Petition for Writ of Certiorari — Paul S. Morrissey, et al., Petitioners v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

—————————

Argued December 1, 2020

Decided November 9, 2021

No. 20-5024

PAUL S. MORRISSEY,

APPELLANT

v.

ALEJANDRO N. MAYORKAS, SECRETARY, U.S.

DEPARTMENT OF HOMELAND SECURITY,

APPELLEE

—————————

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01956)

—————————

No. 20-5042

KELLY STEPHENSON,

APPELLANT

v.

PETE BUTTIGIEG, SECRETARY, U.S. DEPARTMENT OF

TRANSPORTATION,

APPELLEE

—————————

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02256)

—————————

(1a)

2a

Andrew T. Tutt argued the cause for appellant Paul

S. Morrissey. With him on the briefs were Allon Kedem

and Kyle Lyons-Burke.

Matthew S. Hellman was on the briefs for amicus

curiae Professors of Civil Procedure in support of

appellants Paul S. Morrissey and Kelly Stephenson.

Kyle Lyons-Burke argued the cause for appellant

Kelly Stephenson. With him on the briefs were Allon

Kedem and Andrew T. Tutt.

Matthew J. Glover, Counsel to the Assistant Attorney

General, U.S. Department of Justice, argued the causes

for appellees. With him on the briefs were R. Craig

Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

Before: MILLETT and RAO, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge MILLETT.

RAO, Circuit Judge: These two cases raise a common

question: if a plaintiff fails to properly serve the United

States and the statute of limitations has run, is it an abuse

of discretion for a district court not to grant an extension

of time to effectuate service? In each case a federal

employee sought to sue his federal agency for

discrimination but failed to properly serve the United

States in a timely manner under Federal Rules of Civil

Procedure 4(i) and (m). The cases were dismissed without

prejudice, but the plaintiffs were out of luck because the

statute of limitations had expired.

The plaintiffs argue on appeal that the failure to grant

an extension of time in these circumstances exceeds the

district court’s discretion and that this court should

review the dismissals under a heightened standard

3a

because when the statute of limitations has run, a

dismissal is effectively with prejudice. We disagree. When

a plaintiff has otherwise not demonstrated good cause for

failing to effectuate service, the running of the statute of

limitations does not require a district court to extend the

time for service of process, nor does it require appellate

review under a heightened standard. Neither plaintiff

demonstrated good cause, and dismissal of these

complaints under Rule 4(m) was within the broad

discretion of the district court.

I.

Under Federal Rule of Civil Procedure 4 (“Rule 4”),

to sue an agency of the United States, a plaintiff must

serve the agency and the United States.1 FED. R. CIV. P.

4(i)(2). To serve the United States, a plaintiff must serve

a summons and the complaint on the U.S. Attorney for the

district where the action is brought and the U.S. Attorney

General. FED. R. CIV. P. 4(i)(1). Rule 4 provides ninety

Rule 4(i) provides the requirements for “Serving the United States

and Its Agencies, Corporations, Officers, or Employees.” As relevant,

Rule 4(i) states:

To serve the United States, a party must: (A)(i) deliver a copy of

the summons and of the complaint to the United States attorney

for the district where the action is brought … or (ii) send a copy of

each by registered or certified mail to the civil-process clerk at the

United States attorney’s office; (B) send a copy of each by

registered or certified mail to the Attorney General of the United

States at Washington, D.C.; and (C) if the action challenges an

order of a nonparty agency or officer of the United States, send a

copy of each by registered or certified mail to the agency or officer.

… To serve a United States agency or corporation, or a United

States officer or employee sued only in an official capacity, a party

must serve the United States and also send a copy of the summons

and of the complaint by registered or certified mail to the agency,

corporation, officer, or employee.

FED. R. CIV. P. 4(i)(1)–(2).

1

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days to complete service, and it instructs that “[i]f a

defendant is not served within 90 days after the complaint

is filed, the court—on motion or on its own after notice to

the plaintiff—must dismiss the action without prejudice

against that defendant or order that service be made

within a specified time.” FED. R. CIV. P. 4(m).

In the first case, Paul Morrissey alleged age

discrimination against his former employer, the

Department of Homeland Security, in an official capacity

suit against the Secretary of the Department. Morrissey

filed his complaint on June 28, 2019, and therefore was

required to complete service by September 26, 2019. Two

weeks prior to the deadline, the district court published a

minute order reminding Morrissey of his service

responsibility. The district court cited Rule 4(m) and

“ordered that, by no later than September 26, 2019,

[Morrissey] must either cause process to be served upon

the Defendant and file proof of service with the Court or

establish good cause for the failure to do so.” Morrissey

Appendix (“M.A.”) 1. The district court also warned that

“[f]ailure to make such filings will result in dismissal of

this case.” Id. Despite this reminder, Morrissey did not

file proof of service by the deadline. Nor did he seek an

extension of time to complete service or attempt to show

good cause for failing to complete service in a timely

manner.

On September 30, the district court dismissed the

case without prejudice pursuant to Rule 4(m), noting that

it had previously reminded Morrissey of his service

obligation. Morrissey immediately filed a motion to

reinstate the case, claiming that dismissal was not

appropriate because he had timely completed service on

the agency. In support, he attached an affidavit and a

printout from the U.S. Postal Service’s tracking portal

indicating the Department of Homeland Security was

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served on September 16. Morrissey stated he was not

requesting additional time to effectuate service.

The district court denied Morrissey’s motion,

explaining that although Morrissey properly served the

Department of Homeland Security, “[t]here is no proof”

he also served the United States, which required serving

both the U.S. Attorney and the Attorney General. M.A.

31. The district court concluded that Morrissey had not

shown good cause for his failure to comply with Rule 4’s

service requirements because it is not good cause to

misunderstand the law or to be ignorant of it. Moreover,

the court determined that Morrissey qualified for neither

a mandatory extension of time under Rule 4(i)(4)(A)2 nor

a discretionary extension.

Morrissey then filed a Rule 59(e) motion urging the

court to set aside its judgment, reinstate his complaint,

and grant him a twenty-day extension to serve the

complaint and file proof of service. Morrissey asserted

that, because the statute of limitations had run and he was

unable to refile the case, the court’s dismissal without

prejudice was in effect a dismissal with prejudice, so

denying reinstatement of his case resulted in manifest

injustice. The district court denied Morrissey’s motion

because it included only new, yet previously available,

arguments. The court concluded that “relief under Rule

59(e) is improper” because “‘[it] is not a vehicle to present

a new legal theory that was available prior to judgment.’”

M.A. 61 (quoting Patton Boggs LLP v. Chevron Corp., 683

F.3d 397, 403 (D.C. Cir. 2012)). Morrissey timely

appealed.

“The court must allow a party a reasonable time to cure its failure

to … serve a person required to be served under Rule 4(i)(2), if the

party has served either the United States attorney or the Attorney

General of the United States.” FED. R. CIV. P. 4(i)(4)(A).

2

6a

In the second case, Kelly Stephenson alleged age and

disability discrimination against his former employer, the

Department of Transportation, in an official capacity suit

against the Secretary of the Department. As explained

above, Rule 4 required Stephenson to serve a summons

and the complaint on the agency as well as the United

States, which here required service on the U.S. Attorney

for the District of Columbia and the Attorney General.

Stephenson filed his complaint on July 29, 2019, and

accordingly had to file proof of service by October 27,

2019. See FED. R. CIV. P. 4(i), (l), & (m).

Several weeks after the deadline to complete service,

the district court issued a minute order noting that

although it “received proof of service for the agency, the

docket does not reflect service on the Attorney General of

the United States or the U.S. Attorney’s Office,” as

required by Rule 4. Stephenson Appendix (“S.A.”) 1. The

court provided an additional two weeks to perfect service,

explicitly ordering Stephenson to file proof of service on

the Attorney General and U.S. Attorney by December 4,

2019, and warning that the failure to comply may result in

dismissal without prejudice.

Before the extended deadline, Stephenson filed an

affidavit stating the summons and complaint were sent to

the agency by certified mail on December 2, 2019. He

attached a certified mail receipt and a U.S. Postal Service

tracking printout in support of his affidavit. The affidavit

made no mention of service on the Attorney General or

the U.S. Attorney.

After the extended deadline had passed, the district

court dismissed the case without prejudice pursuant to

Rule 4(m). The court’s minute order explained that

Stephenson had failed to serve the United States—the

Attorney General and the U.S. Attorney—by the deadline

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imposed by Rule 4(m) and had not shown good cause for

his failure. Nor did Stephenson comply with the court’s

order granting an extension and specifically directing

Stephenson to file proof of service on the Attorney

General and the U.S. Attorney.

Stephenson moved for reconsideration of the order of

dismissal under Rule 60(b), alleging that “a clerical error

prevented Defendant from being served properly.” S.A.

24. In addition, he argued that even if the district court

determined he does not have good cause for the failure to

effectuate service, it should grant him a discretionary

extension. Stephenson asserted he “would suffer

substantial harm should this case be dismissed as his

claim would become time-barred.” S.A. 25 (cleaned up).

Without further detail, he also asserted that he “showed

diligence in attempting to effectuate service twice.” S.A.

26. Stephenson urged the court to reinstate the case and

grant a sixty-day extension for him to complete service.

The district court denied Stephenson’s motion for

reconsideration. Stephenson brought his motion under

Rule 60(b), but the court also evaluated the motion under

Rule 59(e) because it was filed within the time frame for

such a motion. The court found Stephenson’s explanation

for failing to serve the Attorney General and U.S.

Attorney to be unreasonable and determined that he

failed to show either manifest injustice as necessary for

relief under Rule 59(e) or excusable neglect to merit relief

under Rule 60(b). As the district court noted, “the [c]ourt

can fathom no excusable reason why Stephenson failed to

effectuate service with the benefit of the [c]ourt’s express

instructions.” S.A. 34. Stephenson timely appealed.

II.

Both Morrissey and Stephenson sued a federal officer

in his official capacity, which requires serving the officer

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as well as the United States. To serve the United States,

a plaintiff must serve the Attorney General and the U.S.

Attorney for the district where the action is brought,

which in both cases is the District of Columbia. FED. R.

CIV. P. 4(i)(1)(A)–(B). Service of process is an important

requirement that serves as “a ritual that marks the court’s

assertion of jurisdiction over the lawsuit.” Mann v.

Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (cleaned up);

see also Murphy Bros., Inc. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 350 (1999) (explaining that “under

longstanding tradition in our system of justice,” “[s]ervice

of process … is fundamental to any procedural imposition

on a named defendant”).

Because federal agencies are generally represented

by the Department of Justice in litigation, the specific

requirements for service on the United States provide

notice to the officials who will be litigating the claims. Cf.

Light v. Wolf, 816 F.2d 746, 750 (D.C. Cir. 1987). Rule 4’s

requirement to serve the Attorney General, the head of

the Department of Justice, as well as the relevant U.S.

Attorney, the local component of the Department,

ensures the Department has notice and is able to provide

a defense consistent with the broader goals of the

government.

Service must be completed within ninety days of filing

the complaint. FED. R. CIV. P. 4(m). If a plaintiff fails to

effectuate service, “the court—on motion or on its own

after notice to the plaintiff—must dismiss the action

without prejudice against that defendant or order that

service be made within a specified time.” Id. Rule 4(m)

provides that district courts have discretion when

determining whether to dismiss for failure to timely effect

service. See Mann, 681 F.3d at 375–76. “If the plaintiff

shows good cause for the failure,” however, a court “must

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extend the time for service for an appropriate period.”

FED. R. CIV. P. 4(m).

Under well-established precedent, we review a

district court’s dismissal under Rule 4(m) for abuse of

discretion. See Mann, 681 F.3d at 375. “[T]he abuse of

discretion standard means that the district court has a

range of choice, and that its decision will not be disturbed

as long as it stays within that range and is not influenced

by any mistake of law.” United States v. Volvo Powertrain

Corp., 758 F.3d 330, 345 (D.C. Cir. 2014) (cleaned up).

“[W]e may not substitute our judgment for that of the trial

court, so we cannot decide the issue by determining

whether we would have reached the same conclusion.”

Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

985 F.3d 1032, 1053 (D.C. Cir. 2021) (cleaned up). Abuse

of discretion is a particularly high bar “where the court is

simply exercising its judgment about whether to relieve a

party from an unexcused (i.e., no good cause) failure to

comply with the [R]ules.” Troxell v. Fedders of N. Am.,

Inc., 160 F.3d 381, 383 (7th Cir. 1998).

Both Morrissey and Stephenson maintain the district

court should have applied a heightened standard before

dismissing their claims because the dismissals would in

essence be with prejudice and thus justified only “after

less dire alternatives have been explored without

success.” Morrissey Br. 29 (citation omitted); accord

Stephenson Br. 29. They also invoke an out-of-circuit case

to argue that “where ‘the applicable statute of limitations

likely bars future litigation,’ … the propriety of a Rule

4(m) dismissal should be judged according to ‘the same

heightened standard’ used for other ‘dismissal[s] with

prejudice.’” Morrissey Br. 29 (quoting Thrasher v. City of

Amarillo, 709 F.3d 509, 512 (5th Cir. 2013)); Stephenson

Br. 30 (same). We decline to apply a heightened standard

or cabin the district court’s broad discretion to manage its

10a

docket.3 Neither the text of the Federal Rules of Civil

Procedure nor our precedents suggest a reason to deviate

from the ordinary standard in these circumstances.

Reviewing for abuse of discretion, we take each

plaintiff’s appeal in turn.

III.

Morrissey claims the district court erred by (1) failing

to grant him either a discretionary or mandatory

extension to cure service before dismissing the complaint;

(2) denying his subsequent motion to reinstate the case;

and (3) denying his Rule 59(e) motion for reconsideration.

We find no abuse of discretion in the district court’s

rulings.

The dissent agrees with Morrissey and Stephenson that we should

impose the heightened standard from the Fifth Circuit’s cases and

treat these dismissals as “effectively” with prejudice. The dissent

argues that under this “rule” the district courts would have abused

their discretion as a matter of law; but we have never adopted such a

rule. The dissent offers no compelling reason for us to change the law

of this Circuit by adopting a rule that has been on the books for 50

years in the Fifth Circuit without being adopted by any other. See

Pond v. Braniff Airways, Inc., 453 F.2d 347, 348–49 (5th Cir. 1972)

(setting forth the Fifth Circuit’s rule that dismissals without

prejudice when the statute of limitations has run must be treated as

dismissals with prejudice).

Adopting this rule in this case is particularly inappropriate because

of the parties’ failure to brief it adequately below. Morrissey did not

argue for the Fifth Circuit’s heightened standard until his motion for

reconsideration, but “Rule 59(e) is not a vehicle to present a new legal

theory that was available prior to judgment.” Patton Boggs, 683 F.3d

at 403. Stephenson made only a cursory attempt to argue for the

heightened standard—failing to cite any Fifth Circuit cases—and

also made the argument only in his motion for reconsideration.

3

11a

A.

Morrissey argues the district court should have

exercised its discretion to provide an extension to cure

service before dismissing his complaint. Two weeks prior

to the service deadline, the district court ordered

Morrissey to, by the deadline, “cause process to be served

upon the Defendant and file proof of service with the

Court or establish good cause for the failure to do so.”

M.A. 1. Notably, the court warned Morrissey that if he did

not follow this order, it would dismiss his case. Morrissey

failed to provide proof of service, show good cause, or

request an extension. After the deadline had passed, Rule

4(m) authorized the district court to either “dismiss the

action without prejudice … or order that service be made

within a specified time.” FED. R. CIV. P. 4(m). The court

chose to dismiss the action without prejudice. The district

court did not abuse its discretion by choosing one of the

two options explicitly provided for in Rule 4(m). See

Mann, 681 F.3d at 376–77.

Morrissey also insists the district court was required

to grant him a mandatory extension because he had “good

cause” for failure to timely comply with Rule 4’s service

requirements. As Morrissey acknowledges, Rule 4(m)’s

mandatory extension applies only “if the plaintiff shows

good cause for the failure.” FED. R. CIV. P. 4(m).

Morrissey made no attempt to demonstrate good cause to

the district court before the deadline for service had

passed. Morrissey suggests the district court should have

sua sponte identified good cause for an extension, but the

failure to do so is not an abuse of discretion.

The district court did not abuse its discretion by

dismissing Morrissey’s complaint when the time for

effectuating service had passed.

12a

B.

Morrissey also argues the district court erred by

denying his motion to reinstate the case. It is unclear from

the face of Morrissey’s motion exactly what type of motion

he sought to bring because the Federal Rules do not

include a motion to reinstate a case. The government

maintains it should be treated as a motion to alter or

amend the judgment under Rule 59(e). We agree because

Morrissey’s motion “involves reconsideration of matters

properly encompassed in a decision on the merits,” not

“collateral” issues that would require a separate inquiry.

Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)

(cleaned up). We thus review the district court’s denial of

Morrissey’s motion for abuse of discretion. See GSS Grp.

Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012).

The district court did not abuse its discretion in

denying this motion because Morrissey failed to

demonstrate compliance with Rule 4; did not offer any

evidence of good cause for his failure; and provided no

reason why the running of the statute of limitations

required the district court to offer a discretionary

extension.

Even after the dismissal of his complaint and in his

motion to reinstate, Morrissey provided evidence only of

service to the Secretary. In order to bring suit against the

Department of Homeland Security, however, Rule 4(i)

required Morrissey to serve not only the Secretary, but

also the Attorney General and the U.S. Attorney for the

District of Columbia. Because Morrissey failed to

establish that he properly served the Attorney General

and U.S. Attorney, he did not complete service as

required by Rule 4.

On appeal, Morrissey raises a new set of arguments

that “good cause” exists because the service requirements

13a

are complicated and his failure to properly serve the

United States is an “oversight” similar to those service

errors for which Rule 4(i)(4) explicitly provides a

mandatory extension. Morrissey Br. 25 (cleaned up).

