Henderson v. United States
Dissenting Opinion
with whom The Chief Justice and Justice O’Connor join, dissenting.
The Suits in Admiralty Act (SAA or Act) entitles the United States to be served with process “forthwith” in all admiralty proceedings brought under the Act. As a statutory condition on the Government’s waiver of its immunity, this time restriction on service demands strict compliance and delimits the district court’s jurisdiction to entertain suits in admiralty.against the United States. The majority’s conclusion that this requirement is supplanted by former Federal Rule of Civil Procedure 4(j) (now Rule 4(m)) rests on a misreading of the SAA and is irreconcilable with our sovereign immunity jurisprudence. Because I believe that Congress intended to restrict admiralty suits against the United States to those cases in which the United States receives service of process forthwith, I respectfully dissent.
As a sovereign, the United States “is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U. S. 584, 586 (1941). “A necessary corollary of this rule is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 287 (1983). See also Lehman v. Nakshian, 453 U. S. 156, 160-161 (1981) (“Like a waiver of [sovereign] immunity itself, which must be ‘unequivocally expressed,’ ‘this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied’” (citations omitted)). The fact that the condition involves a matter of procedure does not affect the analysis, for “in many cases
As always, the starting point in interpreting the extent of a waiver of sovereign immunity is the text of the statute. Section 2 of the Act contains the actual waiver. It provides that “[i]n cases where if [a] vessel [of the United States] were privately owned or operated, or if . . . cargo [of the United States] were privately owned or possessed, or if a private person or property were involved, 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. Section 2 also contains the service provision at issue in this case, which states that a plaintiff suing the United States in admiralty “shall forthwith serve a copy of his libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. Such service and mailing shall constitute valid service on the-United States.” Ibid. Section 3 of the Act, aptly titled “Procedure in cases of libel in personam,” provides that suits under the SAA “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.” §743.
The text and structure of the SAA lead me to conclude that Congress intended to allow admiralty suits to proceed against the United States only in cases in which process is served “forthwith.” The key to understanding the scheme enacted by Congress lies not so much in Congress’ decision to place this service requirement in §2 as in its decision not to address service of process in § 3; for this reason, the majority’s sentence-by-sentence analysis of § 2, see ante, at 665-668, is largely beside the point. Section 3 provides that the
Even were I not convinced that the SAA’s requirement of prompt service is a condition on the Government’s waiver of sovereign immunity, I still could not agree with the majority that it clearly is not a condition on the waiver. At best, the SAA is ambiguous on this point, and when interpreting the breadth of a waiver of sovereign immunity, ambiguity must always be resolved in favor of the Government. See United States v. Williams, 514 U. S. 527, 531 (1995). We have consistently reaffirmed “the traditional principle that the Government’s consent to be sued must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.” United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (citations and internal quotation marks omitted). See also Library of Congress v. Shaw, 478 U. S. 310, 318 (1986). It is at least plausible to interpret the SAA’s service provision as a condition on the waiver, and that is enough to justify construing the statute in the Government’s favor. Cf. Nordic Village, supra, at 37.
Because the SAA’s service requirement is best read as a condition on the Government’s waiver of sovereign immunity, it necessarily follows that this requirement cannot be superseded by a Federal Rule of Civil Procedure. Sovereign immunity is by nature jurisdictional, FDIC v. Meyer, 510 U. S. 471, 475 (1994), and the terms of the United States’ “ 'consent to be sued in any court define that court’s jurisdic
I do not mean to imply that ordinary procedural rules automatically become jurisdictional prerequisites in civil cases simply because the United States is a defendant; they do not. But Congress certainly has the power to impose a procedural requirement as a condition on a waiver of sovereign immunity and to require strict compliance with that condition as a prerequisite to invoking or maintaining the court’s jurisdiction. The text and structure of the SAA demonstrate that Congress exercised this power when it enacted the SAA, and “nothing in the . . . rules of civil practice so far as they may be applicable in suits brought in district courts [against the Government] authorizes the maintenance of any suit against the United States to which it has not otherwise consented.” Sherwood, supra, at 589.
