No. 95-232

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

LLOYD HENDERSON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PEITITON FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT


BRIEF FOR THE UNITED STATES IN OPPOSITION


DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

ROBERT S. GREENSPAN
MICHAEL E. ROBINSON
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217


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QUESTION PRESENTED

The Suits in Admiralty Act, 46 U.S.C. App. 741 et
seq., provides for suits in admiralty against vessels or
cargoes of the United States. Section 2 of that Act
states that "[t]he 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." ..46
U. S. Cl. App. 742. The question presented in this case
is whether compliance with the requirement that the
complaint be served "forthwith" is a jurisdiction-
al condition on the statutory waiver of sovereign
immunity.

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction  . . . . 1
Statement  . . . . 2
Argument  . . . . 5
Conclusion  . . . . 8

TABLE OF AUTHORITIES

Cases:

Amella v. United States, 732 F.2d 711(9th Cir.
1984)  . . . . 5, 7 
Battaglia v. United States, 303 F.2d 683(2d Cir.),
cert. dismissed, 371 U. S. 907(1962)  . . . . 6 
Caminetti v. United States, 242 U.S.470 (1917)  . . . . 7 
City of New York v. McAllister Bros., 278 F.2d 708
(2d Cir. 1960)  . . . . 7
Dickerman v. Northern Trust Co., 176 U. S. 181
(1900)  . . . . 7
Jones &Laughlin Steel, Inc. v. Mon River Towing,
Inc., 772 F.2d 62(3d Cir. 1985)  . . . . 6
Kenyon v. United States, 676 F.2d 1229 (9th Cir.
1981)  . . . . 5-6
Libby v. United States, 840 F.2d 818 (11th Cir.
1988)  . . . . 5, 7
Smith v. United States, 113 S. Ct. 2050 (1993)  . . . . 7
United States v. Holmberg, 19 F.3d1062(5th Cir.),
cert. denied, 115 S. Ct. 482 (1994)  . . . . 2-3, 5, 7
United States v. Mitchell 445 U.S. 535(1980)  . . . .  5
United States v. Sherwood, 312 U. S. 584 (1941 )..... 5,6

Statutes and rules:

Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671
et seq . . . .  6
Public Vessels Act, 46 U.S.C. App. 781 et seq . . . .  2
  46 U. S. C. App. 782  . . . .  2

(III)

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IV

Statutes and rule-Continued:          

Page

Suits in Admiralty Act, 46 U. S. C. App. 741 et seq.....   2
2, 4, 6 U.S.C. App. 742  . . . . 2, 3, 4, 5, 6, 7
3, 46 U. S. C. App. 743  . . . .  5
28 U.S.C. 2072(b)  . . . .  5
Fed. R. Civ. P.:
Rule 4  . . . . 7
Rule 4(j) (1993)  . . . . 3, 5, 6
Rule 4(m) (1995)  . . . . 3

Miscellaneous:

Black's Law Dictionary (5th ed. 1979)  . . . . 7

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In the Supreme Court of the United States

   OCTOBER TERM, 1995

    No. 95-232

LLOYD HENDERSON, PETITIONER

      v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

       OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is
reported at 51 F.3d 574. The order of the district
court (Pet. App. 8-9) is unreported.

       JURISDICTION

The judgment of the court of appeals was entered on
May 10, 1995. The petition for a writ of certiorari was
filed on August 8, 1995. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

(1)

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 2

       STATEMENT

1. Petitioner filed a seaman's personal injury
action against the United States on April 8, 1993,
under the Suits in Admiralty Act (SAA), 46 U.S.C.
App. 741 et seq., and the Public Vessels Act (PVA), 46
U.S.C. App. 781 et seq. Pet. App. 2. Section 2 of the
SAA provides, in pertinent part, that "[t]he 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." 46 U.S.C. App. 742. That re-
quirement is also applicable to petitioner's PVA
action, because of the PVA's requirement that suits
under that Act "shall be subject to and proceed in
accordance with the provisions of" the SAA 46
U.S.C. App. 782.
On May 25, 1993, 47 days after the filing of peti-
tioner's complaint, the Attorney General received a
copy of the complaint by mail. On August 30, 1993, 144
days after filing his complaint, petitioner filed a
motion for postponement in the district court, in
which he claimed. to have been unable to complete
service on the appropriate United States Attorney
due to difficulties with the mail. The court granted
petitioner 15 days to complete service, and the United
States Attorney was served on September 3, 1993, 148
days after petitioner filed suit. The United States
moved to dismiss the action, arguing that petitioner's
failure to effect service of process "forthwith," as
required by the SAA, deprived the court of subject-
matter jurisdiction.  The district court denied the
motion without opinion. Pet. App. 2.
After the district court denied the motion, the Fifth
Circuit issued its opinion in United States v. Holm-

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3

berg, 19 F.3d 1062, cert. denied, 115 S. Ct. 482 (1994).
The court in Holmberg held that the SAA's waiver of
sovereign immunity is conditioned upon the plain-
tiff's compliance with 46 U.S.C. App. 742. See 19 F.3d
at 1064. Because "[conditions to a waiver of sover-
eign immunity are necessarily jurisdictional in
nature," ibid., a plaintiff's failure to effect service of.
a complaint upon the government "forthwith," as
required by Section 742, deprives the district court of
jurisdiction over his claim, id. at 1065. The Holmberg
court held as well that Section 742 "involves
substantive rights because it defines the scope of the
Government's consent to be sued," and that its
requirements therefore cannot be modified by Federal
Rule of Civil Procedure 4(j) (1993). 19 F.3d `at 1065.'
The court "agree[d] that there has been no uniform
definition of forthwith" but concluded that, "under
any definition, service in 103 or 106 days" would not
satisfy the requirements of Section .742. Ibid. In
light of the Fifth Circuit's decision in Holmberg, the
district court in the instant case reconsidered its

___________________(footnotes)

1 At the time petitioner filed his complaint, Rule 4(j) pro-
vided 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. This
subdivision shall not apply to service in a foreign country
pursuant to subdivision (i) of this rule.
In 1993, Rule 4(j) was renumbered 4(m) and was amended in
respects not relevant to this case.

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4

ruling and dismissed petitioner's complaint without
prejudice for lack of subject-matter jurisdiction. Pet.
App. 2.
2. The court of appeals affirmed. Pet. App. 1-7. The
court held that, because the requirements of Section
742 are jurisdictional, the district court's decision to
grant petitioner a 15-day extension to serve his
complaint "did not affect either the court's subject-
matter jurisdiction or [petitioner's] obligations under
 742." Id. at 5-6. Relying on Holmberg, the court
held that petitioner, who had served his complaint cm
the United States Attorney 148 days after it was
filed, could not be said to have effected service
"forthwith." Id. at 6. Finally, the court held that the
word "forthwith" in Section 742 "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." Id. at 7. The court declined,
however, to decide whether service of the complaint
on the Attorney General (47 days after its filing) had
been effected "forthwith," since service upon the
Attorney General alone could not suffice to satisfy
the requirements of Section 742. Ibid.2

___________________(footnotes)

2 The court of appeals declined to address petitioner's
contention that the dismissal of his complaint violated due
process. The court explained that "the district court dismissed
his complaint without prejudice, and [petitioner] [did] not
argue that a subsequent suit would be time-barred." Pet. App.
3 n.1. Petitioner does not pursue his due process claim in this
Court. See Pet. i.

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5

ARGUMENT   

1. This Court has held that the terms of consent
contained in a statutory waiver of sovereign immu-
nity define a court's jurisdiction, United States v.
Mitchell, 445 U.S. 535, 538 (1980), and that the Federal
Rules of Civil Procedure cannot relax the juris-
dictional conditions placed on such a waiver, United
States v. Sherwood, 312 U.S. 584, 589-590 (1941). The
court of appeals adhered to that principle in the
instant case. The requirement that service of the
complaint upon the government be effected "forth-
with" is an express statutory condition on the SAA's
waiver of sovereign immunity; the Federal Rules of
Civil Procedure may "not abridge, enlarge or modify"
that condition. 28 U.S.C. 2072(b). See also Libby v.
United States, 840 F.2d 818,821 (11th Cir. 1988).3 The
court of appeals' decision is in accord with rulings of
the Second, Ninth, and Eleventh Circuits, the other
circuits that hear the vast majority of admiralty
eases and the only other circuits to rule on the
question. See, e.g., Libby, 840 F.2d at 819-821; Amella
v. United States, 732 F.2d 711, 713 (9th Cir. 1984);
Kenyon v. United States, 676 F.2d 1229, 1231 (9th Cir.

___________________(footnotes)     

3 The SAA's waiver of sovereign immunity is in Section 742,
as is the requirement that service upon the government be
effected "forthwith."  The procedural requirements for an
action under the SAA, however, are in Section 743. See 46
U.S.C. App. 742 and 743. The structure of the statute supports
the conclusion that Section 742 is not simply procedural, but is
a substantive provision that former Rule 4(j) could not alter..
See, e.g., Holmberg, 19 F.3d at 1064-1065; Libby, 840 F.2d at 820.

