[00:00:02] Speaker 01:
Case number 20-5024, Paul S. Marcy, a ballot, versus Chad F. Wolf, acting secretary, U.S.

[00:00:10] Speaker 01:
Department of Homeland Security.

[00:00:11] Speaker 01:
And case number 20-5042, Kelly Stevenson, a ballot, versus Elaine L. Chao, secretary, Department of Transportation.

[00:00:20] Speaker 01:
Mr. Lyonsburg for the a ballot, Kelly Stevenson.

[00:00:23] Speaker 01:
Mr. Tutt for the a ballot, Paul S. Marcy.

[00:00:25] Speaker 01:
Mr. Glover for the appellee.

[00:00:29] Speaker 04:
Can we proceed?

[00:00:31] Speaker 03:
May I please the court?

[00:00:32] Speaker 03:
I, along with my colleague, represent the appellants in this case.

[00:00:36] Speaker 03:
With this court's permission, we will divide our time as follows.

[00:00:39] Speaker 03:
I will be arguing the issues that are dispositive for both cases for nine minutes.

[00:00:43] Speaker 03:
My colleague will argue the issues individual for each case for three minutes, and I would like to serve three minutes for a bottle.

[00:00:51] Speaker 03:
This court should reverse both district court dismissals below for three reasons.

[00:00:56] Speaker 03:
First, a heightened standard should apply to dismissals without prejudice, where the statute of limitations would bar refiling of those claims.

[00:01:03] Speaker 03:
Second, the district courts below did not apply the relevant equitable factors even under a lesser standard to dismiss these claims.

[00:01:11] Speaker 03:
And third, because neither neither plaintiff below waived or forfeited any arguments.

[00:01:18] Speaker 03:
A dismissal that permanently ends a lawsuit, however styled, is effectively a dismissal with prejudice.

[00:01:24] Speaker 03:
This court should apply the Milan standard articulated by the Fifth Circuit and hold that a court can only dismiss a case for failure to serve where the statute of limitations would bar refiling when there's been a clear record of delay or consummation of conduct.

[00:01:39] Speaker 03:
This court already applies such a standard to motions to dismiss for failure to prosecute under Rule 41B and has applied this standard to a case where the failure to prosecute was a failure to serve the defendant in that case, and that was the Angelino case.

[00:01:54] Speaker 00:
Isn't that a case where the marshals, is that the one where the marshals screwed up?

[00:02:03] Speaker 03:
No, Your Honor.

[00:02:04] Speaker 03:
This is the case where the defendant was a foreign government and the plaintiff in that case failed to serve the foreign government over an extended period of time.

[00:02:16] Speaker 00:
But wasn't there a problem with respect to the service?

[00:02:20] Speaker 00:
It wasn't the plaintiff's fault?

[00:02:24] Speaker 03:
Yes, your honor, that is correct.

[00:02:25] Speaker 03:
In that case.

[00:02:27] Speaker 00:
So that's hardly authority for your position here.

[00:02:33] Speaker 00:
There's a stray word, a couple of words that you rely on.

[00:02:38] Speaker 00:
But the fact of the matter is the plaintiff was not at fault at all.

[00:02:44] Speaker 03:
In that case, yes, your honor, that is true.

[00:02:47] Speaker 03:
But the principle articulated by this court is the same.

[00:02:50] Speaker 03:
And that is a dismissal in that case would only be appropriate if there was no reasonable possibility that the plaintiff could obtain service.

[00:02:57] Speaker 00:
That is not the holding of the case.

[00:03:02] Speaker 00:
One of the things that drives me a little wild is that modern education teaches lawyers to find a sentence that looks good.

[00:03:12] Speaker 00:
and asserted the holding of the case.

[00:03:15] Speaker 00:
That's not the holding.

[00:03:18] Speaker 03:
Yes, Your Honor, the whole thing in that case was that when there was, in that case, because if dismissal under failure to prosecute because the sovereign defendant refused to accept service and the plaintiff had other possibilities under different subsects of the rules for serving foreign sovereign governments, they should be allowed to try that before dismissing the case for failure to prosecute there.

[00:03:42] Speaker 00:
But the point was, it wasn't the plaintiff's fault.

[00:03:47] Speaker 03:
Yes, your honor, that is correct.

[00:03:48] Speaker 03:
And we freely admit that both lawyers below made a mistake in failing to properly serve the government in both of these cases.

[00:03:55] Speaker 04:
What about Barrow?

[00:03:57] Speaker 04:
Barrow versus the embassy of Zambia.

[00:04:03] Speaker 04:
That case involved misservice efforts by the attorney, correct?

[00:04:09] Speaker 03:
Yes, your honor.

[00:04:10] Speaker 04:
And what test did we apply there in evaluating whether the case should be dismissed?

[00:04:16] Speaker 03:
Your honor, I have to refresh myself on that case.

[00:04:20] Speaker 04:
I think we said that dismissal is not appropriate.

[00:04:25] Speaker 04:
A suey espante dismissal is not appropriate if there exists a reasonable prospect this was going to be obtained.

[00:04:32] Speaker 03:
Yes, your honor.

[00:04:33] Speaker 03:
And that is the test that we believe should apply here, where dismissal would be with prejudice.

[00:04:38] Speaker 04:
So our precedent is held even when it's attorney negligence.

[00:04:42] Speaker 03:
Yes, Your Honor.

[00:04:43] Speaker 04:
OK, but that's not the heightened standard you're arguing for.

[00:04:46] Speaker 04:
You don't need that heightened standard.

[00:04:48] Speaker 04:
You just need us to apply borough.

[00:04:51] Speaker 03:
Yes, Your Honor.

[00:04:52] Speaker 03:
If this court applies that the only reasonable ground for dismissal would be if service cannot reasonably be obtained, then both of these cases could be reversed on that ground.

[00:05:02] Speaker 05:
Is borough a case arising under Rule 4M?

[00:05:08] Speaker 03:
I believe so, Your Honor.

[00:05:09] Speaker 05:
or is it arising under the FSIA?

[00:05:16] Speaker 03:
It could be under the FSIA, Your Honor.

[00:05:18] Speaker 03:
In that case, I believe that was the case where the marshal.

[00:05:21] Speaker 05:
Well, you just said we should apply that test, so I think we should know whether it's under.

[00:05:26] Speaker 05:
You should know which statute it's under.

[00:05:30] Speaker 03:
Your Honor, I said you could apply that test and it would resolve both of these cases.

[00:05:35] Speaker 00:
Review the facts of that case in terms of service.

[00:05:41] Speaker 00:
What was the problem?

[00:05:44] Speaker 03:
I believe in that case, the plaintiff filed with the marshal to deliver service on the foreign defendant in that case, and the marshal refused to deliver the service because the marshal believed that the defendant would not accept service in that case, and the lawyer in that case failed to properly serve the defendant.