Once the majority concludes that Congress attached no particular significance to the SAA’s requirement that process be served forthwith, the conclusion that Rule 4(j), by operation of the Rules Enabling Act, displaces §2’s service requirement would appear to 'flow naturally. But that is not the case. As the Government concedes, the Rules Enabling
The majority acknowledges the inapplicability of the Rules Enabling Act, ante, at 668, but appears to apply the Act nonetheless, ante, at 669-670 (citing 28 U. S. C. § 2072(b)). The majority is not entirely clear on this point, however, and it appears that the majority may instead find that Rule 4(j) effected an implied repeal of § 2’s service requirement independent of the Rules Enabling Act. See ante,, at 668 (“[A] Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes”). The majority may mean by this statement only that the Rules Enabling Act pertains equally to Rules of Procedure promulgated by this Court and by Congress, but I am reluctant to assume, absent clearer indication, the Court’s reliance on a method of statutory construction that allows us to rewrite a statute when the text does not address the specific situation before us or when it does not generate an outcome that we desire. Regardless of the rubric under which this case is actually decided, the Court, in my opinion, reaches the wrong conclusion. In contrast to the rest of the procedures that apply in SAA cases, the Act requires a specific method of service even though the procedures that govern similar cases may differ. This, in combination with the critical fact that this case involves a waiver of sovereign immunity, leads me to conclude that Rule 4(j) does not displace the service requirement of §2 either under the Rules Enabling Act or as an implied repeal.
The only question remaining is whether Henderson served his complaint on the United States “forthwith.” There is no reasonable argument that he did. Henderson served his complaint on the United States Attorney 148 days after he
For instance, in United States v. Sherwood, 312 U. S. 584 (1941), we held that the possibility of joinder under the liberal joinder provisions of the Federal Rules does not authorize a district court to hear a claim brought against the Government for breach of contract by a party not specifically authorized to bring suit against the United States under the Tucker Act. Notwithstanding the possibility of joinder in a similar case
See United States v. Holmberg, 19 F. 3d 1062 (CA5), cert. denied, 513 U. S. 986 (1994); Libby v. United States, 840 F. 2d 818 (CA11 1988); Amelia v. United States, 732 F. 2d 711 (CA9 1984); Battaglia v. United States, 303 F. 2d 683 (CA2), cert. dism’d, 371 U. S. 907 (1962). Only one Circuit has gone the other way. See Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62 (CA3 1985).
Although we held in Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95-96 (1990), that statutes of limitations in cases brought against the Government are presumptively subject to equitable tolling, we also reaffirmed in that case that a time restriction on suit against the United States “is a condition to the waiver of sovereign immunity and thus must be strictly construed.” Id., at 94. Irwin did mark a departure from our earlier, and stricter, treatment of statutes of limitations in the sovereign immunity context, but our decision in United States v. Williams, 514 U. S. 527 (1995), makes clear that statutes of limitations in suits brought against the United States are no less jurisdictional prerequisites than they were before Irwin. Williams confirmed that a statute of limitations “narrow[s] the waiver of sovereign immunity,” 514 U. S., at 534, n. 7, and cited for this proposition United States v. Dalm, 494 U. S. 596 (1990), which held that failure to file a claim against the Government for a federal tax refund within the statute of limitations operates as a jurisdictional bar to suit.
I recognize that, under my reading of the Act, jurisdiction in an SAA suit may turn upon the plaintiff’s use of registered mail, which is also specified in the sentence of §2 that requires process to be served forthwith. 46 U. S. C. App. § 742. Though this may seem like an odd requirement from our modern perspective, the most sensible textual reading of the Act is still that Congress sought to impose a specific method of service in SAA cases without regard to the rules governing service generally. Congress is free to amend the statute if it determines that the SAA has fallen out of date with modern mailing practices.
Opinion of the Court
delivered the opinion of the Court.