These arguments, however, were not raised below and so

were forfeited. See Keepseagle v. Perdue, 856 F.3d 1039,

1053–54 (D.C. Cir. 2017). In his motion to reinstate,

Morrissey made no attempt to show “good cause” for his

failure to timely complete service, a showing that would

have entitled him to an extension. See FED. R. CIV. P.

4(m). Rather, he conceded that he thought he had

complied with the Rule by serving only the Secretary, so

he did not address the issue of good cause. See S. Cal.

Edison Co. v. FERC, 603 F.3d 996, 1000 (D.C. Cir. 2010)

(“[A] concession is analogous to a waiver.”). As the district

court assumed, Morrissey either “misread or ignored

Rule 4(i)(2),” M.A. 32, and “[f]ailure to read a rule is the

antithesis of good cause,” Tuke v. United States, 76 F.3d

155, 156 (7th Cir. 1996).4

Even on the merits, Morrissey’s new arguments

about “good cause” are unavailing because they would

require this court to add a new ground for a mandatory

extension to Rule 4(i)(4). When suing a federal officer in

his official capacity, as Morrissey did, a plaintiff must be

allowed a reasonable time to cure defective service if he

serves either the Attorney General or the U.S. Attorney.

FED. R. CIV. P. 4(i)(4)(A). That relief is unavailable

because Morrissey served neither. Nor can Morrissey

benefit from Rule 4(i)(4)(B), which allows a person who

The dissent makes a series of arguments about the difficulty of

understanding Rule 4(i), but the Rule’s instructions for serving the

United States are only about 120 words. Morrissey does not argue

that the Rule is ambiguous, only complex. But a district court is not

required to exercise discretion in favor of a party who misreads or

ignores the rules that govern civil procedure.

4

14a

properly serves a federal officer additional time to serve

the United States, because that provision applies only

when an officer is sued in his personal capacity. FED. R.

CIV. P. 4(i)(3) & 4(i)(4)(B). Rule 4(i) explicitly

distinguishes between official and personal capacity suits

against federal officers, and it is not the role of the courts

to create additional exceptions to the service

requirements.5 Morrissey’s confusion or failure to read or

understand Rule 4(i) does not constitute good cause.

Morrissey also argues the district court abused its

discretion by declining to grant a discretionary extension.

He maintains that the denial of a discretionary extension

is contrary to the intent of Rule 4 and is thus an abuse of

discretion because the advisory committee’s note

accompanying Rule 4(i) shows it was “intended to ‘save

the plaintiff from the hazard of losing a substantive right

because of failure to comply with the complex

requirements of multiple service.’” Morrissey Br. 51

(quoting FED. R. CIV. P. 4(i) advisory committee’s note to

1993 amendment). But that note pertains to a subpart of

the Rule that does not apply in this case because

Morrissey failed to serve either the Attorney General or

the U.S. Attorney. See FED. R. CIV. P. 4(i)(4)(A).6

The dissent suggests that the presence of a mandatory extension in

one part of the Rule suggests that a discretionary extension is

appropriate in other circumstances—perhaps recognizing for the

first time the counter-textual canon expressio unius est inclusio

alterius. Dissenting Op. 38–39. The argument proves too much,

because the dissent recognizes that any extension here would not be

mandatory, only discretionary, which the district court recognized.

This further reinforces that our review is properly under the abuse of

discretion standard.

6

Rule 4(i)(4) in the current version of the Rules generally corresponds

with Rule 4(i)(3) in the 1993 version, which stated “[t]he court shall

5

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The decision of whether to grant Morrissey an

extension was committed to the district court’s discretion,

so our review must be deferential. Cf. Yesudian ex rel.

United States v. Howard Univ., 270 F.3d 969, 971 (D.C.

Cir. 2001). When determining whether to grant a

discretionary extension under Rule 4(m), the district

court may consider a range of factors. Even though

Morrissey’s motion did not discuss whether the statute of

limitations would bar him from refiling, the district court

“assume[d] that Morrissey may be barred from refiling

his action” because his complaint referred to an expired

limitations period. M.A. 34. The district court reasonably

invoked the equitable factors we considered in Mann.

These factors include: whether the statute of limitations

would bar the plaintiff from refiling his complaint;

whether the plaintiff had “been diligent in correcting the

service deficiencies”; and whether the plaintiff was a pro

se litigant deserving of “additional latitude … to correct

defects in service of process.” Mann, 681 F.3d at 376–77.

Morrissey was represented by counsel, and the

district court explicitly and clearly reminded him of his

service obligations two weeks before the deadline.

Although the running of a statute of limitations weighed

in favor of granting Morrissey an extension, it did not

mandate an extension. Id. at 376 (considering the statute

of limitations as one “equitable factor[]” among others). A

court may decline to grant a discretionary extension even

if the statute of limitations would bar refiling. See

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1306

(3d Cir. 1995) (“We emphasize that the running of the

allow a reasonable time for service of process under this subdivision

for the purpose of curing the failure to serve multiple officers,

agencies, or corporations of the United States if the plaintiff has

effected service on either the United States attorney or the Attorney

General of the United States.”

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statute of limitations does not require the district court to

extend time for service of process. Rather, absent a

finding of good cause, a district court may in its discretion

still dismiss the case, even after considering that the

statute of limitations has run and the refiling of an action

is barred.”). The district court reasonably determined

that only the statute of limitations weighed in favor of an

extension and that the other factors tipped the balance

against an extension.7

Rule 4 gives a district court discretion to grant an

extension, but it does not mandate an extension where a

plaintiff fails to serve the government and the statute of

limitations has run. Ultimately, the district court did not

abuse its discretion by denying Morrissey’s motion.

The dissent suggests the district courts in these cases failed to “give

focused consideration and appropriate weight in their Rule 4(m)

analyses.” Dissenting Op. 19. While the dissent cites numerous outof-circuit cases for this principle, these cases all apply an abuse of

discretion standard and are consistent with our precedents, which

require consideration of all relevant equitable factors before

dismissal, including the running of a statute of limitations. Mann, 681

F.3d at 376. This circuit’s law does not require giving “material”

weight, a term not found in Mann, to any one factor. But cf.

Dissenting Op.1.

Under the dissent’s standard, it is unclear how we should review

whether a district court gave sufficient consideration to dismissal,

short of presumptively granting an extension when the statute of

limitations has run. But statutes of limitations also serve important

purposes, such as providing notice and repose and preserving

evidence for litigation. See Am. Pipe & Constr. Co. v. Utah, 414 U.S.

538, 554 (1974). Limitations periods reflect legislative policy

judgments and should not be lightly ignored by the judiciary. See Bd.

of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487

(1980) (“Statutes of limitations are not simply technicalities.”).

7

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C.

We next review the district court’s denial of

Morrissey’s Rule 59(e) motion for reconsideration. A

district court must grant a Rule 59(e) motion only if, inter

alia, it is necessary to “prevent manifest injustice.” Patton

Boggs, 683 F.3d at 403 (cleaned up). No manifest injustice

exists, however, “where … a party could have easily

avoided the outcome, but instead elected not to act until

after a final order had been entered.” Ciralsky v. CIA, 355

F.3d 661, 673 (D.C. Cir. 2004) (cleaned up).

The district court did not abuse its discretion in

denying the Rule 59(e) motion for reconsideration

because Morrissey’s motion raised new arguments, all of

which were previously available.8 Morrissey could have

attempted to show good cause or requested an extension

prior to dismissal, but he did not. See Fox v. Am. Airlines,

Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (finding no abuse

of discretion in denial of Rule 59(e) motion where

“dismissal of [plaintiffs’] suit might have been avoided

through the exercise of due diligence”). Nor did he raise

these arguments in his so-called motion to reinstate.

Morrissey’s reconsideration motion in fact demanded an

initial consideration of new arguments, which turns Rule

59(e) on its head. See Leidos, Inc. v. Hellenic Republic,

881 F.3d 213, 217 (D.C. Cir. 2018).

We decline to address Morrissey’s argument, reiterated on appeal,

that dismissal was improper under Rule 4(m) because the district

court provided notice of the service requirement before (rather than

after) the time to file service had expired. Morrissey Br. 39 n.7.

Morrissey forfeited this argument by making only a skeletal assertion

in a footnote. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014)

(“[A] footnote is no place to make a substantive legal argument on

appeal; hiding an argument there and then articulating it in only a

conclusory fashion results in forfeiture.”).

8

18a

***

Despite the reminder from the district court,

Morrissey failed to exercise diligence in effectuating

service on the United States, and he presented no good

cause for his failure. The district court did not abuse its

discretion in dismissing Morrissey’s suit.9

IV.

Reviewing the dismissal of Stephenson’s complaint

under the same standards articulated above, we find no

abuse of discretion by the district court.

A.

Stephenson first argues the district court erred by

dismissing his complaint without considering whether to

grant a second discretionary extension. He bases this

argument on the language in the district court’s minute

order dismissing his case: “Therefore, as required by Rule

4(m), the [c]ourt sua sponte dismisses … this action

without prejudice.” S.A. 2. Stephenson maintains that by

using the word “required” the district court mistakenly

treated dismissal as mandatory and failed to recognize its

discretion to grant another extension.

This argument myopically focuses on the dismissal

order’s reference to “as required by Rule 4(m)” while

ignoring the broader context in which the district court

used the phrase. The district court had previously issued

The dissent delves into the facts of both cases and argues the district

courts should have granted extensions. Yet the dissent fails to

recognize our deferential standard of review. The relevant inquiry is

not what we would have done in the same situation. Under the abuse

of discretion standard, we do not superintend the discretionary

choices of the district court. Ultimately, the dissent agrees that Mann

is the governing case and disagrees only about how Mann applies to

the facts of these cases. Dissenting Op. 29–30.

9

19a

a minute order sua sponte granting Stephenson a

discretionary extension to complete service, which shows

the court was not under the misconception that Rule 4(m)

mandated dismissal for failure to comply with the Rule.

Moreover, the minute order cautioned that “[i]f service is

not perfected by [December 4, 2019], the [c]ourt may

dismiss the action without prejudice.” S.A. 1. The district

court’s use of “may” recognized the court’s authority to

grant another extension.

Rule 4(m) dictates that if a plaintiff does not complete

service within ninety days of filing his complaint, “the

court … must dismiss the action without prejudice … or

order that service be made within a specified time.” FED.

R. CIV. P. 4(m). When Stephenson failed to effectuate

service after ninety days, the court faced a binary choice

and decided to grant an extension, ordering Stephenson

to complete service within fourteen days. When

Stephenson failed to complete service by the extended

deadline and did not show good cause for this failure or

request additional time to complete service, the district

court chose to dismiss the case without prejudice. There

was no abuse of discretion in dismissing the case and

denying Stephenson a third bite at the apple.

Stephenson maintains that dismissal is a disfavored

case-ending sanction because it is effectively with

prejudice due to the statute of limitations. But

Stephenson had not sought an extension or argued the

statute of limitations would bar the refiling of his suit, and

it is not the district court’s responsibility to discover or

raise such issues in the first instance. Stephenson “may

not be heard to complain that the district court has abused

its discretion by failing to compensate for counsel’s

inadequate effort.” Twist v. Meese, 854 F.2d 1421, 1425

(D.C. Cir. 1988). The possibility that the statute of

limitations would run does not transform the district

20a

court’s dismissal of Stephenson’s case into an abuse of

discretion.

B.

Stephenson also argues the district court erred by

denying his motion for reconsideration because under any

standard an extension was warranted.

Whether treated as a motion under Rule 59(e) or Rule

60(b), we review the district court’s dismissal of

Stephenson’s motion for abuse of discretion. GSS Grp.

Ltd., 680 F.3d at 811 (Rule 59(e) motion); Bain v. MJJ

Prods., Inc., 751 F.3d 642, 646 (D.C. Cir. 2014) (Rule 60(b)

motion). The district court did not abuse its discretion

because Stephenson’s motion failed to satisfy either

standard for reconsideration. Stephenson did not point to

any circumstances outside his control as the cause of his

failure to properly serve the United States; request

additional time prior to expiration of the original deadline;

or request additional time if the two-week extension was

insufficient.

To obtain relief under Rule 60(b)(1), Stephenson must

show “mistake, inadvertence, surprise, or excusable

neglect.” FED. R. CIV. P. 60(b)(1). “Excusable neglect is

an equitable concept that considers all relevant

circumstances surrounding the failure to act.” Cohen v.

Bd. of Trustees of Univ. of D.C., 819 F.3d 476, 479 (D.C.

Cir. 2016) (cleaned up). “[T]he reason for the delay,

including whether it was within the reasonable control of

the movant,” is one of the “relevant circumstances.”

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

507 U.S. 380, 395 (1993); see also In re Vitamins Antitrust

Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003).

“[C]ounsel typically must have some reasonable basis for

not meeting a filing deadline” to show excusable neglect.

Cohen, 819 F.3d at 479 (cleaned up).

21a

Stephenson argues on appeal that he was generally

diligent throughout the litigation, that any lack of

diligence was the fault of his attorney, and that he did not

intentionally refuse to serve the United States. None of

these arguments, however, provides a “reasonable basis”

for his delay. Before the district court, Stephenson

stressed that he failed to timely effect service because a

mail sorting service lost the “signature card” he sent to

the U.S. Attorney and Attorney General. Stephenson

abandoned this argument on appeal, but in any event, we

agree with the district court that Stephenson’s arguments

“make[] no sense,” S.A. 34, because the signature card

relates only to proof of service, and “[f]ailure to prove

service does not affect the validity of service” under Rule

4(m), FED. R. CIV. P. 4(l)(3). Stephenson lacked a

reasonable basis for his failure to complete service by the

extended deadline.

Moreover, the failure to effect service “was within

[Stephenson’s] reasonable control.” In re Vitamins

Antitrust Class Actions, 327 F.3d at 1209; see also Cohen,

819 F.3d at 480 (identifying the importance of counsel

having some reasonable excuse). It was within

Stephenson’s control to track court deadlines and to be

aware of the Federal Rules of Civil Procedure,

particularly as he was represented by counsel. See Ctr. for

Nuclear Resp., Inc. v. U.S. Nuclear Regul. Comm’n, 781

F.2d 935, 942 (D.C. Cir. 1986) (explaining that attorneys

“have a professional obligation to be” knowledgeable

about “procedural rules,” which “are the tools of the

trade”). Ignorance of the rules does not qualify as

excusable neglect. Furthermore, Stephenson failed to

correct the service error when the district court clearly

explained who must be served and provided an additional

two weeks to complete service. Our review of the district

22a

court’s exercise of discretion takes this key fact into

account.

Like Morrissey, Stephenson argues that his claims

are now time-barred, and therefore the district court

erred by declining to give him another extension to

complete service. Rule 60(b) affords the district court

wide discretion, and the running of the statute of

limitations, standing alone, does not mandate an

extension. The district court did not abuse its discretion

by denying Stephenson’s motion for reconsideration.

Stephenson fares no better under the Rule 59(e)

standard. “[R]econsideration or amendment of a

judgment [under Rule 59(e)] is … an extraordinary

measure.” Leidos, 881 F.3d at 217. “A Rule 59(e) motion

is discretionary and need not be granted unless the

district court finds … the need to … prevent manifest

injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208

(D.C. Cir. 1996) (per curiam) (cleaned up). As already

noted, there is no manifest injustice when “a party could

have easily avoided the outcome, but instead elected not

to act until after a final order had been entered.” Ciralsky,

355 F.3d at 673 (cleaned up).

Stephenson could have attempted to show good cause

or requested another extension, but he did not do so

before dismissal. Furthermore, like Morrissey,

Stephenson’s motion for reconsideration includes only

arguments that he could have raised prior to dismissal,

meaning Rule 59(e) is not an appropriate avenue for relief.

See Patton Boggs, 683 F.3d at 403. The district court did

not abuse its discretion by denying Stephenson’s motion

for reconsideration.

Stephenson also argues the district court should have

considered his request for an extension of time under its

discretionary authority, rather than under the “high bar”

23a

for relief under Rules 59 and 60. Stephenson Br. 25

(cleaned up). He asks this court to follow other circuits

“and hold that a district court must consider whether the

circumstances of a case”—such as the statute of

limitations—“warrant a discretionary extension.”

Stephenson Br. 27. We have no occasion to set out a rule

for the lower courts because the district court did

consider whether to grant Stephenson an extension—

twice. After Stephenson missed the ninety-day deadline

for serving the United States, the district court sua sponte

granted a discretionary extension and clearly stated who

must be served. Later, when denying Stephenson’s

motion for reconsideration, the district court reasoned

that although it was “unfortunate” that Stephenson’s

claims may be time-barred, the statute of limitations alone

did not “justify the extraordinary relief he s[ought],

especially considering that he [wa]s represented by

counsel.” S.A. 36. The district court concluded by noting

that the failure to follow the court’s direction to effectuate

service was not “the kind of circumstances that warrant

the highly discretionary relief” Stephenson sought. S.A.

37.

The district court did not abuse its discretion by

dismissing Stephenson’s claims for failure to effectuate

service on the United States.

***

The Federal Rules of Civil Procedure ensure orderly

disposition of claims. When a federal agency is the

defendant, the requirement to serve the United States

ensures notice of a lawsuit to the Department of Justice,

which must determine whether and how to respond to

claims against a federal agency. Morrissey and

Stephenson failed to timely serve the United States,

despite reminders to do so, and their claims were

24a

eventually dismissed without prejudice. Although the

running of the statute of limitations may prevent

Morrissey and Stephenson from suing the agencies for

which they worked, even in these circumstances the

district court has substantial discretion to grant or to

deny an extension of time to perfect service. The district

court was well within its discretion in denying the

extensions in these cases.