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6

1981); Battaglia v. United States, 303 F.2d 683,685-686
(2d Cir.), cert. dismissed, 371 U.S. 907 (1962).'
This Court recently denied the petition for certio-
rari in Holmberg, which raised the same question as
is presented in the instant case. Contrary to peti-
tioner's submission (see Pet. 6-7), the decision below
does not conflict with the Third Circuit's holding in
Jones & Laughlin Steel, Inc. v. Mon River Towing,
Inc., 772 F.2d 62 (3d Cir. 1985), In Jones & Laughlin
Steel, the Third Circuit held that it lacked juris-
diction under the SAA and that jurisdiction existed
only under the Federal Tort Claims Act. Id. at 64-65.
The court's statement that "the [SAA'S] requirement
of forthwith service of process is not jurisdictional
but rather is procedural," id. at 66, was dictum.
Petitioner contends (Pet. 7-9) that the 1966 amend-
ments to the Federal Rules of Civil Procedure, which
broadly unified admiralty procedure with the rules of
procedure in civil cases, were intended to supplant
existing service requirements in admiralty pro-
ceedings with a uniform 120-day period provided under
the Federal Rules. As a condition of the govern-
ment's waiver of sovereign immunity, however, Sec-
tion 742 is a substantive limitation on the courts'
jurisdiction that cannot be modified by the Federal
Rules of Civil Procedure. Sherwood, 312 U.S. at 589-
590. 2. Petitioner suggests that the term "forthwith"
should be defined as 120 days, the service requirement
in Rule 4(j). Pet. 15-17. This Court has held, how-
ever, that an undefined term found in a statute should

___________________(footnotes)

4 Petitioner relies (see Pet. 6-7) on earlier district court
decisions from within the Fifth and Eleventh Circuits.

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7

be construed in accordance with its ordinary, natural,
and plain meaning. Smith v. United States, 113 S. Ct.
2050, 2054 (1993); Caminetti v. United States, 242
U.S. 470,485-486 (1917). " `Forthwith' connotes action
which is immediate, without delay, prompt, and with
reasonable dispatch." Amella, 732 F.2d at 713, citing
Black's Law Dictionary 588 (5th ed. 1979); accord
Libby, 840 F.2d at 821; City of New York v.
McAllister Bros., 278 F.2d 708, 710 (2d Cir. 1960).
Indeed, this Court has determined that "forthwith"
"[i]n matters of practice and pleading * * * is
usually construed, and sometimes defined by rule of
court, as within twenty-four hours." Dickerman v.
Northern Trust Co., 176 U.S. 181, 193 (1900). In
contrast, former Rule 4(j) "set[] 120 days as a
presumption of unreasonable and dilatory delay in
service of the complaint in any civil suit." Amella,
732 F.2d at 713. The Rule 4 benchmark for unrea-
sonable delay is not an appropriate test for deter-
mining whether service has been effected "forth-
with." Holmberg, 19 F.3d at 1065.
3. Finally, petitioner argues that the Fifth Cir-
cuit's interpretation of Section 742 places unwar-
ranted restrictions on the district courts' power to
extend the time for service of process. Pet. 17-19.
Petitioner notes that this Court has applied equitable
tolling rules to federal statutes of limitation, and he
asserts that a federal court should similarly possess
the power to extend the time for service of process
when the court deems it appropriate. The tolling
principles applicable to statutes of limitations govern-
ing other causes of action, however, are of little rele-
vance in construing the SAA's requirement that
service of process be effected "forthwith."

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8

       CONCLUSION

The petition for a writ of certiorari should be
denied.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

ROBERT S. GREENSPAN
MICHAEL E. ROBINSON
Attorneys

OCTOBER 1995

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No. 950-232

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

LLOYD HENDERSON, PETITIONER

v.

UNITED STATES OF AMERICA


ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT


BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

ROBERT S. GREENSPAN
MICHAEL E. ROBINSON
TIMOTHY R. LORD
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217


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QUESTIONS PRESENTED
1. Whether the requirement of the Suits in Admir-
alty Act that a complaint be served "forthwith" has
been superseded by Federal Rule of Civil Procedure
4(j) (1988), which requires service within 120 days.
2. Whether the district court correctly dismissed
petitioner's complaint for failure to effect service
"forthwith."

(I)

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TABLE OF CONTENTS

Opinions below  . . . . 1
Jurisdiction  . . . . 1
Statutes and rules involved  . . . . 1
Statement  . . . . 2
A. Statutory Background  . . . . 2
B. Proceedings Below  . . . . 8
Summary of argument  . . . . 12
Argument:
I. The requirement that a complaint under the
  Suits in Admiralty Act must be served "forth-
  with'' has not been superseded by Rule 4(j) of
  the Federal Rules of Civil Procedure  . . . . 15
  A. The SAA's requirement that the complaint
   be served "forthwith" is not "in conflict with"
   Rule 4(j)  . . . . 17
  B. Even if Rule 4(j) were otherwise construed
   to confer an affirmative right to serve a
   complaint at anytime within the 120-day
   period, its application to SAA litigation
   would be contrary to both 28 U.S.C. 2072(b)
   and Federal Rule of Civil Procedure 82  . . . . 26
II. The district court correctly dismissed petition-
  er's complaint without prejudice for failure to
  effect service "forthwith"  . . . . 29
Conclusion  . . . . 32
Appendix  . . . . .1a 
     
TABLE OF AUTHORITIES

Cases:

Amella v. United States, 732 F.2d 711(9th Cir.
1984)  . . . . 12, 14, 15, 18,27, 29
Battaglia v. United States, 303 F.2d 683(2d Cir.),
cert. dismissed, 371 U.S. 907(1962)  . . . . 12,28
Blamberg Bros. v. United States, 260 U. S. 452
(1923) . . . .  2

(III)

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IV

Cases-Continued:

Page

California Casualty Indemnity Exchange v. United
States, 74 F. Supp. 404 (S.D. Calif. 1947)  . . . . 29
Canadian Aviator v. United States, 324 U.S. 215
(1945)  . . . . 5  
City of New York v. McAllister Bros., Inc.,
278 F.2d 708 (2d Cir. 1960)  . . . . 15
Connecticut National Bank v. Germain, 503 U.S.
249 (1992)  . . . . 17
Cook v. United States on behalf of U.S. Department
of Labor, 978 F.2d 164 (5th Cir. 1992)  . . . . 28
Cotto v. United States, 993 F.2d 274 (1st Cir.
1993)  . . . . 28
Danstrup v. The Richmond P. Hobson, 112 F.
Supp. 851 (E.D.N.Y. 1953)  . . . . 28
Dickerman v. Northern Trust Co., 176 U.S. 181
(1900)  . . . . 14, 29
Doe v. Springfield Boiler & Mfg. Co., 104 F. 684
(9th Cir. 1900)  . . . . 24 
English v. General Electric Co., 496 U.S. 72 (1990). . . . 22
FDIC v. Meyer, 114 S. Ct. 996 (1994)  . . . . 14, 26
Hanna v. Plumer, 380 U.S. 460 (1965)  . . . . 18, 19
Hust v. Moore-McCormack Lines, Inc., 328 U.S.
707 (1946)  . . . . 6
Interpool Ltd. v. Char Yigh Marine (Panama) S. A.,
890 F.2d 1453 (1989), amended on denial of reh'g,
918 F.2d 1476 (9th Cir. 1990)  . . . . 4
Jones & Laughlin Steel, Inc. v. Mon River Towing,
Inc., 772 F.2d 62 (3d Cir. 1985)  . . . . 12
Kenyon v. United States, 676 F.2d 1229 (9th Cir.
1981)  . . . . 12
Libby v. United States, 840 F.2d 818 (11th Cir.
1988)  . . . . 12, 27
Louisville Underwriters, In re, 134 U.S. 488 (1890)  . . . . 24 
Marich v. United States, 84 F. Supp. 829 (N.D.
Cal. 1949)  . . . . 21
Martin v. Miller, 65 F.3d 434 (5th Cir. 1995)  . . . . 6, 7 

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v

Cases-Continued:              

Page

McMahon v. United States, 342 U.S. 25 (1951)  . . . . 7,27
Meridian International Logistics, Inc. v. United
States, 939 F.2d 740 (9th Cir. 1991) . . . .  28
Morton v. Mancari, 417 U.S. 535 (1974) . . . . 17
Norfolk Southern R.R. v. Foreman, 244 F. 353
(4th Cir. 1917) . . . .  24
Radzanower v. Touche Ross & Co., 426 U.S. 148
(1976) . . . .  20
Rodinciuc v. United States, 175 F.2d 479 (3d Cir.),
cert. denied, 338 U.S. 895 (1949) . . . .  28
Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984)  . . . . 12, 17
Stevens Technical Services, Inc. v. United States,
913 F.2d 1521 (11th Cir. 1990) . . . .  3
The Lake Monroe, 250 U.S. 246 (1919)  . . . .  2
United States v. Batchelder, 442 U.S. 114 (1979) . . . . 20
United States v. Bradley, 428 F.2d 1013 (5th Cir.
1970) . . . .  29
United States v. Holmberg, 19 F.3d 1062 (5th Cir.),
cert. denied, 115 S. Ct. 482 (1994) . . . . 10, 11, 27, 28
United States v. Isthmian S.S. Co., 359 U.S. 314
(1959)  . . . . 24
United States v. Mitchell, 445 U.S. 535 (1980)  . . . . 26
United States v. United Continental Tuna Corp.,
425 U.S. 164 (1976)  . . . . 3, 8
United States Shipping Board Emergency Fleet
Corp. v. Rosenberg Bros. & Co., 276 U.S. 202
(1928)  . . . . 4
Walker v. Armco Steel Corp., 446 U.S. 740
(1980)  . . . . 19
Wood v. United States, 41 U.S. (16 Pet.) 342
(1842)  . . . . 17
Statutes, regulations and rules:
Act of July 8, 1946, ch. 543, 202, 60 Stat. 501  . . . . 6

