Appendix — Thomas v. Heritage

e 4 ‘tege ak ou

‘ io SupREE COURT. U. &

iv aah Poe

No. 3814

: I No. > 3 :

: . peta : ' Office Supreme Court, U.S.

| a FILED

“AUG 28 1962

_ ;

“JOHN F. DAVIS, CLERK

APPENDIX TO PETITION'FOR A WRIT OF CERTIO. © —

RARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

15:

Judgment

“UNITED STATES COURT OF APPEALS

For THE SEcoND CircvIt

At a stated term of. the United States Court

of Appeals, in and for the Second Cireuit,

held at the United States Courthouse in the

‘ City of New, York, on the. fourth day of

June one piace nine hundred and sixty-

two.

_ Present:

Hon. Sterry R. Warenaay,

Hox. Leoxarp P. Moore,

Hox. Henry J. FRIENDLY,

| Cirenit Judges.

ray

Ss.

‘James BattacLia,

Vv.

UNitep, “STATES OF AMERICA,

Respondent- Appellee

— a 4

A ice

Appeal from the United States. District, Court for the

Southern District of New York.

This cause éame on|to be heard. on the transcript of .

record from the Unitdd States District Gourt for the

Southern. District of Naw York, and was argued by coun-

sel. rates

ON CONSIDER. wa WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said,

District Court be and it hereby -is affirmed; with costs ©

to the appellee.

.

¥ hase. ae:

Clerk.

Libelant-Appellant.

«

~

¢

16

Opinion of United States Court of Appeals. for the

; Second. Circuit

¢

“Moore, Circuit J udge:

Libelant- appellant appeals from an order granting the

respondent-appellee’s (the Government) summary judg-

ment motion pursuant to Rule-58(b), Rules of Practice in -

' Admiralty and Maritime Cases, a’*missing the libel on

the grounds that libelant failed to effect. service of process

on the United States in that he failed to serve a copy of

the libel on the Attorney General of the United Statgs and ~

file an affidavit of service as required by 46 U.S. C. $9742

and 782.

The libel alleged in substance that. on October 15,. 1959,

libelant, while working as a stevedore aboard the U.S. N.S.

Francis X. McGraw, owned and operated by: the Gov ern-

ment, was injured—as—a- result of: neghgenee and amnsea-—

worthiness. |

Section 745, 46 U. S..C. A., provides for a two-year

statute ef limitations. ‘On: June 8, 1961, and within the

' statutory periud, the libel was filed in the Southern Dis-

trict of New York and on the same day a copy. was served

on the United States Attorney for the \District, this com-

plying with the requirement of Section 742 that the ‘‘libel-

ant shall forthwith serve acopy of his libel on the United.

States Attorney for such district.”’ Hé failed at that time

to ‘‘mail a copy thereof by registered mail to the Attorney -

General of the United States’’ and to file an affidavit of .

-‘*service and mailing.’’ “The section then provides’ that

‘‘Such service and mailing shall constitute valid service on

_ the United States ***

On October 25, 1961, the Government made its motion

claiming defective service. The next day, October 26, 1961, -

17

Opinion - ~

: : | es :

' libelant attempted to remedy the Uefect by mailing a copy

of the libel to the Attorney General, and on November 2,

1961, filed an aflidav it of service and mailing.

~ Libelant argues that. the action w as timely commenced by

the filing of the libel and that prompt servicé on ‘the

United States Attorney satisfied what ‘he calls ‘ ri-

mary, but indefinite procedural requirement’? of sections -

~ .742 and 782:, He regardsthe mailing to the Attorney Gen-

eral as a-“‘minor, ‘secondary item’? which is ‘an ancient,

historical exhibit—interesting, but no longer needed _to-

day.’’ The double requirefgent of service and mailing he

characterizes as ‘‘obviously a superfluous formula.”’

Therefore, he would foree the yovernment, when it com.

_ plains of failure to mail, to prove some prejudice thereby.

Libelant also would gain support for his position front:

~—the fact that Conrress did not repeat “fortinwith* before ——

‘‘mail’’ in section 742 and did not define *‘forthwith’’ in

terms of months or any specified period. Thus, he asks

. ‘‘what practical! difference did it-make to the ‘interests of

_ the United States that there was a delay of a little over 4

months’ in mailiny a eopy. to the Attorney Gener abe”

‘¢

The libel here was filed well withiti the two-year, statu-

tory period so that the sit was not time-barred by eS

statute of limitations. “The institution of a suit in ad-

miralty is marked by the filing of the libel.’’ United Na-

tions Relief and* Rehabilitation -Administration v. The.

