Anne Kenyon and Charles Kenyon v. United States ( 1982 )

OPINION

PER CURIAM.

THE APPEAL

Anne Kenyon and Charles Kenyon, wife and husband, (Kenyons) appeal the Final Judgment of the District Court dismissing their admiralty suit against the United States of America (Government) for lack of jurisdiction on the ground that the Kenyons failed to make “forthwith” service of a copy of the libel upon the Attorney General of the United States (Attorney General) as required by § 2 of the Suits in Admiralty Act, 46 U.S.C. § 742.¹

We note jurisdiction and affirm.

PROCEDURES IN THE DISTRICT COURT

The Kenyons brought suit against the Government and others pursuant to the Public Vessels Act, 46 U.S.C. §§ 781-790, for personal injuries Anne Kenyon allegedly sustained while debarking from a United States Navy warship on May 29, 1977.

Section 782, 46 U.S.C., incorporates by reference the requirements of service of process upon the United States as set forth in 46 U.S.C. § 742.

The suit was instituted on May 24, 1979, five days before the expiration of the two-year statute of limitations contained in the Suits in Admiralty Act, 46 U.S.C. § 745. No prior claim or other indication of possible suit was ever filed with the Navy or any other government agency or department.

The United States Attorney for the District of Hawaii was served with a copy of the summons and libel on May 25, 1979, the day after the action was filed. The Government properly served its answer to the libel on July 18, 1979, asserting the lack of District Court jurisdiction as an affirmative defense “in that plaintiffs have failed to effect forthwith service . . . upon the Attorney General ... as required by the Public Vessels Act, ... § 742.” On July 23, 1979, five days after receiving the Government’s answer, the Kenyons’ counsel mailed a copy of the summons and libel to the Attorney General. Thus service was effected on the Attorney General sixty days after the libel was filed and fifty-five days after the effective two-year statute of limitations had expired.

On April 22, 1980, approximately seven months after service was made on the Attorney General and after substantial discovery by both sides, the Government filed a motion to dismiss based on the allegedly defective service. The District Court granted the motion, dismissing the Government as a party, and granted Fed.R.Civ.P. 54(b) certification. The Kenyons filed a timely appeal following the District Court’s denial of their motion to reconsider.

ISSUE ON REVIEW

The sole issue presented by the Kenyons is whether the District Court lacked jurisdiction because of the lack of a “forthwith” service of a copy of the libel upon the Attorney General. The answer is “Yes.” DISPOSITION

The Yealities and wisdom of § 742 requiring the libelant to “forthwith” send a copy of his libel by registered mail to the Attorney General are not before us. We are concerned only with whether the Kenyons complied with the congressional command.

The congressional command of § 742 is a condition precedent to the congressional waiver of the Government’s sovereign immunity. The Kenyons’ mailing of a copy of the libel to the Attorney General sixty days after the institution of suit and fifty-five days after the effective two-year statute of limitations had expired is not a compliance with the condition. Barrie v. United States, 615 F.2d 829 (9th Cir. 1980); Owens v. United States, 541 F.2d 1386 (9th Cir. 1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1580, 51 L.Ed.2d 792 (1977), reviewing 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).

The final judgment dismissing the suit against the Government entered by the District Court on August 1, 1980 is affirmed.

AFFIRMED.

The petition for rehearing is denied.

BOOCHEVER, Circuit Judge, files a concurring opinion.

1 . The pertinent part of § 742 reads:

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. . . .