Peters v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-4870
Conference Calendar
__________________
LORA MAE PETERS ET AL.
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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October 27, 1993
Before POLITZ, Chief Judge, and SMITH and WIENER, Circuit Judges.
PER CURIAM:*
Lora Mae Peters and her children filed a wrongful-death
action against the United States following the death of Mrs.
Peters's husband in a Veterans Administration hospital. The
district court dismissed the action because the plaintiffs failed
to serve the United States Attorney within 120 days of filing the
complaint. Because the statute of limitations has expired, the
dismissal operates as a dismissal with prejudice.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
No. 93-4870
-2-
Service 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 by registered or certified mail
to the Attorney General and any applicable officer or agency.
See Fed. R. Civ. P. 4(d)(4). If a plaintiff fails to serve the
defendant properly within 120 days of filing the complaint, upon
motion of the defendant or sua sponte by the court with notice to
the plaintiff, the action shall be dismissed without prejudice
unless the plaintiff shows good cause for failure to complete
service. Id. at 4(j). To establish "good cause" the plaintiff
must demonstrate "at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake of
counsel or ignorance of the rules usually does not suffice."
Systems Signs Supplies v. United States Dep't of Justice, 903
F.2d 1011, 1013 (5th Cir. 1990) (internal quotations and citation
omitted). This Court reviews a Rule 4(j) dismissal for an abuse
of discretion. Id.
This Court has rejected the argument that service on the
United States Attorney by certified or registered mail is
sufficient under Rule 4(d)(4). See McDonald v. United States,
898 F.2d 466, 467-68 (5th Cir. 1990). The Court also has
rejected the contention that the improper service is cured by
untimely personal service of the complaint, even if the United
States Attorney has actual notice of the action. Id. at 468.
Finally, a Rule 4(j) dismissal is proper even if the limitations
No. 93-4870
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period has run. Id. The district court did not abuse its
discretion by dismissing the plaintiffs' action.
The plaintiffs also argue that Rule 4(d)(4) as applied is
unconstitutional. They contend that the dismissal "places form
over substance resulting in an unconstitutional denial of access
to the court and a deprivation of property without due process of
law." The plaintiffs cite no authority to support their
proposition that the rule as applied is unconstitutional.
This Court has held that Rule 4(d)(4) is easily
understandable and not unconstitutionally vague. See King v.
Stone, No. 92-7551 (5th Cir. Feb. 3, 1993) (unpublished; copy
attached). In King the Court also stated that although the
operation of the rule may be harsh, "[t]his is the scheme that
Congress has devised, [] and a party's failure to comply with the
express requirements of the applicable rules can result in
substantial prejudice." Id. The plaintiffs' constitutional
challenge to the rule as applied is meritless.
AFFIRMED.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-7551
Summary Calendar
_______________
LE ROY CHESTER KING, JR.,
Plaintiff-Appellant,
No. 93-4870
-4-
VERSUS
MICHAEL P.W. STONE,
Secretary, Department of the Army Agency,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(CA-W91-0061(B))
_________________________
(February 3, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:**
The plaintiff, Le Roy King, filed this title VII complaint
on June 19, 1991, against the Secretary of the Army, asserting
that his five-day suspension was occasioned by racial discrimina-
tion. On December 30, 1991, having failed to effect service of
process, he was granted until January 10, 1992, to serve process.
Returns of service were filed on January 13, 1992, stating
that process had been sent by certified mail to the Attorney
General of the United States, an Army Corps of Engineers attor-
ney, and the Secretary of the Army in care of the United States
Attorney. On January 16, 1992, returns were filed stating that
process had been sent by certified mail to the United States
Attorney and the Secretary of the Army.
**
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
No. 93-4870
-5-
The district court granted the defendant's motion to dismiss
for failure to effect proper service of process as required by
FED. R. CIV. P. 4(d)(4), i.e., failure to obtain personal service
upon the United States Attorney or an Assistant United States
Attorney or a clerical employee designated by the United States
Attorney to receive service of process. King does not claim that
he complied with rule 4(d)(4) but asserts, instead, that it is
unconstitutionally vague.
Even assuming, arguendo, that the vagueness doctrine applies
to this rule, the rule is easily understandable. As the defen-
dant states, "Rule 4 itself should be clear to anyone who takes
the trouble to read the entire rule. ... Clearly the United
States and its officers are covered by [rule] 4(d)(4) and (5) and
not by 4(d)(1) or (3). Thus the rule is clear that the United
States and its officers are not covered by the provision which
allows mail service."
King also argues that it is unfair to dismiss his complaint
because it is now barred by limitations. This is the scheme that
Congress has devised, however, and a party's failure to comply
with the express requirements of the applicable rules can result
in substantial prejudice. The judgment of dismissal is AFFIRMED.
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