                   United States Court of Appeals,

                              Fifth Circuit.

                               No. 93-3468.

            UNITED STATES of America, Plaintiff-Appellant,

                                       v.

  Paul HOLMBERG and Mariana C. Holmberg, Defendants-Appellees.

                               May 2, 1994.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before WOOD,1 SMITH and DUHÉ, Circuit Judges.

     DUHÉ, Circuit Judge:

     The United States appeals the denial of its motion to dismiss

a suit brought by Paul and Mariana Holmberg under the Suits in

Admiralty Act (SAA), 46 U.S.C.App. §§ 741-752.                 The Government

argues that it was not served "forthwith" as required by 46 U.S.C.

§ 742 of the SAA.         We agree and reverse the district court's

decision.

                                BACKGROUND

     Paul Holmberg was injured while working as a seaman aboard a

vessel   owned    by    the   United        States   through   the   Maritime

Administration    and    managed   by       its   general   agent,   OMI   Ship

Management, Inc.       After Paul Holmberg's administrative claim was

denied, he and Mariana Holmberg filed a suit under the SAA, which

was dismissed without prejudice for failure to effect service. The

Holmbergs then filed this suit against OMI and the United States on

     1
      Circuit Judge of the Seventh Circuit, sitting by
designation.

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November 18, 1992. They served the United States Attorney 103 days

after filing the complaint and served the United States Attorney

General 106 days after filing the complaint.

      The United States moved to dismiss the action for failure to

serve "forthwith" as required by the SAA, 46 U.S.C.App. § 742.2

The district court held that the forthwith service requirement of

§ 742 was superseded by Federal Civil Procedure Rule 4(j), which

requires service within 120 days.             Under Rule 4(j) the service in

this case was timely.     Accordingly, the district court denied the

United States' motion to dismiss, but certified its order for

immediate appeal pursuant to 28 U.S.C. § 1292(b).                       The United

States petition for interlocutory review of the district court's

order was granted.

                                   DISCUSSION

                                         I.

      The issue raised by this appeal is whether the forthwith

service   requirement    in    §   742       is   procedural    and,    therefore,

superseded by Federal Civil Procedure Rule 4(j).                  Those circuits

that have dealt with this question thus far have split over its

answer.   The Second, Ninth, and Eleventh Circuits have held that

the   requirement   of   forthwith       service     is   a    condition   of    the

Government's   waiver     of       sovereign        immunity     and,    thus,     a

jurisdictional prerequisite.         See Libby v. United States, 840 F.2d

818 (11th Cir.1988);     Amella v. United States, 732 F.2d 711 (9th


      2
       OMI also moved to dismiss, and the Holmbergs did not oppose
it.

                                         2
Cir.1984);    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).

Accordingly, the forthwith service requirement is not superseded by

Rule 4(j).    Libby, 840 F.2d at 819.     The Third Circuit has held,

however, that    the   forthwith   service   requirement   of   §   742   is

procedural only and superseded by Rule 4(j).          Jones & Laughlin

Steel, Inc. v. Mon River Towing, Inc., 772 F.2d 62, 66 (3d

Cir.1985).    Although this is the first time this issue has come

before this Court directly, in Kieu v. United States, 953 F.2d 643

(1992) (unpublished), we stated in dicta that the failure to comply

with the forthwith service demand in § 742 is a jurisdictional

defect that denies a court subject matter jurisdiction.         Today, we

adopt the holding of the majority of circuits and the reasoning of

the Eleventh Circuit in Libby v. United States.

       We begin our analysis with the language and structure of the

SAA.    The SAA provides a remedy against the United States when it

owns or operates a vessel as if that vessel were privately owned or

operated.    46 U.S.C.App. § 742.    As a condition to that waiver of

immunity, § 742 requires that "[t]he 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...."    Id.    The procedures governing such suit

against the United States are specified in 46 U.S.C.App. § 743:

"[s]uch suits shall proceed and shall be heard and determined

according to the principles of law and to the rules of practice

obtaining in like cases between private parties."


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        "The fact that the waiver of sovereign immunity is declared

in § 742, while the procedures governing admiralty suits against

the United States are specified in section 743, indicates that the

requirements contained in section 742 are more than procedural."