Mormac ‘mail, 99°F, Supp, 552, 554. .See, also, as to libels,

ster and complaints, Bates Mfa. Co. v. United States,

303 U. S. 567 (1938); Hoffman v. Halden, 268 °F. 2d 281:

Ore SS. Corp, v. Hassell, 2 Cir, 1943, 137 P. 2d 326;

Hut master Vv. nite J States, 186 F. Supp. 120; Fugle. v.

United States, 157 F. Supp. 81; In re Isbrandtsen Co. \

Prited States, 4i6 F.Supp. 516. Filing of the libel. hav-

te

18

Opinion

ing been* made within the statutory period And “fortli- oe

. with’? service having been made on the United States

Attorney,-the only“question before. us-is whether. the fail-.

ure.to mail a copy of. the libel to the Attorney General

for a period of over four and one-half months, regardless

of whether ‘such mailing was within. or beyond the statu-

tory period, prevented the court from obtaining <a Sage

tion over the United States. Compare Bates Mfoa. Co.

U nted States, supra.- -

“Suits against the U nited inane can be maintained only

by permission, in the manner prescribed and subject “

the restrictions imposed. Reid v. United States, 211 U.

529, 538.’’ (Munro v. United States, 303.U. S. 36, =

(1938).) Decisions, therefore, which might apply between.

_ordinary- litigants_are_not. controlling where a _suit:aguinst

the United States is involved. There ean be little doubt -

of. the power of the sovereign to declare the manner in

_which it may be haled into court.’ Grammarians may de-

bate whether the adverb *‘forthwith’’ modifies only the

adjacent ‘‘serve’’ and not the subsequent: verb ‘*mail’’; or

because ‘‘sxerve’’ and ‘mail’? are connected by the. con-

junctive ‘‘and’* the adverb modifies both. From a prac-

tical point of view, the latter conelusion is ‘more iogical.

*First ee i section itself is revealing. © “The libelant * ite

shall file'a sworn return of such service and mailing.”’

-It would searcely be likely that ‘‘such’’ service, namely,

‘forthwith, ee would. be linked to any mailing no matter

* ‘how dilatory. The next sentence supplies a further clue

‘-in its declaration that “Sneh service and mailing shall '

constitute valid service on the United States."’ «If, ‘is

libelant. argues, serv ice on the United States Attorney is _

the only primary requisite, the coupling of the words

‘such’? and ‘tmailing’’ is virtually .read’ out of the

statute. an

19

"ee 3 a Opmionw

Libelant’s argument that notice to the United States

Attorney should be adequate notice to the United States

-_issnot realistic. Tis conception of a United States Attor-

“ents oc eueam ** in 5 his office snowbound "eventually using his “horse |

and: buggy" ot Gitry—netice of the. libel tee the Attorney

; ‘General may be somewhat altered hy a more modern eom-

miinication systerr but it ignores the funet ion of the At.

torne ‘y General's Office, -The Attorney General is respon-

sible for handling the nation. wide litigation against the

> Government. For convenience of litigants, actual per-

sonal service nay be made in the appropriate ‘district,

thus avoiding the necessity of traveling from North Da.

kota (for exafnple) te Washington, or engaging local

Washington, counsel, to make service. [ttis, neverthecess,

equally important, if not more important, for the Atter

ney General fo reeeive almost simultaneous notice. Ta

final analysis, the ultimate final responsibility for the

handling of cases, both as to pleading and trial taeties as

well as possible settlements, is\ vested ino the Attorney

Gener@e The loc: a 4 nited States \ Attorneys are his depn

ties who possess sue ‘h authority as, he chooses teetestow

upon them® Soecdiseusion of stattfory responsibilities of .

the Attorney General in Jndge Hineks’s coneurring “gre

Gon in Messenaceeé ve United States, 2 Cir, 1956, 231 F-.

+ 328, 229 This praetieal situation -eambined with =

worditig of section 742 impel the conelnsion that “forth.

with’? applies beth to servicer and mailing.

In Citeof New York ve Me: Allistes Brothers, Ines 2.Cir.,

1960, 278 F. 24 Tes, this court held that serviee apon the -

United State. Vierney and the Attorney Gereral more

- than two months after filing was not service “forthwith”

> and affirmed a dismissal of the impleading y tition against

‘the U nited Srates. In Ve Atlister. the service and mailing

.

-

~ =

20

( pinion

were made within the two-year limitation period. The

court specifically. rejected the argument that service could

he made at any time within the statutery period. Seneca

| As to libelant’s argument that mailing is an historic ?