This case concerns the period allowed for service of process in a civil action commenced by a seaman injured aboard a vessel owned by the United States. Recovery in such cases is governed by the Suits in Admiralty Act, 46 U. S. C. App. §741 et seq., which broadly waives the Government’s sovereign immunity. See §742 (money judgments); §743 (costs and interest). Rule 4 of the Federal Rules of Civil Procedure allows 120 days to effect service of the summons and timely filed complaint, a period extendable by the court. The Suits in Admiralty Act, however, instructs that service shall be made “forthwith.” § 742. The question presented is whether the Act’s “forthwith” instruction for service of process has been superseded by the Federal Rule.
In the Rules Enabling Act, 28 U. S. C. §2071 et seq., Congress ordered that, in matters of “practice and procedure,” § 2072(a), the Federal Rules shall govern, and “[a]ll laws in conflict with such rules shall be of no further force or effect,” § 2072(b). We hold that, in actions arising under federal law, commenced in compliance with the governing statute of limitations, the manner and timing of serving process are generally nonjurisdictional matters of “procedure” controlled by the Federal Rules.
I
On August 27, 1991, petitioner Lloyd Henderson, a merchant mariner, was injured while working aboard a vessel owned and operated by the United States. On April 8,1993, after exhausting administrative remedies, Henderson filed a seaman’s personal injury action against the United States, pursuant to the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U. S. C. App. §741 et seq.
Having timely filed his complaint, Henderson attempted to follow the Federal Rules on service. It is undisputed that the following Rules, and nothing in the Suits in Admiralty Act, furnished the immediately relevant instructions. 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: “The summons shall be signed by the clerk, [and] be under the seal of the court.” Rule 4(d) stated: “The summons and complaint shall be served together.”
A series of slips occurred in obtaining the summons required by Rule 4. Henderson’s counsel requested the appropriate summons forms and file-stamped copies of the complaint on April 8, 1993, the day he filed Henderson’s
Service on the local United States Attorney took longer. On May 25, Henderson’s counsel forwarded the summons and complaint, as received from the clerk, to a “constable” with a request to effect service. On June 1, the constable’s office returned the documents, informing Henderson’s counsel that the summons was not in proper form, because it lacked the court’s seal. Counsel thereupon wrote to the court clerk requesting new summons forms with the appropriate court seal. Counsel repeated this request on August 19; ultimately, on August 25, Henderson’s counsel received the properly sealed summons.
Once again, Henderson’s counsel requested the constable’s service and, on August 30, moved for an extension of time to serve the United States Attorney.
The United States has never maintained that it lacked notice of Henderson’s complaint within the 2-year limitation period prescribed for Suits in Admiralty Act claims. See 46 U. S. C. App. § 745; Tr. of Oral Arg. 38-39 (counsel for United States acknowledged that service on Attorney General gave Government actual notice three months before 2-year limitation period ended).
In support of its motion to dismiss, the United States relied exclusively on §2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, which provides in part:
“The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for [the] district [where suit is brought] and mail a copy thereof by registered mail to the Attorney General of the United States.”
This provision has remained unchanged since its enactment in 1920,18 years before the Federal Rules of Civil Procedure became effective, and 46 years before admiralty cases were brought within the realm of the Civil Rules. The Government argued that Henderson’s failure to serve process
The District Court initially denied the Government’s motion, but reconsidered the matter based on an intervening Fifth Circuit decision, United States v. Holmberg, 19 F. 3d 1062, cert. denied, 513 U. S. 986 (1994). The court in Holm-berg, agreeing with the United States, held that the §742 service “forthwith” requirement “is a condition of the Government’s waiver of sovereign immunity and, thus, a jurisdictional prerequisite.” 19 F. 3d, at 1064. In so ruling, the Holmberg court rejected the argument that service of process under the Suits in Admiralty Act, as in the generality of cases arising and timely filed under federal law, is a matter of procedure, now governed by the Federal Rules of Civil Procedure.