For the foregoing reasons, we affirm the dismissals

of Morrissey’s and Stephenson’s complaints.

So ordered.

MILLETT, Circuit Judge, dissenting: The “clear

preference” of the Federal Rules of Civil Procedure is “to

resolve disputes on their merits[,]” Cohen v. Board of

Trustees, 819 F.3d 476, 482 (D.C. Cir. 2016), and not to

dismiss them on “mere technicalities[,]” EnglishSpeaking Union v. Johnson, 353 F.3d 1013, 1021 (D.C.

Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 181

(1962)).

Yet the majority opinion affirms the dismissal of

these two cases before they have even started based on a

single, purely technical misstep in the process of serving

the complaint. And the majority opinion does so even

though the dismissals conclusively ended the litigation on

the merits because the statutes of limitations had run.

In upholding the orders of dismissal despite their

known prejudicial consequences, the majority opinion

brings this court into a direct conflict with the law of the

Fifth Circuit. That circuit requires a showing of

misconduct or willful failure to effect service by the

plaintiff and a showing that lesser sanctions would not

suffice before slamming the courthouse doors shut on

aggrieved parties. If the Fifth Circuit’s rule were applied

here, the district courts’ peremptory dismissal orders

unquestionably would have been overturned as abuses of

discretion. In addition, unlike the majority opinion, at

least four other circuits require district courts to, at a

minimum, give focused consideration and appropriate

weight to the death-knell consequences of dismissal

before terminating a lawsuit just because of attorneys’

confusion or easily correctible mistakes. The district

courts’ failure here to accord any material weight—or any

weight at all in Stephenson’s case—to the fatal

consequences of dismissal for a first-time error would

have been ruled an abuse of discretion in those circuits.

(25a)

26a

The majority opinion also cannot be reconciled with

this court’s precedent requiring weighty reasons before

dismissing a case with prejudice for failure to complete

service under Federal Rule of Civil Procedure 41(b) or

failure to serve foreign governments. See Barot v.

Embassy of the Republic of Zambia, 785 F.3d 26, 29 (D.C.

Cir. 2015); Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C.

Cir. 1988).

The credibility of the judicial branch depends

critically on the fairness and openness with which we

administer justice to those parties who entrust their

disputes to the courts for resolution. Part of being fair and

open is recognizing that, in the litigation process, good

faith mistakes inevitably happen. When, as here, those

mistakes are one-off and easily remedied technical

missteps in the initial processing of a case, and neither

bear on the merits nor prejudice the defendants or courts,

the sanction for the lawyer’s misstep should not be the

death of the party’s case. At the least, before such

irreversible harm occurs, district courts should openly

acknowledge the fatal consequences of a dismissal and

provide sound and specific reasons that justify ending a

party’s case before it even begins. Because the majority

opinion requires far too little before district courts deploy

one of their harshest sanctions for a first-time technical

error, I respectfully dissent.

I

A

1

The “spirit and inclination” of the Federal Rules of

Civil Procedure “favor[] decisions on the merits[.]”

Schiavone v. Fortune, 477 U.S. 21, 27 (1986). To that end,

district courts’ enforcement of the Rules “must be a

27a

‘reasonable response to the problems and needs’

confronting the court’s fair administration of justice.”

Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (emphasis

added) (quoting Degen v. United States, 517 U.S. 820,

823–824 (1996)). That means that a district court’s

exercise of discretion under the Rules “should reflect our

judicial system’s strong presumption in favor of

adjudications on the merits[.]” Shepherd v. American

Broad. Cos., 62 F.3d 1469, 1475 (D.C. Cir. 1995). The

Rules, after all, are not intended to function as “a game of

skill in which one misstep * * * may be decisive[,]” but

instead are intended to “facilitate a proper decision on the

merits.” Ciralsky v. CIA, 355 F.3d 661, 674 (D.C. Cir.

2004) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514 (2002)).

The Rules’ bias in favor of resolving cases on the

merits is “particularly strong” if dismissing the claims

would have “preclusive effect”—that is, the dismissal

would conclusively end the litigation. Cohen, 819 F.3d at

482. When that happens, the complaint may not be refiled;

the court has decided that the error can never be fixed.

Because of the severe consequences of dismissals

with prejudice, they are the “exception, not the rule[.]”

Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). A

dismissal with such prejudicial consequences is a “death

knell” that should be employed “only as a last resort.”

English-Speaking Union, 353 F.3d at 1021 (quoting

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.

1989)).

For that reason, many orders of dismissal under the

Federal Rules of Civil Procedure are made without

prejudice. Unlike a dismissal with prejudice, a dismissal

without prejudice “does not operate as an adjudication

upon the merits[.]” Cactus Canyon Quarries, Inc. v.

28a

Federal Mine Safety & Health Review Comm’n, 820 F.3d

12, 19 (D.C. Cir. 2016). As a result, a plaintiff is not barred

from “refil[ing] the same suit on the same claim,” so long

as it is still within the relevant statute of limitations

period. Semtek Int’l Inc. v. Lockheed Martin Corp., 531

U.S. 497, 505 (2001) (quoting Dismissal Without

Prejudice, BLACK’S LAW DICTIONARY 482 (7th ed. 1999)).

“The principle guiding a dismissal without prejudice is

that absent futility or special circumstances (such as

undue delay, bad faith, or dilatory motive), a plaintiff

should have the opportunity to replead so that claims will

be decided on merits rather than technicalities.” Osborn

v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015).

2

At the very outset of a federal case, Federal Rule of

Civil Procedure 4 requires plaintiffs to serve a copy of the

complaint and court-issued summons on the defendants

they are suing. See generally FED. R. CIV. P. 4. Service of

process provides the defendants fair notice of the lawsuit,

of the nature of the claims against them, and of the forum

in which the litigation has been brought. See Henderson

v. United States, 517 U.S. 654, 672 (1996); see also 4A

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1083 (4th ed.

April 2021 update) (“[S]ervice of process [is] primarily a

notice-giving device.”).

Federal Rule of Civil Procedure 4(m) sets the

timeframe for service, instructing that a plaintiff should

serve a defendant within 90 days of filing the complaint.

FED. R. CIV. P. 4(m). If the plaintiff fails to do so, the

district court, “on motion or on its own after notice to the

plaintiff[,]” either “must dismiss the action without

prejudice against that defendant or order that service be

29a

made within a specified time.” Id. (emphasis added). Rule

4(m) does not allow a dismissal with prejudice.

Before 2015, the time limit to complete service was

120 days. In reducing the time period to 90 days, the

Advisory Committee anticipated that “[s]hortening the

presumptive time for service will increase the frequency

of occasions to extend the time.” FED. R. CIV. P. 4(m),

Advisory Committee Note to 2015 amendment. The

Committee added that “[m]ore time may be needed, for

example, when * * * a defendant is difficult to serve[.]” Id.;

see FTC v. Boehringer Ingelheim Pharms., Inc., 778 F.3d

142, 154 (D.C. Cir. 2015) (“Helpfully, the Advisory

Committee’s notes on the amendments ‘provide a reliable

source of insight into the meaning of a rule[.]’”) (quoting

United States v. Vonn, 535 U.S. 55, 64 n.6 (2002)).

If the plaintiff shows “good cause” for failing to serve

the defendant, the court does not have a choice—it “must

extend the time for service for an appropriate period.”

FED R. CIV. P. 4(m). One “specific instance of good cause”

is Rule 4(i)(4)’s mandatory extension for serving the

United States and its officers once partial service has

been completed. FED. R. CIV. P. 4(m), Advisory

Committee Note to 1993 amendment.

But even in the absence of good cause, courts may,

and commonly do, grant discretionary extensions of the

service deadline under Rule 4(m). See Henderson, 517

U.S. at 662; Mann v. Castiel, 681 F.3d 368, 375–376 (D.C.

Cir. 2012); see also WRIGHT & MILLER, FEDERAL

PRACTICE & PROCEDURE § 1083 (“The general attitude of

the federal courts is that the provisions of Federal Rule 4

should be liberally construed in the interest of doing

substantial justice[.]”). Such an extension may be

appropriate for a variety of reasons, including in

particular “if the applicable statute of limitations would

30a

bar the refiled action[.]” FED. R. CIV. P. 4(m), Advisory

Committee Note to 1993 amendment. That is because,

once the statute of limitations has run, even if dismissal

under Rule 4(m) is nominally without prejudice, the legal

reality is that the dismissal is “effectively with prejudice”

because it brings an end to the plaintiff’s claims, just as

much as an express dismissal with prejudice would.

Ciralsky, 355 F.3d at 672 (quoting Elmore v. Henderson,

227 F.3d 1009, 1011 (7th Cir. 2000)).

Rule 4(i) provides a unique rule for service of process

in suits brought against the federal government. Under

Rule 4(i)(2), a plaintiff suing an agency or a federal officer

in his or her official capacity “must serve the United

States and also send a copy of the summons and of the

complaint by registered or certified mail to the agency *

* * [or] officer[.]” FED. R. CIV. P. 4(i)(2). But Rule 4(i)(2)

is silent about how to serve the United States.

Instead, to figure out how to serve the United States,

as distinct from its officer or agency, counsel must look

back to Rule 4(i)(1). That Rule requires plaintiffs also to

send a copy of the summons and complaint to both the

United States Attorney for the district where the action is

brought and the United States Attorney General. FED. R.

CIV. P. 4(i)(1)(A)–(B). The Rule’s wording is less than

pellucid. Litigants must parse, by the majority opinion’s

count, 120 words of meandering language to discern that

they must serve two additional individuals. See Majority

Op. 14 n.4.

The first part of Rule 4(i)(1) contains two “or” clauses.

It states that a party must “(i) deliver a copy of the

summons and of the complaint to the United States

attorney for the district where the action is brought—or

to an assistant United States attorney or clerical

employee whom the United States attorney designates in

31a

a writing filed with the court clerk—or (ii) send a copy of

each by registered or certified mail to the civil-process

clerk at the United States attorney’s office.” Id.

4(i)(1)(A)(i)–(ii) (emphasis added). On top of that, the Rule

adds that, “if the action challenges an order of a nonparty

agency or officer of the United States,” the party must

“send a copy of each by registered or certified mail to the

agency or officer.” Id. 4(i)(1)(C).

Rule 4(i)’s service provisions have long been

recognized to be notoriously confusing and complicated,

and the risk that plaintiffs “los[e] a substantive right

because of failure to comply with the complex

requirements of multiple service under [Rule 4(i)] * * *

has proved to be more than nominal.” FED. R. CIV. P. 4(i),

Advisory Committee Note to 1993 amendment; see, e.g.,

Veal v. United States, 84 F. App’x 253, 256 (3d Cir. 2004)

(“[T]he service required [under Rule 4(i)] was of a kind

often found to be confusing[.]”); Olsen v. Mapes, 333 F.3d

1199, 1205 (10th Cir. 2003) (“Rule 4(i) is a lengthy and

complicated rule.”); Espinoza v. United States, 52 F.3d

838, 842 (10th Cir. 1995) (noting the “complex

requirements” of Rule 4(i)); WRIGHT & MILLER,

FEDERAL PRACTICE & PROCEDURE § 1107 (“Given the

complexity of this subdivision of Rule 4, counsel must

exercise great care in determining who is the proper

defendant and whether the particular officer or agency or

corporation has the capacity to be sued.”) (footnote

omitted); Brief for Professors of Civil Procedure as Amici

Curiae in Support of Appellant Paul S. Morrissey at 2

(“Rule 4(i) is a particularly complex rule[.]”).

To help mitigate this problem, the Advisory

Committee added to Rule 4(i) two mandatory extensions

of the service window. See FED. R. CIV. P. 4(i), Advisory

Committee Note to 1993 amendment (correcting “risk”

manifested in Whale v. United States, 792 F.2d 951 (9th

32a

Cir. 1986), where plaintiff lost “substantive rights against

the United States” because plaintiff failed to properly

serve the U.S. Attorney and the statute of limitations had

expired by the time the defect was discovered). Under

Rule 4(i)(4), courts must allow plaintiffs a “reasonable

time” to correct their service failure (1) if the plaintiff

sued a federal officer in his or her official capacity and

served only the U.S. Attorney or the Attorney General,

but has not served one or both of the other two individuals

for whom service is required; or (2) if the plaintiff has

served the United States officer or employee but has

failed to serve the Attorney General or the U.S. Attorney

in a suit under Rule 4(i)(3). FED. R. CIV. P. 4(i)(4).1

B

1

a

Paul Morrissey was a Secret Service agent for more

than 33 years. He rose through the ranks to the position

of Assistant Director, a position in which he developed and

implemented agency-wide policies and supervised dozens

of personnel. During his time with the agency, he

consistently received the highest performance ratings.

But in January 2015, when he was 59 years old, Morrissey

was demoted from his position as Assistant Director.

According to the complaint, Morrissey’s supervisor said

To layer on more confusion, Rule 4(i)(4)(B) sounds like it applies

when only the third portion of the service trifecta—service on the

officer or employee—has been accomplished, and so compliments

Rule 4(i)(4)(A)’s mandatory extension for when the Attorney General

or the United States Attorney has been served. Only by looking back

to Rule 4(i)(3) will counsel realize that this second form of mandatory

extension applies exclusively when the lawsuit is against a federal

officer or employee in her personal capacity rather than official

capacity.

1

33a

that he wanted to build his own staff with “younger

Deputy Assistant Directors with a fresh perspective.”

Appendix at 7 ¶ 22, Morrissey v. Mayorkas, No. 20-5024

(D.C. Cir. May 15, 2020), ECF No. 1843094 (“Morrissey

App.”).

Morrissey filed a formal administrative complaint

with the Equal Employment Opportunity Commission in

April 2015 claiming that his demotion was on the basis of

his age, in violation of the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 623(a)(1).

Morrissey properly exhausted his administrative

remedies, receiving a final agency decision in April 2019.

That decision gave Morrissey 90 days to file his lawsuit in

federal court.

b

Morrissey met that deadline by timely filing suit on

June 28, 2019, against Kevin McAleenan, the then-Acting

Secretary of the Department of Homeland Security, in his

official capacity. The Clerk issued the summons a few

days later. Based on Rule 4(m), Morrissey’s 90-day

deadline for completing service was September 26, 2019.

Two weeks before that service deadline, the district

court issued a minute order reminding Morrissey of the

deadline and directing his attention to Rule 4(m)

regarding the time limits for service. The district court

stated that if Morrissey did not serve the government and

file proof of that service or establish good cause for failing

to do so by September 26th, his failure would “result in

dismissal of this case.” Morrissey App. 1. The order

though did not refer Morrissey to Rule 4(i) or include any

other indication of the need to serve two additional

entities besides the named defendant. In fact, it instructed

Morrissey only to “cause process to be served upon the

34a

Defendant” in the singular. Morrissey App. 1 (emphasis

added).

Morrissey’s lawyer served Secretary McAleenan by

certified mail ten days prior to the deadline. He failed,

however, to file proof of that service on the docket.

On September 30, 2019, four days after the service

deadline, the district court issued an order dismissing the

case because “Mr. Morrissey has not complied with the

Court’s [prior] order. There is no proof of proper service

on the docket.” Morrissey App. 20.

That same day, Morrissey’s lawyer filed a motion to

reinstate the case. He informed the court, attaching an

affidavit of service, that he had actually served Secretary

McAleenan within the time provided by Rule 4(m), even

though he had not filed proof of service. Morrissey’s

counsel “request[ed] the Court’s discretion to allow the

filing of the proof of service with this motion[,]” and cited

Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir.

1983), for the proposition that “dismissal is not

appropriate when there exists a reasonable prospect that

service can be obtained.” Morrissey App. 21–22 (quoting

Novak, 703 F.2d at 1310). Counsel added that Morrissey

had not “engage[d] in a pattern of dilatory conduct or

willfully disregarded an order[.]” Morrissey App. 23.

Nothing in the motion indicated that Morrissey’s counsel

was aware that service was ineffective because the U.S.

Attorney and Attorney General had not also been served.

c

A month and a half later, the district court denied

Morrissey’s motion. The court explained that Morrissey

had not fully complied with all of Rule 4(i)’s requirements

for serving the United States government as he had failed

to serve either the U.S. Attorney or the Attorney General

35a

within the 90-day limit. The district court added that a

mandatory extension for good cause was not available

because “a misunderstanding of the rule is not good

cause.” Morrissey App. 32.

The court also “consider[ed] whether to grant

Morrissey a discretionary extension of time to complete

service.” Morrissey App. 32. The court noted that “[t]he

D.C. Circuit has not specified what factors a district court

must weigh” in this situation, though “it has said that

‘dismissal of a case pursuant to Rule 4(m) is appropriate

when the plaintiff’s failure to effect proper service is the

result of inadvertence, oversight, or neglect, and dismissal

leaves the plaintiff in the same position as if the action had

never been filed.’” Morrissey App. 33 (citing Mann, 681

F.3d at 376).

The district court said that “one factor to consider

here is whether a statute of limitations would bar

Morrissey from refiling his action.” Morrissey App. 33.

While Morrissey’s motion to reinstate “d[id] not discuss

this issue,” the court noted that the complaint identified a

90-day period for filing suit. Morrissey App. 33; see

Morrissey App. 5 (complaint) (“Plaintiff received a Final

Agency Decision on April 1, 2019, providing for a ninety

(90) day right to sue deadline for civil actions in federal

court.”). So the district court “assume[d] that Morrissey

may be barred from refiling his action.” Morrissey App.

34.