[00:06:02] Speaker 00:
Yes, but wasn't that the marshal's problem?

[00:06:06] Speaker 00:
You say it was the plaintiff's fault.

[00:06:08] Speaker 00:
It's not clear that it wasn't the marshal's fault.

[00:06:13] Speaker 03:
Well, Your Honor, in that case, the plaintiff could have had other avenues to serve the defendant and chose to utilize the marshal service.

[00:06:20] Speaker 03:
And so in that sense, that would be the plaintiff's attorney's responsibility to properly serve the defendants.

[00:06:26] Speaker 00:
Perhaps.

[00:06:27] Speaker 00:
But it seems to me distinguishable from the case here today.

[00:06:33] Speaker 03:
Well, Your Honor, we believe the best rule is articulated by the Fifth Circuit in Milan.

[00:06:37] Speaker 03:
and anything.

[00:06:39] Speaker 05:
Yes, that's right.

[00:06:40] Speaker 05:
What about our precedent in man, which says that good cause to extend time for service exists if there is good cause only exists if there is some outside factor rather than inadvertence or negligence?

[00:06:54] Speaker 05:
What is the outside factor here that explains the repeated failure to to properly effectuate service under the rules?

[00:07:04] Speaker 03:
Well, for Mr. Stevenson's case, we do not believe that there was good cause for failure to serve.

[00:07:09] Speaker 03:
For Mr. Morrissey's case, we believe that the complexity of Rule 4i and the fact that the plaintiff in that case kindly served the agency, although not the United States attorney or the attorney general, constituted good cause in that case.

[00:07:24] Speaker 05:
What is complex about the rule?

[00:07:29] Speaker 00:
That was exactly the question I wanted to ask.

[00:07:32] Speaker 03:
Yes, Your Honor.

[00:07:33] Speaker 03:
Under Rule 4M, normally, all a plaintiff must do is serve one defendant, the person they are suing.

[00:07:40] Speaker 03:
Under Rule 4I, the plaintiff, when suing the United States government, must sue three people.

[00:07:45] Speaker 03:
The agency being sued

[00:07:47] Speaker 03:
the United States attorney for the district in which they're bringing suit and the attorney general.

[00:07:52] Speaker 03:
As the committee notes for the federal rules of civil procedure recognized, these rules are much more complex than the rules for normal service.

[00:08:00] Speaker 04:
4M applies to all the different forms of service under rule four.

[00:08:03] Speaker 04:
It's just the time for service.

[00:08:05] Speaker 04:
It doesn't just apply to the, I thought you just said that applies when you're serving one person.

[00:08:11] Speaker 04:
4M covers all.

[00:08:13] Speaker 04:
the different forms of serving foreign governments and the United States and routine service?

[00:08:20] Speaker 03:
Yes, you are correct, my honor.

[00:08:21] Speaker 03:
I misspoke.

[00:08:22] Speaker 03:
I meant to say in a normal case, the rules require only serving one individual.

[00:08:26] Speaker 03:
And the United States government is a special case because it requires serving three individuals.

[00:08:30] Speaker 03:
And the committee for the federal rules stated that the rules should be interpreted leniently to prevent plaintiffs from losing their substantive rights due to the difficulties of serving the United States government.

[00:08:42] Speaker 05:
What is the difficulty though?

[00:08:45] Speaker 05:
I mean, you just articulated what the rule was in about 10 seconds, right?

[00:08:51] Speaker 05:
I mean, I'm not sure how that's complex.

[00:08:52] Speaker 05:
Like there are additional requirements when you serve the United States, but it doesn't seem to be either ambiguous or complex.

[00:09:01] Speaker 05:
It's just additional requirements.

[00:09:04] Speaker 03:
We certainly agree that it is not difficult.

[00:09:07] Speaker 03:
However, it is complex in the fact that you have to identify and serve three separate individuals.

[00:09:13] Speaker 00:
And that's what that doesn't make it complex is crystal clear what you have to do.

[00:09:18] Speaker 00:
I can't imagine any lawyer reading that and getting it wrong if that lawyer was admitted to the bar.

[00:09:28] Speaker 03:
Your honor, we are certainly not excusing the lawyers below failure to properly serve the United States government, but it was recognized.

[00:09:35] Speaker 00:
You're suggesting it's complex.

[00:09:37] Speaker 00:
And I agree with my colleague.

[00:09:40] Speaker 00:
I don't see it as complex at all.

[00:09:43] Speaker 03:
Yes, Your Honor, and that is reasonable.

[00:09:46] Speaker 03:
The committee notes to that rule, however, do identify the rule as complicated and that it may be difficult for some plaintiffs to timely serve the federal government.

[00:09:57] Speaker 03:
However, our argument does not rest on whether- It happens with some frequency, correct?

[00:10:02] Speaker 03:
Yes, Your Honor, it does.

[00:10:05] Speaker 04:
There are exceptions in Rule 4-I when you miss one of them.

[00:10:11] Speaker 03:
Your honor, the exception under rule I provides for a mandatory extension when you serve either the United States attorney or the attorney general.

[00:10:18] Speaker 04:
So the rule itself seems to assume that there's going to be risk of people missing one of them.

[00:10:23] Speaker 03:
Yes, your honor.

[00:10:24] Speaker 03:
Yes, your honor.

[00:10:25] Speaker 04:
And then the advisory committee notes for 4M, which is the timing issue, point to that as an example of the need for flexibility in granting extensions.

[00:10:41] Speaker 03:
Yes, Your Honor, they do.

[00:10:42] Speaker 03:
And we believe that flexibility would be warranted here.

[00:10:47] Speaker 04:
But why?

[00:10:47] Speaker 04:
As my colleagues have pointed out, the problem here is really just lawyers who didn't do their job.

[00:10:55] Speaker 04:
You give us your best argument as to why the concerns about the reasonable prospect of service should apply in this situation.

[00:11:08] Speaker 03:
Well, yes, your honor.

[00:11:09] Speaker 03:
We believe the punishment needed out by the district courts in this case does not fit the crime.

[00:11:13] Speaker 03:
In a normal case where a case is dismissed under Rule 4M for failure to serve, the sanction is essentially the cost of refiling the case.

[00:11:22] Speaker 03:
It is a judicial slap on the wrist.

[00:11:24] Speaker 03:
The plaintiff has to refile their case, repay the filing fee, and restart the process.

[00:11:29] Speaker 03:
Here, by contrast, the sanction was the death penalty for these plaintiffs.

[00:11:35] Speaker 00:
Let me go back.

[00:11:36] Speaker 00:
Excuse me, counsel.

[00:11:37] Speaker 00:
Let me go back.