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VI

Statutes, regulations and rules-Continued:

Act of Dec. 13, 1950, ch. 1136, 64 Stat. 1112 (46 U.S.C.
745)  . . . . 25
Act of Sept. 13, 1960, Pub, L. No. 86-770, 3,74 Stat,
912 (46 U.S.C. 742)  . . . . 25
Act of Aug. 29, 1972, Pub. L. No. 92-417, 3, 86 Stat.
656 (46 U.S.C. 749)  . . . . 25
Clarification Act of March 24, 1943, ch. 26, 1,
57 Stat. 45  . . . . 6
  50 U.S.C. App. 1291(a)  . . . . 7, 8
Federal Rules of Civil Procedure Amendments Act
of 1982, Pub. L. No. 97-462,2,96 Stat. 2527 (1983) . . . . 16
Federal Tort Claims Act, 28 U.S.C. 2675  . . . . 28
Maritime Act of 1981, Pub. L. No. 97-31,95 Stat. 151 . . . . 6
   12(25),95 Stat. 155 (46 U.S.C. 743,747,
   749-752)  . . . . 25
Public Vessels Act, 46 U.S.C. App. 781-790  . . . . 8
  46 U.S.C. App. 781  . . . . 8 
  46 U.S.C. App. 782  . . . . 9
Reorganization Plan No. 21 of 1950, 64 Stat. 1273 . . . . 6
Rules Enabling Act, 28 U.S.C. 2071 et seq.:
28 U.S.C. 2072  . . . . 1-2, 16, la
28 U.S.C. 2072(b)  . . . . 14, 16, 17, 26, 27, la
Shipping Act of 1916, ch. 451,39 Stat. 728 . . . . 2
 9,39 Stat. 730-731 . . . .  2
Suits in Admiralty Act, ch. 95,41 Stat. 525 (1920) . . . . 2
46 U.S.C. APP. 741 . . . . 3,4,23
46 U.S.C. App. 741 752 . . . . 2
46 U.S.C. App. 742 . . . .passim, 1a
46 U.S.C. App. 743 . . . . 2, 5, 13, 23, 24, 26, 27, 2a
46 U.S.C. App. 745 . . . . 5, 6,23
46 U.S.C. App. 763a . . . . 23
46 C.F.R. Pt. 327  . . . .  7
Fed. R. Civ. P.:
Rule 3  . . . . 28
Rule 4 . . . . 19, 20, 3a
Rule 4 advisory committee's note (1937
Adoption)  . . . . 19
Rule 4(a) (1988) . . . . 9
Rule 4(a)  . . . .  9

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VII

Rules-Continued:              

Page

Rule 4(b) (1988) . . . .  9
Rule 4(b)  . . . .  9
Rule 4(c)(1)  . . . .  9
Rule 4(d) (1988) . . . .  9,18, 19
Rule 4(d)(4) (1988) . . . .  8
Rule 4(j) (1988)  . . . . passim
Rule 4(m)  . . . .  8
Rule 12(a) (1988)  . . . .  8
Rule 82  . . . . 2, 14, 16,26, 27,3a

Miscellaneous:

                  Amendments to Admiralty Law: Hearings Before
the Subcomm. of the Senate Comm. on the Judiciary,
61st Cong., 2d Sess. (1910)  . . . . 5
Black's Law Dictionary (6th ed. 1990)  . . . . 15
G. Gilmore & C. Black, The Law of Admiralty
(1st ed. 1957)  . . . . 4
G. Reesa, Note, Rule 4(j) of the Federal Rules of Civil
Procedure and the Forthwith Service Requirement
of the Suits in Admiralty Act, 54 Fordham L. Rev.
1195 (1986)  . . . . 20
S. 3295, 50th Cong., 1st Sess. (1888)  . . . . 4
S. 7627, 61st Cong., 2d Sess. (1910)  . . . . 5
D. Siegel, Practice Commentaries, 28 U.S.C.A.
Fed. R. Civ. P. 4, at 85 (1992)  . . . . 30
Suits in Admiralty Against the United States: Hear-
ing on S. 2253 Before Senate Comm. on Commerce,
66th Cong., 1st Sess. (1919)  . . . . 3

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In the Supreme Court of the United States

OCTOBER TERM, 1995

 No. 95-232

LLOYD HENDERSON, PETITIONER

v.

UNITED STATES OF AMERICA

   ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

      OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is
reported at 51 F.3d 574. The order of the district
court (Pet. App. 8-9) is unreported.

       JURISDICTION

The judgment of the court of appeals was entered on
May 10, 1995. The petition for a writ of certiorari was
filed on August 8, 1995, and was granted on November
22, 1995 (116 S. Ct. 493). The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).

   STATUTES AND RULES INVOLVED

The following statutes and rules are set forth
in the appendix to this brief: 28 U.S.C. 2072 (Rules

(1)

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2

Enabling Act); 46 U.S.C. App. 742 and 743 (Suits in
Admiralty Act); Federal Rule of Civil Procedure 4(j)
(1988); and Federal Rule of Civil Procedure 82.

       STATEMENT

A. Statutory Background
1. Prior to 1916, the doctrine of sovereign immun-
ity barred any admiralty suit against the United
States. In order to redress harms done to private
parties by the government's vessels and alleviate the
need for private bills designed to compensate such
persons, Congress in 1916 enacted the Shipping Act,
ch. 451, 39 Stat. 728. That statute "established] a
United States Shipping Board for the purpose of
encouraging, developing, and creating a naval aux-
iliary and naval reserve and a merchant marine. "
39 Stat. 728 (preamble). Section 9 of the Act provided
that Shipping Board vessels employed as merchant
vessels were subject to "all laws, regulations, and lia-
bilities governing merchant vessels." 39 Stat. 730-731.
In The Lake Monroe, 250 U.S. 246 (1919), this
Court construed the Shipping Act as subjecting Ship-
ping Board merchant vessels to all the incidents of
private in rem admiralty actions, including arrest and
seizure of the vessel. As a result of the Lake Monroe
decision, the United States was required to appear
and post bond for the release of vessels arrested and
seized pursuant to in rem admiralty proceedings. See
Blamberg Bros. v. United States, 260 U.S. 452, 458-
459 (1923). The Suits in Admiralty Act (SAA), ch. 95,
41 Stat. 525 (1920)(46 U.S.C. App. 741-752), enacted in
response to the decision in Lake Monroe,1 represents
    
___________________(footnotes)

1 See Blamberg Bros., 260 U.S. at 458 (SAA "was passed to
avoid the embarrassment to which the Government found itself

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3

Congress's effort to permit the adjudication of admir-
alty actions against the United States in a manner
that does not unduly interfere with the government's
conduct of maritime operations.2  See generally
United States v. United Continental Tuna Corp., 425
U.S. 164, 170-171 (1976); Stevens Technical Services,
Inc. v. United States, 913 F.2d 1521, 1527 (11th Cir.
1990).
Section 1 of the SAA provides that "[n]o vessel
owned by the United States * * * [shall] be subject
subjected by the [Shipping Act], by the ninth section of which
vessels in which the United States had an interest and which
were employed as merchant vessels were made liable as such to
arrest or seizure for enforcement of maritime liens") (citing
Lake Monroe).

___________________(footnotes)

2 The legislative history of the SAA indicates that Congress
was made aware of a need for promptness in admiralty litiga-
tion, including suits against the United States. Ira A. Camp-
bell, a Special Assistant to the Attorney General in Admiralty
who helped to draft the SAA, testified that
[t]his bill * * * is providing the machinery by which all
admiralty litigation can be handled. Here is what you are
facing as the result of the conditions to-day * * * .
There is no litigation which requires such prompt and
immediate action, if it is properly taken care of, as admir-
alty litigation,] * * * because your witnesses are all
sailors, as a rule; your vessels come into the port where
sailors disappear and you can not find them. So it may be
that your case will be won or lost upon the one man whom
it is impossible to locate. * * * [I]nasmuch as Congress is
passing these [private] bills constantly, and creating the
right of suit in such cases, it might be well to consider the
advisability of authorizing such litigation, so that such liti-
gation may be taken care of promptly by the Government.
Suits in Admiralty Against the United States: Hearing on
S. 2253 Before the Senate Comm. on Commerce, 66th Cong., 1st
Sess. 27-28 (1919).

