SUPREME COURT OF THE UNITED STATES

No. 95–232

LLOYD HENDERSON, PETITIONER v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the fifth circuit

[May 20, 1996]

Justice Thomas, with whom the Chief Justice and Justice O'Connor join, dissenting.

The Suits in Admiralty Act (SAA) 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 this Court has read procedural rules embodied in statutes waiving immunity strictly, with an eye to effectuating a restrictive legislative purpose when Congress relinquishes sovereign immunity." Honda v. Clark, 386 U. S. 484, 501 (1967).

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 12–14, is largely beside the point. Section 3 provides that the ordinary rules of procedure governing private parties in admiralty also govern suits under the SAA. But Congress excepted from this provision the service-of-process requirement and placed it in a separate section altogether. This suggests not only that Congress attached greater significance to the requirement that process be served forthwith than to other procedural rules, but, more importantly, that Congress expected process to be served forthwith in SAA cases regardless of the "principles of law and . . . rules of practice obtaining in like cases between private parties." 46 U. S. C. App. §743.

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. ___, ___ (1995) (slip op., at 4). 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 jurisdiction to entertain the suit.'" Ibid. (quoting Sherwood, 312 U. S., at 586). Though the Rules Enabling Act provides that all previously enacted laws that are "in conflict with" the Federal Rules of Civil Procedure "shall be of no further force or effect," 28 U. S. C. §2072(b), it also expressly provides that the Federal Rules "shall not abridge, enlarge or modify any substantive right," ibid. Allowing SAA claims in which process is not served forthwith to proceed against the United States infringes upon the Government's immunity and thereby alters a substantive right in direct contravention of the Rules Enabling Act. Moreover, Federal Rule of Civil Procedure 82 makes clear that the Rules of Procedure "shall not be construed to extend or limit the jurisdiction of the United States district courts." Given the jurisdictional nature of a waiver of sovereign immunity, allowing this suit to proceed also violates Rule 82.

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.

The majority rejects the proposition, accepted by four of the five Courts of Appeals that have addressed this issue, that a service requirement can serve as a condition on a waiver of sovereign immunity. This cannot be, the majority concludes, because service is "not sensibly typed `substantive' or `jurisdictional,'" and instead has a "`procedural' cast" and "deal[s] with case processing." Ante, at 14. But the proper inquiry is not whether the condition is in nature "procedural" or "substantive," for we have long maintained that even procedural rules can condition a waiver of sovereign immunity. See Honda, 386 U. S., at 501. The fact that Congress has determined to limit the scope of its consent to suit is sufficient to restrict federal court jurisdiction over the United States, regardless of the nature of the condition Congress has attached. For instance, though no one would claim that failure to satisfy a statute of limitations in a case between private parties would serve as a jurisdictional bar to the plaintiff's suit, we have long held that a statute of limitations attached to a waiver of sovereign immunity functions as a condition on the waiver and defines the limits of the district court's jurisdiction to hear a claim against the United States. See Williams, 514 U. S., at ___, n. 7 (slip op., at 7, n. 7); Block, 461 U. S., at 287; United States v. Kubrick, 444 U. S. 111, 117–118 (1979); Soriano v. United States, 352 U. S. 270, 271, 273 (1957). See generally 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, §3654, pp. 194–199 (1985). The same is true of the SAA's service requirement. While service of process in a case between private parties may generally be understood to be "a matter discrete from a court's jurisdiction to adjudicate a controversy of a particular kind," ante, at 17, a waiver of sovereign immunity conditioned upon a particular method of service would transform what is ordinarily a nonjurisdictional rule into a jurisdictional one.

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 Act is "technically inapplicable" in this case, Brief for United States 16, n. 14, because Rule 4(j) was not promulgated by this Court but rather was enacted by Congress, see Pub. L. 97–462, 96 Stat. 2528, and the Rules Enabling Act by its terms nullifies only statutory rules of procedure that conflict with rules promulgated by the Supreme Court.

The majority acknowledges the inapplicability of the Rules Enabling Act, ante, at 14–15, but appears to apply the Act nonetheless, ante, at 16 (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 15 ("[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 filed it in the District Court. Although we have never undertaken to define "forthwith" as it is used in the SAA, it is clear that the term "connotes action which is immediate, without delay, prompt, and with reasonable dispatch." Amella v. United States, 732 F. 2d 711, 713 (CA9 1984) (citing Black's Law Dictionary 588 (5th ed. 1979)). See also Dickerman v. Northern Trust Co., 176 U. S. 181, 192–193 (1900). Whatever problems Henderson may have had in serving his complaint upon the United States, the 148-day delay can hardly be described as process served forthwith under even the most generous definition of the term. I respectfully dissent.