Petition for Writ of Certiorari — Henderson v. United States

Supreme Coon, wv

FILED

95°23 2 auc 08 1995

No. OFFICE OF ihc Ucerk

In The

Supreme Court of the United States

October Term, 1995

e

LLOYD HENDERSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

o

PETITION FOR WRIT OF CERTIORARI

¢

CumnNarp J. HANsBy

25025 I-45 North, Suite 525

The Woodlands, TX 77380

(713) 364-6930

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

Il.

QUESTIONS PRESENTED FOR REVIEW

Whether the 120-day service requirement of Federal

Rule of Civil Procedure 4 supplants the forthwith

service requirement found in the Suits in Admiralty

Act (“SAA”).

If the 120-day service requirement of Rule 4 does not

supplant the forthwith service requirement found in

the SAA, whether district courts may extend the time

for service provided by the SAA under appropriate

circumstances. ,

LIST OF ALL PARTIES

Petitioner:

LLOYD HENDERSON

C/O CLINARD J. HANBY

25025 I-45 North, Suite 525

The Woodlands, TX 77380

Respondent:

UNITED STATES OF AMERICA

C/O SOLICITOR GENERAL

Department of Justice

Washington, D.C. 20530

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

See Gee Ge GEE woncccoceccocenscscocoeceoss il

Cy Ge SPO a co cccccecccascessccecess iv

REFERENCE TO THE OPINIONS OF THE COURTS

PED ecncncctncecesacscccccoestceccocecceeeces 1

STATEMENT OF JURISDICTION................... 1

STATUTORY PROVISIONS INVOLVED............. 1

STATEMENT OF THE CASB............cccccecccess 4

REASONS FOR GRANTING THE WRIT ........... 6

A. This Court Should Grant the Writ Because the

Fifth Circuit's Interpretation of the SAA’s Forth-

with Service Requirement Conflicts with Third

es ee ek nee s 6

B. This Court Should Grant the Writ Because the

Fifth Circuit's Interpretation of the SAA’s Forth-

with Service Requirement Frustrates Congres-

GRUEES TED, ccccccdcccusacsccvececesceéecseess 10

C. This Court Should Grant the Writ Because the

Fifth Circuit's Interpretation of the SAA’s Forth-

with Service Requirement Leads to Inconsistent

PRIME coinccdccnceeccncesacececesscsecuscecees 15

D. This Court Should Grant the Writ Because the

Fifth Circuit's Interpretation of the SAA’s Forth-

with Service Requirement Restricts the District

Courts’ Power to Extend the Time for Service

Under Any Circumstances. ............ 5.6.6... 17

CONCLUSION ..... ik beceaedabadndetmantseles 20

APPENDIX ......... Oe PE Oe Te Pre Pe App. 1

iv

TABLE OF AUTHORITIES

Page

Cases

Amella v. United States, 732 F.2d 711 (9th Cir. 1984) ..8, 16

American Pipe & Construction Co. v. Utah, 414 US.

BD Gee ch cccccteccedcescusscecencccacnqaences 18

Barrie v. United States, 615 F.2d 829 (9th Cir. 1980) ..... 8

Battaglia v. United States, 303 F.2d 683 (2d Cir.),

cert. dism'd, 371 U.S. 907 (1962)........... 7, 8 11, 12

~ rf New York v. McAllister Brothers, Inc., 278

fp fF fe errr re 7

Hall v. Maritime Administration, Civ. Action

92-3020, 1993 U.S. Dist. Lexis 5753 (E.D. La.

Ponta dctcdeccccessdaccascdscasescescacneessess 10

Hanna v. Plumer, 380 U.S. 460 (1965) ................ 13

Henderson v. United States, 51 F.3d 574 (5th Cir.

RIP n Sesegn ate RPS rR re 9 OSE ON 8

Indian Towing Co. v. United States, 350 U.S. 61

GREED 6-0 cc ccc ccccccccdusecsucssesececesesoceedtese 11

Jones & Laughlin Steel, Inc. v. Mon River Towing,

Inc., 772 F.2d 62 (3d Cir. 1985)............. 6, 7, 9, 15

Kenyon v. United States, 676 F.2d 1229 (9th Cir.

Seo ccdececensceccséscccssccehscess 8, 11, 13, 14, 16

Libby v. United States, 840 F.2d 818 (11th Cir. 1988) ..... 8

Libby v. United States, 657 F. . 1251 (M.D. Fla.

1987), aff'd, 840 F.2d 818 (11th Cir. 1988). 6, 9, 16, 17

McCormick v. United States, 680 F.2d 345 (5th Cir.

Pnadédnasenbusasenndedchdsesedetauneiedad 18, 19

Vv

'

TABLE OF AUTHORITIES - Continued

Page

O'Halloran v. United States, 817 F. . 829 (N_D.

Cal. 1993), aff'd, 45 F.3d 436 (9th Cir. 1994)... 10, 15, 16

Owens v. United States, 541 F.2d 1386 (9th Cir.

1976), cert. denied, 430 U.S. 945 (1977)........ 7, 8, 17

Phillips v. United States Army Corps of Engineers,

629 F. Supp. 967 (S.D. Miss. 1986) ............... 6, 9

United States v. American Surety Co., 25 F. Supp.

Fe GS Sn cc cccnnsacncssctstovcccscecccs 13

United States v. Holmberg, 19 F.3d 1062 (5th Cir.

1994), cert. denied, 115 S.Ct. 482 (1994)....... 5, 8, 16

United States v. Isthmian S.S. Co., 359 US. 314

PD oaheb nbvocnccunsdscndductecensctesocnesceées 15

Weiss v. United States, 168 F. Supp. 300 (D.N_J.