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4

to arrest or seizure by judicial process in the United
States or its possessions." 46 U.S.C. App. 741. Sec-
tion 2 of the Act replaces the in rem action with the
right to file a " libel in personam." 46 U.S.C. App.
742.3 Section 742 states that, "[i]n cases where if
such vessel were privately owned or operated, * * *
a proceeding in admiralty could be maintained, any
appropriate nonjury proceeding in personam may be
brought against the United States." 46 U.S.C. App.
742.4 That Section requires that "[t]he libelant shall
forthwith serve a copy of his libel on the United
States attorney for such district [the district in
which suit is filed] and mail a copy thereof by regis-
tered 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 consti-
tute valid service on the United States."  Ibid.5
                            
___________________(footnotes)

3 "In the parlance of admiralty law, a  "libel"  is a Complaint."
Internal Ltd. v. Char High Marine (Panama) S. A., 890 F.2d
1453, 1457 n.8 (1989)-(citing G. Gilmore & C. Black, The Law of
Admiralty $1-12, at 34 (1st ed. 1957)), amended on denial of
reh'g, 918 F.2d 1476 (9th Cir. 1990).
4 See United States Shipping Board Emergency Fleet Corp.
v. Rosenberg Bros. & Co., 276 U.S. 202, 212 (1928) (SAA serves
"to exempt from seizure and arrest merchant vessels of the
United States operated by it and its subordinate shipping cor-
porations and to substitute for a suit in rem one in personam
* * * in which the personal liability of the United States took
the place of the vessel").
5 The first in a succession of bills providing for suits in
admiralty against the United States was introduced as S. 3295,
50th Cong., 1st Sess. (1888). It was not until 1910, however,
that the forthwith service language appeared in these legisla-
tive proposals. In hearings before a subcommittee of the Senate
Judiciary Committee, the following colloquy occurred between

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5

Section 3 of the SAA states that "[s]uch suits shall
proceed and shall be heard and determined according
to the principles of law and to the rules of practice
obtaining in like cases between private parties." 46
U.S.C. App. 743. Section 743 further provides that,
"[i]f the libelant so elects in his libel, the suit may
proceed in accordance with the principles of libels in
rem wherever it shall appear that had the vessel or
cargo been privately owned and possessed a libel in
rem might have been maintained. Election so to
proceed shall not preclude the libelant in any proper
case from seeking relief in personam in the same
suit." Ibid.; see Canadian Aviator v. United States,
324 U.S. 215, 226-227 (1945) (SAA permits recovery
against the United States under either in personam
or in rem principles). Section 5 of the Act states that
suits under the SAA "may be brought only within two

___________________(footnotes)

Senator Brandegee and Archibald G. Thacher, Proctor in Ad-
miralty, who appeared before the subcommittee

Senator Brandegee. In section 3 should there not be
some provision as to when all these things should be done?

Mr. Thacher. The filing of the libel would have to be
done within two years of the cause of action.
Senator Brandegee. But the serving of the Attorney-
General?

Mr. Thacher. I should say serve "forthwith." There is
no reason why it should not be done promptly after the
filing of the libel.

Amendments to Admiralty Law: Hearings Before the Sub-
comm. of the Senate Comm. on the Judiciary, 61st Cong., 2d
Sess. 16 (1910). The next version of the bill, S. 7627, 61st Cong.,
2d Sess. (1910), contained the requirement that the libel be
served "forthwith."

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6

years after the cause of action arises." 46 U. S. C. App.
7-45. 2. The Clarification Act of March 24, 1943, ch. 26,
1,57 Stat. 45, provides an action for claims arising
from employment in the crew of vessels owned by the
United States through the Maritime Administration,
the successor to the War Shipping Administration.6
The statute provides that
[o]fficers and members of crews (hereinafter
referred to as "seamen") employed on United
States or foreign flag vessels as employees of the
United States through the War Shipping Admin-
istration shall, with respect to * * * death,
injuries, illness, maintenance and cure, loss of
effects, detention or repatriation, * * * have al 1
of the rights, benefits, exemptions, privileges, and
liabilities, under law applicable to citizens of the

___________________(footnotes) 

6 "[D]uring most of the Second World War substantially our
entire merchant marine became part of a single vast shipping
pool, said to have been the largest in history, operated and
controlled by the United States through the War Shipping
Administration." Hust v. Moore-McCormack Lines, Inc., 328
U.S. 707, 709 (1946) (footnote omitted). The War Shipping
Administration was established by Executive Order on
February 7, 194.2. See id. at 709 n.2. Approximately three
years after the passage of the Clarification Act, the functions of
the War Shipping Administration were transferred to the
United States Maritime Commission (the successor agency to
the Shipping Board, see id. at 717 n.21) by the Act of July 8,
1946, ch. 543,  202, 60 Stat. 501, and subsequently to its
successor agency the Maritime Administration.  Reorganiza-
tion Plan No. 21 of 1950, 64 Stat. 1273; see Martin v. Miller, 65
F.3d 434, 439 (5th Cir. 1995). The Maritime Administration
was transferred from the Department of Commerce to the
Department of Transportation by the Maritime Act of 1981,
Pub. L. No. 97-31, 95 Stat. 151.

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7

United States employed as seamen on privately
owned and operated American vessels.
50 U.S.C. App. 1291(a). See generally Martin v.
Miller, 65 F.3d 434,437-438 (5th Cir. 1995) (discussing
history of the Clarification Act). The Act further
provides that such claims "shall, if administratively
disallowed in whole or in part, be enforced pursuant
to the provisions of the Suits in Admiralty Act."
50 U.S.C. App. 1291(a).7
3. At the times that petitioner filed and served his
complaint in the instant case, Federal Rule of Civil
Procedure 4(j) (1988) provided 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. This subdivision shall not apply to ser-
vice in a foreign country pursuant to subdivision
(i) of this rule.

___________________(footnotes)

7 The Clarification Act states that "[t]he term admin-
istratively disallowed' means a denial of a written claim in
accordance with rules or regulations prescribed by the Ad-
ministrator, War Shipping Administration." 50 U.S.C. App.
1291(a). See McMahon v. United States, 342 U.S. 25, 26-28
(1951) (discussing administrative claim requirement). The
Maritime Administration's current regulation governing ad-
ministrative claims is set forth at 46 C.F.R. Part 327.

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8

Effective December 1, 1993, Rule 4(j) was renum-
bered 4(m) and was amended in respects not relevant
to this case.8

B. Proceedings Below

1. After complying with the administrative claim
requirement of the Clarification Act (see J.A. 18),
petitioner filed a seaman's personal injury action
against the United States on April 8, 1993. See J.A. 5-
12 (complaint).9 The complaint alleged that petitioner
 
___________________(footnotes)
                         
8 At the times that the complaint in this case was filed and
served, Federal Rule of Civil Procedure 4(d)(4) (1988) pro-
vided that a complaint shall be served 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 certified mail
to the Attorney General of the United States." Federal Rule
of Civil Procedure 12(a) (1988) provided that "[t]he United
States * * * shall serve an answer to the complaint * * *
within 60 days after the service upon the United States
attorney."
9 Petitioner's complaint invoked both the SAA and the Pub-
lic Vessels Act (PVA), 46 U.S.C. App. 781-790. See J.A. 5. The
PVA provides that "[a] libel in personam in admiralty may be
brought against the United States * * * for damages caused
by a public vessel of the United States, and for compensation
for towage and salvage services, including contract salvage,
rendered to a public vessel of the United States." 46 U.S.C.
App. 781. See United Continental Tuna, 425 U.S. at 171-172
(discussing history and purpose of PVA). Because the Clari-
fication Act provides that claims arising from employment
aboard Maritime Administration vessels "shall * * * be
enforced pursuant to the provisions of the Suits in Admiralty
Act," 50 U.S.C. App. 1291(a), see pages 6-7, supra, petitioner
had no cause of action under the PVA. In any event, the

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9

had suffered "serious and permanent injuries * * *
on or about August 27, 1991," J.A. 6, while acting "in
the course and scope of his employment aboard the
vessel in question," J.A. 7. Although petitioner's
attorneys maintained their offices in Houston, see
J.A. 12, the complaint was filed in the Galveston
Division of the Southern District of. Texas rather
than in the Houston Division. See Pet. Br. 4; J.A. 5.10
Petitioner's attorneys thereafter sought to obtain
the appropriate summons forms by mail. Pet. Br. 4-5;
J.A. 51-52.11 They also engaged a local "constable" to
effectuate service on the United States. Pet. Br. 4-5;
J.A. 52,55-56. Those indirect dealings with the Gal-

___________________(footnotes)

requirement of "forthwith service" applies equally to PVA
actions, since the PVA provides that "[s]uch suits shall be
subject to and proceed in accordance with the provisions of"
the SAA. 46 U.S.C. App. 782.
10 Suits under the SAA may 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." 46 U.S.C. App. 742. The com-
plaint in this case alleged that petitioner resided within the
Southern District of Texas. J.A. 6. The record contains no
explanation of petitioner's decision to file suit in the Galveston
Division rather than in the Houston Division.
11 At the times that petitioner's complaint was filed and
served, Federal Rule of Civil Procedure 4(a) (1988) provided:
"Upon the filing of the complaint the clerk shall forthwith
issue a summons and deliver the summons to the plaintiff or
the plaintiff's attorney, who shall be responsible for prompt
service of the summons and a copy of the complaint." Rule
4(b) provided that "[t]he summons shall be signed by the clerk
[and] be under the seal of the court." Rule 4(d) stated that
"[t]he summons and complaint shall be served together." The
substance of those provisions is retained in current Rules 4(a),
(b), and (c)(l).

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10

veston district court's clerk's office precipitated a
series of mishaps with the mail and, apparently, with
counsel's ability to secure properly completed sum-
mons forms.  Pet. Br. 5; J.A. 52. The Attorney
General received a copy of the complaint (served on
her by mail) on May 25, 1993,47 days after it was filed.
See Pet. Br. 5; J.A. 52. On August 30, 1993, 144 days
after filing his complaint, petitioner filed a motion for
postponement in the district court, in which he
claimed to have been unable to complete service on the
appropriate United States Attorney due to difficulties
obtaining the proper summons form and with the mail.
Pet. Br. 6; J.A. 13-14; Pet. App. 2. The court granted
petitioner 15 days to complete service, J.A. 15, and the
United States Attorney was served on September 3,
1993, 148 days after petitioner filed suit. Pet. Br. 6;
J.A. 33-34; Pet. App. 2. On the government's unop-
posed motion, the case was subsequently transferred
to the Eastern District of Texas, Beaumont Division.
See J.A. 43.12
2. The United States moved to dismiss the action,
arguing that petitioner's failure to effect service of
the complaint "forthwith," as required by the SAA,
deprived the court of subject-matter jurisdiction. The
district court denied the motion without opinion. Pet.
App. 2. After the district court denied the motion,
the Fifth Circuit issued its opinion in United States
v. Holmberg, 19 F.3d 1062, cert. denied, 115 S. Ct.
482 (1994). The court in Holmberg held that the
SAA's waiver of sovereign immunity is conditioned

___________________(footnotes)
  
12 Section 2 of the SAA provides that "[u]pon application of
either party the cause may, in the discretion of the court, be
transferred to any other district court of the United States."
46 U.S.C. App. 742.

