Henderson v. United States

United States Court of Appeals,

Fifth Circuit.

No. 94-40697

Summary Calendar.

Lloyd HENDERSON, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

May 10, 1995.

Appeal from the United States District Court for the Eastern
District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

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 complaint for lack of subject-matter

jurisdiction. Henderson appeals the district court's dismissal,

and we affirm.

I

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, Henderson filed a

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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

fifteen 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 Henderson 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 process 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, --- U.S. ----, 115

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

Henderson's complaint without prejudice for lack of subject-matter

jurisdiction.

Henderson appeals, arguing that (1) the district court granted

him an extension of time in which to effect service of process on

the Government; (2) given the problems 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 satisfied the service requirements of § 742; and (4) the

district court's dismissal of his complaint violated his right to

2
due process.1

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)).2 Under § 742 of the SAA, however, a plaintiff that

1
We do not address Henderson's due process claim because the
district court dismissed his complaint without prejudice, and
Henderson does not argue that a subsequent suit would be
time-barred.
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 120 days after the filing of
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.

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

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has brought suit against the United States under the SAA must

effect service of process "forthwith," 46 U.S.C. app. § 742.3

We review the district court's dismissal of Henderson'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 service of process on the

Government, he was exempt from § 742's "forthwith" requirement.

Under Rule 4(j), the district court was required to dismiss a

plaintiff's complaint 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

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 appropriate 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....

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addressed the question of whether the forthwith 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 condition 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 F.2d 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 prerequisite, 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 § 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 subject-matter jurisdiction or

Henderson's obligations under § 742.

B

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

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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 definition, 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

forthwith.

C

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 reasonably 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 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,

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83 S.Ct. 210, 9 L.Ed.2d 168 (1962) (holding that the term

"forthwith" 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.

III

For the foregoing reasons, we DENY the Government's motion to

dismiss Henderson's appeal,4 but AFFIRM the district court's

dismissal of Henderson's complaint.

4
In a Motion to Dismiss the Appeal as Unmeritorious, the
Government moved for dismissal of Henderson's appeal pursuant 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 dismissal of his
complaint, Henderson's appeal was not frivolous.

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