PA Sons ndeccecdsnchdaucedccocsendcdecconesancess 11

STATUTES

BD Bee Oo re Gt hc ccc cdesctccccncccces: 2, 9, 12

46 U.S.C. §§ 741-752 (Supp. 1995)........... 1, 4, 10, 15

46 U.S.C. §§ 781-790 (1975) ..... 2... . cece cece e eee eens 4

Orner AUTHORITIES

Amendments to Rules of Civil Procedure for the

United States District Courts, reported in 383

U.S. at 1029, 1030-1031 (1966)................. 7, 8,9

Pat. GB. Gime BR Gu ccccccccccvcccccccccccescessecs passim

Federal Civil Judicial Procedure and Rules (West

Scindudetdéeund sled Seadanddveateceusatestsodan 14

REFERENCE TO THE OPINIONS OF

THE COURTS BELOW

Court of Appeals Opinion: 51 F.3d 574 (5th Cir. 1995)

- Reproduced in Appendix

District Court Order: Reproduced in Appendix

°

STATEMENT OF JURISDICTION

The Fifth Circuit rendered its opinion on May 10,

1995. Petitioner did not file a motion for rehearing. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

e

STATUTORY PROVISIONS INVOLVED

Suits in Admiralty Act, 46 U.S.C. § 742

Libel in personam.

In cases where if such vessel were privately owned or

operated, or if such cargo were privately owned or pos-

sessed, or if a private person or property were involved, a

proceeding in admiralty could be maintained, any appro-

priate non-jury proceeding in personam may be brought

against the United States or against any corporation men-

tioned in section 1 of this Act. Such suits shall be brought

in the district court of the United States for the district in

which the parties so suing, or any of them, reside or have

their principal place of business in the United States, or

in which the vessel or cargo charged with liability is

found. The libelant shall forthwith serve a copy of his

libel on the United States attorney for such district and

mail a copy thereof by registered mail to the Attorney

1

General of the United States, and shall file a sworn return

of such service and mailing. Such service and mailing

shall constitute valid service on the United States and

such corporation. In case the United States or such corpo-

ration shall file a libel in rem or in personam in any

district, a cross-libel in personam may be filed or a set-off

claimed against the United States or such corporation

with the same force and effect as if the libel had been

filed by a private party. Upon application of either party

the cause may, in the discretion of the court, be trans-

ferred to any other district court of the United States.

Rules Enabling Act, 28 U.S.C. § 2072

Rules of procedure and evidence; power to prescribe.

(a) The Supreme Court shall have the power to

prescribe general rules of practice and procedure and

rules of evidence for cases in the United States district

courts (including proceedings before magistrates thereof)

and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify

any substantive right. All laws in conflict with such rules

shall be of no further force or effect after such rules have

taken effect.

(c) Such rules may define when a ruling of a district

court is final for the purposes of appeal under section

1291 of this title.

Fed. R. Civ. P. 4 (d) (4) and (5)!

(4) Upon the United States, by delivering a copy of

the summons and of the complaint to the United States

attorney for the district in which the action is brought or

to an assistant United States attorney or clerical employee

designated by the United States attorney in a writing

filed with the clerk of the court and by sending a copy of

the summons and of the complaint by registered or certi-

fied mail to the Attorney General of the United States at

Washington, District of Columbia, and in any action

attacking the validity of an order of an officer or agency

of the United States not made a party, by also sending a

copy of the summons and of the complaint by registered

or certified mail to such officer or agency.

(5) Upon an officer or agency of the United States,

by serving the United States and by sending a copy of the

summons and of the complaint by registered or certified

mail to such officer or agency. If the agency is a corpora-

tion the copy shall be delivered as provided in paragraph

(3) of this subdivision of this rule.

Fed. R. Civ. P. 4 (j)?

If a service of the summons and complaint is not

made upon a defendant within 120 days after the filing of

1 These subsections were amended in 1993 and renumbered

as Rule 4 (i).

2 The 1993 amendments reworded this subsection and

renumbered it as Rule 4 (m).

the complaint and the party on whose behalf such service

was required cannot show good cause why such service

was not made within that period, the action shall be

dismissed as to that defendant without prejudice upon

the court’s own initiative with notice to such party or

upon motion.

STATEMENT OF THE CASE

Petitioner Lloyd Henderson sustained injuries on

August 27, 1991, while employed by the United States as

a seaman aboard the M/V DELMONTE, a ship owned by

the United States (R 3-4). After exhausting administrative

remedies, he filed suit against the United States on April

8, 1993, in the United States District Court for the South-

ern District of Texas, Galveston Division (R 2).° Jurisdic-

tion arose under the Suits in Admiralty Act (“SAA”), 46

U.S.C. § 741-752 and the Public Vessels Act, 46 U.S.C.

§§ 781-790.

Mr. Henderson experienced a series of difficulties

obtaining a proper summons for the United States from

the district clerk’s office (R 163). As a result, Mr. Hender-

son did not serve his complaint via certified mail on the

United States Attorney General until May 19, 1993, over a

month after filing suit (R 163). The summons intended for

the United States Attorney, however, was still not in

proper form at that point because the deputy district

clerk had failed inadvertently to place the seal of the

> On motion by the United States, the case was later trans-

ferred to the Eastern District of Texas, Beaumont Division (R 1).

court on the summons. A state constable noticed the

defect and, after a further series of difficulties with the

district clerk’s office, Mr. Henderson finally obtained a

properly sealed summons on August 25, 1993, just two

days before the statute of limitations elapsed (R 164).