[00:11:38] Speaker 00:
Would you concede that it's almost racist, so local to as a negligence on the part of lawyers in these two cases?

[00:11:53] Speaker 03:
Yes, we would concede that the lawyers below did not act as they should have in serving the federal government within.

[00:11:59] Speaker 00:
No, I'm asking a question on its face.

[00:12:01] Speaker 00:
Doesn't it look like negligence?

[00:12:05] Speaker 03:
Your honor, it does.

[00:12:07] Speaker 00:
OK, thank you.

[00:12:08] Speaker 03:
Yes, your honor.

[00:12:09] Speaker 03:
However, we believe.

[00:12:10] Speaker 00:
Does that mean then that the individuals in both cases may well have a remedy?

[00:12:19] Speaker 03:
Your honor, it cannot be the case that the federal rules remedy for a procedural mistake is for plaintiffs to sue their own attorneys for malpractice.

[00:12:27] Speaker 00:
Why?

[00:12:29] Speaker 03:
Well, your honor, because the very first federal rule states that all federal rules should be interpreted in a way to provide for the just, speedy and inexpensive resolution of cases.

[00:12:39] Speaker 00:
So that's designed to protect lawyers?

[00:12:44] Speaker 03:
Your honor, that is designed to protect litigants.

[00:12:47] Speaker 00:
Yes.

[00:12:47] Speaker 00:
So if the litigants have a right of action here, presumably, then it's not such a drastic remedy at all, is it?

[00:12:58] Speaker 03:
Well, your honor, if the only interest was these plaintiffs receiving remuneration for their

[00:13:06] Speaker 03:
discrimination by the government, then that may well be the case.

[00:13:10] Speaker 03:
However, both of these plaintiffs have an interest in airing their case in court and have it in being heard and in hopefully holding the government responsible for that discrimination.

[00:13:21] Speaker 03:
It is not purely remunerative benefits that come from a plaintiff bringing their case in federal court.

[00:13:26] Speaker 03:
There are also other benefits of having their issues heard, of having their day in court.

[00:13:31] Speaker 03:
That would be deprived if plaintiffs were forced to litigate against their attorneys for malpractice.

[00:13:38] Speaker 00:
Wouldn't be hard litigation.

[00:13:42] Speaker 03:
Perhaps not, Your Honor, but it would not fulfill these plaintiffs' desire to have their day in court and to have their cases heard.

[00:13:49] Speaker 05:
Let me ask you another question.

[00:13:54] Speaker 05:
So in these cases, the plaintiffs are able to sue the government because the government has waived its sovereign immunity under the relevant statutes.

[00:14:07] Speaker 05:
So why, I mean, are these procedural rules, should we read the federal rules of civil procedure to also be part of that waiver of sovereign immunity right there for the government allows itself to be sued, but only when people you know only when plaintiffs comply with these rules.

[00:14:28] Speaker 03:
Well, Your Honor, when Congress passed that statute, allowing plaintiffs to sue after going through the EEOC process, they adopted the background rules of federal litigation.

[00:14:39] Speaker 03:
There is no indication in that statute that Congress intended for an especially strict interpretation of the federal rules to apply simply because they were the subject of the lawsuit.

[00:14:50] Speaker 05:
Well, I mean, it's just so it is part of I mean, if that is, though, I mean, it is a rule that's passed by Congress.

[00:14:58] Speaker 05:
Right.

[00:14:59] Speaker 05:
And it is the way that plaintiffs have to serve the government.

[00:15:05] Speaker 03:
Well, your service of the government is in the.

[00:15:09] Speaker 05:
I mean, you know, it could be that the government says, you know, we need this type of notice in order to properly protect our rights, you know, when we have waived our sovereign immunity to be sued.

[00:15:20] Speaker 03:
Well, your honor, if Congress had intended for that interpretation to apply, they're perfectly capable of including that in the statute that creates the right of actions, the cause of action to begin with by being silent on the issue of what rules should govern the litigation.

[00:15:34] Speaker 03:
Once plaintiffs make their way into federal court, Congress.

[00:15:39] Speaker 05:
Well, they're not silent.

[00:15:40] Speaker 05:
They have the rules of civil procedure.

[00:15:42] Speaker 04:
Hasn't the Supreme Court say in Irwin v. Department of Veterans Affairs that once the United States waives sovereign immunity,

[00:15:49] Speaker 04:
It's subject to the same principles on timing statutes of limitations and timing and exceptions to statutes of limitations like equitable tolling as all the other parties.

[00:16:00] Speaker 03:
Yes, Your Honor.

[00:16:01] Speaker 03:
And that is another reason that once plaintiffs make their way into court based on the EEOC right to sue letter, they are governed by the same rules as all other litigants.

[00:16:10] Speaker 03:
The Congress has already created a harsh penalty for failure to timely act on their rights because after going through the EEOC process, plaintiffs are given a 90-day right to sue letter.

[00:16:21] Speaker 03:
So they must bring their suit in federal court within 90 days of receipt of that letter or their claims are permanently barred.

[00:16:29] Speaker 04:
Okay.

[00:16:29] Speaker 04:
Do my colleagues have, you're over time here, Mr. Linesberg.

[00:16:33] Speaker 04:
Do my colleagues have more questions for you?

[00:16:36] Speaker 04:
No.

[00:16:36] Speaker 04:
Okay.

[00:16:36] Speaker 04:
I think we'll hear from Mr. Tutt now.

[00:16:39] Speaker 03:
Thank you, Your Honor.

[00:16:49] Speaker 07:
Thank you, Your Honor.

[00:16:50] Speaker 07:
May it please the Court?

[00:16:52] Speaker 07:
I am only going to take three minutes.

[00:16:56] Speaker 07:
I joined my colleague in

[00:16:59] Speaker 07:
saying that this court has a very clear path to reversal, just to apply the heightened Milan standard already applied in the Fifth Circuit to avoid opening a circuit split with the Fifth Circuit on that issue.

[00:17:12] Speaker 07:
And because it's the appropriate standard to apply in cases like this one involving a minor breach of the federal rules, it can be easily remedied by a short extension of time.

[00:17:22] Speaker 07:
I am going to be addressing issues unique to the two cases.

[00:17:26] Speaker 07:
Grounds for reversal in the Morrissey case and grounds for reversal in the Stevenson case that are separate and apart from the common questions.

[00:17:33] Speaker 07:
In Morrissey, there are two reasons.

[00:17:35] Speaker 07:
There are two grounds to reverse.

[00:17:37] Speaker 07:
First,

[00:17:38] Speaker 07:
that there was good cause to extend time in the Morrissey case, and second, that the court abused its discretion as a matter of law because the court drew an adverse inference from the existence of Rule 4i4 that was legally erroneous and therefore an abuse of discretion by definition.