Bound by Holmberg, the District Court dismissed Henderson’s complaint for lack of subject-matter jurisdiction, and the Court of Appeals, adhering to Holmberg, affirmed. 51 F. 3d 574 (CA5 1995).
The United States first suggests that Rule 4’s extendable 120-day time prescription, and the Suits in Admiralty Act’s service “forthwith” instruction, can and should be read harmoniously. The Rule 4 time limit for service, Rule 4(j) at the time Henderson’s action commenced,
“(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 . . . .” Fed. Rule Civ. Proc. 4(j) (1988).
Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, prescribes service “forthwith,” see supra, at 659, a word not precisely defined in the Act or in case law, but indicative of a time far shorter than 120 days. The apparent conflict dissolves, the Government urges, if one reads Rule 4 as establishing not “an affirmative right to serve [a] complaint” within 120 days, but only an outer boundary for timely service. See Brief for United States 14, 18, 26; Tr. of Oral Arg. 28, 30.
We reject the Government’s view of the time the Federal Rules authorize for service. Reading Rule 4 in its historical context, we conclude that the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance. Prior to 1983, Rule 4 contained no time limit for service. Until the changes installed that year,
“(a) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it. . . .
“(c) By whom served. Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose . . . .” Fed. Rule Civ. Proc. 4(a), (c) (1980).
Marshals were expected to effect service expeditiously, and Rule 41(b), providing for dismissal “[f]or failure of the plaintiff to prosecute,” could be invoked as a check against unreasonable delay. See 9 C. Wright & A. Miller, Federal Practice and Procedure §2370, pp. 374-376 (2d ed. 1995); 2 J. Moore, Moore’s Federal Practice ¶4.18, p. 436 (2d ed. 1995).
Rule 4 changes made operative in 1983 completed a shift in responsibility for service from the United States marshals to the plaintiff. See Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N. C. L. Rev. 795, 845 (1991). With marshals no longer available as routine process servers, the Judicial Conference considered a time control necessary; the Conference proposed, and this Court approved, 120 days from the filing of the complaint as the appropriate limit. Congress relaxed the rule change by authorizing an extension of the 120-day period if the party responsible for service showed “good cause.” See supra, at 661; 128 Cong. Rec. 30931-30932 (1982), reprinted in 28 U. S. C. App., p. 647.
Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period “even if there is no good cause shown.” See Advisory Committee’s Notes on Fed. Rule Civ. Proc. 4, 28 U. S. C. App.,
The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow. Furthermore, the United States acknowledges that, §2 of the Suits in Admiralty Act aside, Rule 4’s extendable 120-day time prescription applies to the full range of civil litigation, including cases brought against the United States under the Federal Tort Claims . Act, 28 U. S. C. §2675, and the Tucker Act, ch. 359, 24 Stat. 505 (1887) (current version 28 U. S. C. §§ 1346, 1491 and other scattered sections of 28 U. S. C.). See Tr. of Oral Arg. 33. We are therefore satisfied that Rule 4’s regime conflicts irreconcilably with Suits in Admiralty Act §2’s service “forthwith” instruction, and we turn to the dispositive question: Does the Rule supersede the inconsistent statutory direction?
1 — 1 hH I — 1
The Rules Enabling Act, 28 U. S. C. § 2071 et seq., authorizes the Supreme Court “to prescribe general rules of practice and procedure ... for cases in the United States district courts . .. and courts of appeals,” § 2072(a), and directs:
*664 “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.” § 2072(b).
Correspondingly, and in confirmation of the understanding and practice under the former Federal Equity Rules, Federal Rule of Civil Procedure 82 provides: “[The Federal Rules of Civil Procedure] shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” See 1937 Advisory Committee’s Notes on Fed. Rule Civ. Proc. 82, 28 U. S. C. App., p. 821 (Rule 82 confirms that the Rules’ broad allowance of claim joinder “does not extend federal jurisdiction.”); see also 12 Wright & Miller, supra, § 3141, at 210-214.
