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United States Court of Appeals,
Fifth Circuit.
No. 94-40697
Summary Calendar.
Lloyd HENDERSON, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
May 10, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:
Lloyd Henderson filed a personal injury suit against the
United States under the Suits in Admiralty Act (the "SAA"), 46
U.S.C. app. งง 741-752 (1988), and the Public Vessels Act (the
"PVA"), 46 U.S.C. app. งง 781-790 (1988). Pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, the district
court dismissed Henderson's complaint for lack of subject-matter
jurisdiction. Henderson appeals the district court's dismissal,
and we affirm.
I
Lloyd Henderson, a merchant mariner, was injured while working
aboard a vessel owned and operated by the United States. On April
8, 1993, Henderson filed a personal injury suit against the United
States under the SAA and PVA. Forty-seven days later, on May 25,
1993, the Attorney General of the United States received by mail a
copy of the complaint. On August 30, 1993, Henderson filed a
1

motion for postponement in the district court, in which he claimed
that documents necessary to complete service of process on the
government had been lost in the mail. The district court granted
Henderson's motion, but ordered that he complete service within
fifteen days. The United States Attorney for the district in which
the action was brought was personally served with the complaint on
September 3, 1993, 148 days after Henderson had filed the suit.
The United States moved to dismiss Henderson's suit for lack
of subject-matter jurisdiction, arguing that ง 742 of the SAA
requires that plaintiffs effect service of process in suits brought
against the government under the SAA "forthwith." The district
court denied the motion without opinion. The United States
subsequently renewed its motion to dismiss, citing United States v.
Holmberg, 19 F.3d 1062 (5th Cir.), cert. denied, --- U.S. ----, 115
S.Ct. 482, 130 L.Ed.2d 395 (1994). The district court dismissed
Henderson's complaint without prejudice for lack of subject-matter
jurisdiction.
Henderson appeals, arguing that (1) the district court granted
him an extension of time in which to effect service of process on
the Government; (2) given the problems he had with the mail, he
completed service of process on the Government reasonably
forthwith; (3) his service on the Attorney General was forthwith
and satisfied the service requirements of ง 742; and (4) the
district court's dismissal of his complaint violated his right to
2

due process.1
II
Service of process on the United States is accomplished by
delivering a copy of the summons and complaint to the United States
Attorney for the district in which the action is brought and by
sending a copy of the summons and complaint to the Attorney General
of the United States. Fed.R.Civ.P. 4(i)(1) (previous version at
Rule 4(d)(4) (1993)); Peters v. United States, 9 F.3d 344, 345
(5th Cir.1993). At the time Henderson filed his suit, service of
process in suits brought under the SAA was governed by two separate
timeliness requirements. Rule 4(j) of the Federal Rules of Civil
Procedure required that a plaintiff effect service within 120 days
after filing the suit. Fed.R.Civ.P. 4(j) (1993) (current version
at Rule 4(m)).2 Under ง 742 of the SAA, however, a plaintiff that
1We do not address Henderson's due process claim because the
district court dismissed his complaint without prejudice, and
Henderson does not argue that a subsequent suit would be
time-barred.
2At the time Henderson filed his suit, Rule 4(j) read as
follows:
If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint and the party on whose behalf such
service was required cannot show good cause why such
service was not made within that period, the action
shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice
to such party or upon motion.
Fed.R.Civ.P. 4(j) (current version at Rule 4(m)). In 1993,
Rule 4(j) was replaced by Rule 4(m), which states that:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
3

has brought suit against the United States under the SAA must
effect service of process "forthwith," 46 U.S.C. app. ง 742.3
We review the district court's dismissal of Henderson's
complaint for lack of subject-matter jurisdiction de novo.
Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.1994).
A
Henderson argues that because the district court granted him
an extension of time in which to effect service of process on the
Government, he was exempt from ง 742's "forthwith" requirement.
Under Rule 4(j), the district court was required to dismiss a
plaintiff's complaint for failure to meet the 120-day requirement
unless the plaintiff showed "good cause" for its failure. While
the district court did not expressly find that Henderson had shown
"good cause" for being unable to meet the 120-day requirement, the
court did grant him a fifteen-day extension.
In United States v. Holmberg, 19 F.3d 1062 (5th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 482, 130 L.Ed.2d 395 (1994), we
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified
time; provided that if the plaintiff shows good cause
for the failure, the court shall extend the time for
service for an appropriate period.
Fed.R.Civ.P. 4(m).
3Section 742 states in pertinent part that:
The libelant shall forthwith serve a copy of his libel
on the United States attorney for such district and
mail a copy thereof by registered mail to the Attorney
General of the United States, and shall file a sworn
return of such service and mailing. Such service and
mailing shall constitute valid service....
4