- relic of the past, this court has said ‘‘that the mailing to

-- the Attorney General could not ‘he- dispensed with as

purely formal’.’’ (Messenger v. United States, supra).

. See also Glover v. United States, 109 F. Sypp. 701° (8. D-:

N..Y.); ‘Marich v. United States, 84 FP. Sapp.. 829, 832

(N. D. Calif.) ; California Cas. Indem. Exchange ¥. United

States, 74 F. Supp. 404 (S. D. Cal.); Barnes v\ United

States, 67 F. Supp, 571 (S.D.N. ¥.).

- Libelant suggests that McAllister should be ov Led

The problem is- more basic than refusing to follow Me-

Allister, Messenger and. the other. cases. cited. . Section

742 was enacted for a purpose. If Congress in the future

decides that the Attorney General no longer needs to be

notified by forthwith mailing, section 742 ‘may be amended,

Finally, the Gov ‘ernment’ s detay in answering or in-eall-

ing libelant’s failure to mail promptly to his atfention is

not material-beeanse ‘The District Attorney had no power |

to waive conditions or limitations Imposed: by statute, in

respects of snits against the United States” (Munro *

". > United States, supra, p. 41). ;

Affirmed.

Frrenpiy, Circuit Judae (concurring) :

Judge. Moore’s opinion is wholly convineing that there

is no basis for believing the ‘‘forthwith’’ requirement of

46 U. S. C. 6742 to be any less applicable to the mailing

—s.

__ eae prc *

. Opinion

of ‘a copy of the libel ta the Attorney General than to

the service of a copy upon the United States Attorney.

Hence, if, “as the opinion assumes, every failure bya tibel-——

‘ant to comply with a procedural step outlingd i in the Suits

‘in Admiralty Act,.41 Stat. 525 (1920), is ‘*jurisdictional”’

but only if. so, its Draconian conclusion inexorably fol-

lows. : ;

A cannot believe ¢ ongress meant anything of the kind:

q should have supposed that, once Congress gave the basic

consent: to sue the United States,-as.it did in the first

- sentence of <2 of .the Suits in A Imiralty Act, 46 U. S.C:

$742, it was content ‘to have the courts dectde 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 par-

-ticipant, simply assumes a normal role‘in.the antecedent

pattern."* Gilmore and Black, Admiralty (1997), pp.

773-774. Jihas

Nothing to the contrary was ‘decided by. this court ib

Osbourne volute d States, 164 F. 2d 767 (2 Cir. 147),

which held. only thit the **built-in’* two-year statnte of

limitations, 46 U.S.C. ‘745, should be applied in the

Same way as were similar provjsions in. statutes. relating

° ° ° : . ee ee:

_ to suits against private defendants. Indeed, even Schnell

v. United Statess 166 €, 24 479, 482 (2 Cir.), cert. denied, -

334 Us S. 839 (1948). a decision which.Judge Frank, the

author of the Qs/ ourkee_opinion, «characterized in dissent

as-resting—ton the sheerest formality,’’ 166 F.-2d at 484,

did not speak iu tarisdietional terms but sought: to show

the possibility of prejudice to .the United States. How--

ever, the majority opinion in Wessenger v. United States,

731 F. 2d 228 (2.€ ir, 1956), arising under the Tort Claims’ ;

~

af

-_— 3

: Opinion

e

Act, 28 U. S. C. §91346, 2401, 2671 et seq. and F. R. Civ.

Proc..4(d)(4), procecds. on ‘‘jurisdictional’’ lines, and City

of New York w McAllister Brothers, Inc., 278 F. 2a 708,

710 (2 Cir., 1960), reaches a. result explicable only on that

basis, a basis altogther. natural in view of the ‘‘jurisdic-

tional’’ characterization of the statute of limitations in the:

Suits in Admiralty Act, 46 U, S. C. §745, in recent in banc

opinions, / American-Foreiqn SS Corp. v. United States, 265

F. 2d 136, 149 (dissenting opinion of Judge Clark) (2 Cir.,

1958), vacated, 363 U. S. 685: (1960) ; 291 F. 2d 598, 603-604 -

- (2 Cir.), cert. denied, 368°U. S. 895 (1961), but see 291 F.

- 2d-at 616. The body of authority thus accumulated in this _

circuit is too heavy: for a panel to overcome, and I perceive

“no indication. of sorte with the course of decision

ation in banc, see Mr. Justice Frankfurter’s: opinion in. 2

‘Western Pacific Railroad case, 345.U. 8. 247, 270 (1953).

J therefore reluctantly. concur. aa oa