERVICE

On September 9, 2012 plaintiffs filed a Notice of Post Judgment Service [27] describing 

attempted mail service under 28 U.S.C. § 1608 against defendants the Islamic Republic of Iran 

and the Iranian Ministry of Information and Security (MOIS). Plaintiffs claim that post judgment 

service was effectuated on defendant Islamic Republic of Iran where a service package was 

signed for and then immediately rejected. Plaintiffs claim that post judgment service was 

effectuated against defendant MOIS where the package was rejected outright. 

On October 2, this Court ordered plaintiffs to identify legal authority to support their 

claim that this constituted adequate service under FSIA. [28] On October 12, plaintiffs submitted 

a supplemental brief. [29]

Most of the legal authorities cited in the brief are not on point. Some of plaintiffs’ 

authorities actually deal with diplomatic service under § 1608(a)(4), not mail service under § 

1608(a)(3) which is the provision at issue here. See Pl. Supp. Br. at 2 (citing Ben-Rafael v. 

Islamic Republic of Iran, 540 F. Supp. 2d 39, 53 (D.D.C. 2008)). Other of plaintiffs’ authorities 

deal with service outside the context of FSIA, and are thus inapposite. See, e.g., Pl. Supp. Br. at 3 
2

(quoting Murray v. Jewel County, 2011 WL 4485931, at * 4 (D. Colo. Sept. 28, 2011) (quoting 

an Oklahoma service statute)). 

Plaintiffs’ strongest legal authority for their position is a footnote from this Court’s 

opinion in Flatow v. Islamic Republic of Iran, 99 F. Supp. 1, 6 n.1 (D.D.C. 1998). In that 

footnote, this Court held that that mail service on the Islamic Republic of Iran was adequate 

under § 1608(a)(3) where the service package was rejected. The Court observed:

The Islamic Republic of Iran also apparently attempted to evade service of process by 

international registered mail, pursuant to 28 U.S.C. § 1608(a)(3). When the service 

package was returned to counsel in June 1997, the package had been opened, the return 

receipt, which counsel had not received, had been completely removed, and the message 

“DO NOT USA” was written in English across the back of the envelope. This 

contumacious conduct bolsters the entry of a default judgment. 

999 F. Supp. at 6 n.1.

However, this authority does not support plaintiffs’ case. In the present case, there is no 

evidence of any “contumacious conduct” of the type that led this Court in Flatow to find service 

had been effectuated. See id. Here defendants simply rejected the service packages; they did not 

open the package, nor did they take the return receipt, nor did they scrawl any message on the 

back of the envelope. Though someone apparently signed for one package before rejecting it, this 

does not match the “contumacious conduct” that led this Court to find service adequate in

Flatow. Thus there is no legal basis for this Court to conclude that service by mail has been 

effectuated on either defendant.

As this Court noted in its October 2, 2012 Order [28], before permitting enforcement of a 

FSIA judgment, a court must ensure that all foreign entities involved receive notice of the 

exposure of their interests to attachment and execution. Section 1610(c) requires that “notice

required under section 1608(e)” be given, and § 1608(e) requires that “[a] copy of any such 
3

default judgment shall be sent to the foreign state or political subdivision in the manner 

prescribed for service in this section.” § 1608(e). 

Section 1608 divides the methods for serving foreign entities under FSIA into two 

sections: procedures governing service “upon a foreign state or political subdivision” and 

procedures governing service “upon an agency or instrumentality of a foreign state.” 28 U.S.C. § 

1608(a)-(b). Here, plaintiff has sued one entity in each category.

With respect to defendant Iran, service on a foreign state or political subdivision is 

governed by § 1608(a), which “prescribes four methods of service, in descending order of 

preference. Plaintiffs must attempt service by the first method (or determine that it is 

unavailable) before proceeding to the second method, and so on.” Ben–Rafael v. Islamic 

Republic of Iran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008). These methods are service (1) “in 

accordance with any special arrangement . . . between the plaintiff and the foreign state,” (2) “by 

delivery . . . in accordance with an applicable international convention,” (3) “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,” and, as a 

last resort “if service cannot be made within 30 days under paragraph (3)” then (4) “by sending 

two copies” to the U.S. Department of State, which “shall transmit one copy of the papers 

through diplomatic channels to the foreign state and shall send to the clerk of the court a certified 

copy of the diplomatic note indicating when the papers were transmitted.” 28 U.S.C. § 

1608(a)(1)-(4). 