The court then turned to other factors, observing that

Morrissey was not proceeding pro se and that the court

had notified him of his duty to effect service two weeks

before the deadline. Those factors “weigh against him,”

the court concluded. Morrissey App. 34. That the service

requirements for federal agencies and officials are

complex, the court reasoned, “does not cut in Morrissey’s

36a

favor” because the rules “provide for some relief from the

complex requirements of Rule 4(i), but they do not

contemplate relief in this case.” Morrissey App. 34

(referencing Rule 4(i)(4)(A)). In particular, the court

pointed out that the Rule requires an extension when the

plaintiff has served either the U.S. Attorney or the

Attorney General, but it does not address the situation in

which the plaintiff has served the federal official but

neither the U.S. Attorney nor the Attorney General.

On that basis, the district court chose to “enforce the

time limit in Rule 4(m), even if a statute of limitations may

bar Morrissey from refiling his action.” Morrissey App.

35.

d

About a month later, Morrissey’s counsel filed a

motion under Rule 59(e) to alter the judgment. He argued

that the district court’s denial of his motion to reinstate

the case resulted in “manifest injustice” sufficient to alter

the judgment. Morrissey App. 38.

To explain the service error, Morrissey’s counsel

advised that he had been taking care of a terminally ill

uncle during the service period. The motion then argued

that the court should have granted a discretionary

extension because dismissal would substantially prejudice

Morrissey given that his claim would be time-barred. The

motion added that dismissals with prejudicial

consequence are “extreme sanction[s] * * * warranted

only where a clear record of delay or contumacious

conduct by the plaintiff exists and a lesser sanction would

not better serve the interests of justice.” Morrissey App.

48–49 (quoting Thrasher v. City of Amarillo, 709 F.3d 509,

512–513 (5th Cir. 2013)). Counsel added that the relevant

factors weighed in favor of an extension because the delay

caused by the failure to serve had been short, Morrissey

37a

had been diligent in pursuing his claim for almost four

years, and he stood “ready for immediate service on the

United States Attorney and the Attorney General” if the

court would allow it. Morrissey App. 49.

Six weeks later, the district court denied Morrissey’s

Rule 59(e) motion. In doing so, it refused to consider

Morrissey’s plea for a discretionary extension of time

because it raised new arguments that the court deemed

not properly considered under Rule 59.

2

a

Kelly Stephenson worked as an Air Traffic Control

Specialist for the Department of Transportation for more

than two decades. In January 2005, he suffered a stroke.

While he was still in the hospital’s Intensive Care Unit,

the Department sent an employee to his room to have

Stephenson sign a form agreeing to immediate

retirement. Although Stephenson remembers little of that

interaction, his signature appears on the form. After that,

he was placed on disability retirement.

Sometime in 2013 or 2014, Stephenson wanted to

return to work and applied for two vacancies for his

former position, a job for which he remained qualified.

When Stephenson applied, the Department was supposed

to give his application “bona fide consideration” before the

agency began formally recruiting for the position.

Appendix at 5, 7 ¶¶ 19–20, 30, Stephenson v. Buttigieg, No.

20-5042 (D.C. Cir. June 5, 2020), ECF No. 1846001

(“Stephenson App.”).

Stephenson alleged that, despite the Department’s

obligation to give him upfront consideration, it considered

other candidates alongside him and did not even give him

38a

an interview, let alone select him for a position. Instead,

the Department hired younger, able-bodied candidates.

Stephenson then filed a complaint with the Equal

Employment

Opportunity

Commission,

alleging

violations of the Age Discrimination in Employment Act

of 1967, 29 U.S.C. § 621, and the Americans with

Disabilities Act, 42 U.S.C. § 12101. After a years-long

process, the Commission made a final determination in

Stephenson’s case in April 2019, after which he had 90

days to sue in federal court.

b

Stephenson timely filed his complaint on July 29,

2019, suing Elaine Chao, the then-Secretary of the

Department of Transportation, in her official capacity.

Under Rule 4(m), he had until October 27, 2019 to

complete service.

On September 9th, Stephenson filed with the court a

request for a summons for Secretary Chao. The Clerk

issued that summons the next day, but Stephenson did not

serve Chao before Rule 4(m)’s 90-day deadline for service

expired.

On November 20, 2019, the district court issued a

minute order, noting that the time for service under Rule

4(m) had run. The order explained that, under Rule 4(i)(2),

Stephenson was required to serve the summons and

complaint on the agency official, the U.S. Attorney, and

the Attorney General. It instructed Stephenson to file

proof of that service on the docket no later than December

4, 2019. If Stephenson failed to complete service by that

deadline, the court said that it “may dismiss the action

without prejudice.” Stephenson App. 1.

In an effort to follow that order, on December 3, 2019,

Stephenson’s counsel filed an affidavit that attested to his

39a

service of Chao, along with a certified mail receipt and

tracking information. Stephenson’s counsel did not,

however, file proof of service on the U.S. Attorney or the

Attorney General.

Two days later, the district court issued a second

minute order. The court noted that Stephenson had failed

to serve the U.S. Attorney and the Attorney General by

the court’s deadline of December 4, 2019. It also found

that Stephenson had neither shown good cause for failing

to do so nor requested an extension to cure that failure.

The court then dismissed Stephenson’s lawsuit “as

required by Rule 4(m)” and “without prejudice.”

Stephenson App. 2.

c

Before the end of the month, Stephenson’s counsel

filed a Rule 60(b) motion for reconsideration of the minute

order dismissing the case. He argued that he had good

cause for failing to complete service, and that, even in the

absence of good cause, the court should use its discretion

to extend the service deadline. In particular, he argued

that a discretionary extension was warranted because

Stephenson had been diligent in attempting service twice,

frustrated only by a clerical error, and would be

substantially prejudiced by a dismissal because the 90day window to file suit had already passed, rendering his

claims time-barred.

Because Stephenson’s counsel had filed his Rule 60(b)

motion within the time period for Rule 59(e) motions to

alter or amend a judgment, the court analyzed

Stephenson’s motion under both the Rule 59(e) “manifest

injustice” standard and the Rule 60(b) “excusable

neglect” standard.

40a

Under Rule 59(e), the court explained that there was

no manifest injustice because Stephenson, through his

counsel, had played a role in the failure to serve. And the

court refused to allow Stephenson “to use this motion as a

vehicle to make arguments in favor of an extension under

Rule 4(m)” because he had “every opportunity” to request

an extension before the service deadline. Stephenson App.

32–33.

The court took a similar approach under Rule 60(b).

It did not credit the clerical error excuse, and it observed

that Stephenson’s counsel’s service of Chao before the

December 4 deadline “calls into question whether he

understood his obligation to serve the United States

Attorney and Attorney General at all, and whether a

clerical error had anything to do with what happened

here.” Stephenson App. 34–35. “Perhaps[,]” the court

commented, “Stephenson’s counsel did not understand

what Rule 4 requires.” Stephenson App. 35. On that basis,

the district court ruled that any negligence was not

excusable, “even if all the other ‘excusable neglect’

factors—prejudice to the other party, length of any delay,

and the movant’s good faith—weigh in [Stephenson’s]

favor.” Stephenson App. 35.

Finally, with respect to the request for a

discretionary extension of time to prevent the claims

becoming time-barred, the court ruled that “the time for

that argument ha[d] passed” because Stephenson did not

ask for an extension before the court dismissed his case,

and Stephenson could not use his motion for

reconsideration as a “vehicle[] to make arguments that

could have been presented earlier.” Stephenson App. 36.

The court concluded by noting that it was “unfortunate”

that Stephenson’s claims would be time-barred.

Stephenson App. 36.

41a

II

When a plaintiff fails to complete timely service and

lacks good cause for the failure, Rule 4(m) allows the

district court either to dismiss the case “without

prejudice” or to grant a discretionary extension. See FED.

R. CIV. P. 4(m); Henderson, 517 U.S. at 662–663; Mann,

681 F.3d at 376. Dismissal under Rule 4(m) is

“appropriate” if “the plaintiff’s failure to effect proper

service is the result of inadvertence, oversight or neglect,

and dismissal leaves the plaintiff in the same position as

if the action had never been filed.” Mann, 681 F.3d at 376

(emphasis added, formatting modified, and citation

omitted).

Rule 4(m) does not allow for a dismissal with

prejudice. Instead, under the Federal Rules of Civil

Procedure, a dismissal with prejudice for failure to

complete service (or other case-processing failures) must

meet the stringent standard required for a dismissal for

failure to prosecute under Rule 41(b). Specifically, the

court must find “egregious conduct by particularly

dilatory plaintiffs,” and that “less dire alternatives” have

been tried first. Peterson v. Archstone Communities,

LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (internal

quotation marks and citation omitted). In the service

context specifically, a dismissal with prejudice is allowed

“only when there is no reasonable probability that service

can be obtained.” Smith-Bey, 852 F.2d at 594.2

2

Rule 41(b) states:

If the plaintiff fails to prosecute or to comply with these rules or a

court order, a defendant may move to dismiss the action or any

claim against it. Unless the dismissal order states otherwise, a

dismissal under this subdivision (b) and any dismissal not under

this rule—except one for lack of jurisdiction, improper venue, or

42a

The important question in this case is what legal

standard should govern when a dismissal under Rule 4(m)

is known to be, in effect, with prejudice because it would

not leave plaintiffs in the same position as they were in

before the suit was filed, Mann, 681 F.3d at 376, but

instead would terminate the entire case because the

statute of limitations has run.

The majority opinion concludes that district courts

have discretion to brush aside the known fatal

consequences of a dismissal for an initial failure of service.

Also within the district court’s discretion, according to the

majority, is finding the case-ending consequences of a

dismissal outweighed by such commonplaces as the

presence of counsel or advance notice in the docket sheet.

Majority Op. 15–17. In other words, even though Rule

4(m)’s plain text only authorizes a dismissal “without

prejudice,” district courts can knowingly accomplish the

equivalent of a dismissal with prejudice without making

the heightened showing required by Rule 41(b) just by

invoking Rule 4(m) and then citing to the (omnipresent)

mistake or misunderstanding of counsel in effectuating

service. See Majority Op. 15–17, 21–24. Even if, as here, it

was a one-time mistake without an iota of prejudice to the

defendants, or any material or recurring burden on the

courts.

At bottom then, under the majority opinion’s view of

Rule 4(m), no weightier showing is required for a caseending dismissal with de facto prejudice—one of the

harshest sanctions in the district court’s arsenal—than

for a dismissal without any prejudice at all.

failure to join a party under Rule 19—operates as an adjudication

on the merits.

FED. R. CIV. P. 41(b).

43a

The Federal Rules require far more than that verbal

shrug of the shoulders before shutting a plaintiff out of

court. No one disputes—nor could they under our circuit’s

precedent—that Rule 41(b) requires a weighty showing of

exceptional misconduct and dilatoriness by counsel, and

the absence of any reasonable probability of service being

completed, before a case can be dismissed with prejudice

for a failure of service. Yet the majority opinion offers no

defense of its holding that district courts may use Rule

4(m) to knowingly dismiss cases with the exact same

prejudicial effect but without the same weighty showing.

The Federal Rules should not be read to be so selfcontradictory.

The correct approach, instead, is to require district

courts that are aware of the prejudicial consequences of

dismissal to make the same findings of repeated

misconduct or dilatoriness that are required for a

dismissal with prejudice for failure to serve under Rule

41(b). That is exactly what the Fifth Circuit requires.

At a minimum, district courts must give focused

consideration and appropriate weight in their Rule 4(m)

analyses to whether the harsh sanction of locking the

courthouse doors to a plaintiff’s claims is warranted, as

the Eighth, Ninth, Tenth, and Eleventh Circuits require.

The majority opinion’s interpretation of Rule 4(m)

contradicts the law of those circuits as well.

A

1

By failing to differentiate in its review between a

case-ending dismissal with actual prejudice and the

dismissal “without prejudice” that Rule 4(m) allows, the

majority opinion creates a square conflict with the law of

the Fifth Circuit. That court has held that, “where the

44a

applicable statute of limitations likely bars future

litigation, a district court’s dismissal of claims under Rule

4(m) should be reviewed under the same heightened

standard used to review a dismissal with prejudice.”

Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325–326

(5th Cir. 2008). Such a dismissal “is an extreme sanction

that deprives a litigant of the opportunity to pursue his

claim.” Id. at 326 (quoting Gonzalez v. Firestone Tire &

Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980)). As a result,

such a dismissal is allowed only where (1) there is “a clear

record of delay” or “contumacious conduct” by the

plaintiff, and (2) a “lesser sanction would not better serve

the interests of justice.” Id. at 326 (internal quotation

marks and citations omitted).

The Fifth Circuit means what it says, and plainly

would have reversed the orders of dismissal in

Morrissey’s and Stephenson’s cases. A “clear record of

delay” must be more than “a few months”—dismissal is

generally reserved for “egregious and sometimes

outrageous delays.” Millan, 546 F.3d at 326–327 (internal

quotation marks and citations omitted). And

“contumacious conduct” is not satisfied by mere

“negligence—regardless of how careless, inconsiderate,

or understandably exasperating” it is. Id. at 327. Rather,

the conduct must evince a “stubborn resistance to

authority[.]” Id. (internal quotation marks and citation

omitted); see also Thrasher, 709 F.3d at 512–513 (“To

warrant dismissal, we must find a delay ‘longer than just

a few months; instead, the delay must be characterized by

significant periods of total inactivity.’”) (citation omitted).

And under the Fifth Circuit rule, a dismissal generally is

appropriate only if the plaintiff himself (not his attorney)

has caused the delay, there is actual prejudice to the

defendant, or there is delay caused by intentional conduct.

Millan, 546 F.3d at 326; see also Sealed Appellant v.

45a

Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006)

(“Another aggravating factor that is present here is that

the delay could have only been intentional. * * * [W]e can

only conclude that counsel intentionally failed to cause

effectuation of service when the furnishing of information

for service of process [was] a simple task[.]”) (internal

quotation marks and citation omitted).

In adopting its standard, the Fifth Circuit has

equated an effectively prejudicial dismissal under Rule

4(m) with a dismissal with prejudice for failure to

prosecute under Rule 41(b). See Millan, 546 F.3d at 326.

“In general, the federal courts have allowed a dismissal to

be ordered with prejudice [under Rule 41(b)] only on a

showing of a ‘clear record of delay or contumacious

conduct by the plaintiff’” (as opposed to “mere

negligence”) and a showing that a “lesser sanction would

not serve the interests of justice.” WRIGHT & MILLER,

FEDERAL PRACTICE & PROCEDURE § 2369 (quoting In re

Deepwater Horizon, 922 F.3d 660, 666 (5th Cir. 2019)).

While the precise verbal formulations governing

dismissal under Rule 41(b) differ across circuits, “[a] very

impressive number of federal courts throughout the

Nation have expressed the opinion, quite appropriately,

that ‘dismissal with prejudice is a drastic sanction to be

applied only in extreme situations.’” Id. § 2369 (citations

omitted); see also id. § 2370.1 (compiling the specific tests

used in each circuit for dismissal with prejudice under

Rule 41(b)).

The Fifth Circuit is right: There is no “principled

reason why a district court’s dismissal of claims due to a

delay between filing and service should be subjected to a

lower standard of review merely because the district court

characterizes the delay as a failure to timely or properly

serve the defendant” under Rule 4(m), “as opposed to a

46a

failure to prosecute” through a service failure under Rule

41(b). Millan, 546 F.3d at 326.

Had the Fifth Circuit’s standard been applied to

Morrissey’s and Stephenson’s cases, the district courts’

orders of dismissal would have been considered

unequivocal abuses of discretion for failure to apply the

correct legal standard. Neither district court in this case

found a record of delay in the attorneys’ first-failed efforts

at service. Neither did they find anything remotely

approaching contumacious or prejudicial conduct. No one

disputes that proper service could have been effectuated

in short order. And the dismissal orders show no sign of

considering for a minute whether any lesser sanction

might suffice. As a result, the only explanation for why

Morrissey’s and Stephenson’s cases abruptly ended while

those in the Fifth Circuit have continued is geography.3

2

By allowing district courts the discretion to accord

negligible significance to a dismissal’s prejudicial

consequence—or, as in Stephenson’s case, to refuse to

consider it at all—the majority opinion also conflicts with

The majority opinion takes issue with the fact that Morrissey and

Stephenson did not raise the argument that a heightened standard

should apply given the prejudicial effect of dismissal until their

motions for reconsideration. See Majority Op. 11 n.3. But there is, of

course, a simple explanation for why the argument was not raised

until the motion for reconsideration stage: Both district courts sua

sponte dismissed the cases without so much as issuing an order to

show cause, let alone a chance to raise arguments. The record

indicates that neither Morrissey’s nor Stephenson’s attorney realized

that service had been fatally defective for failure to serve the U.S.

Attorney and the Attorney General until the district courts dismissed

their cases. See Morrissey App. 21–24; Stephenson App. 23–26. So

they raised their arguments for a heightened standard at their first

practical opportunity.

3

47a

the law of the Eighth, Ninth, Tenth, and Eleventh

Circuits. Those circuits require that district courts at least

give the fact that a dismissal is with effective prejudice

specific consideration and particular weight in deciding

whether to dismiss a case for procedural missteps or

instead to deploy a lesser sanction.

For example, the rule in the Eleventh Circuit is that,

when a dismissal without prejudice would effectively

foreclose future litigation because of the statute of

limitations, such a dismissal is “tantamount to a dismissal

with prejudice” and must be treated as a “drastic

remedy[.]” Mickles v. Country Club Inc., 887 F.3d 1270,

1280 (11th Cir. 2018) (internal quotation marks and

citation omitted); In re Cutuli, 13 F.4th 1342, 1348 (11th

Cir. 2021) (“The bankruptcy court acted well within its

discretion when it rested its extension decision on the fact

that dismissing the case for improper service would

amount to a dismissal with prejudice because the statute

of limitations on [the plaintiff’s] claim had expired.”).