According to the United States, Rule 4 cannot supersede §2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, for the latter is “jurisdictional” and affects “substantive rights” by setting the terms on which the United States waives its sovereign immunity. Henderson, in contrast, characterizes the Suits in Admiralty Act’s service “forthwith” instruction as a nonjurisdictional processing rule. Service “forthwith,” he urges, forms no part of the immunity waiver or §745’s statute of limitations, but is simply a direction for the conduct of litigation once the case is timely launched in court— a characteristically “how to” direction in conflict with, and therefore superseded by, Rule 4.
Before examining the text of § 742 to determine the character of the service “forthwith” provision, we note that the conflict with Rule 4 is of relatively recent vintage. The Suits in Admiralty Act, which allows in personam suits against the United States for maritime torts, was enacted in 1920, 18 years before the advent of the Federal Rules. Furthermore, admiralty cases were processed, from 1845 until 1966, under discrete Admiralty Rules. Even after 1966, the year admiralty cases were brought under the governance of the Federal Rules of Civil Procedure, Rule 4 and
Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, captioned “Libel in personam,” contains a broad waiver of sovereign immunity in its first sentence:
“In cases where if [a vessel owned or operated by the United States] 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 .. ..”
Section 3 of the Act, 46 U. S. C. App. § 743, although captioned “Procedure in cases of libel in personam,” completes the immunity waiver by providing for costs and interest on money judgments against the United States.
The United States asserts that not just the first sentence of §742, but that section in its entirety is “jurisdictional,” spelling out the terms and conditions of the Government’s
The sentence immediately following § 742’s broad waiver, and immediately preceding the sentence on service, reads:
“Such, suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel. . . charged with liability is found.”
This notably generous-to-plaintiffs provision will be recognized instantly as one describing venue choices, not subject-matter jurisdiction. Cf. 28 U. S. C. § 1391 (“Venue generally”).
Section 742’s final sentence provides:
“Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the United States.”
Section 742’s critical sentence on service reads:
“The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General. . . .”
Rule 4, as observed at oral argument, see Tr. of Oral Arg. 27-28, provides for dispatch of the summons and complaint to the Attorney General “by registered or certified mail.” See supra, at 658, and n. 4. The Government’s sovereign-immunity waiver, counsel for the United States agreed, did not depend on registered mail service, the sole form of mailing § 742 authorizes; “in this day and age,” counsel said, “certified mail would be acceptable.” Tr. of Oral Arg. 28-29. But see post, at 678, n. 4 (“jurisdiction in [a Suits in Admiralty Act] suit may turn upon the plaintiff’s use of registered mail”). It thus appears that several of § 742’s provisions are not sensibly typed “substantive” or “jurisdictional.” Instead, they have a distinctly facilitative, “procedural” cast.
If the service "forthwith” prescription is not made “substantive” or “jurisdictional” by its inclusion — along with broad venue choices — in § 742, is it a rule of procedure superseded by Rule 4? Before we address that dispositive question, we note a preliminary issue. Rule 4(j), which contained the 120-day prescription at the time Henderson filed suit, was not simply prescribed by this Court pursuant to the Rules Enabling Act. See 28 U. S. C. § 2074 (rules transmitted by Court to Congress “not later than May 1” become effective “no earlier than December 1” of the same year unless Congress otherwise provides). Instead, the Rule was enacted into law by Congress as part of the Federal Rules of Civil Procedure Amendments Act of 1982, §2, 96 Stat. 2527. See supra, at 662. As the United States acknowledges, however, a Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes. See Brief for United States 16, n. 14 (“We agree with petitioner ... that Section 2072(b) provides the best evidence of
Returning to the dispositive question, we need not linger over the answer. What we have so far said, and the further elaboration below, lead securely to this response: Rule 4 governs summons and service in this case in whole and not in part.
A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must immediately resort to Rule 4 for instructions on service of process. See supra, at 657, and nn. 3,4. In that Rule, one finds instructions governing, inter alia, form and issuance of the summons, service of the summons together with the complaint, who may serve process, and proof of service.
