Morrissey v. Mayorkas
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Citation | 17 F.4th 1150 |
| Docket Number | No. 20-5042,No. 20-5024,20-5024 |
| Parties | Paul S. MORRISSEY, Appellant v. Alejandro N. MAYORKAS, Secretary, U.S. Department of Homeland Security, Appellee Kelly Stephenson, Appellant v. Pete Buttigieg, Secretary, U.S. Department of Transportation, Appellee |
| Decision Date | 09 November 2021 |
17 F.4th 1150
Paul S. MORRISSEY, Appellant
v.
Alejandro N. MAYORKAS, Secretary, U.S. Department of Homeland Security, Appellee
Kelly Stephenson, Appellant
v.
Pete Buttigieg, Secretary, U.S. Department of Transportation, Appellee
No. 20-5024
No. 20-5042
United States Court of Appeals, District of Columbia Circuit.
Argued December 1, 2020
Decided November 9, 2021
Andrew T. Tutt argued the cause for appellant Paul S. Morrissey. With him on the briefs were Allon Kedem and Kyle Lyons-Burke.
Matthew S. Hellman was on the briefs for amicus curiae Professors of Civil Procedure in support of appellants Paul S. Morrissey and Kelly Stephenson.
Kyle Lyons-Burke argued the cause for appellant Kelly Stephenson. With him on the briefs were Allon Kedem and Andrew T. Tutt.
Matthew J. Glover, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the causes for appellees. With him on the briefs were R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
Before: Millett and Rao, Circuit Judges, and Silberman, Senior Circuit Judge.
Dissenting opinion filed by Circuit Judge Millett.
Rao, Circuit Judge:
These two cases raise a common question: if a plaintiff fails to properly serve the United States and the statute of limitations has run, is it an abuse of discretion for a district court not to grant an extension of time to effectuate service? In each case a federal employee sought to sue his federal agency for discrimination but failed to properly serve the United States in a timely manner under Federal Rules of Civil Procedure 4(i) and (m). The cases were dismissed without prejudice, but the plaintiffs were out of luck because the statute of limitations had expired.
The plaintiffs argue on appeal that the failure to grant an extension of time in these circumstances exceeds the district court's discretion and that this court should review the dismissals under a heightened standard because when the statute of limitations has run, a dismissal is effectively with prejudice. We disagree. When a plaintiff has otherwise not demonstrated good cause for failing to effectuate service, the running of the statute of limitations does not require a district court to extend the time for service of process, nor does it require appellate review under a heightened standard. Neither plaintiff demonstrated good cause, and dismissal of these complaints under Rule 4(m) was within the broad discretion of the district court.
I.
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.1
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).
In the first case, Paul Morrissey alleged age discrimination against his former employer, the Department of Homeland Security, in an official capacity suit against the Secretary of the Department. Morrissey filed his complaint on June 28, 2019, and therefore was required to complete service by September 26, 2019. Two weeks prior to the deadline, the district court published a minute order reminding Morrissey of his service responsibility. The district court cited Rule 4(m) and "ordered that, by no later than September 26, 2019, [Morrissey] must either cause process to be served upon the Defendant and file proof of service with the Court or establish good cause for the failure to do so." Morrissey Appendix ("M.A.") 1. The district court also warned that "[f]ailure to make such filings will result in dismissal of this case." Id. Despite this reminder, Morrissey did not file proof of service by the deadline. Nor did he seek an extension of time to complete service or attempt to show good cause for failing to complete service in a timely manner.
On September 30, the district court dismissed the case without prejudice pursuant to Rule 4(m), noting that it had previously reminded Morrissey of his service obligation. Morrissey immediately filed a motion to reinstate the case, claiming that dismissal was not appropriate because he had timely completed service on the agency. In support, he attached an affidavit and a printout from the U.S. Postal Service's tracking portal indicating the Department of Homeland Security was served on September 16. Morrissey stated he was not requesting additional time to effectuate service.
The district court denied Morrissey's motion, explaining that although Morrissey properly served the Department of Homeland Security, "[t]here is no proof" he also served the United States, which required serving both the U.S. Attorney and the Attorney General. M.A. 31. The district court concluded that Morrissey had not shown good cause for his failure to comply with Rule 4 ’s service requirements because it is not good cause to misunderstand the law or to be ignorant of it. Moreover, the court determined that Morrissey qualified for neither a mandatory extension of time under Rule 4(i)(4)(A)2 nor a discretionary extension.