Applying that rule, the court in Levy v. NCL

(Bahamas), Ltd., 686 F. App’x 667 (11th Cir. 2017) (per

curiam), reversed a district court’s dismissal for failure of

service that, while denominated without prejudice, was

with effective prejudice due to the running of the statute

of limitations, id. at 669, 671. The court of appeals ruled

that “even if a dismissal order expressly states that the

dismissal is without prejudice, such a dismissal operates

as one with prejudice if it has the effect of precluding the

plaintiff from refiling her claim due to the running of a

statute of limitations.” Id. at 670. For that reason, the

court remanded the case for the district court to apply

Rule 41(b)’s heightened standard requiring “a finding of

delay or willful misconduct and a determination that

lesser sanctions would be inadequate.” Id. at 671.

48a

Under its precedent, then, the Eleventh Circuit

makes it “incumbent upon the district court” to “clearly

consider” whether a dismissal would effectively “bar[] the

plaintiffs from refiling their claims[.]” Lepone-Dempsey v.

Carroll County Comm’rs, 476 F.3d 1277, 1282 (11th Cir.

2007). So even though the running of the statute of

limitations does not “require” the district court to extend

time for service, it “militate[s] in favor” of doing so.

Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1133

(11th Cir. 2005); see also Hong-Diep Vu v. Phong Ho, 756

F. App’x 881, 883 (11th Cir. 2018) (per curiam) (district

court abused its discretion under Rule 4(m) by failing to

address whether “dismissal without prejudice would act

as a dismissal on the merits” due to the statute of

limitations); Reis v. Commissioner, 710 F. App’x 828, 830

(11th Cir. 2017) (per curiam) (vacating dismissal because

the district court did not “sufficient[ly] expla[in]” whether

it considered “the possibility that Plaintiff would be

barred from refiling by the pertinent statute of

limitations”) (internal quotation marks and citation

omitted).

The Tenth Circuit too has held that when the statute

of limitations renders a dismissal without prejudice “for

all practical purposes, a dismissal with prejudice[,]” the

“severe sanction” of dismissal is “applicable only in * * *

extreme circumstances[.]” Gocolay v. New Mexico Fed.

Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992)

(emphasis in original) (internal quotation marks and

citation omitted). Such a consequential dismissal, the

Tenth Circuit has ruled, “should be used as a weapon of

last, rather than first, resort.” Id. (internal quotation

marks and citation omitted). Since the law “favors the

resolution of legal claims on the merits[,]” dismissal is

generally appropriate “only where a lesser sanction would

not serve the interest of justice.” Id. (internal quotation

49a

marks and citation omitted); see also Martinez v.

Martinez, 294 F. App’x 410, 416–417 (10th Cir. 2008)

(reversing dismissal for abuse of discretion where it

“effectively eliminated [the plaintiff’s] ability to pursue

[his] claims,” finding it was “particularly egregious in that

it seriously affect[ed] the perceived fairness of the

involved judicial proceedings”). The Tenth Circuit has

also emphasized that district courts should consider

whether the plaintiff had “notice of the potential

consequences” before dismissing with effective prejudice.

See Rodriguez v. Colorado, 521 F. App’x 670, 672 (10th

Cir. 2013) (reversing where the district court failed to

consider the case-ending consequences of dismissal or

whether the plaintiff was aware of those consequences).

As applied to dismissals under Rule 4(m), that

principle means that district courts must “consider the

limitations period in deciding whether to exercise [their]

discretion[.]” Espinoza, 52 F.3d at 842. Of particular

relevance here, the Tenth Circuit has specifically pointed

to the Federal Rule’s “solicitous attitude toward plaintiffs

faced with ‘the complex requirements of multiple service’

under Rule 4(i)” as a factor that district courts should

consider in determining whether to grant a permissive

extension. Id.; see also Dahn v. United States, 77 F.3d

492, at *2–*3 (10th Cir. 1996) (unpublished table opinion)

(instructing the district court to consider “whether

plaintiff’s * * * claim would now be barred if she had to

refile” and the complex service requirements of Rule 4(i)

on remand); Shepard v. United States Dep’t of Veterans

Affs., 819 F. App’x 622, 624 (10th Cir. 2020) (affirming

where plaintiff failed to serve “any federal employee or

entity” under Rule 4(i), but suggesting the result would

have been different had “she made any effort to mail the

first amended complaint and summons” to the agency,

U.S. Attorney, or Attorney General).

50a

The Ninth Circuit, meanwhile, has described the

situation in which plaintiffs “cannot re-file their action

because the statute of limitations has run” as reflecting

“the ultimate prejudice of being forever barred from

pursuing their claims.” Lemoge v. United States, 587 F.3d

1188, 1196 (9th Cir. 2009). In that circuit, when a case is

dismissed with effective prejudice under Rule 4(m), and

there would be “no or only slight prejudice to the opposing

party” if the case were reinstated, the district court must

“consider, and give appropriate weight to,” the

“substantial prejudice” to the plaintiffs. Id. at 1195–1196.

In direct contrast with the majority opinion here, the

Ninth Circuit in Lemoge reversed an order of dismissal as

an abuse of discretion because, although the district court

“acknowledged” the plaintiffs’ argument that they would

be barred from refiling their action due to the statute of

limitations, “the district court neither considered

prejudice to the [plaintiffs] in its analysis of prejudice, nor

gave it any apparent weight.” 587 F.3d at 1195. The court

held that, given the plaintiffs’ inability to re-file and their

effort to comply with the court’s orders, they were

entitled to a discretionary extension. Id. at 1198. The

court did so even though the plaintiffs’ failure to seek

relief until seven months after the case was dismissed and

their failure to “identify the correct agency to serve” were

“negligent, and seriously so[.]” Id. at 1196–1198; see also

Harper v. Wright, 744 F. App’x 533, 534 (9th Cir. 2018)

(holding that dismissal under Rule 4(m) was an abuse of

discretion where, among other factors, the plaintiff’s

claims would be time-barred after dismissal); Immerman

v. United States Dep’t of Agric. ex rel. Veneman, 267 F.

App’x 609, 610 (9th Cir. 2008) (concluding that the district

court abused its discretion in dismissing the plaintiff’s

complaint when there had been “confusion regarding the

51a

service instructions” and “the statute of limitations had

run”).

The Eighth Circuit, too, has ruled that a district court

must actually weigh the case-ending effect of a dismissal

against other considerations before shutting the plaintiff

out of court. Citing the “lethal effect” of a statute-oflimitations bar and the “judicial preference for

adjudication on the merits, which goes to the fundamental

fairness of the adjudicatory process[,]” the Eighth Circuit

has said that “the district court must weigh the effect on

the party requesting the extension against the prejudice

to the defendant.” Kurka v. Iowa County, 628 F.3d 953,

956, 958–959 (8th Cir. 2010) (formatting modified)

(affirming dismissal given the “highly unusual” facts of

the case in which the plaintiff had “lied to the court” about

the defendant’s notice of the suit and concurrence in a

scheduling order); see also Adams v. AlliedSignal Gen.

Aviation Avionics, 74 F.3d 882, 887–888 (8th Cir. 1996)

(affirming effective dismissal with prejudice only after the

district court “carefully considered plaintiffs’ arguments

on the service issues,” “gave plaintiffs repeated

opportunities to correct their service insufficiencies[,]”

and the record suggested that the delay was a “conscious

strategic or tactical decision”).4

In the Second Circuit, when “dismissal without prejudice in

combination with the statute of limitations would result in a dismissal

with prejudice,” the district court abuses its discretion in a case under

Rule 4(m) if it fails to “weigh[] the impact that a dismissal or extension

would have on the parties.” Zapata v. City of New York, 502 F.3d 192,

197 (2d Cir. 2007) (emphasis in original); id. at 199 (affirming

dismissal because plaintiff “made no effort to effect service” on

individual defendant within the service period). In other words, the

district court “must carefully consider the impact that the dismissal

would have on the parties[,]” including the “serious consequences” of

a statute-of-limitations bar on refiling. Harper v. City of New York,

4

52a

Unlike the majority opinion, these circuits hew to the

Federal Rules’ strong preference for not shutting parties

out of court for an initial technical mistake or negligent

misstep by their attorneys, and they harmonize their

treatment of dismissals with effective prejudice under

Rule 4(m) with their circuit law governing dismissals for

failure to properly prosecute a case under Rule 41(b).

They all require some form of explicit and meaningful

weighing of a statute-of-limitations bar on refiling in the

court’s decision whether to dismiss.

Here, by contrast, the majority opinion approves the

dismissal of Morrissey’s case based on nothing more than

counsel’s first-time mistake, and only a fleeting nod to the

dismissal’s case-ending consequences. See Morrissey

App. 33. Worse still, the district court’s dismissal in

Stephenson gave no consideration at all to the plaintiff’s

inability to refile. See Stephenson App. 36 (refusing to

even consider Stephenson’s statute-of-limitations

argument because it was not made prior to the sua sponte

dismissal, and so “the time for that argument ha[d]

424 F. App’x 36, 40 (2d Cir. 2011) (internal quotation marks and

citation omitted).

The Seventh Circuit has held that when the statute of limitations

would bar a new complaint—and especially when, as here, that

limitations period is “extremely short”—it is “incumbent upon the

district court to fully consider” and give “close attention” to the fact

that dismissal will result in a “suit [that] cannot be resolved on the

merits[.]” Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341

(7th Cir. 1996) (reversing and remanding after the district court

refused to consider statute-of-limitations argument on the ground

that it “was not before it for consideration”); see also Jones v. Ramos,

12 F.4th 745, 750 (7th Cir. 2021) (affirming dismissal only after the

district court “methodically considered” relevant factors including a

statute-of-limitations bar and “reweighed them” after Rule 60(b)

motion that revealed prejudice to the defendants).

53a

passed”).5 Both district courts’ approaches would have

been rejected as abuses of discretion under the governing

law in those other circuits.

The majority opinion claims that this court’s law

under Mann mirrors that of the other circuits since it

“require[s] consideration of all relevant equitable factors

before dismissal, including the running of a statute of

The majority opinion invokes the Third Circuit for its holding that

the running of the statute of limitations does not require an extension

of time. Majority Op. 16 (citing Petrucelli v. Bohringer & Ratzinger,

46 F.3d 1298, 1306 (3d Cir. 1995)). This is beside the point. No one is

arguing that an extension is automatically required. The issue in this

case is what weight the effective prejudice of the dismissal should

carry in the balancing of factors. If nothing more than a mention is

required, then Rule 41(b)’s requirements for dismissal with prejudice

will be easily circumvented under the label of a Rule 4(m) dismissal,

as the majority opinion allows here. Presumably that is why other

Third Circuit cases have reversed district courts for failing to

perform the “significant and required” step of considering whether

the running of the statute of limitations, along with other factors,

warrants a discretionary extension. See, e.g., Cain v. Abraxas, 209 F.

App’x 94, 97 (3d Cir. 2006) (per curiam); Veal, 84 F. App’x at 256;

Walker v. Pennsylvania Dep’t of Transp., 812 F. App’x 93, 94–95 (3d

Cir. 2020) (per curiam) (reversing dismissal as an abuse of discretion

where the district court failed to provide notice of the potential

dismissal and “there [was] no indication that it appreciated the

running of the statute of limitations, or any other considerations

potentially favorable to [the plaintiff]”). The district courts’ decisions

here would not survive under those Third Circuit cases either.

The Fourth Circuit’s law is somewhat unclear. Compare Mendez v.

Elliot, 45 F.3d 75, 79 (4th Cir. 1995) (wrongly holding that

discretionary extensions are not available at all under Rule 4(m)),

with Jones v. United States, 477 F. App’x 980, 981 (4th Cir. 2012) (per

curiam) (“[T]he district court’s dismissal—even though it was without

prejudice—effectively terminated her ability to pursue her claim. * *

* We therefore find that the district court’s order denying Jones’

motion was an abuse of its discretion.”).

The First and Sixth Circuits do not appear to have addressed the

issue.

5

54a

limitations.” Majority Op. 17 n.7 (citing Mann, 681 F.3d

at 376). But the conflict is with the majority opinion here,

not with Mann. Had the majority opinion required

“consideration of * * * the running of the statute of

limitations,” id., then the judgment in Stephenson’s case

would have been reversed not affirmed because the

district court refused even to consider the prejudicial

consequences of its order, blaming Stephenson for failing

to object to the dismissal before it even occurred.

Stephenson App. 36; see also Stephenson App. 1

(notifying counsel only that a dismissal “without

prejudice” might result).

Likewise, the majority opinion should have reversed

the order of dismissal in Morrissey’s case because Mann

requires that dismissal under Rule 4(m) “leave[] the

plaintiff ‘in the same position as if the action had never

been filed[.]’” 681 F.3d at 376 (emphasis added and

citations omitted). Needless to say, that did not happen

here as the district court’s dismissal order made

Morrissey’s position irretrievably worse and left his case

permanently foreclosed. Ensuring that the plaintiff is left

in the same position as if the action had never been filed

necessarily requires giving material weight to the fatal

consequences of dismissal when the statute of limitations

has run. Cf. Majority Op. 17 n.7.

The majority opinion emphasizes the abuse of

discretion standard and states that a disagreement as to

“how Mann applies to the facts of these cases” is not a

reason to disturb the district court’s decision. Majority

Op. 19 n.9. The problem with the district court’s decision,

though, was its failure to apply the correct rule of law in

deciding to dismiss despite knowing that the statute of

limitations had run. And as the majority opinion agrees,

when the district court was “influenced by [a] mistake of

law[,]” the abuse of discretion standard requires reversal.

55a

Majority Op. 9 (quoting United States v. Volvo

Powertrain Corp., 758 F.3d 330, 345 (D.C. Cir. 2014)

(internal quotation marks and citation omitted)).

In short, my disagreement with the majority opinion

is not about weighing case-specific facts differently under

the abuse-of-discretion standard. Compare Majority Op.

19 n.9. Our disagreement is one of law concerning what

the proper legal standard should be in this circuit for the

entry of prejudicial dismissals, given both Rule 4(m)’s

plain-text limitation to dismissal “without prejudice,” and

the need to harmonize the operation of Rule 4(m) and

Rule 41(b)’s requirements for dismissals with prejudice.

Almost every other federal court of appeals, as a matter

of circuit law, would have required the district courts

before entering an order of dismissal to have at least

candidly acknowledged the irreversible consequences of

dismissal since the statute of limitations had run and to

have explained why their discretionary balancing of

factors justifies that severe result, particularly in the

absence of any discernible prejudice to the defendant or

material burden on the court. By allowing district courts

to knowingly dismiss cases with effective prejudice under

Rule 4(m) for the most pedestrian of reasons—or for no

reason at all—the majority opinion ignores Rule 4(m)’s

textual restriction to dismissals “without prejudice,” and

it pulls the legs out from under the demanding standard

established for dismissing cases with prejudice for failure

of service under Rule 41(b).

B

The majority opinion gets crosswise with circuit

precedent governing dismissals with prejudice and

requiring a heightened showing before dismissing a case

against a foreign government due to failure to effect

service. In both of those situations, the law in this circuit

56a

is that dismissals with prejudice are ordinarily

permissible only if (i) the plaintiff has engaged in

egregious misconduct or has caused an especially lengthy

and unexcused delay, and (ii) less dire alternatives have

been tried without success. Dismissals for lack of service,

in particular, are only allowed if there is no reasonable

prospect that service could be obtained.

There is no sound reason—certainly none is offered

by the majority opinion—for treating a dismissal that the

district court knows will have prejudicial effect any

differently than other dismissals with prejudice for failure

to effect service under the Federal Rules.

1

As noted earlier, Federal Rule of Civil Procedure

41(b) authorizes federal courts, upon a defendant’s

motion, to dismiss cases with prejudice when a plaintiff

fails to prosecute his or her claims or fails to comply with

the Federal Rules or a court order. FED. R. CIV. P. 41(b);

Semtek, 531 U.S. at 505. Courts also have the inherent

power to dismiss cases sua sponte on failure-to-prosecute

grounds. See Link v. Wabash R.R. Co., 370 U.S. 626, 629–

630 (1962); Peterson, 637 F.3d at 418. Dismissals for

failure to prosecute ordinarily are with prejudice. Semtek,

531 U.S. at 505.

Failure to prosecute encompasses a variety of

procedural failures, including most relevantly here, a

failure to serve the defendant. See Smith-Bey, 852 F.2d at

594 (reviewing Rule 41(b) dismissal for failure to serve);

see also, e.g., English-Speaking Union, 353 F.3d at 1016

(same for failure to file brief); Bristol Petroleum Corp. v.

Harris, 901 F.2d 165, 166–167 (D.C. Cir. 1990) (same for

failure to appear at hearing).

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Our circuit law is settled that, because the Federal

Rules favor the resolution of disputes on the merits,

courts must hesitate before imposing the “harsh sanction”

of a dismissal with prejudice for these procedural

technicalities. Peterson, 637 F.3d at 418 (quoting EnglishSpeaking Union, 353 F.3d at 1016). More specifically,

dismissals with prejudice are “ordinarily limited to cases

involving egregious conduct by particularly dilatory

plaintiffs, after ‘less dire alternatives’ have been tried

without success.” Id. (quoting Noble v. United States

Postal Serv., 71 F. App’x 69, 69 (D.C. Cir. 2003) (per

curiam)); see also, e.g., Cohen, 819 F.3d at 483; Bristol

Petroleum, 901 F.2d at 167 (dismissal with prejudice “may

be an unduly severe sanction for a single episode of

misconduct”); Trakas v. Quality Brands, Inc., 759 F.2d

185, 186–187 (D.C. Cir. 1985).