Mr. Henderson then filed a motion seeking an exten-

sion of time in which to serve the United States Attorney

(R 12-13). The district court, after presumably finding

good cause as required by Rule 4, granted the extension

and rendered an order allowing service on or before

September 15, 1993 (R 16). The United States Attorney

received personal service on September 3, 1993. Thereaf-

ter, the United States moved to dismiss the case for want

of jurisdiction due to a lack of “forthwith” service as

required by the SAA (R 34). The district court originally

denied the motion, presumably believing that Rule 4

governed the time for service in the case and that the

court had the power to grant an extension (R 107). Fol-

lowing the court’s ruling, however, the Fifth Circuit

delivered its opinion in United States v. Holmberg, holding

that the SAA’s forthwith requirement rather than Rule 4

governs the time for service on the United States. 19 F.3d

1062 (5th Cir. 1994), cert. denied, 115 S.Ct. 482 (1994). The

district court reconsidered its ruling in light of Holmberg

and granted the government’s motion to dismiss without

prejudice but after the statute of limitations had elapsed

(R 189). Mr. Henderson appealed to the Fifth Circuit to no

avail. The | ‘th Circuit merely reiterated its opinion in

Holmberg that the SAA’s forthwith requirement rather

than Rule 4 governs the time for service on the United

States.

6

REASONS FOR GRANTING THE WRIT

A. This Court Should Grant the Writ Because the

Fifth Circuit’s Interpretation of the SAA’s

Forthwith Service Requirement Conflicts with

Third Circuit Precedent.

The manner of service on the United States under the

SAA and Rule 4 is the same. Both require that the plain-

tiff personally serve the United States Attorney for the

district in which the suit is filed* and, additionally, serve

the Attorney General by mail.5 Rule 4 and the SAA col-

lide, however, with respect to the time for service on the

United States. The SAA fails to provide any specific time

for service on the United States, but rather simply pro-

vides that service be “forthwith.” Rule 4, on the other

hand, provides a specific time limit of 120 days in which

to accomplish service and permits the district court to

extend the time upon a showing of “good cause.”

Thus the question of which rule regarding the time for

service on the United States arises in suits brought under the

SAA. The Third Circuit has determined that Rule 4’s 120-day

requirement supersedes the SAA’s forthwith requirement.

Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F.2d

62, 66 (3d Cir. 1985). Several district courts have held like-

wise. E.g., Libby v. United States, 657 F. Supp. 1251, 1252 (M.D.

Fla. 1987), aff'd, 840 F.2d 818 (11th Cir. 1988); Phillips v. United

States Army Corps of Engineers, 629 F. Supp. 967, 971 (S.D.

4 After the filing of this suit, Congress amended Rule 4 to

permit the United States Attorney to designate agents to receive

process and to permit service on the United States Attorney by

mail.

5 The SAA specifies registered mail; Rule 4 permits regis-

tered or certified mail.

Miss. 1986). Other circuits addressing the issue, however,

have concluded that the SAA’s forthwith requirement

applies regardless of Rule 4’s 120-day requirement. E.g. City

of New York v. McAllister Brothers, Inc., 278 F.2d 708, 710 (2d

Cir. 1960); Owens v. United States, 541 F.2d 1386, 1388 (9th Cir.

1976), cert denied, 430 U.S. 945 (1977); Holmberg, 19 F.3d at

1065.

For the most part, the conflict arises from the deter-

mination of whether the SAA’s forthwith service require-

ment is substantive or simply procedural. Those courts

that consider the forthwith requirement substantive hold

that it applies without regard to Rule 4 because the

Federal Rules of Civil Procedure do not modify substan-

tive rights. E.g., Battaglia v. United States, 303 F.2d 683, 686

(2d Cir.), cert. dism’d, 371 U.S. 907 (1962). Those courts

that consider the forthwith service requirement pro-

cedural hold that Rule 4’s 120-day requirement supplants

the SAA’s forthwith requirement because the Federal

Rules supplant all conflicting procedural requirements in

federal courts. E.g., Jones & Laughlin Steel, 772 F.2d at 66.

Significantly, the leading precedents construing the

SAA’s forthwith requirement were decided prior to the

application of the Federal Rules to admiralty suits in

1966. See Amendments to Rules of Civil Procedure for the

United States District Courts, reported in 383 U.S. at 1029,

1030-1031 (1966). For instance, in McAllister Brothers, the

plaintiff served process on the United States Attorney

more than two months after filing suit. 278 F.2d at 708.

The court held that the plaintiff's failure to comply with

the SAA’s forthwith service requirement deprived the

district court of jurisdiction and compelled dismissal. Id.

at 710.

Two years later in Battaglia v. United States, the court

reached an even harsher result. 303 F.2d at 683. There, the

plaintiff served the United States Attorney on the same

day he filed the complaint. The plaintiff failed to serve

the Attorney General by registered mail, however, until

sometime later. The court construed the SAA to require

both forthwith service on the United States Attorney and

forthwith service by registered mail on the Attorney Gen-

eral. Accordingly, the court held that the lack of forthwith

service warranted dismissal. Id. at 686. The rationale for

the decision was that the forthwith service requirement

constitutes a prerequisite to the United States’ waiver of

sovereign immunity.

In 1966, Congress amended the Federal Rules of Civil

Procedure to apply them to admiralty suits. Amendments

to Rules of Civil Procedure for the United States District

Courts, reported in 383 U.S. at 1030-1031. Following the

application of the Federal Rules to admiralty suits in

1966, the Ninth Circuit nonetheless adopted the long-held

view of the Second Circuit that forthwith service of pro-

cess constitutes a matter of jurisdiction. Owens, 541 F.2d

at 1388; see also Barrie v. United States, 615 F.2d 829, 830

(9th Cir. 1980) (following Owens); Kenyon v. United States,

676 F.2d 1229, 1231 (9th Cir. 1981) (following Owens);

Amella v. United States, 732 F.2d 711, 713 (9th Cir. 1984)

(following Owens). More recently, the Eleventh and Fifth

Circuits also have adopted the view that forthwith ser-

vice constitutes a matter of substance unaffected by the

Federal Rules. Libby v. United States, 840 F.2d 818 (11th

Cir. 1988); Holmberg, 19 F.3d at 1065; Henderson, 51 F.3d at

576.

