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HENDERSON v. UNITED STATES - 517 U.S. 654 (1996)





No. 95-232. Argued March 19, 1996-Decided May 20, 1996

Petitioner Henderson filed this suit under the Suits in Admiralty Act for injuries he received as a seaman aboard a vessel owned by the United States. He accomplished service on the United States in the manner and within the time allowed by Federal Rule of Civil Procedure 4, which sets an extendable 120-day period for service. Service on the Attorney General occurred 47 days after the complaint was filed, but service on the United States Attorney, though timely under Rule 4's extendable deadline, took 148 days. The United States moved to dismiss the action, arguing that although the time and manner of service satisfied Rule 4's requirements, Henderson had failed to serve process "forthwith" as required by § 2 of the Suits in Admiralty Act. The District Court dismissed Henderson's complaint for lack of subject-matter jurisdiction, based on Circuit precedent holding that § 2's service "forthwith" requirement conditions the Government's waiver of sovereign immunity and is therefore a jurisdictional prerequisite. The Court of Appeals affirmed.

Held: The Suits in Admiralty Act's "forthwith" instruction for service of process has been superseded by Rule 4. Pp.661-672.

(a) Rule 4's regime conflicts irreconcilably with § 2's service "forthwith" instruction. The Federal Rules convey a clear message that complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow, but § 2's "forthwith" instruction is indicative of a far shorter time. The Government urges that the conflict dissolves if one reads Rule 4 as establishing not an affirmative right to serve a complaint within 120 days, but an outer boundary for timely service. Reading Rule 4 in its historical context, however, leads to the conclusion that the 120-day provision operates as an irreducible allowance. Pp. 661-663.

(b) In the Rules Enabling Act, Congress ordered that, in matters of "practice and procedure," 28 U. S. C. § 2072(a), the Federal Rules shall govern, and "[a]lllaws in conflict with such rules shall be of no further force or effect," § 2072(b). Correspondingly, Federal Rule of Civil Procedure 82 provides that the Rules cannot be construed to extend or limit federal jurisdiction. Section 2 of the Suits in Admiralty Act contains a


broad waiver of sovereign immunity in its first sentence, but this does not mean, as the United States asserts, that § 2 in its entirety is "jurisdictional." Several of § 2's provisions, notably its generous venue and transfer provisions, as well as its service provision, are not sensibly typed "substantive" or "jurisdictional." Instead, they have a distinctly facilitative, "procedural" cast, dealing with case processing, not substantive rights or consent to suit. The service "forthwith" prescription is not made "substantive" or "jurisdictional" by its inclusion-along with broad venue choices-in § 2. The prescription is best characterized as a rule of procedure, of the kind Rule 4 supersedes. A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must resort to Rule 4 for instructions on service of process. 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. The Rule also describes how service shall or may be effected on various categories of defendants. It is uncontested that all these prescriptions apply in Suits in Admiralty Act cases, just as they apply in other federal cases. There is no reason why the prescription governing time for service is not, as is the whole of Rule 4, a nonjurisdictional rule governing "practice and procedure" in federal cases, see 28 U. S. C. § 2072(a), consistent with the Rules Enabling Act and Rule 82, and rendering provisions like the Suits in Admiralty Act's service "forthwith" requirement "of no further force or effect," § 2072(b). Pp. 663-672.

51 F.3d 574, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, in which KENNEDY, J., joined, post, p. 672. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 673.

Richard A. Sheehy argued the cause for petitioner. With him on the briefs were Kenneth R. Breitbeil and Lauren

Malcolm L. Stewart argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Michael E. Robinson, and Timothy R. Lord.

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