Anne Kenyon and Charles Kenyon v. United States

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 .

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…

concurring in denial of petition for rehearing.

If we were writing on a fresh slate I would vote to grant the petition for rehearing. It seems to me that the first, or at most the first two sentences of 46 U.S.C. § 742 constitutes the waiver of sovereign immunity by the United States. Those sentences read:

The subsequent sentences concerning service of process constitute a procedural requirement enacted in the absence at that time, of any other applicable general service provision. In 1938, the Federal Rules of Civil Procedure became effective. 28 U.S.C. § 2072 , enacted in 1948 and amended in 1966, states:

Thus Congress has stated that the rules of procedure enacted by the Supreme Court replace any laws in conflict therewith, as long as those laws do not involve substantive rights. Since 1966, the Federal Rules of Civil Procedure have governed actions in admiralty as a result of the unification of the civil and admiralty rules. Fed.R.Civ.P. 1; 7A Moore’s Federal Practice 1.01, 11 — 14 (2nd ed. 1978).

Were it not for Barrie v. United States, 615 F.2d 829 (9th Cir. 1980) and Owens v. United States, 541 F.2d 1386 (9th Cir. 1976), cert. denied, 430 U.S. 945 , 97 S.Ct. 1580 , 51…

676 F.2d 1229 1985 A.M.C. 1216 Anne KENYON and Charles Kenyon, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 80-4422. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 9, 1981. Decided Dec. 23, 1981. Rehearing Denied May 5, 1982. Bert S. Sakuda, Cronin, Fried, Sekiya, Haley & Kekina, Honolulu, Hawaii, for plaintiffs-appellants. Marlin D. Seiders, Jr., San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the District of Hawaii. Before KENNEDY and BOOCHEVER, Circuit Judges, and EAST, ** Senior District Judge. OPINION PER CURIAM. THE APPEAL 1 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 2 We note jurisdiction and affirm. PROCEDURES IN THE DISTRICT COURT 3 The Kenyons brought suit against…