[00:17:56] Speaker 04:
Can we start with that latter point about the error of law, please?

[00:17:59] Speaker 04:
Yes, Your Honor.

[00:18:00] Speaker 07:
Yes.

[00:18:01] Speaker 07:
So Rule 4 I-4, which I think, to Judge Ralph's question, is further evidence that Congress actually wants to keep these cases in court, says that when partial service is affected under Rule 4 I-2, that because the attorney general has been served or the US attorney has been served, all other parties who you are

[00:18:26] Speaker 07:
are given a mandatory extension of time to serve all other parties that must be served.

[00:18:33] Speaker 07:
The court held that because this case doesn't fit that profile, because he had served the named defendant rather than the U.S.

[00:18:41] Speaker 07:
attorney or the attorney general, because he wasn't entitled to come under that mandatory extension, that actually weighed against a discretionary extension.

[00:18:49] Speaker 00:
Actually, aren't you overstating what the district judge said?

[00:18:57] Speaker 06:
I don't think I am.

[00:19:00] Speaker 00:
The court said... What was his exact words?

[00:19:05] Speaker 00:
Didn't he just make an observation?

[00:19:10] Speaker 07:
He said that he does not come within the four corners of Rule 4i2.

[00:19:15] Speaker 07:
But then he said, and I want to quote, it's very close to a quote, further weighing against a discretionary extension here.

[00:19:24] Speaker 00:
What is his exact words?

[00:19:28] Speaker 08:
I'm afraid I am operating under COVID digital.

[00:19:39] Speaker 04:
I'll read it to you.

[00:19:41] Speaker 04:
I apologize.

[00:19:42] Speaker 04:
I will read it for you on A34.

[00:19:44] Speaker 04:
The choice to provide relief for some instances of partial compliance with Rule 4I.

[00:19:50] Speaker 04:
but not with the instance of partial compliance we have here is yet another factor that counsels against an extension of time.

[00:20:00] Speaker 04:
The rule provides some relief from the complex requirements of rule five, but they do not contemplate relief in this case.

[00:20:08] Speaker 04:
That's what's said on A34.

[00:20:10] Speaker 00:
So he said it was a factor, counseling.

[00:20:13] Speaker 07:
Yes, Your Honor.

[00:20:15] Speaker 07:
And so we think that he put some weight on that,

[00:20:19] Speaker 07:
Um, his conclusion to some extent, however minor relied on that.

[00:20:25] Speaker 07:
And that, that because that's a legal error, um, you would have to at minimum send it back and allow him to reweigh it with a appropriate, um, uh, understanding of the rule for I four.

[00:20:39] Speaker 05:
How is that a legal error?

[00:20:43] Speaker 05:
Your honor, I just don't understand why it would be a legal error to read the rule that way.

[00:20:48] Speaker 07:
as like your honor fat is your honor I.

[00:20:52] Speaker 07:
We think that the rule is absolutely clear and especially in conjunction with the advisory committee notes to the rule that 4i4 should not be read to draw negative inference.

[00:21:07] Speaker 07:
Just at a basic level, it means that if he hadn't done anything at all to serve the government, he would have been in a better position because there would be no factor to weigh against him for failing to come within 4i4.

[00:21:20] Speaker 07:
So it would mean that if you actually do what Mr. Morrissey did here, which is actually get halfway there, you're in a worse position than a litigant who does nothing.

[00:21:29] Speaker 00:
I think you're slicing the salami pretty thin to call it a legal error.

[00:21:36] Speaker 07:
Your honor, the court below's opinion is very short and only looks at a small number of equitable factors, meaning that this particular salami, though thin, has an outsized weight on the scale.

[00:21:50] Speaker 07:
Because the only other factors that the court considered were that he had an attorney and that he had

[00:22:02] Speaker 07:
made partial service.

[00:22:04] Speaker 07:
I'm blanking on the other factor at the moment.

[00:22:07] Speaker 07:
But I'd like to turn to Mr. Stephenson.

[00:22:09] Speaker 07:
I think he has another ground for relief here, too, that's unique to him, which is that if you look, and this is very straightforward, if you look at the December 5th minute order, the court issued dismissing his case, the court says that he is required to dismiss the case for failure to effect

[00:22:29] Speaker 07:
timely complete service and makes no mention of any consideration of his discretion to give an extension.

[00:22:38] Speaker 07:
So the minute order shows no evidence that the judge believed that he had discretion to provide an extension.

[00:22:44] Speaker 07:
And on the motion for reconsideration, if you look at it, the district court takes the view that an extension should have been sought in advance.

[00:22:55] Speaker 07:
And that the failure to seek an extension in advance is a reason for denying any further discretionary extensions.

[00:23:04] Speaker 07:
So further showing that the court is actually conflating two distinct concepts, which would be the court always has discretion to extend deadlines, except in very limited circumstances when asked in advance.

[00:23:14] Speaker 07:
But Rule 4M envisions that courts will give notice and give litigants an opportunity to

[00:23:22] Speaker 07:
make service if the grounds for a discretionary extension are met.

[00:23:27] Speaker 07:
And I have nothing further if the court has no further questions.

[00:23:32] Speaker 04:
My colleagues have any further questions?

[00:23:34] Speaker 00:
No questions.

[00:23:35] Speaker 04:
All right.

[00:23:36] Speaker 04:
Thank you, Mr. Tutte.

[00:23:37] Speaker 04:
We'll hear from the government now.

[00:23:46] Speaker 02:
Good morning and may it please the court.

[00:23:48] Speaker 02:
I'm Matthew Glover and I represent the government in both of these cases.

[00:23:53] Speaker 02:
In these cases, the district courts, at every step of the way, considered the facts that were in front of them, applied the appropriate legal test, and ultimately dismissed the cases and denied motions to reopen and for rehearing.

[00:24:05] Speaker 02:
These cases are a result, as Mr. Lyons-Burke conceded, of foot faults by plaintiffs' lawyers below.

[00:24:11] Speaker 02:
And now on appeal, they're raising new arguments seeking to do away with or erase the foot faults.

[00:24:18] Speaker 02:
And we think, in the abusive discretion standard, the district courts

[00:24:21] Speaker 02:
looked at the factors that were presented to them, looked at this court's, in Morrissey in particular, looked at this court's opinion and man and the factors described there, and reached an appropriate conclusion.

[00:24:31] Speaker 04:
Why should there be a different standard for attorney, dismissal based on attorney negligence in a service context than there is in the failure to prosecute context, including failure to prosecute by service?

[00:24:45] Speaker 02:
Your Honor, I apologize.

[00:24:46] Speaker 02:
And maybe my speaker, you cut out there.

[00:24:48] Speaker 02:
You said it in a different context.