The Third Circuit, however, has used a more reason-

able analysis in part because the other circuits have relied

on the law before the Federal Rules applied to admiralty

suits. In Jones & Laughlin Steel, the plaintiff filed suit on

January 18, 1984, and sent notice to the appropriate fed-

eral agency the next day but failed to serve the Attorney

General and United States Attorney until late March, well

within the 120 days required by Rule 4 but not “forth-

with” as required by the SAA. 772 F.2d at 66. The court

logically concluded that the SAA’s forthwith service

requirement constituted a matter of procedure rather

than substance. Id. at 66. In so concluding, the court

relied on the fact that Congress unified admiralty pro-

cedure and the Federal Rules in 1966. See Amendments to

Rules of Civil Procedure for the United States District

Courts, reported in 383 U.S. at 1030-1031. Thus, the court

reasoned that the provisions for service of process found

in Rule 4 should govern service on the United States

under the SAA. Specifically, the court held:

This congressional enactment of a uniform 120-

day period for accomplishing service of process

{under Rule 4] must be read in light of 28 U.S.C.

§ 2072, [the Rules Enabling Act] which states

that “jajll laws in conflict with such rules shall

be of no further force or effect after such rules

have taken effect.” Rule 4(j) therefore super-

sedes the Suits in Admiralty Act’s requirement

of forthwith service.

772 F.2d at 66.

At least two district courts have adopted the Third

Circuit’s reasoning. Phillips, 629 F. Supp. at 971; Libby, 657

F. Supp. at 1252. Other district courts, though bound by

10

circuit precedents to the contrary, have expressed agree-

ment with the Third Circuit’s construction of the SAA.

For instance, in O'Halloran v. United States, the court

stated: “This Court finds the Third Circuit approach rea-

sonable, particularly in light of the inherently ambiguous

nature of the term forthwith. This Court also believes that

rejecting the argument that Sec. 742 is jurisdictional leads

to a fairer result. However, the Ninth Circuit has consid-

ered and rejected this very argument.” 817 F. Supp. 829,

832 (N.D. Cal. 1993), aff'd, 45 F.3d 436 (9th Cir. 1994). See

also Hall v. Maritime Administration, Civ. Action 92-3030,

1993 U.S. Dist. Lexis 5753 (E.D. La. 1993) (following Fifth

Circuit precedent and concluding “with great reluctance

that plaintiff's complaint must be dismissed). Only this

Court can resolve this conflict and mandate a uniform

rule for the timely service of process on the United States

in suits brought under the SAA.

B. This Court Should Grant the Writ Because the

Fifth Circuit’s Interpretation of the SAA’s

Forthwith Service Requirement Frustrates Con-

gressional Intent.

The Fifth Circuit’s interpretation of the SAA’s forth-

with service requirement as substantive, like those of the

Second and Eleventh Circuits, fails to capture Congress's

intent. Prior to 1916, the government enjoyed immunity

from suits alleging damages inflicted by government

owned and operated vessels. Re cognizing the inequity of

declining to compensate those damaged by government

vessels, Congress passed the Shipping Act of 1916, later

modified in 1920 and renamed the SAA. 39 Stat. 728,

730-31; 46 U.S.C. § 742. The Shipping Act, and the SAA

after it, provided that U.S. vessels employed as merchant

11

vessels would be subject to all laws, regulations and

liabilities to which private merchant vessels were subject.

ld. This provision reveals Congress's consent to suits

involving damages inflicted by government vessels and

Congress's intent to treat governmental and private ves-

sels equally.

Congress's specific intent in including the forthwith

service requirement in the SAA is less clear. In fact, the

legislative history of the Act lacks any explanation for the

forthwith service requirement. As noted above, some

courts have opined that the SAA’s forthwith service

requirement constitutes an integral part of the govern-

ment's waiver of sovereign immunity, and that Congress

intended that immunity be maintained when service on

the government is not forthwith. E.¢., Battaglia, 303 F.2d

at 685; Kenyon, 676 F.2d at 1232.

This view of the forthwith requirement stems from

the rule of statutory construction that “statutes which

waive immunity of the United States from suit are to be

construed strictly in favor of the sovereign.” McMahon v.

United States, 342 U.S. 25, 27 n.5 (1951). No rule of statu-

tory construction requires, however, that each term

within a statute waiving immunity be strictly construed.

In fact, this Court has noted that narrowly construing

specific terms of such a statute can defeat Congress's

general intent to waive immunity. For instance, in Indian

Towing Co. v. United States, this Court warned against

“import(ing] immunity back into a statute designed to

limit it.” 350 U.S. 61, 69 (1955). Echoing this Court's

warning in Indian Towing, the court in Weiss v. United

States, emphasized that a presumption in favor of immu-

nity “does not mean that there must be a niggling and

12

obnubilative adherence to the narrowest meaning of the

words of *he Act when the patent intent of Congress” is

to waive tmunity. 168 F. Supp. 300, 301 (D.N.J. 1958).

Even Justice Friendly, who concurred in an opinion

holding that the forthwith requirement constitutes an

integral part of the government's waiver of immunity,

remarked:

I should have supposed that, once Congress gave

the basic consent to sue the United States, as it did

in the first sentence of Sec. 2 of the Suits in Admi-

ralty Act, it was content to have the courts decide

the effect of various procedural lapses in the same

manner as “if such vessel were privately owned or

operated.” The Act was “a comprehensive waiver

by the United States” whereby “the government, in

entering the shipping world as a participant, sim-

ply assumes a normal role in the antecedent pat-

tern.”