As relevant here, Rule 41(b) dismissals for a delay in

service are “appropriate * * * only when there is no

reasonable probability that service [of process] can be

obtained.” Smith-Bey, 852 F.2d at 594. In Smith-Bey, for

example, we reversed the district court’s dismissal for

failure to prosecute after a pro se prisoner had failed to

serve process and undertook no activity for more than

eight months. Id. Applying the Rule 41(b) standard, we

held that dismissal was inappropriate because there was

a reasonable prospect that the U.S. Marshals could effect

service. Id. Eight months of inactivity was not enough to

warrant a prejudicial dismissal, we said, especially

because the district court had not issued an order to show

cause to give the plaintiff an opportunity to explain why

the case should not be dismissed. Id.

Here, the districts courts dismissed these cases for

the same procedural failure—failure to effect timely

service of process. And although the missteps by counsel

here involved far less delay, the sanction imposed is far

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harsher than in Smith-Bey. For in Smith-Bey, the

dismissal was genuinely without prejudice under the local

rule. See 852 F.2d at 593–594; compare FED. R. CIV. P.

41(b) (“Unless the dismissal order states otherwise, a

dismissal under this subdivision * * * operates as an

adjudication on the merits.”). Nonetheless, we required

that the district court find egregious misconduct and

determine that service could not reasonably be effected

before ordering dismissal even without prejudice. SmithBey, 852 F.2d at 594.

The same heightened showing and focused analysis

should have been required here, where the consequences

of dismissal are far more drastic—fully equivalent to

dismissals with prejudice under Rule 41(b). After all,

there is no “principled reason why a district court’s

dismissal of claims due to a delay between filing and

service should be subjected to a lower standard of review

merely because the district court characterizes the delay

as a failure to timely or properly serve the defendant”

under Rule 4(m), “as opposed to a failure to prosecute”

under Rule 41(b). Millan, 546 F.3d at 326.

2

We have applied the same heightened standard to

dismissals for failure to serve foreign governments under

the technical service requirements of the Foreign

Sovereign Immunities Act, 28 U.S.C. § 1608. In those

cases, dismissals are “ordinarily limited to cases involving

egregious conduct by particularly dilatory plaintiffs, after

less dire alternatives have been tried without success.”

Angellino v. Royal Fam. Al-Saud, 688 F.3d 771, 775 (D.C.

Cir. 2012) (internal quotation marks and citation omitted).

In particular, a dismissal “due to a ‘delay in service is

appropriate * * * only when there is no reasonable

probability that service can be obtained’ or there is a

59a

‘lengthy period of inactivity.’” Id. (omission in original)

(quoting Smith-Bey, 852 F.2d at 594).

To illustrate, in Barot v. Embassy of Zambia, 785

F.3d 26 (D.C. Cir. 2015), the plaintiff failed to comply with

the Foreign Sovereign Immunities Act’s complex

requirements for serving her complaint on a foreign

embassy, id. at 29. The district court nominally dismissed

the suit without prejudice, but the dismissal was

effectively with prejudice because her claims would have

been time-barred. Id. at 28–29. We reversed the order of

dismissal because there was “clearly * * * ‘a reasonable

prospect that service [could] be obtained.’” Id. at 29

(quoting Novak, 703 F.2d at 1310). The plaintiff, we found,

had acted in good faith, and her “latest service attempt

came very close to satisfying the Act’s requirements,”

failing only because her counsel misaddressed the service

package. Id. Under those circumstances, we found that

the district court had abused its discretion in dismissing

the case based on counsel’s mistake. Id.

The Barot standard maps directly onto the cases

before us. Just as in Barot, the district courts were aware,

in entering their final judgments of dismissal, that the

orders would be fatal to the cases because the time for

filing suit had expired. Also like the plaintiff in Barot,

Morrissey and Stephenson attempted in good faith, but

unsuccessfully, to comply with complicated service

requirements. Indeed, they made a major stride in

meeting the rule’s technical requirements by serving the

agency officials; they came up short only because of their

counsel’s misreading or misunderstanding of Rule 4(i)’s

layered obligations.

3

There is no sound reason for our circuit to subject like

cases to so different a legal standard. Neither the

60a

government nor the district courts (nor the majority

opinion) suggests that Morrissey’s or Stephenson’s

service error was egregious or consisted of “bad faith,

deliberate misconduct, or tactical delay.” Peterson, 637

F.3d at 418 (quoting Gardner v. United States, 211 F.3d

1305, 1309 (D.C. Cir. 2000)); see also Millan, 546 F.3d at

327 (requiring “contumacious conduct” by the plaintiff,

which means a “stubborn resistance to authority” rather

than simple negligence) (internal quotation marks and

citations omitted).

To the contrary, Morrissey and Stephenson each

diligently navigated the years-long administrative

process, filed suit within the 90-day limitations period, and

served the named defendants they were suing within the

time allowed by the district court, thereby partially

satisfying the service requirement. In addition, both

Morrissey’s and Stephenson’s counsel were quick to file

motions for reinstatement and reconsideration to explain

their confusion and to try to protect their clients’ claims

from the lawyers’ accidental mistakes.

The district courts also had numerous less drastic

alternatives at their disposal. See Peterson, 637 F.3d at

418 (allowing dismissal only after “less dire alternatives

have been tried without success”) (internal quotation

marks and citation omitted); Millan, 546 F.3d at 326

(allowing dismissal only where a “lesser sanction would

not better serve the interests of justice”) (internal

quotation marks and citation omitted). They could have

issued orders to show cause once the deadline for service

passed, allowing Morrissey and Stephenson to explain the

harsh consequences of dismissal and the good faith nature

of their mistakes. Or the district courts could have

targeted counsel with financial sanctions. See EnglishSpeaking Union, 353 F.3d at 1022. A dismissal with

effective prejudice should have been the last, not the first,

61a

remedy for the attorneys’ initial missteps. See Peterson,

637 F.3d at 418.

In addition, the length of delay from lack of service

was negligible in both cases. See Barot, 785 F.3d at 29

(explaining that dismissal may be warranted where there

is a “lengthy period of inactivity”) (internal quotation

marks and citation omitted); Smith-Bey, 852 F.2d at 594

(same); Millan, 546 F.3d at 327 (dismissal appropriate

where there is a “clear record of delay[,]” i.e., “significant

periods of total inactivity”) (internal quotation marks and

citations omitted). The district court waited just days

after the Rule 4(m) service deadline to dismiss

Morrissey’s case, and a little over a month in Stephenson’s

case. We have held that far lengthier time periods of

inactivity do not warrant dismissal. See, e.g., Angellino,

688 F.3d at 777 (reversing dismissal issued thirteen

months after filing of complaint); Smith-Bey, 852 F.2d at

594 (same for eight months). While an extremely lengthy

delay could potentially prejudice a defendant who has

actual notice, the delay in these cases was not “so severe[]

as to make it unfair to require the other party to proceed

with the case.” Peterson, 637 F.3d at 418 (alteration in

original) (quoting Gardner, 211 F.3d at 1309). Tellingly,

the government does not claim to have suffered any

prejudice from the lack of service in either case.

Finally, the record more than supports the existence

of a “reasonable prospect” that Morrissey and

Stephenson could have completed service if given the

chance. Barot, 785 F.3d at 29 (quoting Novak, 703 F.2d at

1310); see also Smith-Bey, 852 F.2d at 594 (dismissal

appropriate “only when there is no reasonable probability

that service can be obtained”). Both plaintiffs managed to

successfully serve the agency official. Their failure to

serve the U.S. Attorney and the Attorney General within

the relevant time frame was ultimately a result of their

62a

attorneys’ misunderstanding of the rule. See Morrissey

App. 32; Stephenson App. 36. Now informed, counsel

stand ready to complete the final steps in service. See

Morrissey App. 49 (“Plaintiff[] * * * is ready for

immediate service on the United States Attorney and the

Attorney General as soon as this case is reinstated if the

Court does so.”) (footnote omitted); Stephenson Opening

Br. 47 (advising that Stephenson would “cure his service”

if given “a reasonable time”).

Neither district court offered a sound reason for its

heavy sanction. In Morrissey’s case, the district court

pointed out that Morrissey was not proceeding pro se.

Morrissey App. 34. True. Yet while pro se status can be a

relevant factor favoring the grant of a discretionary

extension in a usual Rule 4(m) case, see Mann, 681 F.3d

at 377, representation by counsel hardly justifies such an

extreme sanction at the first misstep.

The court also noted that it had issued a minute order

alerting Morrissey to the approaching service deadline.

Morrissey App. 34. But counsel thought he had complied

with the service rule, so the presence of a reminder does

not really speak to the appropriate sanction for a

mistaken reading of the Rule. Anyhow, notice of an

upcoming deadline is different from notice that the court

intends to sua sponte dismiss one’s case. Notice also

means little when it is not accompanied by an order to

show cause that allows an “errant litigant to explain [his]

conduct.” English-Speaking Union, 353 F.3d at 1022; see

also id. at 1023 (faulting district court for offering party

“no opportunity to explain” before dismissing case).

Finally, the district court reasoned that, because Rule

4(i)(4)(A) grants a mandatory extension to a plaintiff who

serves either the U.S. Attorney or the Attorney General,

Morrissey was less deserving of a discretionary extension

63a

for making the analogous error of just serving the agency

official but missing those two extra steps. Morrissey App.

34.6 Quite the opposite. The presence of a mandatory

extension for missing one part of the complicated process

of serving the United States suggests that a discretionary

extension for partially effecting service as to another part

would be appropriate. After all, those mandatory

extensions show that Rule 4(i)(4)(A) “clearly evinces a

solicitous attitude toward plaintiffs faced with ‘the

complex requirements of multiple service’ under Rule

4(i)[,]” and that same complexity “should be a factor for

the district court’s consideration when it determines

whether a permissive extension of time should be granted

under Rule 4(m).” Espinoza, 52 F.2d at 842. It was

straight-up error to read the omission from a mandatory

extension as a barrier to a discretionary extension.

As for Stephenson’s case, the district court refused to

consider at all Stephenson’s request for a discretionary

extension, stating that “the time for that argument ha[d]

passed.” Stephenson App. 32–33, 36. But the time for that

argument had passed only because the district court sua

sponte—without so much as an order to show cause—

dismissed Stephenson’s case. It was “unduly severe” to

dismiss the action “without affording [the plaintiff] either

an opportunity to show cause or to explain why the suit

should not be dismissed for inactivity.” Smith-Bey, 852

F.2d at 594; see English-Speaking Union, 353 F.3d at

1022 (noting importance of issuing show cause orders

before dismissal). So Stephenson raised his arguments for

a discretionary extension at the first opportunity after

dismissal. Cf. Spectrum Health—Kent Cmty. Campus v.

Had Morrissey sued the official in his personal rather than official

capacity, he would have qualified for a mandatory extension. FED. R.

CIV. P. 4(i)(4)(B).

6

64a

NLRB, 647 F.3d 341, 349 (D.C. Cir. 2011) (“There may be

circumstances in which a motion for reconsideration is the

first opportunity a party has to raise objections—where,

for example, the Board sua sponte decides an issue[.]”).

*****

For legal and practical purposes, whether a dismissal

is knowingly prejudicial under Rule 4(m) or is with

prejudice under Rule 41(b) is a distinction without a

difference. This court’s legal standard governing the

former should reflect that reality. But instead, the

majority opinion’s ruling allowing the harsh sanction of a

case-ending dismissal for a mere one-time mistake puts

Rule 4(m) at war with Rule 41(b)’s demanding standard

for dismissals with prejudice, and puts this court into

direct conflict with the law of the Fifth Circuit and

squarely at odds with the law of at least four other

circuits. And for what? The exaltation of “mere

technicalities” that hurt no one? English-Speaking

Union, 353 F.3d at 1021. Lawyers, like judges, are human.

And humans sometimes make good faith mistakes.

Without more, that hardly merits dealing a case a mortal

blow at the service-of-process stage.

For all of those reasons, I respectfully dissent.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAUL S. MORRISSEY,

Plaintiff,

v.

CHAD F. WOLF, Acting

Secretary, U.S.

Department of Homeland

Security,

Case No. 1:19-cv-01956

(TNM)

Defendant.

MEMORANDUM AND ORDER

Invoking Federal Rule of Civil Procedure 59(e),

Plaintiff Paul S. Morrissey asks the Court to reconsider

its Memorandum and Order of November 15, 2019. In that

decision, the Court denied Morrissey’s motion to reinstate

his Complaint. For the following reasons, the Court

denies Morrissey’s motion to reconsider.

Under Rule 4(m), a plaintiff must serve the defendant

within 90 days of filing a complaint. Morrissey filed his

Complaint on June 28, 2019, so he had to serve the

Defendant by September 26. The Court reminded

Morrissey of his obligation under Rule 4(m) and ordered

that “by no later than September 26, 2019, the Plaintiff

must either cause process to be served upon the

Defendant and file proof of service with the Court or

establish good cause for the failure to do so.” 9/12/19

Minute Order. Morrissey did not do either, so the Court

dismissed the Complaint.

(65a)

66a

Morrissey then moved to reinstate his Complaint on

the ground that he did in fact serve the Defendant before

September 26. The Court determined, however, that

Morrissey had not completed service. See Morrissey v.

Wolf, No. 1:19-CV-01956 (TNM), --- F.R.D. ---, 2019 WL

6051561 (D.D.C. Nov. 15, 2019). The governing provision,

Rule 4(i)(2), required him to serve not only the federal

agency but also the U.S. Attorney and the Attorney

General. He had failed to serve either of the latter two.

And he did not establish good cause for this error. The

Court could surmise only that he had misread or ignored

Rule 4(i)(2), and a misunderstanding of the rule is not

good cause. See Mann v. Castiel, 681 F.3d 368, 374 (D.C.

Cir. 2012). The Court also declined to grant Morrissey a

discretionary extension of time under Rule 4(m). After

weighing several factors, the Court found it appropriate

to enforce the 90-day time limit, even if a statute of

limitations might bar Morrissey from refiling his action.

Morrissey now asks the Court to set aside this

judgment because it amounts to a “manifest injustice.”

Mot. to Alter J. at 5. He concedes that his efforts at service

fell short of what Rule 4(i)(2) requires. Id. But he stresses

that dismissal of this action is effectively with prejudice,

since a statute of limitations bars him from refiling the

Complaint. Id. He thus offers arguments for why the

Court should give him an extension of time to complete

service. Id. at 6–19.

All these arguments are new, and they were

previously available to Morrissey, so relief under Rule

59(e) is improper. “Rule 59(e) is not a vehicle to present a

new legal theory that was available prior to judgment.”

Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403

(D.C. Cir. 2012). Morrissey acknowledges that his

arguments are new. See Mot. to Alter J. at 7. But he insists

that they were not available when he moved to reinstate.

67a

See id. When he filed that motion, he thought he had

served the Defendant properly, so he had no reason to

argue—as he does now—for an extension of time to

complete service. See id.

Morrissey’s reasoning on this point is dubious. The

arguments he makes now were previously available to

him. He just did not realize that he should have been

making these arguments, given his own mistaken belief

that he had completed service. Morrissey’s attempt to

raise new, previously available arguments is reason

enough to deny his Rule 59(e) motion. See Patton Boggs

LLP, 683 F.3d at 403.

In any event, Morrissey has not convinced the Court

that its judgment was manifestly unjust. He urges that

the drafters of Rule 4 envisioned “broad relief for

noncompliance with Rule 4(i)(2).” Mot. to Alter J. at 10.

The reality is not so cut and dry. Morrissey relies

primarily on a passage from the advisory committee

notes:

Paragraph (3) [of Rule 4(i)] saves the plaintiff from

the hazard of losing a substantive right because of

failure to comply with the complex requirements of

multiple service under this subdivision . . . . This

provision should be read in connection with the

provisions of subdivision (c) of Rule 15 to preclude the

loss of substantive rights against the United States or

its agencies, corporations, or officers resulting from a

plaintiff’s failure to correctly identify and serve all the

persons who should be named or served.

Fed. R. Civ. P. 4(i) advisory committee’s note to 1993

amendment.

Based on this note’s reference to Rule 15(c),

Morrissey next cites a portion of that rule:

68a

When the United States or a United States officer or

agency is added as a defendant by amendment, the

notice requirements of Rule 15(c)(1)(C)(i) and (ii) are

satisfied if, during the stated period, process was

delivered or mailed to the United States attorney . . .

to the Attorney General . . . or to the officer or agency.

Fed. R. Civ. P. 15(c)(2) (emphasis added).

Attempting to put two and two together, Morrissey

contends that the drafters of Rule 4(i) intended for courts

to grant extensions whenever a plaintiff has served a

federal agency but has neglected to serve the U.S.

Attorney or the Attorney General. See Mot. to Alter J. at

12–13. That is a stretch. The 1993 advisory committee

note that Morrissey cites refers to “Paragraph (3).” In the

1993 version of Rule 4(i), paragraph (3) required courts to

give plaintiffs a reasonable time to cure defects in service

“if the plaintiff has effected service on either the United

States attorney or the Attorney General.” Fed. R. Civ. P.

4(i)(3) (1993). This provision now exists as Rule 4(i)(4)(A).

Morrissey would have the Court read this provision “in

connection with” Rule 15(c)(2) and conclude that it must

also allow a reasonable time to cure service any time the

plaintiff serves neither the U.S. Attorney nor the

Attorney General. See Mot. to Alter J. at 12–13.

But this reading would render Rule 4(i)(4)(A)

meaningless. See Morrissey, 2019 WL 6051561, at *3. This

the Court is loath to do. See Corley v. United States, 556

U.S. 303, 314 (2009) (“A statute should be construed so

that effect is given to all its provisions, so that no part will

be inoperative or superfluous, void or insignificant[.]”

(cleaned up)); Yousuf v. Samantar, 451 F.3d 248, 255

(D.C. Cir. 2006) (applying “the customary tools of

statutory interpretation” to interpret a federal rule of civil

procedure). To be sure, extensions may sometimes be

69a

appropriate when a plaintiff has served only a federal

agency. But they are not always appropriate, as

Morrissey would have. Accord Stephenson v. Chao, No.

