# Arra Ray Messenger v. United States

> Court of Appeals for the Second Circuit · March 16, 1956 · 231 F.2d 328

URL: https://www.frixlaw.com/law-library/cases/9445001

## Case

- **Full name:** Arra Ray MESSENGER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** March 16, 1956
- **Citations:** 231 F.2d 328; 1956 U.S. App. LEXIS 4775
- **Precedential status:** Published
- **Opinion:** Concurrence by Hincks
- **Judges:** Medina, Hincks, Waterman
- **Cited by:** 117 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

HINCKS, Circuit Judge
(concurring).
I fully concur in the conclusion of my brothers that the service made on the United States Attorney without mailing a copy of the summons and of the complaint to the Attorney General, as required by F.R.C.P. 4(d) (4), was insufficient to give the court below personal jurisdiction over the United States.
Prior to the Federal Rules of Civil Procedure, under the Conformity Act the federal courts issued process and caused it to be served in accordance with the practice of the state in which the several federal courts sat. Since the United States was generally immune from suit, there was naturally no general federal statute prescribing how service on the United States should be made. Consequently, when statutes were enacted which carried consent to suit in specified classes of cases, the consent to suit thereby conferred, to be made effective, required authority to serve the United States. This authority could come only from Congress and prior to the Federal Rules of Civil Procedure seems never to have been consolidated into any federal statute of general application. Instead, it was incorporated in each successive federal statute which extended the consent to be sued to an additional class of cases.
Thus as my brothers have noted, the Suits in Admiralty Act, 46 U.S.C.A. § 742 , long before the adoption of the Federal Rules of Civil Procedure, required that in cases of a libel in personam the libelant “shall” serve the libel on the United States attorney and mail a copy thereof to the Attorney General. The Tucker Act, March 3, 1887, 24 Stat. 505 , in Section 6, provided that upon filing his petition the “plaintiff shall cause a copy of his petition * * * to be served upon the district attorney * * * and shall mail a copy of the same, by registered letter, to the Attorney-General of the United States, and shall thereupon cause to be filed with the clerk of the court * * * an affidavit of such service and the mailing of such letter. It *332 shall be the duty of the district attorney upon whom service of petition is made as aforesaid to appear and defend the interests of the Government in the suit, and within sixty days after the service of petition upon him * * * to file a plea.” See also 28 U.S.C.A. § 2410 (b).
Since the consent to suit carried by these statutes would necessarily have been inoperative in the absence of authority to serve the United States, the authority to serve was given, and its manner was prescribed, in each such statute. The result was that compliance with the statutory requirement as to service was a condition upon which the United States consented to be sued. We so held as to the Suits in Admiralty Act in Schnell v. United States, 2 Cir., 166 F.2d 479 , as my brothers have noted.
Construing the almost uniform nature of tiie requirement of service in these statutes against the background of the law as it existed at the time of their successive enactments, there was no basis for surmise that direct notice of the pendency of suit to the Attorney General was considered as superfluous or indeed any less essential than service on the district attorney. At the time these statutes were enacted, there were also in effect statutes now substantially covered by 5 U.S.C.A. § 309 and 28 U.S.C.A. § 507 , whereby the Attorney General or any officer of the Department of Justice was empowered to “conduct and argue any case in which the government is interested, in any court of the United States * * *,” 16 Stat. 163 , and the Attorney General was vested with the responsibility of “supervision of the conduct and proceedings of the .various attorneys for the United States in the respective judicial districts, who shall make report to him of their proceedings * * * ” 16 Stat. 164 . In the light of the responsibilities thus devolving upon the Attorney General and the district attorneys, it seems apparent that Congress had good reason to believe that the public interest imperatively required that prompt and direct notice should be given both to the Attorney General and the district attorneys of the pendency of all suits which could be brought against the United States. Otherwise, decisions' for the Attorney General alone, who was charged with the ultimate responsibility of supervising and directing the defense, would be dependent upon such notices as busy district attorneys, then appointed on a part time basis, might pass on to him. This reason for the requirement was suggested in Schnell v. United States, supra. And as there observed, there is no need to deduce the precise reason which led Congress to make the requirement. For in each of these statutes the requirement of service on the district attorney and the mailing to the Attorney General was prescribed in language which was unmistakably conjunctive and mandatory.
It is true that these several statutory provisions for service on the United States have now been consolidated into Rule 4(d) (4) of the Rules of Civil Procedure which has been given application to suits under all the statutes which authorize suits against the United States, in the absence of other statutory requirements. But since this Rule follows the earlier statutory requirements, which it superseded, in almost identical language and since the Rules generally were not intended to enlarge the substantive jurisdiction of the federal courts, I think that compliance with its two-fold requirement of service is a condition upon which the Government’s consent to be sued depends.
It does not follow, however, that without jurisdiction to make a binding adjudication against the United States on the merits, the court lacks incipient jurisdiction to rule upon the “defenses” of “insufficiency of process” or of. “insufficiency of service of process” under Rule 12(b) (4) and (5). And when such a defense has been sustained, the lack of personal jurisdiction over the United States does not in every case require a dismissal. The immediate effect of such a ruling, I think, is to leave the action pending in an incipient state, just as it was during the period intervening be *333 tween the filing of the complaint and the attempted service made on the original summons. In such a situation, I think that in a proper case the court on motion has discretion to authorize the issue of a fresh summons through which by service in accordance with the Rules its jurisdiction over the defendant may be perfected. It has been so held in cases in which the named defendant was a private party. Jefferson v. Stockholders Pub. Co., 9 Cir., 194 F.2d 281 . I think the court has the same power when the United States is the defendant. In authorizing the issue of fresh process, the court is not dispensing with a condition to suit against the United States: it is merely giving the plaintiff opportunity to satisfy the prescribed condition. In a proper case such action is required to relieve a diligent plaintiff from the negligence or oversight of the marshal. Consequently, even though the court below could properly have quashed the service I think that its dismissal of the action on jurisdictional grounds was erroneous.
I concur in the result, however, because I think the situation required a dismissal on the alternative ground of the government’s motion, viz., a failure to prosecute under Rule 41(b). For the marshal’s return as filed on January 5, 1949 showed that he had made no service on the United* States. Although it is admitted that the plaintiff himself had served the district attorney on December 23, 1948, even the plaintiff does not claim to have complied with Rule 4(d) (4) by himself mailing the required copies to the Attorney General. In that situation I think the plaintiff was chargeable with knowledge that the Rule had not been complied with and that due diligence required plaintiff to move for the issue of fresh process with reasonable promptitude after the filing of the marshal’s return. The language of Rule 4(d) (4) was mandatory and explicit. This the plaintiff recognized when he caused service to be made on the district attorney. The language requiring the mailing was equally mandatory and explicit and the plaintiff points to no case which by holding to the contrary had misled him. It results that his failure to move for fresh process may not reasonably be attributed to a bona fide mistake of law. Since he was not entitled to proceed with the prosecution of his action until he had caused the defendant to be brought into the jurisdiction of the court, and since his failure so to do continued to the very time that he was faced with a motion of dismissal, I think dismissal was imperatively required under Rule 41(b). On that ground I concur in the affirmance of the order below.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445001. Public record. Not legal advice.