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11

upon the plaintiff's compliance with Section 2 of the
SAA, 46 U.S.C. App. 742. 19 F.3d at 1064. Because
"[conditions to a waiver of sovereign immunity are
necessarily jurisdictional in nature," ibid., the court
reasoned, a plaintiff's failure to effect service of a
complaint upon the government "forthwith," as re-
quired by Section 742, deprives the district court of
jurisdiction over his claim, 19 F.3d at 1065. The court
also held that Section 742 "involves substantive
rights because it defines the scope of the Govern-
ment's consent to be sued," and that its requirements
therefore could not be modified by Federal Rule of
Civil Procedure 4(j). 19 F.3d at 1065. The court
"agree[d] that there has been no uniform definition of
forthwith" but concluded that, "under any definition,
service in 103 or 106 days" would not satisfy the re-
quirements of Section 742. 19 F.3d at 1065. In light of
the Fifth Circuit's decision in Holmberg, the district
court in the instant case reconsidered its ruling and
dismissed petitioner's complaint without prejudice for
lack of subject-matter jurisdiction. Pet. App. 2,8-9.
3. The court of appeals affirmed. Pet. App. 1-7.
Because the requirements of Section 742 are juris-
dictional, the court held, the district court's decision
to grant petitioner a 15-day extension to file his com-
plaint "did not affect either the court's subject-matter
jurisdiction or [petitioner's] obligations under $742."
Pet. App. 5-6. Relying on Holmberg, the court held
that petitioner, who had served his complaint on the
United States Attorney 148 days after it was filed,
could not be said to have effected service "forthwith."
Pet. App. 6. Finally, the court held that the word
"forthwith" in Section 742 "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

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12

by registered mail to the Attorney General of the
United States." Pet. App. 7. The court therefore
declined to decide whether service of the complaint on
the Attorney General (47 days after its filing) had
been effected "forthwith," explaining that service
upon the Attorney General alone would not, in any
event, suffice to satisfy the requirements of Section
742. Pet. App. 7.13

     SUMMARY OF ARGUMENT

1. The statutory requirement that the complaint
in an SAA suit be served "forthwith" has not been
impliedly repealed by Federal Rule of Civil Procedure
4(j), which generally mandates that a complaint not
served within 120 days shall be dismissed without
prejudice. This Court has repeatedly emphasized
that, "where two statutes are capable of co-existence,
it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard
each as effective." Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1018 (1984) (internal quotation marks omit-

___________________(footnotes)
                               
13 The Fifth Circuit's decision in the instant case was in
accord with rulings of the Second, Ninth, and Eleventh Cir-
cuits, the other circuits that hear the vast majority of admir-
alty cases. See, e.g., Libby v. United States, 840 F.2d 818, 819-
821 (11th Cir. 1988); Amella v. United States, 732 F.2d 711, 713
(9th Cir. 1984); Kenyon v. United States, 676 F.2d 1229, 1231
(9th Cir. 1981); Battaglia v. United States, 303 F.2d 683, 685-
686 (2d Cir.), cert. dismissed, 371 U.S. 907' (1962). The Third
Circuit has expressed- the contrary view, stating that "Rule 4(j)
* * * supersedes the Suits in Admiralty Act's requirement of
forthwith service." Jones & Laughlin Steel, Inc. v. Mon River
Towing, Inc., 772 F.2d 62, 66 (3d Cir. 1985). That statement
was dictum, however, since the Third Circuit held that it
lacked jurisdiction under the SAA and that jurisdiction existed
only under the Federal Tort Claims Act. Id. at 64-65.

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13

ted). Rule 4(j) does not confer an affirmative right to
take 120 days to serve the complaint. It simply states
that, "[i]f service of the summons and complaint is not
made upon a defendant within 120 days after the filing
of the complaint, the court * * * shall dismiss the
action without prejudice." The Rule thereby estab-
lishes an outer boundary for timely service in federal
civil cases generally.  The determination that no
plaintiff (absent a showing of good cause) should take
more than 120 days to serve a complaint is in no way
inconsistent with Congress's decision to require
immediate service in a particular category of cases.
Contrary to petitioner's argument, the SAA was
not intended to subject the United States to the en-
tire body of law applicable to admiralty suits between
private parties. With respect to matters not covered
by a specific provision of the SAA, the statute makes
clear that SAA suits "shall proceed and shall be heard
and determined according to the principles of law and
to the rules of practice obtaining in like cases be-
tween private parties." 46 U.S.C. App. 743. Congress
might have permitted the time for service of the
complaint to be similarly governed by the rules
applicable to suits against private defendants, but it
chose to insist that the complaint be served "forth-
with." In other respects as well-e.g., a shortened
statute of limitations, and a prohibition on the arrest
and seizure of the purportedly offending vessel-the
SAA specifies a rule different from that applicable to
private admiralty litigation. Nothing in the Federal
Rules of Civil Procedure undermines Congress's de-
termination that certain matters, including the time
for serving the complaint, should be the subject of an
SAA-specific rule rather than left to the general

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14

principles governing most litigation against private
defendants.
2. Even if Rule 4(j) were generally construed to
confer an affirmative right to serve the complaint at
any time within the 120-day period, it could not super-
sede the SAA's requirement that the complaint be
served "forthwith." It is well established that "[s]ov-
ereign immunity is jurisdictional in nature," and that
"the terms of the United States' consent to be sued in
any court define that court's jurisdiction to entertain
the suit." FDIC v. Meyer, 114 S. Ct. 996, 1000 (1994)
(brackets and internal quotation marks omitted).
Compliance with the SAA's requirement of forthwith
service is therefore a condition precedent to the
district court's exercise of jurisdiction over the suit.
The Rules Enabling Act provides that the Federal
Rules of Civil Procedure "shall not abridge, enlarge
or modify any substantive right." 28 U.S.C. 2072(b).
Federal Rule of Civil Procedure 82 states, moreover,
that the Rules "shall not be construed to extend or
limit the jurisdiction of the United States district
courts." To construe Rule 4(j) as excusing compli-
ance with a statutory condition on the government's
waiver of sovereign immunity would be contrary to
both the Rules Enabling Act and Rule 82.
3 " `Forthwith' connotes action which is imme-
diate, without delay, prompt, and with reasonable
dispatch." Amella v. United States, 732 F.2d 711, 713
(9th Cir. 1984). "In matters of practice and pleading it
is usually construed, and sometimes defined by rule of
court, as within twenty-four hours." Dickerman v.
Northern Trust Co., 176 U.S. 181, 193 (1900). Even
accepting petitioner's declarations in their entirety,
it is clear that petitioner's trial counsel made no
effort to effect immediate service of the complaint in

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15

this case. The district court was therefore correct in
dismissing the complaint without prejudice based on
petitioner's  non-compliance  with the forthwith
service requirement.

        ARGUMENT

I. THE REQUIREMENT THAT A COMPLAINT
  UNDER THE SUITS IN ADMIRALTY ACT
  MUST BE SERVED "FORTHWITH" HAS NOT
  BEEN SUPERSEDED BY RULE 4(j) OF THE
  FEDERAL RULES OF CIVIL PROCEDURE

Section 2 of the Suits in Admiralty Act. (SAA)
requires that the complaint in an SAA case must be
served "forthwith" upon the Attorney General and
the United States Attorney. 46 U.S.C. App. 742.
" `Forthwith' connotes action which is immediate,
without delay, prompt, and with reasonable dispatch."
Amella v. United States, 732 F.2d 711, 713 (9th Cir.
1984) (Kennedy, J.) (citing City of New York v.
McAllister Bros., Inc., 278 F.2d 708, 710 (2d Cir.
1960)); Black's Law Dictionary 654 (6th ed. 1990).
Petitioner contends, however, that Section 742's
requirement of "forthwith service" no longer has the
force of law. Specifically, he argues that the adop-
tion of the Federal Rules of Civil Procedure, their
subsequent application to admiralty cases, and the
promulgation of Federal Rule of Civil Procedure 4(j),
setting a general 120-day limit for service of the
complaint in federal civil suits, have impliedly re-
pealed the requirement that an SAA complaint be
served "forthwith." Pet. Br. 22-24. To support that
view, petitioner relies (see Pet. Br. 28-29) on the

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16

Rules Enabling Act of 1934, as amended. That statute
provides, in pertinent park

(a) The Supreme Court shall have the power to
prescribe general rules of practice and procedure
* ** for cases in the United States district
courts . * * *.

  (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.

28 U.S.C. 2072. 14

Petitioner's reliance on Section 2072(b) is mis-
placed. First, the SAA's requirement that the com-
plaint be served "forthwith" is not "in conflict with"
Rule 4(j). Second, to construe Rule 4(j) as super-
seding the SAA's requirement of forthwith service
would impermissible expand the jurisdiction of the
district court, in violation of both 28 U.S.C. 2072(b)
and Federal Rule of Civil Procedure 82.