* * *
For the reasons stated, the judgment of the Court of Appeals affirming the dismissal of Henderson’s complaint is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Henderson’s complaint also invoked the Public Vessels Act, 43 Stat. 1112, as amended, 46 U. S. C. App. § 781 et seq. The Government maintains, however, that Henderson’s suit falls under the exclusive governance of the Suits in Admiralty Act, because his claim arose from employment aboard a Maritime Administration vessel. See Brief for United States 8,
In a suit on a right created by federal law, filing a complaint suffices to satisfy the statute of limitations. See West v. Conrail, 481 U. S. 35, 39 (1987). In a federal-court suit on a state-created right, however, a plaintiff must serve process before the statute of limitations has run, if state law so requires for a similar state-court suit. See Walker v. Armco Steel Corp., 446 U. S. 740, 752-753 (1980) (reaffirming Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530 (1949)). But cf. Hanna v. Plumer, 380 U. S. 460 (1965) (method of service, as distinguished from time period for commencement of civil action, is governed by Federal Rules in all actions, including suits based on state-created rights).
The substance of these provisions is retained in current Rules 4(a), (b), and (c)(1).
Federal Rule of Civil Procedure 4(d)(4), effective at that time, instructed that “a copy of the summons and of the complaint [be sent] by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia.” The same instruction currently appears in Rule 4(i)(l)(B).
Federal Rule of Civil Procedure 4( j), then in force, provided for service of the summons and complaint within 120 days after the filing of the complaint, a time limit subject to extension for good cause. The substance of this provision is retained in current Rule 4(m),' which permits a district court to enlarge the time for service “even if there is no good cause shown.” Advisory Committee’s Notes on 1993 Amendments to Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 654.
In any event, the filing of the complaint within the limitation period rendered the action timely. See supra, at 657, n. 2.
The Holmberg court “agree[d] that there has been no uniform definition of forthwith,” as that term is used in §742,19 F. 3d, at 1065, and the Court of Appeals in the instant case took no position on whether service on the Attorney General 47 days after commencement of the action could count as “forthwith.” 51 F. 3d, at 577. The court held, however, that the “forthwith” requirement applies to service on both officers — the United States Attorney and the Attorney General — and stated that “completing service in 148 days [through service on the United States Attorney] is not forthwith.” Id., at 576.
Compare, e.g., Libby v. United States, 840 F. 2d 818, 819-821 (CA11 1988); Kenyon v. United States, 676 F. 2d 1229, 1231 (CA9 1981); Battaglia
Currently, Rule 4(m) states the time limit for service. See supra, at 658. n. 5.
Rule 4(m), captioned “Time Limit for Service,” currently provides:
“If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period....” (Emphasis added.)
Specifically, the second sentence of § 743 reads:
“A decree against the United States . . . 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.”
While striving for fidelity to what Congress wrote, see post, at 674, 679, the dissent inexplicably writes off many of § 742’s words as “largely beside the point,” post, at 674.
Even before admiralty proceedings were placed under the governance of the Federal Rules, Judge Henry Friendly trenchantly observed:
“I cannot believe Congress meant [to render ‘jurisdictional’ every failure by a libelant to comply with a procedural step outlined in the Suits in Admiralty Act]; I should have supposed that, once Congress gave the basic consent to sue the United States, as it did in the first sentence of [§742], it was content to have the courts decide the effect of various procedural lapses in the same manner as ‘if such vessel were privately owned or operated.’” Battaglia v. United States, 303 F. 2d, at 686 (concurring opinion).
Circuit precedent was otherwise, however, and therefore Judge' Friendly reluctantly concurred in the “Draconian conclusion” that a 4-month delay in mailing the pleadings to the Attorney General called for dismissal of the ease, despite “forthwith” service on the United States Attorney. Cf. Fed. Rule Civ. Proc. 4(i)(3) (“court shall allow a reasonable time” to “cur[e] the failure to serve multiple officers ... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General”).
