Failure to Effect Service on U.S. Attorney and Attorney General Under Fed. R. Civ. P. 4(i)(1)(A)–(B) Dooms Lawsuits Against Agencies, Split D.C. Circuit Holds

In Morrissey v. Mayorkas, No. 20-5024 (D.C. Cir. Nov. 9, 2021), the court consolidates two appeals presenting the same issue: whether plaintiffs who properly served the federal agencies where they worked in their age discrimination actions but failed to timely serve the U.S. Attorney for the District of Columbia and the U.S. Attorney General must lose when their cases are dismissed after the statutes of limitations have already expired. The panel majority holds in both cases that there was no abuse of discretion not to grant an extension of time to effectuate service under Fed. R. Civ. P. 4(m).

“Under Federal Rule of Civil Procedure 4 (‘Rule 4’), to sue an agency of the United States, a plaintiff must serve the agency and the United States. Fed. R. Civ. P. 4(i)(2). To serve the United States, a plaintiff must serve a summons and the complaint on the U.S. Attorney for the district where the action is brought and the U.S. Attorney General. Fed. R. Civ. P. 4(i)(1). Rule 4 provides ninety days to complete service, and it instructs that ‘[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.’ Fed. R. Civ. P. 4(m).”

Both plaintiffs, Morrissey and Stephenson, filed actions but failed to serve the U.S. Attorney and Attorney General in the time provided by Rule 4(m). Each received court orders reminding them of their duty to serve the law-enforcement offices before the 90-day period expired; one plaintiff even got an extension to do so. In the end, both cases were dismissed without prejudice. Because the limitations periods had already expired, though, it was too late to refile the actions.

The panel majority holds that there was no abuse of discretion in denying extensions to allow their plaintiffs to serve the law-enforcement offices. “Under well-established precedent, we review a district court’s dismissal under Rule 4(m) for abuse of discretion.”

The panel majority rejects a heightened standard for dismissal after expiration of a limitations period “because the dismissals would in essence be with prejudice and thus justified only ‘after less dire alternatives have been explored without success.’” Plaintiffs cited a Fifth Circuit case applying this standard, Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013). But the panel majority “decline[s] to apply a heightened standard or cabin the district court’s broad discretion to manage its docket.” It notes, among other things, that “the parties’ fail[ed] to brief [the standard] adequately below.”

Under ordinary abuse of discretion standard, the panel majority affirms the decisions in both cases.

Morrissey argued that the district court ought to have granted an extension because he had “good cause” for failure to timely comply with Rule 4’s service requirements. But “[a]s Morrissey acknowledges, Rule 4(m)’s mandatory extension applies only ‘if the plaintiff shows good cause for the failure.’ Fed. R. Civ. P. 4(m). Morrissey made no attempt to demonstrate good cause to the district court before the deadline for service had passed. Morrissey suggests the district court should have sua sponte identified good cause for an extension, but the failure to do so is not an abuse of discretion.” The panel majority also rejects an argument for a discretionary extension. “Although the running of a statute of limitations weighed in favor of granting Morrissey an extension, it did not mandate an extension,” while other factors weighed against (that he was represented by counsel, and that the district court “explicitly and clearly reminded him of his service obligations two weeks before the deadline”).

With Stephenson, he “had not sought an extension or argued the statute of limitations would bar the refiling of his suit, and it is not the district court’s responsibility to discover or raise such issues in the first instance . . . . The possibility that the statute of limitations would run does not transform the district court’s dismissal of Stephenson’s case into an abuse of discretion.” Stephenson likewise did not warrant reconsideration under Fed. R. Civ. P. 59 or 60 because he “did not point to any circumstances outside his control as the cause of his failure to properly serve the United States; request additional time prior to expiration of the original deadline; or request additional time if the two-week extension was insufficient.”

Judge Millett files a 39-page dissent. In addition to disagreeing with the particulars of the panel majority’s rulings on abuse of discretion, Judge Millett also would have adopted the heightened scrutiny standard applied by the Fifth Circuit and other courts for cases where when a limitations period has expired. The dissent notes the circuit split.

“In upholding the orders of dismissal despite their known prejudicial consequences, the majority opinion brings this court into a direct conflict with the law of the Fifth Circuit. That circuit requires a showing of misconduct or willful failure to effect service by the plaintiff and a showing that lesser sanctions would not suffice before slamming the courthouse doors shut on aggrieved parties. If the Fifth Circuit’s rule were applied here, the district courts’ peremptory dismissal orders unquestionably would have been overturned as abuses of discretion. In addition, unlike the majority opinion, at least four other circuits require district courts to, at a minimum, give focused consideration and appropriate weight to the death[1]knell consequences of dismissal before terminating a lawsuit just because of attorneys’ confusion or easily correctible mistakes. The district courts’ failure here to accord any material weight—or any weight at all in Stephenson’s case—to the fatal consequences of dismissal for a first-time error would have been ruled an abuse of discretion in those circuits.”

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