Libby, 840 F.2d at 820.        The conditions contained in § 742 must be

met before sovereign immunity is waived.              Conditions to a waiver of

sovereign immunity are necessarily jurisdictional in nature:                          "

"[t]he United States, as sovereign, is immune from suit save as it

consents to be sued ..., and the terms of its consent to be sued in

any court define that court's jurisdiction to entertain the suit.'

"   United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,

1351, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312

U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)).                           As a

necessary    term   of   the    Government's         consent    to    be   sued,    the

forthwith requirement in § 742 is therefore a jurisdictional

requirement.

        We turn to the question of whether Rule 4(j) supersedes the

forthwith service requirement. Under 28 U.S.C. § 2072, the Federal

Rules of Civil Procedure supersede all conflicting laws:                      "[a]ll

laws in conflict with such rules shall be of no further force or

effect   after   such    rules    have       taken    effect."        Section      2072

specifies, however, that the rules of civil procedure will "not

abridge, enlarge or modify any substantive right."

       "An action in the district court may not proceed according to

any set of rules unless the court has first obtained jurisdiction

over   the   action.     When    the   United        States    is    the   defendant,


                                         4
jurisdiction lies only if the requirements of the applicable waiver

of sovereign immunity provision are met."          Libby, 840 F.2d at 821.

In this case, jurisdiction under the SAA can be established only if

the requirements in § 742 are first met.               Accordingly, § 742,

including the forthwith service requirement, involves substantive

rights because it defines the scope of the Government's consent to

be sued and defines a litigant's right to sue the Government;              it

cannot be considered merely procedural.          See Sherwood, 312 U.S. at

589-90, 61 S.Ct. at 771.       Therefore, Rule 4(j) cannot modify the

forthwith service requirement in § 742.

                                   II.

      Having found the forthwith requirement applicable in this

case, we turn to whether the Holmbergs' service of process was

forthwith under § 742.         The Holmbergs argue that because the

forthwith service requirement is vague, we should look to the rules

of civil procedure to supply its definition.           We agree that there

has been no uniform definition of forthwith.            The Second Circuit

defines forthwith to mean "immediately, without delay, or as soon

as the object may be accomplished by reasonable exertion."           City of

New   York   v.   McAllister   Bros.,    Inc.,   278   F.2d   708,   710   (2d

Cir.1960). The Eleventh Circuit has defined forthwith as requiring

" "reasonable promptness, diligence or dispatch.' "              Libby, 840

F.2d at 821 (quoting United States v. Bradley, 428 F.2d 1013, 1016

(1970) (defining forthwith in the context of Federal Criminal

Procedure Rule 41(c))).

       Nonetheless, we conclude that under any definition, service


                                    5
in 103 or 106 days is not forthwith.               Although Rule 4(j) may give

an appropriate benchmark of what is an unreasonable delay, Rule

4(j) does not define the outer limit of acceptable forthwith

service.      See Amella, 732 F.2d at 713.             To construe forthwith as

120 days would essentially read the term "forthwith" out of the

statute.      Our interpretation of § 742 is in conformity with the

other courts that have determined what is forthwith.                         See, e.g.,

id. (63 days not forthwith);            McAllister Bros., 278 F.2d 708, 710

(2d Cir.1960) (over 2 months not forthwith);                        Landry v. United

States,      815   F.Supp.    1000,    1003     (E.D.Tex.1993)        (110    days   not

forthwith).

                                         III.

        The Holmbergs argue that if we determine that forthwith

service is a jurisdictional requirement, and not superseded by Rule

4(j),   we    have   announced     a    new     rule   that    should    be     applied

prospectively only.           As previously discussed, failure to comply

with the forthwith service requirement denies a court subject

matter jurisdiction.          "A court lacks discretion to consider the

merits of a case over which it is without jurisdiction, and thus,

by   definition,      a   jurisdictional         ruling       may    never    be     made

prospective only."           Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981).

                                      CONCLUSION

     For the reasons stated above, the district court's decision is

reversed, and the case remanded with instructions to dismiss for

lack of jurisdiction.          REVERSED AND REMANDED.


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