___________________(footnotes)

14 As petitioner explains (Pet. Br. 31-33), Rule 4(j) was not
promulgated by this Court pursuant to the Rules Enabling Act,
but was enacted into law as part of the Federal Rules of Civil
Procedure Amendments Act of 1982, Pub. L. No. 97-462, 2, 96
Stat. 2527 (1983). Section 2072(b)'s references to "such rules"
(i.e., rules of procedure prescribed by this Court) are therefore
technically inapplicable to Rule 4(j). We agree with petitioner,
however, that Section 2072(b) provides the best evidence of
congressional intent regarding the proper construction of Rule
4(j) and its interaction with other laws.

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17

A. The SAA's Requirement That The Complaint
  Be Served "Forthwith" Is Not "In Conflict
  With" Rule 4(j)

This Court has repeatedly emphasized that, "where
two statutes are capable of co-existence, it is the duty
of the courts, absent a clearly expressed congres-
sional intention to the contrary, to regard each as
effective." Ruckelshaus v. Monsanto Co., 467 U.S.
986, 1018 (1984) (internal quotation marks omitted).
"Redundancies across statutes are not unusual
events in drafting, and so long as there is no `positive
repugnancy' between two laws, a court must give
effect to both." Connecticut National Bank v. Ger-
main, 503 U.S. 249, 253 (1992) (quoting Wood "v.
United States, 41 U.S. (16 Pet.) 342, 363 (1842)).15
Nothing in the Rules Enabling Act suggests that this
principle is inapplicable to the implementation of the
Federal Rules. Section 2072(b) makes clear that a
provision of law "in conflict with" a Federal Rule is
generally superseded, but it does not suggest that
other than the normal analysis is to be employed in
determining whether such a conflict exists. In the
present case, Section 742 and Rule 4(j) are fully
capable of co-existence, and each should therefore be
regarded as effective.
1. Rule 4(j) provides, in pertinent part, that, "[i]f 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

___________________(footnotes)

15 See also Morton v. Mancari, 417 U.S. 535, 550-551 (1974)
("Where there is no clear intention otherwise, a specific statute
will not be controlled or nullified by a general one, regardless
of the priority of enactment.").

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18

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." Rule 4(j) does not
confer an affirmative right to take 120 days to serve
the complaint. It does not say, for example, that "the
complaint may be served at any time within 120 days
after filing," or that "no complaint served within 120
days will be dismissed for untimely service." Indeed,
the Rule does not by its terms address the proper
treatment of complaints that are served within the
120-day period. See Amella v. United States, 732 F.2d
at 713 ("Rule 4(j) sets 120 days as a presumption of
unreasonable and dilatory delay in service of the
complaint in any civil suit. As such, it fixes an outer
limit on service but does not indicate what lesser time
period qualifies as forthwith.'').16  There is conse-
               
___________________(footnotes)

16 Petitioner relies (see Pet. Br. 29-30) on this Court's
decision in Hanna v. Plumer, 380 U.S. 460 (1966). Massa-
chusetts law required in-hand service of a complaint upon the
executor or administrator of an estate, id. at 462, while Federal
Rule of Civil Procedure 4(d) stated that service of the sum-
mons and complaint "shall be made as follows: (1) Upon an
individual other than an infant or an incompetent person, by
delivering a copy of the summons and of the complaint to him
personally or by leaving copies thereof at his dwelling house or
usual place of abode with some person of suitable age and
discretion then residing therein." 380 U.S. at 461. The Court
held that the Massachusetts rule did not apply, stating that
"the clash [between the two provisions] is unavoidable; Rule
4(d)(1) cays-implicitly, but with unmistakable clarity-that in-
hand service is not required in federal courts." Id. at 470.
Hanna is distinguishable in two respects. First, the question
whether a state procedural rule should be incorporated into
federal practice in diversity litigation is different from the

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19

quently no "positive repugnancy" between Section
742 and Rule 4(j), and each may be enforced according
to its terms.17
Petitioner's only effort to explain why Section 742
is "in conflict with" Rule 4(j) is the statement that
"the `forthwith' requirement of the SAA and Rule 4
service requirements are clearly repugnant since
courts have construed the term `forthwith' as con-
siderably shorter than the 120 days allowed by Rule
4" Pet. Br. 30.18 In a similar vein, one commentator

___________________(footnotes)

question whether a federal statutory provision specifically ad-
dressed to SAA litigation should be enforced according to its
terms. Indeed, the Court in Hanna deemed it "doubtful" that
the Massachusetts requirement of in-hand service would have
applied in a diversity case even if there had been no pertinent
Federal Rule. 380 U.S. at 466. Second, the Court appears to
have construed Rule 4(d) as conferring an affirmative right to
serve process in any of the specified ways. See also Walker v.
Armco Steel Corp., 446 U.S. 740, 749 (1980) (hanna analysis
applies only where there is "a `direct collision' between the
Federal Rule and the state law"). For the reasons stated in the
text, Rule 4(j) confers no affirmative right to take up to 120
days to serve a complaint.
17 petitioner argues (Pet. Br. 33) that, "[i]f Congress intend-
ed there to be any exception to the general rule it was prescrib-
ing [in Rule 4(j)], it certainly could have created exceptions."
The requirement that SAA complaints be served "forthwith,"
however, is not an exception to the rule that any complaint not
served within 120 days must (absent a showing of good cause)
be dismissed.
18 petitioner also relies (Pet. Br. 23, 27) on the 1937 Advisory
Committee Notes to Rule 4, which state that Rule 4 "provide[s]
a uniform and comprehensive method of service for all actions
against the United States," and that other federal statutes "are
modified in so far as they prescribe a different method of ser-
vice or dispense with the service of a summons." Fed. R. Civ.
P. 4 advisory committee's note (1937 Adoption). By their

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20

argues that "the `forthwith' requirement of the SAA
and Rule 4(j) directly collide, because by allowing 120
days for service before dismissal, 4(j) treats as
timely, service that would be untimely under a
forthwith service requirement.." G. Reesa, Note,
Rule 4(j) of the Federal Rules of Civil Procedure
and the Forthwith Service Requirement of the Suits
in Admiralty Act, 54 Fordham L. Rev. 1195, 1205-
1206 (1986). This Court has made clear, however,
that, in determining whether a "positive repugnancy"
exists between two statutes, "[i]t is not enough to
show that the two statutes produce differing results
when applied to the same factual situation." Radzan-
newer v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
See also United States v. Batchelder, 442 U.S. 114,
121 (1979) (later statute held not to repeal an earlier
law even though the two "provide[d] different penal-
ties for essentially the same conduct"). That Rule
4(j) does not itself mandate immediate service does
not mean that it conflicts with a statutory provision
imposing such a requirement.l9

___________________(footnotes)

terms, those comments refer to the method rather than to the
timing of service. Cf. Pet. Br. 10 (noting that "[t]he manner of
service on the United States under the SAA and Rule 4 is
essentially the same").  The Advisory Committee evidently
concluded that a federal statute prescribing a method of
service different from that required by Rule 4 was "in conflict
with" the Rule and therefore superseded. That conclusion was
understandable, given Rule 4's statement that "[s]ervice shall
be made as follows"; but it has no bearing on the question
whether the SAA's "forthwith" service requirement is "in
conflict with" Rule 4(j).
19 Rule 4(j) unquestionably conveys the implicit message that
complaints fried within the 120-day period will not be dismissed
for non-compliance with that Federal Rule. Nothing in the
text of Rule 4(j), however, purports to supersede an indepen-

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21

2. Nor does continued enforcement of Section 742's
forthwith service requirement obstruct the effectu-
ation of the purposes underlying Rule 4(j). Rule 4(j)
applies to the full range of civil cases: it reflects
Congress's conclusion that a 120-day limit on the
time for service generally strikes an appropriate
balance between the goal of conducting litigation
expeditiously and the goal of discouraging dismissals
on grounds unrelated to the merits. The determi-
nation that a 120-day limit is generally appropriate
(i.e., that no plaintiff, absent a showing of good cause,
should take more than 120 days to serve a complaint),
however, is in no way inconsistent with a require-
ment of immediate service in a particular category of
cases.  Congress could have reasonably concluded
that there is a special need for expeditious adjudi-
cation of admiralty litigation. See note 2, supra; see
also Marich v. United States, 84 F. Supp. 829, 832
(N.D. Cal. 1949) (purpose of forthwith service require-
ment is to provide seasonable opportunity for the
government to investigate). Congress could also have
concluded that immediate service of the complaint is
both more important and more practicable in suits
against the government than in litigation against
private parties.20 There is consequently no reason to

___________________(footnotes)

dent statutory provision requiring immediate service in a
particular category of cases.
20 In light of the large volume of suits against the govern-
ment and the public interest in litigation that may bear on the
public fist, Congress might reasonably seek to increase the
precision with which governmental entities may estimate the
range of their potential liabilities at a given point in time. The
120-day time limit established by Rule 4(j) may also reflect
Congress's recognition that a private defendant may be
difficult to locate at the time the complaint is filed. No similar

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22

construe Rule 4(j) as superseding Congress's specific
determination of the appropriate period for service in
suits brought under the SAA.21
3. Petitioner also argues that Congress, in enact-
ing the SAA, intended that actions brought pursuant
to it be governed in their entirety by the legal rules
applicable to admiralty suits against private defen-
dants. See Pet. Br. 17 ("the plain language of the
SAA declared Congress's intent that the government
should be treated in the same manner as private
litigants"). He states as well that "Congress's more
likely intent for including the forthwith requirement
in the SAA was simply to provide a time frame for
service because no external rule regarding the time-
liness of service existed when Congress enacted the
SAA in 1920," well before the adoption of the Federal

___________________(footnotes)
                            
practical difficulties attend the requirement that the United
States Attorney and the Attorney General must be served
"forthwith."
21 In a closely related context, this Court has noted that
"state law is pre-empted to the extent that it actually conflicts
with federal law." English v. General Electric Co., 496 U.S. 72,
79 (1990). The Court has explained that a "conflict" between
state and federal law requiring displacement of the state law
occurs "where it is impossible for a private party to comply
with both state and federal requirements, or where state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress?' Ibid. (citation
and internal quotation marks omitted). Obviously it is not
"impossible" to comply with both Section 742 and Rule 4(j): A
complaint that is served "forthwith" will be timely under both
provisions. For the reasons stated at pages 21-22, supra,
enforcement of Section 742's forthwith service requirement in
the category of cases to which it applies will not "stand[] as an
obstacle to the accomplishment and execution of the purposes
underlying Rule 4(j).