Battaglia, 303 F.2d at 686 (citation omitted) (quoting Gilm-

ore and Black, Admiralty 773-774 (1957)).

Congress's more likely intent for including the forth-

with requirement in the SAA was simply to provide a

time frame for service because no external rule regarding

the timeliness of service existed when Congress enacted

the SAA in 1920. The Federal Rules did not come into

effect until 1938 and did not apply to admiralty suits until

1966. See 28 U.S.C. § 2072; Amendments to Rules of Civil

Procedure for the United States District Courts, reported

in 383 U.S. at 1030-31. When the Rules came into effect,

Congress expressed in the Rules Enabling Act that all

procedural laws in conflict with the new Rules “shall be

of no further force or effect.” 28 U.S.C. § 2072. Thus, the

13

Rules supplanted the SAA’s forthwith service require-

ment. This view is reflected by Justice Boochever in his

concurrence in Kenyon. 676 F.2d at 1231. Specifically, he

States:

[I}f freed from the bounds of stare decisis, |!

would hold that the service provision of Section

742 [the forthwith requirement] does not consti-

tute an integral part of the substantive waiver of

sovereign immunity, but is a mere procedural

provision necessary at the time of the statute's

enactment, to effectuate that waiver.

Id. at 1232.

The details of service of process are just the type of

procedural requirements the Federal Rules of Civil Pro-

cedure were designed to supplant. In fact, this Court has

previously construed the details of service of process as

procedural. In Hanna v. Plumer, this Court decided that

Rule 4, in allowing substituted service on an executor by

leaving the process at his usual place of abode, sup-

planted a contrary state rule requiring in-hand service

upon an executor. 380 U.S. 460 (1965). The rationale

behind the decision in Hanna was that such details consti-

tuted matters of procedure governed by the Federal

Rules. Id. at 473. Similarly, in resolving a conflict between

service provisions found in the Tucker Act, a predecessor

of the Federal Tort Claims Act, and Rule 4, the Eastern

District of New York determined that the latter governed.

United States v. American Surety Co., 25 F. Supp. 700, 702

(E.D.N.Y. 1938). Specifically, the court stated: “It is to be

presumed that the Supreme Court considered the prob-

lem of whether or not Sections 762 and 763 of 28 U.S.C.A.

14

[the Tucker Act] were procedural or substantive and con-

cluded that the procedure outlined therein could be

altered by the new rules.” /d.

Concluding that the forthwith service requirement is

anything other than procedural seems particularly illogi-

cal in light of the other service requirements found in the

SAA. Justice Boochever illustrates this point in his con-

currence in Kenyon:

Section 742 [of the SAA] specifies even the man-

ner of mailing “by registered mail to the Attor-

ney General of the United States.” Certainly that

provision is not to be considered as jurisdic-

tional and would be superseded by the Federal

Rule provision that states that a copy of the

summons and complaint may be sent by “regis-

tered or certified mail to the Attorney General of

the United States.”

676 F.2d at 1232.

Also persuasive in reaching the conclusion that the

SAA’s forthwith service requirement is merely procedural

is the fact that the 1937 notes of the Advisory Committee

pertaining to Rule 4 state that the Rule is intended to

“provide a uniform and comprehensive method of service

for all actions against the United States or an officer or

agency thereof.” Federal Civil Judicial Procedure and

Rules at 22 (West 1995). Additionally, the Advisory Com-

mittee listed several federal statutes providing for service

on the United States which the Committee believed the

Rules superseded. /d. at 1252. The SAA did not appear on

the list but likely only because the Rules did not then

apply to admiralty cases. For these reasons, the more

15

likely intent of Congress in including the forthwith ser-

vice requirement in the SAA was merely to provide a

procedural guideline in the absence of the Federal Rules.

Now that the Federal Rules apply in admiralty suits, they

supplant the SAA’s contrary forthwith requirement.

Moreover, continuing to allow the government to

enjoy the forthwith service requirement, while private

owners and operators of vessels are subject to the service

requirements set out in Rule 4, defeats Congress's intent

in enacting the SAA to place the government on equal

terms with private litigants. See 46 U.S.C. § 742. In fact,

this Court, in interpreting a different provision of the

SAA, noted: “Congress has expressly declared that when

sued under the Suits in Admiralty Act the United States is to

have its procedural rights determined and governed in the same

manner as private parties.” United States v. Isthmian S.S. Co.,

359 U.S. 314, 324 (1959) (emphasis added). The Third

Circuit, in deciding that Rule 4 rather than the SAA’s

forthwith requirement governs the time for service on the

United States, similarly relied on Congress's intent in

enacting the SAA to treat the United States as a private

litigant. Jones & Laughlin Steel, 772 F.2d at 64.

C. This Court Should Grant the Writ Because the

Fifth Circuit’s Interpretation of the SAA’s

Forthwith Service Requirement Leads to Incon-

sistent Results.

Application of the forthwith service requirement

rather than Rule 4's 120-day requirement leads to incon-

sistent results because the term “forthwith,” in the words

of one court is “inherently ambiguous.” O'Halloran, 817 F.

16

Supp. at 831. Courts across the country vary widely in

their determinations of what is and what is not forthwith

service. E.g., Holmberg, 19 F.3d at 1065 (holding that ser-

vice on the United States 106 days following filing suit

was not forthwith); Kenyon, 676 F.2d at 1231 (holding that

service on the United States 60 days after filing suit was

not forthwith); Owens, 541 F.2d at 1388 (holding that

service on the United States 58 days after filing suit was

not forthwith); O'Halloran, 817 F. Supp. at 831 (holding

that service on the United States 77 days after filing suit

was not forthwith); Libby, 657 F. Supp. at 1253 (holding

that service on the United States 21 days after filing suit

was forthwith). This bewildering variation among the

courts in interpreting the term “forthwith” serves only to

confuse litigants.

