Peters v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________

No. 93-4870
Conference Calendar
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LORA MAE PETERS ET AL.

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Louisiana

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October 27, 1993

Before POLITZ, Chief Judge, and SMITH and WIENER, Circuit Judges.

PER CURIAM:*

Lora Mae Peters and her children filed a wrongful-death

action against the United States following the death of Mrs.

Peters's husband in a Veterans Administration hospital. The

district court dismissed the action because the plaintiffs failed

to serve the United States Attorney within 120 days of filing the

complaint. Because the statute of limitations has expired, the

dismissal operates as a dismissal with prejudice.

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
 No. 93-4870
-2-

Service 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 by registered or certified mail

to the Attorney General and any applicable officer or agency.

See Fed. R. Civ. P. 4(d)(4). If a plaintiff fails to serve the

defendant properly within 120 days of filing the complaint, upon

motion of the defendant or sua sponte by the court with notice to

the plaintiff, the action shall be dismissed without prejudice

unless the plaintiff shows good cause for failure to complete

service. Id. at 4(j). To establish "good cause" the plaintiff

must demonstrate "at least as much as would be required to show

excusable neglect, as to which simple inadvertence or mistake of

counsel or ignorance of the rules usually does not suffice."

Systems Signs Supplies v. United States Dep't of Justice, 903

F.2d 1011, 1013 (5th Cir. 1990) (internal quotations and citation

omitted). This Court reviews a Rule 4(j) dismissal for an abuse

of discretion. Id.

This Court has rejected the argument that service on the

United States Attorney by certified or registered mail is

sufficient under Rule 4(d)(4). See McDonald v. United States,

898 F.2d 466, 467-68 (5th Cir. 1990). The Court also has

rejected the contention that the improper service is cured by

untimely personal service of the complaint, even if the United

States Attorney has actual notice of the action. Id. at 468.

Finally, a Rule 4(j) dismissal is proper even if the limitations
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period has run. Id. The district court did not abuse its

discretion by dismissing the plaintiffs' action.

The plaintiffs also argue that Rule 4(d)(4) as applied is

unconstitutional. They contend that the dismissal "places form

over substance resulting in an unconstitutional denial of access

to the court and a deprivation of property without due process of

law." The plaintiffs cite no authority to support their

proposition that the rule as applied is unconstitutional.

This Court has held that Rule 4(d)(4) is easily

understandable and not unconstitutionally vague. See King v.

Stone, No. 92-7551 (5th Cir. Feb. 3, 1993) (unpublished; copy

attached). In King the Court also stated that although the

operation of the rule may be harsh, "[t]his is the scheme that

Congress has devised, [] and a party's failure to comply with the

express requirements of the applicable rules can result in

substantial prejudice." Id. The plaintiffs' constitutional

challenge to the rule as applied is meritless.

AFFIRMED.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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No. 92-7551
Summary Calendar
_______________

LE ROY CHESTER KING, JR.,

Plaintiff-Appellant,
 No. 93-4870
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VERSUS

MICHAEL P.W. STONE,
Secretary, Department of the Army Agency,

Defendant-Appellee.
_________________________

Appeal from the United States District Court
for the Southern District of Mississippi
(CA-W91-0061(B))
_________________________
(February 3, 1993)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:**

The plaintiff, Le Roy King, filed this title VII complaint

on June 19, 1991, against the Secretary of the Army, asserting

that his five-day suspension was occasioned by racial discrimina-

tion. On December 30, 1991, having failed to effect service of

process, he was granted until January 10, 1992, to serve process.

Returns of service were filed on January 13, 1992, stating

that process had been sent by certified mail to the Attorney

General of the United States, an Army Corps of Engineers attor-

ney, and the Secretary of the Army in care of the United States

Attorney. On January 16, 1992, returns were filed stating that

process had been sent by certified mail to the United States

Attorney and the Secretary of the Army.

**
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
 No. 93-4870
-5-

The district court granted the defendant's motion to dismiss

for failure to effect proper service of process as required by

FED. R. CIV. P. 4(d)(4), i.e., failure to obtain personal service

upon the United States Attorney or an Assistant United States

Attorney or a clerical employee designated by the United States

Attorney to receive service of process. King does not claim that

he complied with rule 4(d)(4) but asserts, instead, that it is

unconstitutionally vague.

Even assuming, arguendo, that the vagueness doctrine applies

to this rule, the rule is easily understandable. As the defen-

dant states, "Rule 4 itself should be clear to anyone who takes

the trouble to read the entire rule. ... Clearly the United

States and its officers are covered by [rule] 4(d)(4) and (5) and

not by 4(d)(1) or (3). Thus the rule is clear that the United

States and its officers are not covered by the provision which

allows mail service."

King also argues that it is unfair to dismiss his complaint

because it is now barred by limitations. This is the scheme that

Congress has devised, however, and a party's failure to comply

with the express requirements of the applicable rules can result

in substantial prejudice. The judgment of dismissal is AFFIRMED.

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