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23

Rules of Civil Procedure in 1938. Pet. Br. 22. Those
contentions are incorrect.
a. Section 3 of the SAA provides that, with respect
to questions that the Act does not specifically
address, SAA suits "shall proceed and shall be heard
and determined according to the principles of law and
to the rules of practice obtaining in like cases
between private parties." 46 U.S.C. App. 743. The
statute does not otherwise provide, however, for
general uniformity of treatment of governmental and
private defendants in admiralty litigation. Indeed, the
initial impetus behind the SAA was Congress's
recognition that one of the traditional incidents of
admiralty practice-the arrest and seizure of the
purportedly offending vessel-had proved disruptive
and undesirable in suits against the United States.
See 46 U.S.C. App. 741 ("NO vessel owned by the
United States * * * [shall] be subject to arrest or
seizure by judicial process in the United States or its
possessions."); pages 2-3, supra. In other respects as
well, the SAA specifies a rule different from that
applicable to private admiralty litigation. Suits under
the SAA, for example, are subject to a shorter statute
of limitations than are other admiralty actions. Com-
pare 46 U.S.C. App. 745 ("Suits as authorized by [the
SAA] may be brought only within two years after the
cause of action arises.") with 46 U.S.C. App. 763a
("Unless otherwise specified by law, a suit for
recovery of damages for personal injury or death, or
both, arising out of a maritime tort, shall not be
maintained unless commenced within three years
from the date the cause of action accrued."). Trial by
jury is not permitted under the SAA. 46 U.S.C. App.
742 (SAA permits "appropriate nonjury proceeding").
Where the decree is for a money judgment, the court

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24

may award "interest. at the rate of 4 per centum until
satisfied." 46 U.S.C. App. 743.22 The fact that the
Federal Rules (rather than the rules of local prac-
tice)23 now govern many of the questions that the
SAA does not specifically address does not undermine
Congress's determination that certain issues (includ-
ing the timeliness of service of the complaint) should
          
___________________(footnotes)
      
22 Petitioner relies (Pet. Br. 17-18) on this Court's statement
in United States v. Isthmian S.S. Co., 359 U.S. 314, 324 (1959),
that "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." On the next page of its opinion,
however, the Court addressed the question whether compound
interest had properly been awarded against the United States
in that SAA suit. The Court did not suggest that compound
interest would have. been unavailable in an analogous suit be-
tween private parties. It determined, however, that the SAA
provision governing interest did not authorize the amounts
awarded by the district court. Id. at 325. And it concluded
that "Congress' demonstrated concern with the problem of
interest under the Suits in Admiralty Act indicates that it in-
tended to cover these awards affirmatively and not have them
controlled by the general command that the suit `shall proceed
and shall be heard and determined according to the principles
of law' applicable to private parties." Ibid. The same analysis
is controlling here.
23 When the SAA was enacted, private admiralty litigation in
the federal courts was governed by the Admiralty Rules of
1844, superseded shortly after the SAA's passage by the Admir-
alty Rules of 1920. Those Rules provided little detail with
respect to the conduct of in personam admiralty suits, and
courts adjudicating such actions often looked to state practice
in resolving procedural issues that the Admiralty Rules did not
address. See, e.g., In re Louisville Underwriters, 134 U.S. 488,
493 (1890); Doe v. Springfield Boiler & Mfg. Co., 104 F. 684, 686
(9th Cir. 1900); Norfolk Southern R.R. v. Foreman, 244 F. 353,
355 (4th Cir. 1917).

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25

be the subject of an SAA-specific rule rather than
left to the background principles governing private
litigation.24
b. Section 743's general provision that SAA liti-
gation should be governed by the rules applicable to
private parties is inconsistent with petitioner's spec-
ulation (Pet. Br. 22) that Congress chose to require
forthwith service only "because no external rule
regarding the timeliness of service existed when
Congress enacted the SAA in 1920." As Section 743
makes clear, Congress was not under the misim-
pression that the absence of uniform federal rules of
procedure required it to enact a comprehensive code
governing the conduct of SAA litigation. To the
contrary, Congress was generally content to provide
that SAA litigation "shall proceed and shall be heard
and determined according to the principles of law
and to the rules of practice obtaining in like cases
between private parties." 46 U.S.C. App. 743. Con-
gress might have permitted the time for service of the
complaint to be similar] y governed by the rules
applicable to private parties, but it chose instead to
insist that the complaint be served "forthwith." The
subsequent adoption of the Federal Rules provides no

___________________(footnotes)

24 Congress has made substantive amendments to the SAA on
four occasions since 1920 without deleting the requirement that
the complaint be served "forthwith."  See Maritime Act of
1981, Pub. L. No. 97-31,  12(25), 95 Stat. 155 (codified as
amended at 46 U.S.C. 743, 747, 749-752); Act of Aug. 29, 1972,
Pub. L. No. 92417, 3, 86 Stat. 656 (codified as amended at 46
U.S.C. 749); Act of Sept. 13, 19,60, Pub. L. No. 86-770, 3, 74
Stat. 912 (codified as amended at 46 U.S.C. 742); Act of Dec. 13,
1950, ch. 1136, 64 Stat. 1112 (codified as amended at 46 U.S.C.
745).

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26

reason to decline to enforce that requirement accord-
ing to its terms.

B. Even If Rule 4(j) Were Otherwise Construed
  To Confer An Affirmative Right To Serve A
  Complaint At Any Time Within The 120-Day
  Period, Its Application To SAA Litigation
  Would Be Contrary To Both 28 U.S.C. 2072(b)
  And Federal Rule of Civil Procedure 82

Even if Rule 4(j) were otherwise construed to
confer an affirmative right to serve a complaint at any
time within the 120-day period, its application (so
construed) to SAA litigation would expand the juris-
diction of the district courts and would have the effect
of altering the parties' substantive rights.  Those
results would be contrary to the Rules Enabling Act,
28 U.S.C. 2072(b) (the Federal Rules of Civil Proce-
dure "shall not abridge, enlarge or modify any sub-
stantive right"), and Federal Rule of Civil Procedure
82 ("These rules shall not be construed to extend or
limit the jurisdiction of the United States district
courts or the venue of actions therein.").
L "It is elementary that the United States, as
sovereign, is immune from suit save as it consents to
be sued." United States v. Mitchell, 445 U.S. 535,538
(1980). It is also well established that "[sovereign
immunity is jurisdictional in nature," and that "the
terms of the United States' consent to be sued in any
court define that court's jurisdiction to entertain the
suit." FDIC v. Meyer, 114 S. Ct. 996, 1000 (1994)
(brackets and internal quotation marks omitted).
Moreover, while "legislation for the benefit of seamen
is to be construed liberally in their favor, it is equally
true that statutes which waive immunity of the
United States from suit are to be construed strictly

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27

in favor of the sovereign,"  McMahon v. United
States, 342 U.S. 25, 27 (1951). To permit a district
court to adjudicate an SAA action in which the statu-
tory preconditions for suit have not been met would
effect an expansion of the court's jurisdiction and a
modification of the parties' substantive rights. A
construction of Rule 4(j) that would supersede the
forthwith service requirement of Section 742 is
therefore contrary to both 28 U.S.C. 2072(b) and Rule
82. 