Currently, Fed. Rule Civ. Proe. 4(a), (b), (c), and (l).
Currently, Fed. Rule Civ. Proc. 4(e) — (j).
Currently, Fed. Rule Civ. Proe. 4(i); formerly, Fed. Rule Civ. Proe. 4(d)(4). See supra, at 658, n. 4; Kenyon, 676 F. 2d, at 1232 (Boochever, J., concurring) (noting that § 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, specifies mailing “by registered mail to the Attorney General of the United States,” and commenting that the Federal Rule, then Rule 4(d)(4), supersedes, allowing “registered or certified mail”). The current Rule— 4(i) — further facilitates service when the United States is a party by permitting the United States Attorney to designate clerical employees to receive process and allowing service on the United States Attorney by mail. See Fed. Rule Civ. Proc. 4(i)(A).
The Government acknowledges the aim of the rulemakers, from the start, to provide “‘a uniform and comprehensive method of service for all actions against the United States,’ ” Brief for United States 19-20, n. 18 (quoting Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 641), but tenders a distinction between “method” and “timing” of service, Brief for United States 19-20,
“The court shall allow a reasonable time for service of process ... for the purpose of curing the failure to serve multiple officers... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General of the United States.”
Judge Boochever, like Judge Friendly, see supra, at 668, n. 13, reluctantly concurred in Circuit precedent, which ranked service “forthwith” “a condition precedent to the congressional waiver of the Government’s sovereign immunity,” Kenyon, 676 F. 2d, at 1231. But he stated cogently the view he would take “if freed from the bounds of stare decisis”: “Section 742 does not constitute an integral part of the substantive waiver of sovereign immunity, but is a mere procedural provision necessary at the time of the statute’s enactment, to effectuate that waiver. As such it was superseded by the Federal Rules.” Id., at 1232 (concurring opinion).
Curiously, although the Ninth Circuit, in Kenyon and other cases, has typed the Suits in Admiralty Act service “forthwith” provision “jurisdictional,” that Court of Appeals has pointed to a remedy for litigants in Henderson’s situation: Amend the complaint, even after the 2-year statute
I. e., subject-matter jurisdiction. See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3522, p. 78 (2d ed. 1984); Restatement (Second) of Judgments § 11, p. 108 (1982) (defining “subject matter jurisdiction” as the “authority [of the court] to adjudicate the type of controversy involved in the action”).
On relationships sufficient to support “jurisdiction over persons,” see generally Restatement (Second) of Conflict of Laws §§ 27-32, 35-44, 47-52 (1971 and Supp. 1989). See also 4 Wright & Miller, Federal Practice and Procedure §1064.
See United States v. Sherwood, 312 U. S. 584 (1941) (Tucker Act, allowing contract claims against United States, does not authorize joinder of claims between private parties).
See United States v. Nordic Village, Inc., 503 U. S. 30, 39 (1992) (Bankruptcy Code § 106(c) does not waive the Government’s sovereign immunity from bankruptcy trustee’s monetary relief claims).
See Library of Congress v. Shaw, 478 U. S. 310, 323 (1986) (Government’s waiver of immunity from suit for damages does not waive immunity with respect to interest).
See, e. g., United States v. Williams, 514 U. S. 527, 534, n. 7 (1995); Block v. North Dakota ex rel. Board of Univ. and School Lands, 461
See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (to qualify as adequate, notice generally must “apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”). See also Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1134 (1966) (recognizing notice as a matter separate from bases of adjudicatory jurisdiction); 4 Wright & Miller, supra, § 1063, at 225 (same).
Concurring Opinion
with whom Justice Kennedy joins, concurring.
I join the opinion of the Court. I write separately to make clear that it is not my view, and I do not understand the Court to hold, that no procedural provision can be jurisdictional. It assuredly is within the power of Congress to condition its waiver of sovereign immunity upon strict compliance with procedural provisions attached to the waiver, with the result that failure to comply will deprive a court of
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