Morrissey then filed a Rule 59(e) motion urging the court to set aside its judgment, reinstate his complaint, and grant him a twenty-day extension to serve the complaint and file proof of service. Morrissey asserted that, because the statute of limitations had run and he was unable to refile the case, the court's dismissal without prejudice was in effect a dismissal with prejudice, so denying reinstatement of his case resulted in manifest injustice. The district court denied Morrissey's motion because it included only new, yet previously available, arguments. The court concluded that "relief under Rule 59(e) is improper" because " ‘[it] is not a vehicle to present a new legal theory that was available prior to judgment.’ " M.A. 61 (quoting Patton Boggs LLP v. Chevron Corp. , 683 F.3d 397, 403 (D.C. Cir. 2012) ). Morrissey timely appealed.
In the second case, Kelly Stephenson alleged age and disability discrimination against his former employer, the Department of Transportation, in an official capacity suit against the Secretary of the Department. As explained above, Rule 4 required Stephenson to serve a summons and the complaint on the agency as well as the United States, which here required service on the U.S. Attorney for the District of Columbia and the Attorney General. Stephenson filed his complaint on July 29, 2019, and accordingly had to file proof of service by October 27, 2019. See FED. R. CIV. P. 4(i), (l), & (m).
Several weeks after the deadline to complete service, the district court issued a minute order noting that although it "received proof of service for the agency, the docket does not reflect service on the Attorney General of the United States or the U.S. Attorney's Office," as required by Rule 4. Stephenson Appendix ("S.A.") 1. The court provided an additional two weeks to perfect service, explicitly ordering Stephenson to file proof of service on the Attorney General and U.S. Attorney by December 4, 2019, and warning that the failure to comply may result in dismissal without prejudice.
Before the extended deadline, Stephenson filed an affidavit stating the summons and complaint were sent to the agency by certified mail on December 2, 2019. He attached a certified mail receipt and a U.S. Postal Service tracking printout in support of his affidavit. The affidavit made no mention of service on the Attorney General or the U.S. Attorney.
After the extended deadline had passed, the district court dismissed the case without prejudice pursuant to Rule 4(m). The court's minute order explained that Stephenson had failed to serve the United States—the Attorney General and the U.S. Attorney—by the deadline imposed by Rule 4(m) and had not shown good cause for his failure. Nor did Stephenson comply with the court's order granting an extension and specifically directing Stephenson to file proof of service on the Attorney General and the U.S. Attorney.
Stephenson moved for reconsideration of the order of dismissal under Rule 60(b), alleging that "a clerical error prevented Defendant from being served properly." S.A. 24. In addition, he argued that even if the district court determined he does not have good cause for the failure to effectuate service, it should grant him a discretionary extension. Stephenson asserted he "would suffer substantial harm should this case be dismissed as his claim would become time-barred." S.A. 25 (cleaned up). Without further detail, he also asserted that he "showed diligence in attempting to
effectuate service twice." S.A. 26. Stephenson urged the court to reinstate the case and grant a sixty-day extension for him to complete service.
The district court denied Stephenson's motion for reconsideration. Stephenson brought his motion under Rule...
To continue reading
Request your trial
-
Cole v. Haines, Civil Action 21-2599 (TJK)
...rule gives district courts “discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021). The Court twice granted Cole extensions of time beyond the ninety-day deadline to serve Perspecta/Peraton and file p......
-
Baugh v. United States Capitol Police, Civil Action 22-139 (TJK)
...rule gives district courts “discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021). Considering that Baugh had two separate opportunities to serve the officers and that the deadline to effect service ......
-
Azzam v. Dist. of Columbia, Civil Action 19-cv-3365 (TSC)
...a pro se plaintiff who makes honest mistakes.” Klayman v. Obama, 125 F.Supp.3d 67, 77 (D.D.C. 2015); see also Morrissey v. Mayorkas, 17 F.4th 1150, 1160 (D.C. Cir. 2021). Third, good cause exists where a statute of limitations would bar refiling the action. Mann, 681 F.3d at 376; see also F......
-
Offutt v. Dist. of Columbia, Civil Action 1:21-cv-02589 (TSC)
...that district courts have discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. Nov. 9, 2021). Ultimately, though, the court need not resolve the District's Rule 12(b)(5) motion because Plaintiff has faile......
-
Taotao U.S. Inc. v. United States Envtl. Prot. Agency
...decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021) (quoting United States v. Volvo Powertrain Corp., 758 F.3d 330, 345 (D.C. Cir. 2014)). Accordingly, the reviewing co......
-
Cole v. Haines
...rule gives district courts “discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021). The Court twice granted Cole extensions of time beyond the ninety-day deadline to serve Perspecta/Peraton and file p......
-
Cole v. Haines
...rule gives district courts “discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021). The Court twice granted Cole extensions of time beyond the ninety-day deadline to serve Perspecta/Peraton and file p......
-
Baugh v. United States Capitol Police
...rule gives district courts “discretion when determining whether to dismiss for failure to timely effect service.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021). Considering that Baugh had two separate opportunities to serve the officers and that the deadline to effect service ......