addressed the question of whether the forthwith service requirement
in ง 742 is procedural and, thus, superseded by the Federal Rules
of Civil Procedure. We held that the requirement of forthwith
service is a condition of the government's waiver of sovereign
immunity and, therefore, a jurisdictional prerequisite. Id. at
1064-65; accord Libby v. United States, 840 F.2d 818 (11th
Cir.1988); Amella v. United States, 732 F.2d 711 (9th Cir.1984);
Battaglia v. United States, 303 F.2d 683 (2d Cir.), cert.
dismissed, 371 U.S. 907, 83 S.Ct. 210, 9 L.Ed.2d 168 (1962). But
see Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772
F.2d 62 (3d Cir.1985) (holding forthwith service requirement to be
procedural). Because ง 742's forthwith service requirement is a
jurisdictional prerequisite, it is not superseded by the Federal
Rules of Civil Procedure and could not have been modified by Rule
4(j). See Holmberg, 19 F.3d at 1064 (holding that Rule 4(j) does
not superseded ง 742's forthwith requirement). Thus, the district
court's decision to grant Henderson fifteen additional days in
which to meet the forthwith service requirement of Rule 4(j) did
not affect either the court's subject-matter jurisdiction or
Henderson's obligations under ง 742.
B
Henderson contends next that, given his problems with the
mail, he completed service of process on the Government reasonably
forthwith, and that the district court's implied finding that he
showed "good cause" for the delay in service supports his
contention. Henderson also cites as support our statement in
5

United States v. Bradley, 428 F.2d 1013 (5th Cir.1970), that in the
context of another statute, the term "forthwith" was "deliberately
undefined ... to allow courts to interpret it in a context of
"reasonableness,' on a case by case basis." Id. at 1015. In
Holmberg, however, we concluded that "under any definition, service
in 103 or 106 days is not forthwith." Holmberg, 19 F.3d at 1065.
Thus, even if we interpret the term in a context of reasonableness,
and even if the district court found that Henderson showed good
cause for the delay, completing service in 148 days is not
forthwith.
C
Lastly, Henderson argues that his service on the Attorney
General was forthwith and satisfied the service of process
requirements of ง 742. He contends that "the purpose of the
[forthwith] requirement is to provide reasonably prompt notice of
the suit to the United States," and that his service on the
Attorney General provided the government with that notice. Under
ง 742, both service of the complaint on the U.S. Attorney and the
mailing of a copy to the Attorney General are required to complete
service of process on the government. See ง 742. "The word
"forthwith' applies both to the service of a copy of the complaint
on the United States Attorney and to the mailing of a copy of the
complaint by registered mail to the Attorney General of the United
States." 1 Martin J. Norris, The Law of Maritime Personal
Injuries, ง 8.4 (4th ed. 1990). See, e.g., Battaglia v. United
States, 303 F.2d 683, 686 (2d Cir.), cert. dismissed, 371 U.S. 907,
6

83 S.Ct. 210, 9 L.Ed.2d 168 (1962) (holding that the term
"forthwith" applies to both the service and the mailing). Thus,
while we do not address whether Henderson's service on the Attorney
General was forthwith, we conclude that Henderson's service on the
Attorney General alone did not satisfy the forthwith service
requirement of ง 742.
III
For the foregoing reasons, we DENY the Government's motion to
dismiss Henderson's appeal,4 but AFFIRM the district court's
dismissal of Henderson's complaint.

4In a Motion to Dismiss the Appeal as Unmeritorious, the
Government moved for dismissal of Henderson's appeal pursuant to
Local Rule 42.2, which provides for the dismissal of certain
appeals that this Court finds "frivolous and entirely without
merit." Although we affirm the district court's dismissal of his
complaint, Henderson's appeal was not frivolous.
7