[00:24:50] Speaker 02:
And then I lost you for about five or six seconds.

[00:24:53] Speaker 04:
Sorry about that.

[00:24:54] Speaker 02:
I've turned the volume up, though.

[00:24:55] Speaker 04:
I apologize.

[00:24:58] Speaker 04:
Why should there be a different standard, just in the context of attorney negligence here, for dismissing a case out of hand

[00:25:12] Speaker 04:
based on attorney negligence rather than merits, when it's a service failure rather than a failure to prosecute where we definitely require more.

[00:25:23] Speaker 02:
Um, so a couple of points to that, your honor, um, failure to prosecute is always a dismissal on the merits.

[00:25:29] Speaker 02:
And so, you know, to invoke that rule, you need to have actions in which you're acting on the merits and failure to prosecute dismissal is a sanction.

[00:25:37] Speaker 02:
Rule 4M contemplates that if you fail to provide service within 90 days, the court shall, and then it provides two options.

[00:25:44] Speaker 04:
I'm talking, I should have been clearer.

[00:25:46] Speaker 04:
I'm talking here about the case subset of cases where this is the end of, there will be no merits.

[00:25:52] Speaker 04:
where there is no time to refile, I apologize.

[00:25:55] Speaker 04:
But in this situation, that seems like a pretty weighty factor in my view.

[00:26:00] Speaker 04:
And why should we allow attorneys to mess up and be negligent and non-responsive for months, if not years, for a failure to prosecute, but not for a few weeks on service?

[00:26:16] Speaker 02:
So I would make two points to that, Your Honor.

[00:26:19] Speaker 02:
One is when you hire your attorney, you're tied to the actions your attorney acting on your behalf and making mistakes.

[00:26:25] Speaker 04:
That's the same as a failure to prosecute.

[00:26:26] Speaker 02:
I agree.

[00:26:27] Speaker 02:
But my second point would be failure to prosecute is a sanction.

[00:26:31] Speaker 02:
Here, you're always going to be able to say, give me more time.

[00:26:35] Speaker 02:
I could serve.

[00:26:36] Speaker 02:
I don't know what a lesser sanction would be.

[00:26:38] Speaker 02:
The failure to prosecute.

[00:26:39] Speaker 04:
A lesser sanction would be a fine.

[00:26:41] Speaker 04:
In order to show cause, a fine.

[00:26:44] Speaker 02:
So rule 4M doesn't necessarily contemplate, at least I don't read it to contemplate anything other than a dismissal or providing reasonable time for service.

[00:26:54] Speaker 04:
I suppose you could say you didn't follow- Is it the United States government's position that those are the only two options?

[00:27:01] Speaker 02:
I'm not saying that they're absolutely the only two options.

[00:27:04] Speaker 02:
I'm saying the rule says that you shall either dismiss or provide a reasonable time.

[00:27:09] Speaker 04:
Sure, but courts always have the authority to sanction attorneys who are misbehaving.

[00:27:14] Speaker 02:
That, that may be the case, Your Honor.

[00:27:18] Speaker 02:
Your Honor, I confess, I'm not sure, I haven't looked at district court rules with regard to sort of what processes are required for a monetary sanction or something like that.

[00:27:27] Speaker 02:
I'm not saying that they don't have those equitable authorities.

[00:27:29] Speaker 02:
I just couldn't delineate what the test is for when you would apply or what process you would might be due before a monetary sanction.

[00:27:37] Speaker 02:
But on this, I would also, I apologize if I interrupt you.

[00:27:42] Speaker 02:
No.

[00:27:42] Speaker 02:
Okay.

[00:27:42] Speaker 02:
I would also point out that they did not argue below for this heightened standard.

[00:27:47] Speaker 02:
And we think this fits clearly and similarly to GSS group.

[00:27:50] Speaker 04:
Okay, but I'm putting aside the heightened standard.

[00:27:52] Speaker 04:
I'm just going, I'm looking at, we have an awful lot of cases involving all different forms of attorney negligence, including failure to prosecute by service, where we have required

[00:28:06] Speaker 04:
a higher showing before we dismiss, at least when we know that that's going to be the end of the case.

[00:28:15] Speaker 04:
And I'm just having trouble understanding why, particularly Mr. Morrissey's case, where there wasn't even one extension of time.

[00:28:25] Speaker 02:
Your Honor, I understand.

[00:28:27] Speaker 02:
And if I could step back for a second and make clear, the government's position is not that it would have been unreasonable for the district court to have given an extension in either of these cases.

[00:28:35] Speaker 02:
In the abusive discretion standard, you know, there's obviously a broad range of action.

[00:28:39] Speaker 04:
What's your position that it's perfectly reasonable for them not to?

[00:28:42] Speaker 04:
Can you assign me another case anywhere where there has been a dismissal of a case that will end that case?

[00:28:52] Speaker 04:
It cannot be refiled without either a single extension or an order to show cause for the attorney to explain what's going on?

[00:29:03] Speaker 04:
Can you cite a single case?

[00:29:05] Speaker 02:
Yes, I would point to the Cola Santa versus Wells Fargo that cited in our brief it's out of the circuit.

[00:29:11] Speaker 02:
If I can walk through the facts there briefly, it was under the.

[00:29:14] Speaker 02:
Same rule, but when the period was 120 days.

[00:29:17] Speaker 02:
The plaintiff there, I believe was in the Southern District of Iowa.

[00:29:20] Speaker 02:
It was an Iowa District Court.

[00:29:22] Speaker 02:
The plaintiff was needing to serve Wells Fargo at its headquarters in San Francisco.

[00:29:27] Speaker 02:
On the 118th day, the attorney contracted a process server.

[00:29:30] Speaker 02:
The process server didn't manage to serve Wells Fargo until the 121st day.

[00:29:35] Speaker 02:
Now, that was not a notice and dismissal.

[00:29:38] Speaker 02:
Wells Fargo moved to dismiss state law claims on a different ground.

[00:29:41] Speaker 02:
and the federal claims on the ground of a failure to affect service in the 120 day period.

[00:29:47] Speaker 02:
The district court there considered the statute of limitations among other factors and decided that the fact that they had waited till the 118th day to seek out a process server and the attorney explained that his client had moved and the district court said, well, you didn't make an effort to, you know, stay in contact with your- That sounds like a case where they had a full opportunity to brief the issue to the court.

[00:30:07] Speaker 04:
They had a full opportunity- Before there was a dismissal.

[00:30:09] Speaker 04:
And I was asking for a situation where there's not even an order to show cause or an extension, just immediate dismissal.

[00:30:18] Speaker 02:
So cases that I have found where you have the sort of notice as we had in Morrissey and then you have a dismissal that follows purely on the docket, typically there hasn't been a response and so you didn't take the time to explain.