CV 19-2256 (TJK), 2020 WL 122984 (D.D.C. Jan. 10, 2020)

(denying motion for reconsideration after court dismissed

case for failure to follow Rule 4). And for the reasons the

Court articulated in its November 15 Memorandum and

Order, the relevant factors weigh against an extension

here.

For these reasons, it is hereby

ORDERED that Morrissey’s [7] Motion to Alter the

Judgment is DENIED.1

SO ORDERED.

Dated: January 22, 2020

_______/s/_______________

TREVOR N. McFADDEN,

U.S.D.J.

The Court has considered Morrissey’s request for a hearing on this

motion but finds oral argument unnecessary here. See LCvR 78.1.

1

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAUL S. MORRISSEY,

Plaintiff,

v.

CHAD F. WOLF, Acting

Secretary, U.S.

Department of Homeland

Security,1

Case No. 1:19-cv-01956

(TNM)

Defendant.

MEMORANDUM AND ORDER

Plaintiff Paul S. Morrissey moves to reinstate his

Complaint. The Court dismissed it under Federal Rule of

Civil Procedure 4(m). This rule requires a plaintiff to

serve a defendant within 90 days of filing a complaint.

Morrissey filed his Complaint on June 28, 2019, so he had

to serve the Defendant by September 26. The Court

reminded Morrissey of his obligation under Rule 4(m) and

ordered that “by no later than September 26, 2019, the

Plaintiff must either cause process to be served upon the

Defendant and file proof of service with the Court or

establish good cause for the failure to do so.” 9/12/19

Minute Order. Morrissey did not do so, and the Court

dismissed the Complaint.

Chad F. Wolf, the Acting Secretary of Homeland Security, is

automatically substituted for former Acting Secretary Kevin

McAleenan. See Fed. R. Civ. P. 25(d).

1

(70a)

71a

Morrissey represents that he did in fact serve the

Defendant before September 26 and that his counsel’s

medical appointment during the week of September 23

prevented him from timely filing proof of service. See Mot.

to Reinstate at 1–2. He asks the Court to accept the

exhibits attached to his motion to reinstate as proof of

service. Id. at 3–4. But these exhibits fail to show that

Morrissey properly served the Defendant.

The governing provision is Federal Rule of Civil

Procedure 4(i)(2), which tells a plaintiff what he must do

to serve “a United States agency or corporation, or a

United States officer or employee sued only in an official

capacity.” The caption of the Complaint names Kevin

McAleenan, then Acting Secretary of Homeland Security,

as the Defendant. Compl. at 1. The Complaint asserts that

Morrissey is bringing his action “against the U.S.

Department of Homeland Security, United States Secret

Service (‘Defendant’ or ‘Agency’),” and that “Defendant is

a federal law enforcement agency under the Department

of Homeland Security.” Id. at 1–2. Morrissey’s action is

thus one against “a United States agency or corporation,

or a United States officer or employee sued only in an

official capacity.” Fed. R. Civ. P. 4(i)(2).

To serve such a defendant, a plaintiff “must serve the

United States and also send a copy of the summons and of

the complaint by registered or certified mail to the

agency, corporation, officer, or employee.” Id. (emphasis

added). The exhibits attached to Morrissey’s motion show

that he sent a copy of the summons and Complaint to the

service agent for the Department of Homeland Security.

See Mot. to Reinstate Ex. 1; id. Ex. 2. So far, so good. But

they do not show that he has served “the United States.”

To serve the United States, a plaintiff must serve both

“the United States attorney for the district where the

action is brought” and “the Attorney General of the

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United States.” See Fed. R. Civ. P. 4(i)(1)(A)–(B). There

is no proof Morrissey served either the U.S. Attorney or

the Attorney General, so the Court finds that Morrissey

failed to do so within the 90-day time limit.

That is not the end of the matter, as Rule 4 requires

the Court to extend the time for service under certain

conditions. See id. 4(i)(4), 4(m). First, “the court must

extend the time for service for an appropriate period” if

the plaintiff shows “good cause” for the failure to effect

timely service. Id. 4(m). The Court’s September 12

Minute Order directed Morrissey to “establish good

cause” if he failed to serve the Defendant by September

26. Morrissey’s motion to reinstate does not try to show

good cause, presumably because he thinks he did

properly serve the Defendant. The Court can presume

only that Morrissey failed to effect timely service because

he misread or ignored Rule 4(i)(2). But a

misunderstanding of the rule is not good cause. See Mann

v. Castiel, 681 F.3d 368, 374 (D.C. Cir. 2012) (“Good cause

exists ‘when some outside factor . . . rather than

inadvertence or negligence, prevented service.’” (quoting

Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277,

1281 (11th Cir. 2007))). And, of course, ignorantia juris

non excusat. The Court holds that Morrissey has not

shown good cause for his failure to effect timely service.

Second, the Court “must allow a party a reasonable

time to cure its failure to . . . serve a person required to be

served under Rule 4(i)(2), if the party has served either

the United States attorney or the Attorney General of the

United States.” Fed. R. Civ. P. 4(i)(4)(A) (emphasis

added). This provision does not apply here, since

Morrissey has served neither the U.S. Attorney nor the

Attorney General. See Mot. to Reinstate Ex. 1; id. Ex. 2.

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That is still not the end of the matter, as the Court

also considers whether to grant Morrissey a discretionary

extension of time to complete service. See Fed. R. Civ. P.

4(m) (“If a defendant is not served within 90 days after the

complaint is filed, the court—on motion or on its own after

notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be

made within a specified time.” (emphasis added)). Most

circuits have held that Rule 4(m) permits district courts

to grant discretionary extensions of time even absent

good cause. See Mann, 681 F.3d at 375–76; but see

Mendez v. Elliot, 45 F.3d 75, 78–79 (4th Cir. 1995) (“[T]he

court may only grant the extension for good cause.”).

Some circuits have even held that Rule 4(m) requires

district courts to consider whether to grant a

discretionary extension. See, e.g., Panaras v. Liquid

Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996);

but see Thompson v. Brown, 91 F.3d 20, 21–22 (5th Cir.

1996) (rejecting a claim that the district court erred in

“fail[ing] even to consider whether it should exercise its

discretion to grant an extension” because the plaintiff

“failed to ask the court for an extension of time”).

The D.C. Circuit has not specified what factors a

district court must weigh when considering whether to

grant a discretionary extension under Rule 4(m), but it

has said that “dismissal of a case pursuant to Rule 4(m) is

appropriate when the plaintiff’s failure to effect proper

service is the result of inadvertence, oversight, or neglect,

and dismissal leaves the plaintiff in the same position as if

the action had never been filed.” Mann, 681 F.3d at 376

(cleaned up).

In Mann, the plaintiffs suggested that a statute of

limitations would bar them from refiling their complaint,

but the district court found that they “had failed to

provide enough information to gauge the legitimacy of

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their concern that they would be unable to refile their

complaint.” Id. The plaintiffs also “had not been diligent

in correcting the service deficiencies.” Id. The district

court found that the two pro se plaintiffs were not entitled

to “additional latitude” to correct their service

deficiencies because they “had been notified of the

requirements of Rule 4(m)” and were sophisticated

litigants who “worked in tandem with counsel for the

corporate plaintiffs.” Id. at 377. The circuit affirmed the

district court’s order of dismissal. Id.

Given Mann, one factor to consider here is whether a

statute of limitations would bar Morrissey from refiling

his action. Morrissey’s motion to reinstate does not

discuss this issue, so arguably, as in Mann, Morrissey has

“failed to provide enough information” about whether

there is a legitimate statute of limitations concern. See id.

at 376. The Court observes, however, that Morrissey’s

Complaint alludes to a limitations period that has long

since expired. See Compl. ¶ 7. The Court will thus assume

that Morrissey may be barred from refiling his action. Yet

that is not necessarily enough to carry the day. Mann

does not say that dismissal is appropriate only when a

plaintiff would be able to refile his action. See 681 F.3d at

376–77. Other circuits have held that a district court may

decline to grant a discretionary extension under Rule

4(m) even if a statute of limitations would prevent a

plaintiff from refiling. See, e.g., Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995). It is thus

appropriate to consider this factor in context.

Unlike the Mann plaintiffs, Morrissey is not

proceeding pro se, and the Court notified him of his

obligation under Rule 4(m) two weeks before the deadline

for service. These factors weigh against him. See Mann,

681 F.3d at 377. True, the service requirements for

federal agencies and officials are complex, cf. Espinoza v.

75a

United States, 52 F.3d 838, 842 (10th Cir. 1995), but this

does not cut in Morrissey’s favor. The rules provide for

some relief from the complex requirements of Rule 4(i),

but they do not contemplate relief in this case.

Recall that Rule 4(i)(4)(A) requires an extension for

compliance with Rule 4(i)(2) when the plaintiff has served

either the U.S. Attorney or the Attorney General. But no

rule provides relief when, as here, a plaintiff has partially

complied with Rule 4(i)(2) by serving only the agency or

official. And the very next subsection does provide relief

when a plaintiff has served only a federal official, but when

Rule 4(i)(3)—not Rule 4(i)(2)—is the governing

provision.2 See Fed. R. Civ. P. 4(i)(4)(B). The choice to

provide relief for some instances of partial compliance

with Rule 4(i)—but not the instance of partial compliance

we have here—is yet another factor that counsels against

an extension of time. See Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts

107 (2012) (“The expression of one thing implies the

exclusion of others (expressio unius est exclusio

alterius)”). Considering all these factors, the Court finds

it appropriate to enforce the time limit in Rule 4(m), even

if a statute of limitations may bar Morrissey from refiling

his action. The Court thus declines to grant Morrissey a

discretionary extension of time to complete service.

For these reasons, it is hereby

ORDERED that Morrissey’s [5] Motion to Reinstate

the Case is DENIED.

SO ORDERED.

Rule 4(i)(3) provides the requirements for service of “a United

States officer or employee sued in an individual capacity for an act or

omission occurring in connection with duties performed on the United

States’ behalf.”

2

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Dated: November 15, 2019

_______/s/_______________

TREVOR N. McFADDEN,

U.S.D.J.

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAUL S. MORRISSEY,

Plaintiff,

v.

KEVIN MCALEENAN,

Acting Secretary, U.S.

Department of Homeland

Security,

Case No. 1:19-cv-01956

(TNM)

Defendant.

ORDER

Plaintiff Paul S. Morrissey filed his Complaint on

June 28, 2019. Within 90 days of filing a complaint,

plaintiffs must properly serve defendants or “the court—

on motion or on its own after notice to the plaintiff—must

dismiss the action.” Fed. R. Civ. P. 4(m). So Mr. Morrissey

was required to serve the Defendant on or before

September 26, 2019. The Court informed Mr. Morrissey

about his obligation under Rule 4(m) and directed him to

file proof of proper service. 9/12/19 Minute Order. But Mr.

Morrissey has not complied with the Court’s order. There

is no proof of proper service on the docket. For the

foregoing reasons, it is hereby

ORDERED that this matter is dismissed under

Federal Rule of Civil Procedure 4(m).

The Clerk of Court is directed to close this case

SO ORDERED.

(77a)

78a

Dated: September 30, 2019

_______/s/_______________

TREVOR N. McFADDEN,

United States District Judge

APPENDIX E

MORRISSEY v. MCALEENAN (closed 09/30/2019)

District of Columbia District Court

Case no. 1:19-cv-01956-TNM (D.D.C.)

Filed date: September 12, 2019

Docket entry no.: N/A

Docket text:

MINUTE ORDER. The Plaintiff filed the Complaint

in this action on June 28, 2019. As of the date of this Order,

the public docket reflects that the Plaintiff has yet to file

proof of service of the Defendant. The Court directs the

Plaintiff's attention to Federal Rule of Civil Procedure

4(m) and Local Civil Rule 5.3. It is hereby ordered that,

by no later than September 26, 2019, the Plaintiff must

either cause process to be served upon the Defendant and

file proof of service with the Court or establish good cause

for the failure to do so. Failure to make such filings will

result in dismissal of this case. SO ORDERED. Signed by

Judge Trevor N. McFadden on 9/12/2019. (lctnm2)

(Entered: 09/12/2019)

(79a)

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KELLY STEPHENSON,

Plaintiff,

v.

ELAINE CHAO,

Civil Action No. 19-2256

(TJK)

Defendant.

MEMORANDUM AND ORDER

Before the Court is Plaintiff Kelly Stephenson’s

Motion for Reconsideration of the Court’s order

dismissing this case for failure to effectuate service. He

appears to blame a clerical error for his failure. Invoking

Federal Rule of Civil Procedure 60(b), he argues that he

should be allowed more time to effectuate service, despite

the additional time, instructions, and warning the Court

already provided him. For the reasons discussed below,

the Court disagrees and will exercise its discretion to

deny the motion.

I.

Background

Stephenson brought this action in July 2019, alleging

that he had been unlawfully discriminated against due to

his age and disability. See ECF No. 1 (“Compl.”). He

named a single defendant, Elaine Chao, who was “being

sued here in her official capacity only.” Id. at ¶ 7. In such

cases, Federal Rule of Civil Procedure 4(i)(2) governs

service. That rule instructs that when suing a United

States officer or employee in their official capacity, a

plaintiff must send a copy of the summons and the

(80a)

81a

complaint by registered or certified mail to the defendant

and serve the United States in accordance with Rule

4(i)(1). Fed. R. Civ P. 4(i)(2). Rule 4(i)(1) explains that to

serve the United States, a plaintiff must appropriately

serve the United States attorney for the district where the

action is brought and the Attorney General of the United

States. A plaintiff must complete these steps within 90

days of filing her complaint. Fed. R. Civ. P. 4(m).1 If a

plaintiff fails to do so—absent a showing of good cause—

a court “must dismiss the action without prejudice against

that defendant or order that service be made within a

specified time.” Id.

Here, Stephenson filed his complaint on July 29, 2019.

See Compl. As a result, he had until October 27, 2019 to

effectuate service. See Fed R. Civ. P. 4(m). But, by that

time, the only service-related step he had taken was to

request (and receive) a summons as to Chao. See ECF

Nos. 2, 3. For that reason, on November 20—nearly a

month after the service deadline had passed—the Court

advised Stephenson of his obligation to effectuate service

on the United States Attorney and the Attorney General

and ordered him to do so. See Minute Order of November

20, 2019. Stephenson had neither sought an extension nor

provided any good cause for his failure to effectuate

service at that time. Still, the Court gave him until

December 4, 2019—two additional weeks—to file proof of

service. See id. The Court warned him that failure to do

so could lead to the dismissal of his case without prejudice.

See id.

Stephenson incorrectly states that Rule 4(m) gives a plaintiff 120

days to effectuate service. See ECF No. 5 at 2. Rule 4(m) was

amended in 2015 to shorten the time for service to 90 days. See Fed.

R. Civ. P. 4, Advisory Committee Notes on Rules–2015 Amendments;

see also Doe v. Hills, 217 F. Supp. 3d 199, 204 (D.D.C. 2016).

1

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On December 3, Stephenson filed an affidavit

affirming that service had been made on Chao via certified

mail. See ECF No. 4.2 However, he did not represent that

he so much as tried to serve the United States Attorney

or the Attorney General, as the Court had ordered. See id.

He also did not explain his failure to do so, nor did he

request an extension of time. As a result, under Rule 4(m),

the Court dismissed the complaint without prejudice. See

Minute Order of December 5, 2019.

Stephenson now moves for reconsideration. See ECF

No. 5 (“Mot.”). He asks the Court to vacate its previous

order dismissing the complaint without prejudice and to

allow him an additional 60 days to effectuate service. Id.

at 1.

II. Legal Standard

“A motion to reconsider a final order is generally

treated as a Rule 59(e) motion if it is filed within the filing

time limit set forth in that rule—as [Stephenson’s] was—

and as a Rule 60(b) motion if it is filed thereafter.” Roane

v. Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011). Even so,

Stephenson explicitly invokes only Rule 60(b). See Mot. at

1, 3. Accordingly, the Court will consider his motion under

both rules. Under either, a movant must clear a high bar

and a district court has considerable discretion in deciding

whether to grant relief. See Piper v. U.S. Dep’t of Justice,

312 F. Supp. 2d 17, 20 (D.D.C. 2004) (discussing Rule

59(e)); Avila v. Dailey, 404 F. Supp. 3d 15, 21 (D.D.C.

2019)) (discussing Rule 60(b)).

“Under Federal Rule of Civil Procedure 59(e), a

motion to reconsider ‘is discretionary and need not be

He also attached a copy of the return receipt and the tracking page

showing delivery. See ECF No. 4-1. Both documents relate to service

made on Chao.

2

83a

granted unless the district court finds that there is an

intervening change of controlling law, the availability of

new evidence, or the need to correct a clear error or

prevent manifest injustice.’” Trudel v. SunTrust Bank,

924 F.3d 1281, 1287 (D.C. Cir. 2019) (quotation omitted).

It is not a vehicle “to bring before the Court theories or

arguments that could have been advanced earlier.”

Lightfoot v. D.C., 355 F. Supp. 2d 414, 421 (D.D.C. 2005)

(quotation omitted).

“Whether a party should be granted relief under Rule

60(b) is a matter left to the district court’s discretion.”

Mazengo v. Mzengi, 542 F. Supp. 2d 96, 98 (D.D.C. 2008).

