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KURZBERG v. ASHCROFT
619 F.3d 176 (2010)
United States Court of Appeals, Second Circuit.
Argued: November 17, 2009.
For the foregoing reasons, we affirm the judgment of the district court.
* The Clerk of the Court is directed to amend the caption as set forth above. We do not substitute any of the government-official defendants in favor of their successors under Federal Rule of Appellate Procedure 43(c)(2), because we understand each of the defendants in this Bivens action to be sued in his or her individual capacity, see, e.g., Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir.2007) ("The only remedy available in a Bivens action is an award for monetary damages from defendants in their individual capacities."), although the plaintiffs have specified as much only for some, not all, of the defendants, see Am. Compl. ¶¶ 17-59. "[A]ny misnomer [in the caption] that does not affect the substantial rights of the parties may be disregarded." Fed. R.App. P. 43(c)(2).
** The Honorable John F. Keenan, of the United States District Court for the Southern District of New York, sitting by designation.
1. The parties dispute whether the United States is also a party to this action. See Appellants' Br. 8; Ashcroft Br. 3-4 n. 3. The plaintiffs did not name the United States as a defendant in their Amended Complaint. For purposes of this appeal, we assume that the United States is not a separate party. That question has no bearing on the resolution of this appeal.
2. In addition to damages, the Amended Complaint sought injunctive relief that would not be available in a Bivens action. See, e.g., Higazy, 505 F.3d at 169 (supra, note 1). However, in their papers submitted to this Court the plaintiffs only seek damages, and refer to their lawsuit as a Bivens action. Moreover, the district court treated the lawsuit as a Bivens action against the defendants in their individual capacities. We therefore treat the underlying lawsuit as a Bivens action.
3. The rule as then in effect provided:
Service on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States— whether or not the officer or employee is sued also in an official capacity—is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g). Fed.R.Civ.P. 4(i)(2)(B) (pre-2007 amendment). The "manner prescribed by Rule 4(i)(1)" for serving the United States was, in relevant part, as follows: (1) Service upon the United States shall be effected (A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought ... and (B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia.... Fed.R.Civ.P. 4(i)(1) (pre-2007 amendment).
4. The February 2, 2005 letter from Ashcroft's counsel to plaintiffs' counsel waiving personal service specifically referred to personal service by a process server; it did not purport to waive any required service by registered or certified mail.
5. The plaintiffs argue that the standard of review is de novo because Rule 4(i) was amended after the district court's rulings in this case, and therefore this Court's application of Rule 4(i), in its current form, to the facts of this case will represent the first such application. However, the amendment at issue was "intended to be stylistic only." Advisory Committee Notes, 2007 Amendment, Rule 4. The plaintiffs' argument is therefore without merit, even if we were to analyze this case using the current version of the rules rather than that which was in place at the time of the district court's rulings.
The plaintiffs also argue that the standard of review is de novo because the cure provision in Rule 4(i) is mandatory. That fact does not affect the standard of review. If the district court failed to consider the cure provision, that would qualify as an abuse of discretion. See, e.g., United States v. Hasan, 586 F.3d 161, 168 (2d Cir.2009) (error of law constitutes, in effect, abuse of discretion).
6. The current version of Rule 4(m) reads:
If a defendant is not served within 120 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.... But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m)
7. This requirement is now provided in Rule 4(i)(3).
8. The current version of the "cure provision," Rule 4(i)(4), reads, in relevant part: "The court must allow a party a reasonable time to cure its failure to ... (B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee."
Fed.R.Civ.P. 4(i)(4).
9. The defendants urge us to ignore this argument because the plaintiffs failed to raise it before the district court. There, the plaintiffs argued that Ashcroft's waiver of personal service upon him in his individual capacity sufficed for service of process on the United States. There is indeed a "general rule that an appellate court will not consider an issue raised for the first time on appeal." Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994); but see id. ("We will [] sometimes entertain arguments not raised in the trial court if the elements of the claim were fully set forth and there is no need for additional fact finding."). But this is an unusual case inasmuch as the district court raised, sua sponte, the argument that the defendants ask us to ignore, and discussed it at length. The argument was thus raised in the district court, albeit not by the plaintiffs.
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