[00:30:33] Speaker 04:
So you have some other cases where there's been a docket entry before the time has even run.

[00:30:41] Speaker 04:
And then when the time runs, a prompt dismissal without an order to show cause or, I mean, in Mr. Stephenson's case, the court waited a couple, gave a couple of weeks and then issued an order explaining what should happen and gave on its own motion or its own decision a couple more weeks.

[00:31:03] Speaker 04:
And Morrissey's case, Mr. Morrissey's case is quite starkly different in that regard.

[00:31:08] Speaker 02:
So I would make two points to that, Your Honor.

[00:31:10] Speaker 02:
The first is that there are a number of instances where the district court gives the notice or the reminder saying, please affect service by the deadline in advance.

[00:31:20] Speaker 02:
I'm not going to say that I found a case in which the dismissal was on the 94th day.

[00:31:24] Speaker 04:
I found somewhere that- I'm sorry, finish your sentence.

[00:31:27] Speaker 02:
I apologize.

[00:31:28] Speaker 02:
I found somewhere the dismissal, there was a show cause in advance.

[00:31:32] Speaker 02:
There was a discretionary extension of

[00:31:34] Speaker 02:
I think 14 days and then the dismissal on the 113th day out of California and I found one.

[00:31:41] Speaker 04:
Do you have one that's like this where there's no discretionary extension at all or in order to show cause?

[00:31:49] Speaker 02:
So I think the no I don't have a case on all fours with that.

[00:31:53] Speaker 04:
This would be the worst case that has ever done that that you could find or I could find or the council could find.

[00:31:59] Speaker 02:
True, I would make just one point on that, though, as Mr. Tuck points out in the Morrissey Reply Brief, the US reports clearly don't have that.

[00:32:06] Speaker 02:
And the US reports are going to be searchable when you have the scenario we're talking about.

[00:32:11] Speaker 02:
And in Morrissey, they were initial minute order, although the second order was not a minute order.

[00:32:16] Speaker 02:
Those don't tend to have been picked up.

[00:32:19] Speaker 02:
You can search dockets.

[00:32:20] Speaker 04:
You represent the United States.

[00:32:21] Speaker 04:
We're talking about the, you know, the unique service obligations for the government.

[00:32:28] Speaker 04:
I assume you're not aware.

[00:32:29] Speaker 04:
No, my only colleagues who are aware as you were preparing this case.

[00:32:34] Speaker 02:
No, I spoke with colleagues.

[00:32:35] Speaker 02:
My only point was going to be it's much tougher to search dockets.

[00:32:38] Speaker 02:
And I did attempt Lexus docket searches and found some dismissals on 113th and 116th day.

[00:32:44] Speaker 02:
But the Lexus docket searches tend to be only the past few years.

[00:32:48] Speaker 02:
And there isn't a pacer for the Court of Appeals.

[00:32:50] Speaker 02:
You can search by month.

[00:32:51] Speaker 02:
for orders and for the district courts, you can't search orders.

[00:32:55] Speaker 02:
At least I searched about 10 or looked at 10 web pages and I didn't see any that had that option.

[00:33:00] Speaker 02:
And also with the Lexus dockets, they tend to be just the past few years of Lexus dockets.

[00:33:06] Speaker 02:
So for example, some of these older cases

[00:33:09] Speaker 02:
I wasn't even able to find the district court docket for some of the cases in the 90s that we cite in the briefs or the court of appeals dockets.

[00:33:16] Speaker 02:
I was only able to find the one Westlaw opinion.

[00:33:19] Speaker 04:
No, I appreciate your diligence.

[00:33:21] Speaker 04:
You clearly have been very diligent and I think we're still left at the same position where I started and there's never been a case like Mr. Morris's that we can find.

[00:33:30] Speaker 04:
None of us can say for sure.

[00:33:32] Speaker 02:
I think Dixon, which we cite.

[00:33:35] Speaker 00:
Is there any case going the other way?

[00:33:40] Speaker 02:
I'm not aware of one.

[00:33:41] Speaker 02:
I would point judgment.

[00:33:43] Speaker 04:
You're not aware of cases where there's been either an order to show cause or extension by the court.

[00:33:49] Speaker 04:
I think Mr. Stevenson would be a case that is done otherwise.

[00:33:53] Speaker 02:
I took Judge Silberman to ask about a case in which there had not been an order to show cause and not an initial extension.

[00:34:01] Speaker 02:
And it was appealed.

[00:34:02] Speaker 02:
And that was the sole grounds for giving another chance on appeal.

[00:34:06] Speaker 02:
I apologize.

[00:34:07] Speaker 02:
I took him to mean a holding of the Court of Appeals, sending the scenario you were asking me about in the district court back.

[00:34:13] Speaker 02:
Given that I haven't found that scenario, I don't have a case sending one back.

[00:34:18] Speaker 00:
I think you don't have a case either way in this situation, do you?

[00:34:25] Speaker 02:
No, I think and I'll venture and apologize.

[00:34:28] Speaker 02:
I don't want to conflate Dixon and Richard versus Stevenson.

[00:34:31] Speaker 02:
Dixon, which we quoted, Westlaw has available the district court's one paragraph order, and then it has available this court's summary affirmance there.

[00:34:39] Speaker 02:
And I don't recall if I was able to get, I think it's from about 2002,

[00:34:43] Speaker 02:
the district court docket, but the dismissal was one paragraph and it mentioned that an affidavit had been filed after the notice, but the affidavit didn't explain how they had served the United States.

[00:34:54] Speaker 02:
It was a case under, I believe what was then civil for I before after it had moved from 14.

[00:35:02] Speaker 00:
Do you agree with me that the prior cases for failure to prosecute in which the court was more

[00:35:16] Speaker 00:
merciful to the plane of all involved cases from which the marshals or some other factor caused the difficulty in service.

[00:35:30] Speaker 02:
Yes, Your Honor.

[00:35:31] Speaker 02:
And if I could comment quickly on, and I'm not sure how the first name is pronounced or the last name, but Borough or Rut versus Embassy of Zambia.

[00:35:40] Speaker 02:
I, you know, it wasn't cited in the brief, so I've only looked at, I only have the slip copy with me, but I've looked at the slip copy during the plaintiff's argument.

[00:35:48] Speaker 02:
From page three to four, the court describes, as Judge Rao noted, that that was under service under the Foreign Sovereign Immunities Act, and it describes that the court has a central role to play there.

[00:35:58] Speaker 02:
And I think it slipped three to four, it mentions how the marshal, which is who the court is ordering to serve, served the embassy of Zambia in DC, but you were supposed to serve, I think, the Foreign Affairs Ministry,

[00:36:10] Speaker 02:
their equivalent in Lukasa or Lusaka, the capital of Zambia, I believe is Lusaka.