Rule 60(b) provides six grounds for granting relief from a

final judgment. Most of the six involve an intervening

action or conduct that occurred after the court entered

judgment. See Fed. R. Civ. P. 60(b). Although Stephenson

does not explicitly say so, see Mot. at 1, 3–4, only the first

ground for relief could be relevant here. Rule 60(b)(1)

allows for relief due to “mistake, inadvertence, surprise,

or excusable neglect.”3 The Supreme Court has

articulated four factors for courts to consider when

determining whether neglect is excusable: “(1) the danger

of prejudice to the party opposing the modification, (2) the

length of delay and its potential impact on judicial

proceedings, (3) the reason for the delay, including

whether it was within the reasonable control of the

movant, and (4) whether the movant acted in good faith.”

In re Vitamins Antitrust Class Actions, 327 F.3d 1207,

Stephenson has not explained which of Rule 60(b)(1)’s four prongs

he wishes to invoke. See Mot. at 3–4. Because courts in this District

routinely analyze errors like Stephenson’s under Rule 60(b)’s

“excusable neglect” prong, see, e.g., Jarvis v. Parker, 13 F. Supp. 3d

74, 78–79 (D.D.C. 2014)—and because he does in fact concede that he

neglected to properly effectuate service, see Mot. at 1, 4—the Court

will evaluate whether that neglect is excusable.

3

84a

1209 (D.C. Cir. 2003) (citing Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

Courts in this District have found that the third factor—

how much the movant was to blame for the neglect—is the

most important. See Jarvis v. Parker, 13 F. Supp. 3d 74,

78–79 (D.D.C. 2014); see also Elec. Privacy Info. Ctr. v.

U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 225

(D.D.C. 2011) (“Relief under Rule 60(b)(1) turns on

equitable factors, notably whether any neglect was

excusable.”). A court considering any motion under Rule

60(b) “must balance the interest in justice with the

interest in protecting the finality of judgments.”

Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir.

2004). Additionally, “Rule 60(b) is not ‘a vehicle for

presenting theories or arguments that could have been

raised previously.’” Walsh v. Hagee, 10 F. Supp. 3d 15, 19

(D.D.C. 2013) (citation omitted).

III. Analysis

Stephenson alleges that “a clerical error prevented

Defendant from being served properly.” Mot. at 4. He

states, without further explanation, that “the signature

card sent to the US [sic] Attorney’s Office and the

Attorney General was lost by the Plaintiff’s attorney’s

mailing sorting service.” Id. Although Stephenson’s

attorney represents that he discovered this error after the

Court’s November 20 Order, he alleges nonetheless, and

again without further explanation, that he “was unable

[sic] properly effectuate service by the December 4, 2019

deadline.” Id. He argues that reconsideration is

warranted because otherwise his claims will be timebarred.4 See id. at 5–6. As set forth below, this

Each of Stephenson’s causes of action required that he file suit

within 90 days of receiving a right-to-sue notice. See Greer v. Bd. of

4

85a

explanation—to the extent that it even makes sense—

does not justify the extraordinary relief Stephenson

seeks.

As for Rule 59(e), Stephenson does not argue the

existence of “an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear

error or prevent manifest injustice.” Trudel, 924 F.3d at

1287 (quotation omitted). Indeed, his own role in the

failure to effectuate service undercuts any possible claim

of manifest injustice. See Piper, 312 F. Supp. 2d at 22–23

(observing that “manifest injustice does not exist where,

as here, a party could have easily avoided the outcome, but

instead elected not to act until after a final order had been

entered” (quotation omitted)). Rather, he appears to be

trying to use this motion as a vehicle to make arguments

in favor of an extension under Rule 4(m). This he cannot

do because he had every opportunity to request such an

extension on or before December 4. Id. at 22 (noting that

“Rule 59(e) motions are not granted when losing parties

enlist the motion to make new arguments that could have

been raised prior to final judgment”); see also W.C. &

A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.

1997), aff’d sub nom. Hicks v. United States, No. 99-5010,

1999 WL 414253 (D.C. Cir. May 17, 1999) (observing that

Rule 59(e) is not an opportunity “to bring before the Court

theories or arguments that could have been advanced

earlier”).

As for Rule 60(b)(1), Stephenson has not shown that

any negligence on his part is excusable. As discussed

above, Rule 4 required him to serve Chao, the United

States Attorney, and the Attorney General by October 27,

Trustees of Univ. of D.C., 113 F. Supp. 3d 297, 306 (D.D.C. 2015) (Age

Discrimination in Employment Act); Blackwell v. SecTek, Inc., 61 F.

Supp. 3d 149, 154 n.3 (D.D.C. 2014) (Americans with Disabilities Act).

86a

2019. He failed to do so. At that point, the Court could

have dismissed the case under Rule 4(m).5 Even so,

because “the service requirements for federal agencies

and officials are complex,” Morrissey v. Wolf, No. 1:19CV-01956 (TNM), 2019 WL 6051561, at *3 (D.D.C. Nov.

15, 2019), the Court offered Stephenson another

opportunity. Not only did the Court give Stephenson

more time, but it explained that—in addition to Chao—he

also needed to serve the United States Attorney and the

Attorney General, and it pointed him to the relevant rules.

Courts assume that lawyers possess a basic proficiency in

the rules of civil procedure. Cf. Ctr. for Nuclear

Responsibility, Inc. v. U.S. Nuclear Regulatory Comm’n,

781 F.2d 935, 942 (D.C. Cir. 1986) (“It is hardly

unreasonable to impute knowledge of simple, mechanical

procedural rules to attorneys who, indeed, have a

professional obligation to be aware of them. In a very real

sense, the rules are the tools of the trade.”). Indeed, even

pro se litigants must comply with the Federal Rules of

Civil Procedure. See Jarrell v. Tisch, 656 F. Supp. 237, 239

(D.D.C. 1987). Even offering every benefit of the doubt,

the Court can fathom no excusable reason why

Stephenson failed to effectuate service with the benefit of

the Court’s express instructions.

Stephenson argues that the loss of a signature card

somehow prevented him from properly effectuating

service. His argument makes no sense. As a threshold

matter, it is not entirely clear what Stephenson means

when he refers to a “signature card.” Assuming he is

Because Stephenson had served neither the United States Attorney

nor the Attorney General, the relief offered by Rule 4(i)(4)(A) did not

apply. See Morrissey v. Wolf, No. 1:19-CV-01956 (TNM), 2019 WL

6051561, at *3 (D.D.C. Nov. 15, 2019) (noting that “no rule provides

relief when, as here, a plaintiff has partially complied with Rule 4(i)(2)

by serving only the agency or official [sued in an official capacity]”).

5

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referring to a return receipt, that would only be relevant

to filing proof of service under Rule 4(l). The loss of a

return receipt does not prevent a plaintiff from

effectuating service, the validity of which is unaffected by

a failure to file proof of service, see Fed. R. Civ. P. 4(l)(3).

Nor does it prevent her from satisfying her proof of

service obligation by filing an affidavit “disclos[ing]

enough facts to demonstrate the validity of service,” 4B

Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1130 (4th ed. 2019).6 Nor still

does it prevent her from moving for an extension—either

to effectuate service or to file proof of service—before

missing a court-imposed deadline. See Freely v.

Shanahan, No. CV 19-286 (CKK), 2019 WL 2582533, at *2

(D.D.C. June 24, 2019) (“The obligation to request an

extension places a minimal burden on the party and her

counsel.”). As far as the Court can tell, Stephenson has

done none of these things with respect to the United

States Attorney or the Attorney General.

In fact, that Stephenson served Chao and filed proof

of that service on December 3—the day before the

deadline—calls into question whether he understood his

obligation to serve the United States Attorney and the

Attorney General at all, and whether a clerical error had

anything to do with what happened here. Perhaps

Stephenson’s counsel did not understand what Rule 4

requires. See Pioneer, 507 U.S. at 392 (noting that

“inadvertence, ignorance of the rules, or mistakes

That Stephenson asserts that something was “sent to the US [sic]

Attorney’s Office and the Attorney General” faintly suggests that

perhaps he did serve these entities within the time permitted. But

Stephenson does not so argue. At certain points, he concedes that he

neglected to properly effectuate service, see Mot. at 1, 4, and in any

event he has not provided facts from which the Court could so

conclude.

6

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construing the rules do not usually constitute ‘excusable’

neglect.”). Perhaps he failed to monitor the docket in this

case. See Gibson-Michaels v. Bair, 255 F.R.D. 306, 307

(D.D.C. 2009) (noting that failure to monitor the docket is

not excusable neglect under Rule 60(b)). Or perhaps he

simply failed to read the Court’s order carefully. See

S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 17–18 (D.D.C. 2010)

(observing that a Rule 60(b)(1) movant “must show that

he was justified in failing to avoid his mistake or

inadvertence. . . . and sheer carelessness on his part will

not justify relief.”). No matter. The Court does not find

Stephenson’s negligence excusable on this record, even if

all the other “excusable neglect” factors—prejudice to the

other party, length of any delay, and the movant’s good

faith—weigh in his favor. See Jarvis, 13 F. Supp. 3d at 78–

80.

Stephenson also argues that because he served Chao

by certified mail, “actual notice was effectuated to give the

Defendant an opportunity to respond.” Mot. at 4. But

providing notice is not equivalent to effectuating service.

See Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3

(D.D.C. 2004) (“While the purpose of service is to give a

defendant notice of the claims against it, notice alone

‘cannot cure an otherwise defective service.’”) (citation

omitted). Service is more than a mere formality. “Without

valid service of summons or a waiver of service, the Court

cannot establish proper venue and personal jurisdiction

over the defendants, and the case may not proceed.”

Mann v. Castiel, 729 F. Supp. 2d 191, 196 (D.D.C. 2010),

aff’d, 681 F.3d 368 (D.C. Cir. 2012). This is because

personal jurisdiction requires “a basis for the defendant’s

amenability to service of summons.” Omni Capital Int’l,

Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

Contrary to Stephenson’s suggestion, the service

requirement may not be so carelessly cast aside.

89a

Finally, Stephenson argues that the Court should

exercise its discretion and grant him more time to

effectuate service because otherwise his claims will be

time barred. See Mot. at 5–6. But the time for that

argument has passed. As discussed above, motions for

reconsideration are not vehicles to make arguments that

could have been presented earlier. See Dixon v. England,

Civil Action No. 02-0823 (JR), 2003 WL 1833193, at *1

(D.D.C. Feb. 13, 2003), aff’d sub nom. Dixon v. Johnson,

No. 03-5116, 2003 WL 22225587 (D.C. Cir. Sept. 24, 2003);

see also Piper, 312 F. Supp. 2d at 22; Walsh, 10 F. Supp.

3d at 19. Stephenson had ample opportunity to move for

an extension of time before this case was dismissed, and—

as discussed above—doing so would have required little

effort. See Freely, 2019 WL 2582533, at *2. As Stephenson

himself admits, he discovered whatever error occurred

after the Court warned him that his service was defective

and gave him two additional weeks to perfect it. See Mot.

at 4. Had he moved for an extension at that time, he could

have tried to avail himself of Rule 4(m)’s “good cause”

standard, or argued, as he does now, that showing good

cause is unnecessary, see id. at 4–5. But he did not. That

his claims may be time barred is unfortunate, but it does

not alone justify the extraordinary relief he seeks,

especially considering that he is represented by counsel.

See Morrissey, 2019 WL 6051561, at *3; cf. United States

v. Locke, 471 U.S. 84, 101 (1985) (“Filing deadlines, like

statutes of limitations, necessarily operate harshly and

arbitrarily with respect to individuals who fall just on the

other side of them, but if the concept of a filing deadline is

to have any content, the deadline must be enforced.”);

Howard v. Gutierrez, 474 F. Supp. 2d 41, 57 n.11 (D.D.C.

2007) (“Serious consequences often flow from a fair

application of time limits, and that is the case here.”).

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IV. Conclusion and Order

Stephenson failed to effectuate service in the manner

required by Rule 4. Nevertheless, the Court directed him

to the relevant rule and gave him ample opportunity to do

so. The Court also explained the consequences of failing

to do so. That Stephenson failed to follow the Court’s

Order—and the Federal Rules of Civil Procedure—

hardly constitutes the kind of circumstances that warrant

the highly discretionary relief he now seeks. Accordingly,

the Court will deny the motion.

For all the above reasons, it is hereby ORDERED

that Defendant’s Motion for Reconsideration, ECF No. 5,

is DENIED.

SO ORDERED.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: January 10, 2020

APPENDIX G

STEPHENSON v. CHAO (closed 12/05/2019)

District of Columbia District Court

Case no. 1:19-cv-02256-TJK (D.D.C.)

Filed date: December 05, 2019

Docket entry no.: N/A

Docket text:

MINUTE ORDER: Plaintiff failed to properly effect

service by October 27, 2019, the date by which service of

process was due under Federal Rule of Civil Procedure

4(m). Under Rule 4, to serve a United States agency,

Plaintiff is required to send a copy of the summons and

complaint to the Attorney General of the United States

and U.S. Attorney's Office for the District of Columbia as

well. Fed. R. Civ. P. 4(i)(1)(2). Plaintiff did not do so, nor

has he shown good cause for this failure or requested

additional time to do so. Moreover, Plaintiff failed to

comply with the Court's Minute Order of November 20,

2019 specifically requiring him to file proof of service on

the Attorney General of the United States and the U.S.

Attorney's Office with the Court by December 4, 2019.

Therefore, as required by Rule 4(m), the Court sua sponte

dismisses Plaintiff's 1 Complaint and this action without

prejudice. The Clerk of Court is directed to close the case.

Signed by Judge Timothy J. Kelly on 12/5/2019. (lctjk1)

(Entered: 12/05/2019)

(91a)

APPENDIX H

STEPHENSON v. CHAO (closed 12/05/2019)

District of Columbia District Court

Case no. 1:19-cv-02256-TJK (D.D.C.)

Filed date: November 20, 2019

Docket entry no.: N/A

Docket text:

MINUTE ORDER: Federal Rule of Civil Procedure

4 requires service of both the summons and complaint to

the agency, the U.S. Attorney's Office, and the Attorney

General of the United States. Fed. R. Civ. P. 4(i)(2). Rule

4(l) directs that "[u]nless service is waived, proof of service

must be made to the court." Fed. R. Civ. P. 4(l). While the

Court has received proof of service for the agency, the

docket does not reflect service on the Attorney General of

the United States or the U.S. Attorney's Office. Rule 4(m)

requires Plaintiff to serve Defendant "within 90 days after

the complaint is filed." Fed. R. Civ. P. 4(m). That time

began to run on July 29, 2019 and expired on October 27,

2019. Accordingly, it is hereby ORDERED that Plaintiff

shall file proof of service on the Attorney General of the

United States and the U.S. Attorney's Office with the

Court by no later than December 4, 2019. If service is not

perfected by that time, the Court may dismiss the action

without prejudice. See Fed. R. Civ. P. 4(m). Signed by

Judge Timothy J. Kelly on 11/20/2019. (lctjk1) (Entered:

11/20/2019)

(92a)

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

—————————

No. 20-5024

September Term, 2021

1:19-cv-01956-TNM

1:19-cv-02256-TJK

Filed On: April 12, 2022

Paul S. Morrissey,

Appellant

v.

Alejandro N. Mayorkas, Secretary,

U.S. Department of Homeland Security,

Appellee

—————————

Consolidated with 20-5042

BEFORE: Srinivasan, Chief Judge; Henderson,

Rogers, Tatel, Millett, Pillard, Wilkins,

Katsas, Rao, Walker, and Jackson,1

Circuit Judges

ORDER

Appellants’ consolidated petition for rehearing en

banc and the response thereto were circulated to the full

court, and a vote was requested. Thereafter, a majority of

1

Circuit Judge Jackson did not participate in this matter.

(93a)

94a

the judges eligible to participate did not vote in favor of

the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer,

Clerk

BY:

/s/

Anya Karaman

Deputy Clerk

APPENDIX J

Federal Rule of Civil Procedure 4

(a) CONTENTS; AMENDMENTS.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's

attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must

appear and defend;

(E) notify the defendant that a failure to appear

and defend will result in a default judgment

against the defendant for the relief demanded in

the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

(2) Amendments. The court may permit a summons

to be amended.

(b) ISSUANCE. On or after filing the complaint, the

plaintiff may present a summons to the clerk for signature

and seal. If the summons is properly completed, the clerk

must sign, seal, and issue it to the plaintiff for service on

the defendant. A summons—or a copy of a summons that

is addressed to multiple defendants—must be issued for

each defendant to be served.

(c) SERVICE.

(1) In General. A summons must be served with a

copy of the complaint. The plaintiff is responsible for

having the summons and complaint served within the

(95a)

96a

time allowed by Rule 4(m) and must furnish the

necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old

and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially

Appointed. At the plaintiff's request, the court may

order that service be made by a United States

marshal or deputy marshal or by a person specially

appointed by the court. The court must so order if the

plaintiff is authorized to proceed in forma pauperis

under 28 U.S.C. § 1915 or as a seaman under 28

U.S.C. § 1916.

(d) WAIVING SERVICE.

(1) Requesting a Waiver. An individual, corporation,

or association that is subject to service under Rule

4(e), (f), or (h) has a duty to avoid unnecessary

expenses of serving the summons. The plaintiff may

notify such a defendant that an action has been

commenced and request that the defendant waive

service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service

under Rule 4(h), to an officer, a managing

or general agent, or any other agent

authorized by appointment or by law to

receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2

copies of the waiver form appended to this Rule 4,

and a prepaid means for returning the form;

97a

(D) inform the defendant, using the form appended

to this Rule 4, of the consequences of waiving and

not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least

30 days after the request was sent—or at least 60

days if sent to the defendant outside any judicial

district of the United States—to return the waiver;

and

(G) be sent by first-class mail or other reliable

means.

(2) Failure to Waive. If a defendant located within

the United States fails, without good cause, to sign

and return a waiver requested by a plaintiff located

within the United States, the court must impose on

the defendant:

(A) the expenses later incurred in making service;

and

(B) the reasonable expenses, including attorney's

fees, of any motion required to collect th

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