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United States Court of Appeals,
Fifth Circuit.
No. 93-3468.
UNITED STATES of America, Plaintiff-Appellant,
v.
Paul HOLMBERG and Mariana C. Holmberg, Defendants-Appellees.
May 2, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WOOD,1 SMITH and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
The United States appeals the denial of its motion to dismiss
a suit brought by Paul and Mariana Holmberg under the Suits in
Admiralty Act (SAA), 46 U.S.C.App. §§ 741-752. The Government
argues that it was not served "forthwith" as required by 46 U.S.C.
§ 742 of the SAA. We agree and reverse the district court's
decision.
BACKGROUND
Paul Holmberg was injured while working as a seaman aboard a
vessel owned by the United States through the Maritime
Administration and managed by its general agent, OMI Ship
Management, Inc. After Paul Holmberg's administrative claim was
denied, he and Mariana Holmberg filed a suit under the SAA, which
was dismissed without prejudice for failure to effect service. The
Holmbergs then filed this suit against OMI and the United States on
1Circuit Judge of the Seventh Circuit, sitting by
designation.
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November 18, 1992. They served the United States Attorney 103 days
after filing the complaint and served the United States Attorney
General 106 days after filing the complaint.
The United States moved to dismiss the action for failure to
serve "forthwith" as required by the SAA, 46 U.S.C.App. § 742.2
The district court held that the forthwith service requirement of
§ 742 was superseded by Federal Civil Procedure Rule 4(j), which
requires service within 120 days. Under Rule 4(j) the service in
this case was timely. Accordingly, the district court denied the
United States' motion to dismiss, but certified its order for
immediate appeal pursuant to 28 U.S.C. § 1292(b). The United
States petition for interlocutory review of the district court's
order was granted.
DISCUSSION
I.
The issue raised by this appeal is whether the forthwith
service requirement in § 742 is procedural and, therefore,
superseded by Federal Civil Procedure Rule 4(j). Those circuits
that have dealt with this question thus far have split over its
answer. The Second, Ninth, and Eleventh Circuits have held that
the requirement of forthwith service is a condition of the
Government's waiver of sovereign immunity and, thus, a
jurisdictional prerequisite. See Libby v. United States, 840 F.2d
818 (11th Cir.1988); Amella v. United States, 732 F.2d 711 (9th
2OMI also moved to dismiss, and the Holmbergs did not oppose
it.
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Cir.1984); Battaglia v. United States, 303 F.2d 683 (2d Cir.),
cert. dismissed, 371 U.S. 907, 83 S.Ct. 210, 9 L.Ed.2d 168 (1962).
Accordingly, the forthwith service requirement is not superseded by
Rule 4(j). Libby, 840 F.2d at 819. The Third Circuit has held,
however, that the forthwith service requirement of § 742 is
procedural only and superseded by Rule 4(j). Jones & Laughlin
Steel, Inc. v. Mon River Towing, Inc., 772 F.2d 62, 66 (3d
Cir.1985). Although this is the first time this issue has come
before this Court directly, in Kieu v. United States, 953 F.2d 643
(1992) (unpublished), we stated in dicta that the failure to comply
with the forthwith service demand in § 742 is a jurisdictional
defect that denies a court subject matter jurisdiction. Today, we
adopt the holding of the majority of circuits and the reasoning of
the Eleventh Circuit in Libby v. United States.
We begin our analysis with the language and structure of the
SAA. The SAA provides a remedy against the United States when it
owns or operates a vessel as if that vessel were privately owned or
operated. 46 U.S.C.App. § 742. As a condition to that waiver of
immunity, § 742 requires 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...." Id. The procedures governing such suit
against the United States are specified in 46 U.S.C.App. § 743:
"[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."
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"The fact that the waiver of sovereign immunity is declared
in § 742, while the procedures governing admiralty suits against
the United States are specified in section 743, indicates that the
requirements contained in section 742 are more than procedural."
Libby, 840 F.2d at 820. The conditions contained in § 742 must be
met before sovereign immunity is waived. Conditions to a waiver of
sovereign immunity are necessarily jurisdictional in nature: "
"[t]he United States, as sovereign, is immune from suit save as it
consents to be sued ..., and the terms of its consent to be sued in
any court define that court's jurisdiction to entertain the suit.'
" United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,
1351, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312
U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). As a
necessary term of the Government's consent to be sued, the
forthwith requirement in § 742 is therefore a jurisdictional
requirement.
We turn to the question of whether Rule 4(j) supersedes the
forthwith service requirement. Under 28 U.S.C. § 2072, the Federal
Rules of Civil Procedure supersede all conflicting laws: "[a]ll
laws in conflict with such rules shall be of no further force or
effect after such rules have taken effect." Section 2072
specifies, however, that the rules of civil procedure will "not
abridge, enlarge or modify any substantive right."
"An action in the district court may not proceed according to
any set of rules unless the court has first obtained jurisdiction
over the action. When the United States is the defendant,
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jurisdiction lies only if the requirements of the applicable waiver
of sovereign immunity provision are met." Libby, 840 F.2d at 821.
In this case, jurisdiction under the SAA can be established only if
the requirements in § 742 are first met. Accordingly, § 742,
including the forthwith service requirement, involves substantive
rights because it defines the scope of the Government's consent to
be sued and defines a litigant's right to sue the Government; it
cannot be considered merely procedural. See Sherwood, 312 U.S. at
589-90, 61 S.Ct. at 771. Therefore, Rule 4(j) cannot modify the
forthwith service requirement in § 742.
II.
Having found the forthwith requirement applicable in this
case, we turn to whether the Holmbergs' service of process was
forthwith under § 742. The Holmbergs argue that because the
forthwith service requirement is vague, we should look to the rules
of civil procedure to supply its definition. We agree that there
has been no uniform definition of forthwith. The Second Circuit
defines forthwith to mean "immediately, without delay, or as soon
as the object may be accomplished by reasonable exertion." City of
New York v. McAllister Bros., Inc., 278 F.2d 708, 710 (2d
Cir.1960). The Eleventh Circuit has defined forthwith as requiring
" "reasonable promptness, diligence or dispatch.' " Libby, 840
F.2d at 821 (quoting United States v. Bradley, 428 F.2d 1013, 1016
(1970) (defining forthwith in the context of Federal Criminal
Procedure Rule 41(c))).
Nonetheless, we conclude that under any definition, service
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in 103 or 106 days is not forthwith. Although Rule 4(j) may give
an appropriate benchmark of what is an unreasonable delay, Rule
4(j) does not define the outer limit of acceptable forthwith
service. See Amella, 732 F.2d at 713. To construe forthwith as
120 days would essentially read the term "forthwith" out of the
statute. Our interpretation of § 742 is in conformity with the
other courts that have determined what is forthwith. See, e.g.,
id. (63 days not forthwith); McAllister Bros., 278 F.2d 708, 710
(2d Cir.1960) (over 2 months not forthwith); Landry v. United
States, 815 F.Supp. 1000, 1003 (E.D.Tex.1993) (110 days not
forthwith).
III.
The Holmbergs argue that if we determine that forthwith
service is a jurisdictional requirement, and not superseded by Rule
4(j), we have announced a new rule that should be applied
prospectively only. As previously discussed, failure to comply
with the forthwith service requirement denies a court subject
matter jurisdiction. "A court lacks discretion to consider the
merits of a case over which it is without jurisdiction, and thus,
by definition, a jurisdictional ruling may never be made
prospective only." Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981).
CONCLUSION
For the reasons stated above, the district court's decision is
reversed, and the case remanded with instructions to dismiss for
lack of jurisdiction. REVERSED AND REMANDED.
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