[00:36:17] Speaker 02:
And so there was an error by the court there, which Judge Silverman, that's the sort of mistake you're describing.

[00:36:23] Speaker 04:
So I don't think that case is- Look at Roman two of that opinion, all right?

[00:36:28] Speaker 04:
And now it's saying, in general, district courts have broad discretion to dismiss a complaint for failure to effect service.

[00:36:35] Speaker 04:
That's not talking about the FSIA.

[00:36:37] Speaker 04:
I think that would apply generally.

[00:36:39] Speaker 04:
The court has cautioned, however, in cases of sui espante dismissals for inadequate service.

[00:36:44] Speaker 04:
Dismissal is not appropriate when there exists a reasonable prospect that service can be obtained.

[00:36:49] Speaker 04:
There's nothing about a language that's confined to the FSIA context.

[00:36:54] Speaker 04:
And both, you know, rule four was also raised in the briefing in that case.

[00:36:58] Speaker 04:
And then the discussion after that is not about the court's failure.

[00:37:02] Speaker 04:
It's about Burroughs' latest service attempt.

[00:37:05] Speaker 04:
And he got something wrong.

[00:37:07] Speaker 04:
But they thought there was a reasonable prospect.

[00:37:09] Speaker 04:
So it's just the Roman to part portion here seems to stand separately.

[00:37:13] Speaker 02:
Your honor, I would point in Roman to to directly after the citation to the string site of Angelino and then Peterson, the because of the district court statutory responsibilities and prominent role in the mistakes of service.

[00:37:28] Speaker 02:
in Barrow's case, the prejudice.

[00:37:30] Speaker 02:
So that was a factor.

[00:37:32] Speaker 02:
It was the first factor the court described.

[00:37:34] Speaker 02:
And I would just step back and say, when you have a situation like Colasante where they served on the 121st day, the other party can come in and file a motion to dismiss.

[00:37:45] Speaker 02:
And that allows you to dispute the motion to dismiss, but it doesn't give you sort of an extended period of time or notice after the deadline that you get more time to serve.

[00:37:55] Speaker 04:
But the court there is citing for its rule Peterson versus Archstone communities.

[00:38:01] Speaker 04:
That's not a foreign service case, foreign sovereign case.

[00:38:04] Speaker 04:
That's actually an age discrimination case.

[00:38:08] Speaker 04:
It would apply in the lack of prosecution standard that I've referenced, citing that to support a service rule.

[00:38:14] Speaker 04:
So I don't think this is confined to foreign service here, this language.

[00:38:20] Speaker 00:
Would you agree with my colleague that the court

[00:38:25] Speaker 00:
announced the rule, or would you say it was an adjudication in which the holding depends on the facts of the case rather than a statement?

[00:38:36] Speaker 02:
Judge Silberman, I would agree with, I apologize, Judge Millett.

[00:38:40] Speaker 04:
Oh, I was coughing.

[00:38:41] Speaker 04:
Go ahead.

[00:38:42] Speaker 02:
I'm sorry.

[00:38:42] Speaker 02:
Judge Silverman, I would agree with you that it was an adjudication in which the court was describing and the factors that I began with, I know that I'm over time, if I can- Go ahead, please.

[00:38:53] Speaker 02:
The court was evaluating factors there, the first of which was the district court's prominent role.

[00:38:57] Speaker 02:
If I can step back and say, this is a rule context, and so there has to be some scenario in which, as the Seventh Circuit described in Tuque, when a rule has a deadline, missing it by even one day can be fatal.

[00:39:10] Speaker 02:
And so here we think the district courts provided the required notice.

[00:39:15] Speaker 02:
They waited for a response.

[00:39:17] Speaker 02:
The purpose and the purpose of the notice, if I can actually step back and point to a case that Mr. Stevenson cites at page 36, I believe if his reply it's Ruiz Vela.

[00:39:27] Speaker 02:
It's a First Circuit case.

[00:39:28] Speaker 02:
Just a second.

[00:39:34] Speaker 02:
In Ruiz Varela, the First Circuit held that you could not provide notice, dismiss, and then allow them to file a Rule 59E, and that although Rule 4M contemplated notice before a sua sponte dismissal, that was okay, so long as you provided this after dismissal opportunity to contest.

[00:39:51] Speaker 02:
It followed a Ninth Circuit case from the prior year, 1986, called Whale.

[00:39:55] Speaker 02:
This court did not adopt that standard in a pro se case called Smith Bay versus Cripe at 852F2nd, 952.

[00:40:04] Speaker 02:
This court there said, given the pro se nature of the individual, we think that the notice required in 4M is notice before you dismiss.

[00:40:13] Speaker 02:
And so we're not adopting this standard where you can dismiss and then give an opportunity afterwards.

[00:40:18] Speaker 02:
In both of these cases, they gave notice beforehand

[00:40:20] Speaker 02:
And in Dixon, which again was a summary affirmance by this court of a one paragraph dismissal, the court cited Smith Bay for the proposition that the standard for Rule 4M was very clear.

[00:40:31] Speaker 02:
And if I could just make one more comment on Dixon, I know that Mr. Stevenson has made arguments that because the minute order doesn't describe having, you know, the discretion in both Dixon and Stevenson, the district court

[00:40:43] Speaker 02:
which I think were one paragraph and then, you know, and this is dismissed in the next sentence so maybe that counts as two paragraphs, neither described a discretionary extension, and the argument that the district court needs to say that it's not exercising its discretion in.

[00:40:58] Speaker 02:
its order was raised by court appointed amicus at page 45 of their brief and Rashad versus Stevenson.

[00:41:05] Speaker 02:
Um, and this court did not accept that argument then.

[00:41:07] Speaker 05:
Uh, and if I could make one additional question, um, are you aware of cases in which this court has found it was an abuse of discretion for the district court not to exercise its discretion the way other district courts may have done so in the past?

[00:41:25] Speaker 02:
I'm not aware of any in terms of the discretionary extension sort of where you have a double layer of discretion.

[00:41:31] Speaker 05:
The authority here is discretionary.

[00:41:33] Speaker 05:
Do we have to judge whether it's an abuse of discretion based on how other judges may have exercised their discretion in the past?

[00:41:41] Speaker 02:
I don't think so.

[00:41:43] Speaker 02:
I would just say that we cited Oklahoma aeronautics for the point that abusive discretion is very flexible.

[00:41:48] Speaker 02:
And we cited a couple cases after that.

[00:41:50] Speaker 02:
And I can't recall the other names, but one described that abusive discretion is when there's a standard of options that a court could act.

[00:41:56] Speaker 02:
And I tried to make this point in my opening that the district court has a range of things that it can do.

[00:42:02] Speaker 02:
And we believe in both of these cases, the way that it acted was within that range.