Here, the first two methods of service are inapplicable, and plaintiffs have failed to 

accomplish service under paragraph (3) by mail for well over the statutory period of 30 days. 

Indeed, plaintiffs’ first effort to accomplish service via this method was initiated over 13 months 
4

ago on September 9, 2011. [21] Because more than 30 days have elapsed and plaintiffs have 

failed to effectuate service by mail, pursuant to § 1608 plaintiffs must now attempt service 

through diplomatic channels under paragraph (4) of that section. 

As for defendant MOIS, an instrumentality or agency of a foreign state, service is 

governed by § 1608(b). That section permits service (1) “in accordance with any special 

arrangement”, (2) “by delivery . . . either to an officer, a managing or general agent, or to any 

other agency authorized . . . to receive service of process in the United States [or] in accordance 

with an applicable international convention on service of judicial documents,” (3) or, “if 

reasonably calculated to give actual notice, by delivery . . . as [either (A) ] directed by an 

authority of the foreign state[, or (B) ] any form of mailing requiring a signed receipt, to be 

addressed and dispatched by the clerk of the court[, or (C) ] as directed by order of the court 

consistent with the law of the place where service is to be made.” 28 U.S.C. § 1608(b)(1)-(3).

Here, again, the first two methods are inapplicable, and plaintiffs have failed to 

accomplish service by mail under paragraph (3) after over a year of trying. Thus, plaintiffs must 

now attempt to effectuate service on MOIS via diplomatic channels pursuant to § 1608 (a)(4). 

See, e.g., Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70, 71 (D.D.C. 2011) (holding that 

under the FSIA, plaintiffs had to effectuate post-judgment service on both Iran and MOIS via 

diplomatic channels over plaintiffs’ objections).

The Court pauses to emphasize, as it has before, that the above conclusion should not be 

read as a lack of sympathy for plaintiffs’ position. See Murphy, 778 F. Supp. 2d at 73. The U.S. 

Department of State charges a substantial fee for victims of terrorism—such as plaintiffs here—

who must use the State Department to serve Iran with FSIA-related papers. See Schedule of Fees 

for Consular Services, 75 Fed. Reg. 36532, 36534 (June 28, 2010) (setting $2,275 fee for 
5

processing FSIA judicial assistance cases). In a context where successful enforcement of 

judgments is notoriously difficult and the prospects for recovering damages are rather bleak, see

In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 49 (D.D.C. 2009), the 

imposition of these substantial fees imposes a significant burden upon victims of terrorism. And, 

sadly, this is not the first time that the government has stationed itself in a position to undermine 

the interests of victims of terrorism in FSIA litigation. See In re Terrorism Litig., 659 F. Supp. 2d 

at 53. The federal government has promised victims of terrorism a forum and opportunity to seek 

compensation for their devastating losses, exploited this glimmer of hope to extract exorbitant 

fees from those victims, and then actively undermined those victims’ efforts to obtain 

satisfaction of legal and valid judgments in order to protect its own coffers. See id. Three years 

ago, this Court observed that “the great travesty in all this is that our political branches have 

essentially told victims of terrorism to continue their long march to justice down a path that leads 

to nowhere.” Id. at 125. The government now taxes those victims for their travails, as well. See 

Murphy, 778 F. Supp. 2d at 73.

Despite these injustices, the Court cannot ignore the important procedural protections for 

foreign states and their instrumentalities built into the FSIA. Accordingly, it is hereby

ORDERED that no later than November 30, 2012, plaintiffs attempt post judgment 

service on Iran and MOIS through diplomatic channels under § 1608(a)(4). 

SO ORDERED

Signed by Royce C. Lamberth, Chief Judge, on November 5, 2012.