A panel of the Ninth Circuit, in Amella, employed the

forthwith service requirement but expressed the opinion

that the requirement failed to promote justice. 732 F.2d at

712-13. The court affirmed the dismissal of a case that

was not served “forthwith” with these remarks:

Lawyers unfamiliar with the ways of admiralty

or careless on their watch will encounter this

statute as a hidden reef that can be a jurisdic-

tional bar to an otherwise meritorious suit. . . . It

is a sad case. . . . One of the “problems which a

legal system must face is a combination of a due

regard for claims of substantial justice with a

system of procedure rigid enough to be work-

able,” . . . but Sec. 742 appears to strike the

balance too far in favor of formalism, to the

detriment of justice. . . . If Congress were to take

the statute off the books, we should feel no

SO

A ea ee

17

remorse; but until Congress awakes to action,

we are bound by the statutory requirement.

Id. at 712-714 (quoting 2 Holdsworth, A History of English

Law 196 (1909)).

Likewise, the court in Libby, when adopting the Third

Circuit’s holding that Rule 4 supplants the SAA’s forth-

with requirement stated:

Adoption of this holding avoids the unnecessary

delay and expense of litigation in cases of this

type over whether a certain number of days is

“forthwith” within the meaning of 46 U.S.C.

§ 742 [The SAA]. The policies of deciding cases

on their merits and fostering judicial economy

are better served by the definitive 120 day time

limit established by Rule 4(j). . . . [T]his Court

can see no reason to judicially maintain [sic] this

trap for the unwary.

657 F. Supp. at 1252-53. Only this Court’s adoption of

Rule 4 in suits under the SAA can end the drastic varia-

tions among the lower courts in determining what consti-

tutes forthwith service.

D. This Court Should Grant the Writ Because the

Fifth Circuit’s Interpretation of the SAA’s

Forthwith Service Requirement Restricts the

District Courts’ Power to Extend the Time for

Service Under Any Circumstances.

The Fifth Circuit held that the district court's exten-

sion of the time for service in this case had no effect

because the SAA’s forthwith service requirement is juris-

dictional in nature. 51 F.3d at 576. In other words, accord-

ing to the Fifth Circuit, district courts lack the power to

18

extend the forthwith service requirement under any cir-

cumstances. Thus, even an inadvertent failure to serve

the United States forthwith cannot be remedied.

Even if the forthwith service requirement applies to

suits brought under the SAA, rather than Rule 4, the

district courts should maintain the power to extend the

time for service in appropriate circumstances. The Fifth

Circuit previously addressed an analogous issue in

McCormick v. United States, 680 F.2d 345 (1982). McCormick

involved a suit under the SAA brought against the United

States after the statutory limitations period had elapsed.

The United States argued that because the SAA reflects a

waiver of sovereign immunity, the limitations period is

jurisdictional in nature and cannot be tolled under any

circumstances. Id. at 350. The Fifth Circuit rejected the

United States’ argument, relying heavily on this Court's

decision in American Pipe & Construction Co. v. Utah, 414

U.S. 538 (1974).

In addressing the issue of whether a limitations

period in a federal statute providing a new cause of

action could be tolled, this Court in American Pipe con-

cluded:

{T]he mere fact that a federal statute providing

for substantive liability also sets a time limita-

tion upon the institution of suit does not restrict

the power of the federal courts to hold that the

statute of limitations is tolled under certain cir-

cumstances not inconsistent with the legislative

purpose.

Id. at 559. Heeding American Pipe, the Fifth Circuit held in

its own decision on the issue:

——e

oo ea

a tte te wm

19

We cannot accept the government's position,

and the district court’s holding, that the SAA

limitations provision can never be tolled. We

hold that the two-year limitation on suits under

the SAA can be tolled under appropriate cir-

cumstances where to do so would not defeat the

purpose of the provision, which is to encourage

those with claims against the United States to

present their claims promptly and diligently,

and where injustice to the plaintiff would other-

wise resul’

McCormick, 680 F.2d at 351. Likewise, federal courts

should possess the power to extend the forthwith service

requirement under the SAA in appropriate circumstances

despite the fact that the SAA’s forthwith service require-

ment may be jurisdictional in nature.

In this case, given the difficulties Mr. Henderson

faced in serving the United States, the district court con-

sidered an extension of time appropriate. The district

court’s evaluation of the circumstances should be

respected even if the forthwith requirement governs the

time for service under the SAA. Allowing an extension in

appropriate circumstances does not defeat the purpose of

prompt service on the United States and protects the

plaintiff against injustice when the failure to serve the

United States forthwith is inadvertent and dismissal!

results, as it did here, in a lost cause of action.

°

20

‘CONCLUSION

Petitioner respectfully urges this Court to grant writ

in this case and decide that Rule 4’s 120-day service

requirement supplants the SAA’s forthwith service

requirement. Alternatively, Petitioner respectfully urges

this Court to decide that district courts may extend the

time for service provided by the SAA in appropriate

circumstances.

Respectfully submitted,

CuNarp J. HANnsy

25025 1-45 North, Suite 525

The Woodlands, TX 77380

(713) 364-6930

Attorney for Petitioner

App. 1

HENDERSON v. UNITED STATES

No. 94-40697, Summary Calendar.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

51 F.3d 574

May 10, 1995, Decided

PRIOR HISTORY: Appeal from the United States District

Court for the Eastern District of Texas. D.C. DOCKET

NUMBER 1:93-CV-529. JUDGE Joe J. Fisher.