[00:42:08] Speaker 02:
If I could make one point I know I'm in the red light and I shouldn't be raising new issues but just to respond to the, the rule for I discussion that the court had with my friend Mr tut.

[00:42:19] Speaker 02:
The court considered the fact that the rule did allow for an extension there as one factor.

[00:42:26] Speaker 02:
It didn't say that it was a legal test.

[00:42:28] Speaker 02:
It was weighing it as a factor.

[00:42:29] Speaker 02:
And in Mann, when this court described the factors, including statute of limitations in Mann, that were being weighed in the discretionary, the declining to give a discretionary extension,

[00:42:38] Speaker 02:
the court described the requirement that the district court make a clear error in its findings about how to weigh those factors.

[00:42:44] Speaker 02:
And so I don't think it's a legal error to have considered the structure of the statute, say the structure of the statute does provide automatic extensions in some cases, it doesn't provide them in this case.

[00:42:55] Speaker 02:
That's to say that there must be some case in which you haven't served the attorney general and the US attorney in which you could dismiss

[00:43:01] Speaker 02:
And I'll close just to pick up on a point that Judge Rao made in the opening that the triple service here is important to the United States because under 28 USC 516, the Department of Justice is the only body except for otherwise provided by statute that can go into court and represent federal entities.

[00:43:20] Speaker 02:
And so serving the attorney general allows for national consistent management of litigation.

[00:43:25] Speaker 02:
Serving the local US attorney allows for serving

[00:43:27] Speaker 02:
The department's office that's going to be closest to the court have most familiar with the local rules and it ensures that cases don't fall through the cracks when the government's a very frequent defendant.

[00:43:37] Speaker 05:
Mr. Glover, do you think that those procedural requirements are part of the waiver of sovereign immunity?

[00:43:43] Speaker 05:
the government?

[00:43:45] Speaker 02:
I confess, Judge Rao, I had not thought of that, and I hesitate to take a position on behalf of the United States for fear someone upstream of me in the department's authority would have views on it.

[00:43:56] Speaker 02:
I am aware of Erwin's discussion that Judge Millett mentioned about equitable tolling.

[00:44:00] Speaker 02:
I'm not sure if that would incorporate also Rule 4M.

[00:44:04] Speaker 05:
So for statute of limitations is different than service of process, right, which goes both to this court's jurisdiction and might go to the waiver of sovereign immunity.

[00:44:19] Speaker 02:
Yes, Your Honor.

[00:44:20] Speaker 02:
Again, I'm not sure.

[00:44:22] Speaker 02:
And I haven't thought it through enough to take a point or to sort of take a position on that.

[00:44:28] Speaker 02:
If the court would like more briefing, I can certainly think more about that.

[00:44:32] Speaker 02:
And the government can present a position on that if it's important to the court.

[00:44:36] Speaker 05:
I just thought it was an interesting point.

[00:44:42] Speaker 02:
I agree, but I apologize, it just, I had not, it had not occurred to me.

[00:44:46] Speaker 04:
If there were an aspect of sovereign immunity, then what discretion would the courts have in a rule of four I cases?

[00:44:54] Speaker 05:
Well, they have the discretion that's given in the rule.

[00:45:00] Speaker 02:
Yes, and I suppose that includes giving- Isn't that what we're talking about here, we're trying to figure out what the discretion in the rule is?

[00:45:08] Speaker 02:
Yes, yeah.

[00:45:10] Speaker 05:
All right.

[00:45:11] Speaker 05:
I guess my point is that it might go to how we think of whether something is an abuse of discretion if the rule in part is designed to protect the sovereign interests of the United States.

[00:45:27] Speaker 04:
Mr. Glover, did you have, I'm sorry, Judge Rao, are you done?

[00:45:31] Speaker 04:
Are you done, Judge Rao?

[00:45:32] Speaker 04:
Yes, thank you.

[00:45:33] Speaker 04:
Do you guys have more questions or Mr. Glover, did we interrupt your sum up point or anything?

[00:45:38] Speaker 00:
No, you did not.

[00:45:41] Speaker 00:
Excuse me.

[00:45:41] Speaker 00:
I have no questions.

[00:45:43] Speaker 02:
OK.

[00:45:44] Speaker 02:
No, you did not, Your Honor.

[00:45:45] Speaker 02:
I know I'm well into the red light.

[00:45:46] Speaker 02:
So thank you for the court's time.

[00:45:47] Speaker 02:
And if the court has no further questions, the government would ask you to affirm in both cases.

[00:45:52] Speaker 04:
All right.

[00:45:52] Speaker 04:
Thank you.

[00:45:55] Speaker 04:
Ben, I think we'll just have to give the only one of you is doing rebuttal.

[00:45:59] Speaker 04:
Is that correct on the appellant side?

[00:46:00] Speaker 03:
Yes, Your Honor.

[00:46:01] Speaker 04:
I am.

[00:46:02] Speaker 04:
We'll give you two minutes.

[00:46:04] Speaker 03:
Thank you, Your Honor.

[00:46:07] Speaker 03:
I would like to make three brief points on rebuttal.

[00:46:09] Speaker 03:
The first point I would like to make is that the government below did not contest that a heightened standard would be appropriate in these cases where dismissal without prejudice would permanently bar a plaintiff from refiling their case.

[00:46:22] Speaker 03:
The second point I would like to make is that the cases in this circuit make clear that it is the policy of this circuit to keep cases in court, if at all possible.

[00:46:30] Speaker 03:
And I would like to quote this court from the English-speaking union.

[00:46:33] Speaker 03:
that where dismissal on procedural grounds would be the death knell of a lawsuit and that dismissal should only be used as a last resort.

[00:46:42] Speaker 03:
We submit that the district courts here use that as a first resort, not as a last resort in these two cases.

[00:46:48] Speaker 03:
And finally, I would like to mention the fact that to Judge Rao's point and to the

[00:46:52] Speaker 03:
point of protecting the government sovereign interest.

[00:46:54] Speaker 03:
There is no finding of prejudice here.

[00:46:56] Speaker 03:
The government does not contend on appeal that there would be any prejudice from continuing these cases.

[00:47:01] Speaker 03:
And it is the stated purpose of the federal rules and the committee notes for rule four that cases against the government should not be dismissed when it would result in the loss of substantive rights to the plaintiff.

[00:47:15] Speaker 03:
And that is what happened to both plaintiffs here.

[00:47:18] Speaker 03:
Thank you.

[00:47:19] Speaker 04:
Thanks, my colleagues.

[00:47:20] Speaker 04:
Any further questions?

[00:47:21] Speaker 00:
No further questions.

[00:47:23] Speaker 04:
Thank you very much.

[00:47:24] Speaker 04:
The case is submitted.