2. That conclusion is buttressed by the structure
of the SAA. Section 742 provides the government's
waiver of sovereign immunity ("In cases where if
such vessel were privately owned or operated, * * *
a proceeding in admiralty could be maintained, any
appropriate nonjury proceeding in personam may be
brought against the United States") and requires
that the complaint be served "forthwith." 46 U.S.C.
App. 742. Section 743 governs "[procedure in cases of
libel in personam" and provides that SAA litigation
"shall proceed and shall be heard and determined
according to the principles of law and to the rules of
practice obtaining in like cases between private
parties." 46 U.S.C. App. 743. The structure of the
statute thus suggests that the forthwith service
requirement is not simply a procedural provision that
applies after the district court has properly as-
sumed jurisdiction over the case. See United States
v. Holmberg, 19 F.3d 1062, 1064 (5th Cir.), cert. denied,
115 S. Ct. 482 (1994); Libby v. United States, 840 F.2d
818, 820 (11th Cir. 1988). Rather, it is a prerequisite
to the plaintiff's invocation of the court's jurisdiction
in the first instance. See Amella v. United States,
732 F.2d at 713. Section 742's requirements must
therefore be satisfied before the statutory waiver of

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28

sovereign immunity may be given effect. Holmberg,
19 F.3d at 1064, See also Battaglia v. United States,
303 F.2d 683,685 (2d Cir.) ("There can be little doubt
of the power of the sovereign to declare the manner in
which it may be haled into court."), cert. dismissed,
371 U.S. 907 (1962).
3. There is nothing remarkable about the propo-
sition that a rule requiring particular documents to
be filed at a specified time can be "jurisdictional" in
nature. The courts have recognized, for example, that
the administrative claim requirement of the Clari-
fication Act is a jurisdictional rule. See, e.g., Rodin-
ciuc v. United States, 175 F.2d 479, 481 (3d Cir.) ("A
clear failure to comply with the conditions laid down
by statute for suits against the United States may
not be waived."), cert. denied, 338 U.S. 895 (1949);
Danstrup v. The Richmond P. Hobson, 112 F. Supp.
851,855 (E.D.N.Y. 1953) (Clarification Act's adminis-
trative claim requirement "involves the proper ful-
fillment of a statutory condition to bringing an
action against the United States," and plaintiff's fail-
ure to comply with that condition "requires that the
court dismiss the libel on the ground of lack of
jurisdiction'').25

___________________(footnotes)                              
                                            
25 The Courts have consistently reached the same conclusion
with respect to the administrative claim requirement of the
Federal Tort Claims Act (FTCA), 28 U.S.C. 2675. See, e.g.,
Cook v. United States on behalf of U.S. Department of Labor,
978 F.2d 164, 166 (5th Cir. 1992) (compliance with adminis-
trative claim requirement "is a jurisdictions! prerequisite to
filing suit under the FTCA"); Meridian International Logis-
tics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991)
(same); Cotto v. United States, 993 F.2d 274,280 (1st Cir. 1993)
(same). Federal Rule of Civil Procedure 3 provides that "[al
civil action is commenced by filing a complaint with the court,"

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29

II THE DISTRICT COURT CORRECTLY DIS-
MISSED PETITIONER'S COMPLAINT WITH-
OUT PREJUDICE FOR FAILURE TO EFFECT
SERVICE "FORTHWITH"

" Forthwith connotes action which is immediate,
without delay, prompt, and with reasonable dispatch."
Amella v. United States, 732 F.2d at 713. "In matters
of practice and pleading it is usually construed, and
sometimes defined by rule of court, as within twenty-
four hours." Dickerman v. Northern Trust Co., 176
U.S. 181, 193 (1900). "Statutes, judgments, orders and
contracts requiring an act to be done in a certain
number of days contemplate an allowance of a certain
personal convenience to perform the act, so long as it
is done within the period. A `forthwith' requirement
on the other hand does not contemplate any such
convenience." California Casualty Indemnity Ex-
change v. United States, 74 F. Supp. 404, 407 (S.D.
Calif. 1947). Rather, "[t]he word has a peremptory
connotation, even more so than the word `immedi-
ately.'" Ibid. See also United States v. Bradley, 428
F.2d 1013, 1016 (5th Cir. 1970) ("The command of
`forthwith' clearly will not tolerate delay when de-
liberate and made by the officers for the purpose of
selecting their own time and for their own purpose")
(internal quotation marks omitted).

___________________(footnotes)
                                                        
and the Federal Rules do not require plaintiffs to make formal
statements of claim prior to filing suit. No one would suggest,
however, that the Federal Rules supersede a statutory direc-
tive that an administrative claim must be filed as a prerequisite
to a particular form of litigation against the government.

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30

The process by which a federal civil complaint is
ordinarily filed and served has been described as
follows:

In federal practice the clerk issues the
summons. (Under [Federal Rule of Civil Pro-
cedure 4(b)], it is signed by the clerk and bears the
seal of the court.) This does not necessarily mean
that the clerk drafts the summons. The usual
practice is for the plaintiff's attorney to obtain
from the clerk as many summons copies as are
needed, filling them out back at the office when
the complaint is drawn. * * *

       *****

***  [T]he typical procedure is for the
plaintiff, when filing the complaint, to have the
summons all filled out and ready to tender to the
clerk, who can scan it and, if it is in order, `(issue"
it. ***

At one time, when the marshals were the chief
summons servers in federal practice, the clerk
would either forward the summons through chan-
nels to the marshal's office or give it to the
plaintiff to deliver to the marshal. Now * * *
the standard practice is for the clerk, after
"issuance", to hand the summons or summonses
back to the plaintiff for service. It is now the
plaintiff's responsibility.
Siegel, Practice Commentaries, 28 U.S.C.A. Fed.

D.R. Civ. P. 4, at 85, 96-97 (1992). Thus, the plaintiff in
a federal civil action typically (1) obtains summons
forms and prepares the summons before the complaint
is filed, and (2) files the complaint by hand, thus

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31

facilitating immediate issuance and receipt of a
signed, sealed summons. Where that procedure is
followed, there is no reason that the complaint and
summons cannot be served on the United States
Attorney, and mailed to the Attorney General, within
24 hours after the complaint is filed.
Accepting petitioner's declarations as true, it is
clear that petitioner's trial counsel made no effort to
comply with the SAA's requirement that the com-
plaint be served "forthwith." Counsel did not obtain
or complete summons farms before filing the com-
plaint, and he does not appear to have filed the com-
plaint by hand.26 Petitioner's declarations indicate
that the untimeliness of service was exacerbated by
mistakes in the office of the district court clerk. By
the time those problems arose, however, petitioner
had already breached his obligation to serve the
complaint "forthwith." And even after those problems
came to light, counsel's efforts to obtain the relevant
documents were limited to sporadic mail communi-
cations with the office of the clerk. In short, this is
not a case in which counsel made diligent efforts to
effect service immediately after filing but was pre-

___________________(footnotes)

26 Although petitioner's declarations are not entirely clear on
this point, petitioner's brief implies that the complaint was filed
by mail. See Pet. Br. 4-5 ("At the same time [petitioner] filed
his complaint, he requested the appropriate summons forms
and file stamped copies of the complaint. However, these sum-
mons forms were not sent to [petitioner's] counsel, as request-
ed, with the file stamped copies of the complaint.") (citations
omitted). To the extent that filing by hand would have been
burdensome, it would have been so only because of trial
counsel's unexplained decision to file suit in the Galveston
Division rather than in the Houston Division. See page 9 and
note 10, supra.

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32

vented from doing so by factors beyond his control.
The district court therefore acted correctly in dis-
missing the complaint without prejudice based on
petitioner's non-compliance with Section 742.

       CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

          DREW S, DAYS, 111
           Solicitor General

          FRANK W. HUNGER
           Assistant Attorney General

          PAUL BENDER
           Deputy Solicitor General

          MALCOLM L. STEWART
           Assistant to the Solicitor
            General
 
         ROBERT S. GREENSPAN
          MICHAEL E. ROBINSON
          TIMOTHY R. LORD
           Attorneys

FEBRUARY 1996

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        APPENDIX

1. The Rules Enabling Act, 28 U.S.C. 2071 et seq.,
provides in pertinent part:

 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 dis-
trict courts (including proceedings before magis-
trates 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.

2. The Suits in Admiralty Act, 46 U.S.C. App. 741
et seq., provides in pertinent part:
 
742. Libel in personam

In cases where if such vessel were privately owned
or operated, or if such cargo were privately owned or
possessed, or if a private person or property were
involved, a proceeding in admiralty could be main-
tained, any appropriate nonjury proceeding in person-
am may be brought against the United States or
against such corporation. Such suits shall be brought
in the district court of the United States for the dis-
trict 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

(la)

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2a

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 on the United States or
such corporation. In case the United States or such
corporation 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 applica-
tion of either party the cause may, in the discretion of
the court, be transferred to any other district court of
the United States.

 743. Procedure in cases of libel in personam

Such suits shall proceed and shall be heard and
determined according to the principles of law and to
the rules of practice obtaining in like cases between
private parties. A decree against the United States
or such corporation may include costs of suit, and
when the decree is for a money judgment, interest at
the rate of 4 per centum per annum until satisfied, or
at any higher rate which shall be stipulated in any
contract upon which such decree shall be based.
Interest shall run as ordered by the court. Decrees
shall be subject to appeal and revision as now provided
in other cases of admiralty and maritime jurisdiction.
If the libelant so elects in his libel, the suit may
proceed in accordance with the principles of libels in
rem wherever it. shall appear that had the vessel or
cargo been. privately owned and possessed a libel in
rem might have been maintained.  Election so to
proceed shall not preclude the libelant in any proper
case from seeking relief in personam in the same suit.
Neither the United States nor such corporation shall

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3a

be required to give any bond or admiralty stipulation
on any proceeding brought hereunder.

3. Rule 4(j) of the Federal Rules of Civil Pro-
cedure (1988) provides

Rule 4. Process
      *****

(j) Summons: Time Limit for Service. 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. This subdivision shall
not apply to service in a foreign country pursuant to
subdivision (i) of this rule.

4. Rule 82 of the Federal Rules of Civil Procedure
provides:

Rule 82. Jurisdiction and Venue Unaffected

These rules shall not be construed to extend or
limit the jurisdiction of the United States district
courts or the venue of actions therein. An admiralty
or maritime claim within the meaning of Rule 9(h)
shall not be treated as a civil action for the purposes
of Title 28, U. S. C., 1391-93.