COUNSEL: ATTORNEYS FOR APPELLANT: JIM S.

ADLER, P.C., John Ivey, Houston, TX.

ATTORNEYS FOR APPELLEE: Mike Bradford, USA, Olen

Kenneth Dodd, Beaumont, TX. Timothy R. Lord, Atty.,

David V. Hutchinson, Asst. Dir., Torts Branch Admiralty

Sect., U.S. DOJ, Washington, D. C.

JUDGES: Before SMITH, EMILIO M. GARZA and PARK-

ER, Circuit Judges. OPINION: PER CURIAM:

Lloyd Henderson filed a personal injury suit against

the United States under the Suits in Admiralty Act (the

“SAA”), 46 U.S.C. app. §§ 741-752 (1988), and the Public

Vessels Act (the “PVA”), 46 U.S.C. app. §§ 781-790 (1988).

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure, the district court dismissed Henderson's com-

plaint for lack of subject-matter jurisdiction. Henderson

appeals the district court’s dismissal, and we affirm.

App. 2

Lloyd Henderson, a merchant mariner, was injured

while working aboard a vessel owned and operated by

the United States. On April 8, 1993, Henderson filed a

personal injury suit against the United States under the

SAA and PVA. Forty-seven days later, on May 25, 1993,

the Attorney General of the United States received by

mail a copy of the complaint. On August 30, 1993, Hen-

derson filed a motion for postponement in the district

court, in which he claimed that documents necessary to

complete service of process on the government had been

lost in the mail. The district court granted Henderson's

motion, but ordered that he complete service within fif-

teen days. The United States Attorney for the district in

which the action was brought was personally served with

the complaint on September 3, 1993, 148 days after Hen-

derson had filed the suit.

The United States moved to dismiss Henderson's suit

for lack of subject-matter jurisdiction, arguing that § 742

of the SAA requires that plaintiffs effect service of pro-

cess in suits brought against the government under the

SAA “forthwith.” The district court denied the motion

without opinion. The United States subsequently

renewed its motion to dismiss, citing United States v.

Holmberg, 19 F.3d 1062 (5th Cir.), cert. denied, __ US.

__, 115 S. Ct. 482, 130 L. Ed. 2d 395 (1994). The district

court dismissed Henderson’s complaint without preju-

dice for lack of subject-matter jurisdiction.

App. 3

Henderson appeals, arguing that (1) the district court

granted him an extension of time in which to effect ser-

vice of process on the Government; (2) given the prob-

lems he had with the mail, he completed service of

process on the Government reasonably forthwith; (3) his

service on the Attorney General was forthwith and satis-

fied the service requirements of § 742; and (4) the district

court’s dismissal of his complaint violated his right to

due process.!

II

Service of process on the United States is accomplished

by delivering a copy of the summons and complaint to

the United States Attorney for the district in which the

action is brought and by sending a copy of the summons

and complaint to the Attorney General of the United

States. Fed.R.Civ.P. 4(i)(1) (previous version at Rule

4(d)(4) (1993)); Peters v. United States, 9 F.3d 344, 345 (5th

Cir.1993). At the time Henderson filed his suit, service of

process in suits brought under the SAA was governed by

two separate timeliness requirements. Rule 4(j) of the

Federal Rules of Civil Procedure required that a plaintiff

effect service within 120 days after filing the suit.

Fed.R.Civ.P. 4(j) (1993) (current version at Rule 4(m)).?

' We do not address Henderson’s due process claim

pa osm the district court dismissed his complaint without prej-

udice, and Henderson does not argue that a subs

equent s

would be time-barred. : 2

2 At the time Henderson filed his suit, Rule 4(j) read as

follows:

If a service of the summons and complaint is not made upon a

defendant within 20 days after the filing of the complaint and

_

App. 4

Under § 742 of the SAA, however, a plaintiff that has

brought suit against the United States under the SAA

must effect service of process “forthwith,” 46 U.S.C. app.

§ 742.5

We review the district court’s dismissal of Hender-

son’s complaint for lack of subject-matter jurisdiction de

novo. Shanbaum v. United States, 32 F.3d 180, 182 (5th

Cir.1994).

A

Henderson argues that because the district court

granted him an extension of time in which to effect ser-

vice of process on the Government, he was exempt from

the party on whose behalf such service was required cannot

show good cause why such service was not made within that

period, the action shall be dismissed as to that defendant with-

out prejudice upon the court’s own initiative with notice to such

party or upon motion. Fed.R.Civ.P. 4(j) (current version at Rule

4(m)). In 1993, Rule 4(j) was replaced by Rule 4(m), which states

that:

If service of the summons and complaint is not made upon a

defendant within 120 days after the filing of the complaint, the

court, upon motion or on its own initiative after notice to the

plaintiff, shall dismiss the action without prejudice as to that

defendant or direct that service be effected within a specified

time; provided that if the plaintiff shows good cause for the

failure, the court shall extend the time for service for an appro-

priate period. Fed.R.Civ.P. 4(m).

3 Section 742 states in pertinent part that:

The libelant shall forthwith serve a copy of his libel on the

United States attorney for such district and mail a copy thereof

by registered mail to the Attorney General of the United States,

and shall file a sworn return of such service and mailing. Such

service and mailing shall constitute valid service. . . .

—.

App. 5

§ 742’s “forthwith” requirement. Under Rule 4(j), the

district court was required to dismiss a plaintiff's com-

plaint for failure to meet the 120-day requirement unless

the plaintiff showed “good cause” for its failure. While

the district court did not expressly find that Henderson

had shown “good cause” for being unable to meet the

120-day requirement, the court did grant him a fifteen-

day extension.

In United States v. Holmberg, 19 F.3d 1062 (5th Cir.),

cert. denied, _ U.S. _, 115 S. Ct. 482, 130 L. Ed. 2d 395

(1994), we addressed the question of whether the forth-

with service requirement in § 742 is procedural and, thus,

superseded by the Federal Rules of Civil Procedure. We

held that the requirement of forthwith service is a condi-

tion of the government's waiver of sovereign immunity

and, therefore, a jurisdictional prerequisite. Id. at 1064-65;

accord Libby v. United States, 840 F.2d 818 (11th

Cir.1988); Amella v. United States, 732 F2d 711 (9th

Cir.1984); Battaglia v. United States, 303 F.2d 683 (2d Cir.)

cert. dismissed, 371 U.S. 907, 83 S. Ct. 210, 9 L. Ed. 2d 168

(1962). But see Jones & Laughlin Steel, Inc. v. Mon River

Towing, Inc., 772 F.2d 62 (3d Cir.1985) (holding forthwith

service requirement to be procedural). Because § 742’s

forthwith service requirement is a jurisdictional prerequi-

site, it is not superseded by the Federal Rules of Civil

Procedure and could not have been modified by Rule 4(j).

See Holmberg, 19 F.3d at 1064 (holding that Rule 4(j) does

not superseded [sic] § 742’s forthwith requirement). Thus

the district court’s decision to grant Henderson fifteen

additional days in which to meet the forthwith service

requirement of Rule 4(j) did not affect either the court’s

App. 6

subject-matter jurisdiction or Henderson's obligations

under § 742.

Henderson contends next that, given his problems

with the mail, he completed service of process on the

Government reasonably forthwith, and that the district

court’s implied finding that he showed “good cause” for

the delay in service supports his contention. Henderson

also cites as support our statement in United States v.

Bradley, 428 F.2d 1013 (5th Cir.1970), that in the context of

another statute, the term “forthwith” was “deliberately

undefined . . . to allow courts to interpret it in a context of

‘reasonableness,’ on a case by case basis.” Id. at 1015. In

Holmberg, however, we concluded that “under any defi-

nition, service in 103 or 106 days is not forthwith.”

Holmberg, 19 F.3d at 1065. Thus, even if we interpret the

term in a context of reasonableness, and even if the

district court found that Henderson showed good cause

for the delay, completing service in 148 days is not forth-

with.

Cc

Lastly, Henderson argues that his service on the

Attorney General was forthwith and satisfied the service

of process requirements of § 742. He contends that “the

purpose of the [forthwith] requirement is to provide rea-

sonably prompt notice of the suit to the United States,”

and that his service on the Attorney General provided the

government with that notice. Under § 742, both service of

the complaint on the U.S. Attorney and the mailing of a

App. 7

copy to the Attorney General are required to complete

service of process on the government. See § 742. “The

word ‘forthwith’ applies both to the service of a copy of

the complaint on the United States Attorney and to the

mailing of a copy of the complaint by registered mail to

the Attorney General of the United States.” 1 Martin J.

Norris, The Law of Maritime Personal Injuries, § 8.4 (4th

ed. 1990). See, e.g., Battaglia v. United States, 303 F.2d

683, 686 (2d Cir.), cert. dismissed, 371 U.S. 907, 83 S. Ct.

210, 9 L. Ed. 2d 168 (1962) (holding that the term “forth-

with” applies to both the service and the mailing). Thus,

while we do not address whether Henderson’s service on

the Attorney General was forthwith, we conclude that

Henderson's service on the Attorney General alone did

not satisfy the forthwith service requirement of § 742.

For the foregoing reasons, we DENY the Govern-

ment’s motion to dismiss Henderson's appeal, but

AFFIRM the district court’s dismissal of Henderson’s

omplaint.

* In a Motion to Dismiss the Appeal as Unmeritorious, the

Government moved for dismissal of Henderson's appeal pur-

suant.to Local Rule 42.2, which provides for the dismissal of

certain appeals that this Court finds “frivolous and entirely

without merit.” Although we affirm the district court’s dis-

missal of his complaint, Henderson’s appeal was not frivolous.

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

LLOYD HENDERSON *

vs. "CIVIL NO. 1:93-CV-529

UNITED STATES ‘

OF AMERICA ;

ORDER

Pending before the Court is a motion to dismiss for

lack of subject matter jurisdiction filed by the defendant,

the United States. The plaintiff filed this case under the

Suits in Admiralty Act and affected service on the defen-

dant 150 days later. The United States argues that service

was not “forthwith,” and therefore, the Court lacks sub-

ject matter jurisdiction. The plaintiff has filed a response

in Opposition.

The forthwith service requirement in section 742 of

the Suits in Admiralty Act is jurisdictional. United States

v. Holmberg, 19 F.3d 1062 (5th Cir. 1994). If service is not

“forthwith,” the district court lacks the requisite subject

matter jurisdiction to entertain the action. Holmberg, 19

F.3d at 1064-1065. Although “forthwith” has no precise

time line, the Fifth Circuit has held that 103 days is not

forthwith. Holmberg, 19 F.3d at 1065.

Because the plaintiff affected service on the United

States 150 days after filing suit, service was not forthwith.

Therefore, this court lacks subject matter jurisdiction, and

the case must be dismissed. Accordingly, it is

App. 9

ORDERED that the United States’ Motion to Dismiss

for Lack of Subject Matter Jurisdiction is GRANTED, and

the plaintiff's claims against the United States, if any, are

DISMISSED without prejudice.

SIGNED this 16 day of June, 1994.

/s/ Joe J. Fischer

UNITED STATES

DISTRICT JUDGE