on service but does not indicate what lesser time period qualifies as forthwith. Id.
The Amella court also considered the fact that the U.S. Attorneys office had actual notice of the suit, and found that such notice was irrelevant, since "section 743 requires forthwith service, not notice." Id. Thus, the Amella court has considered and rejected the arguments put forth by plaintiff in this action.
B. Sovereign Immunity
The notion that § 743 sets forth a jurisdictional requirement is based on the doctrine of sovereign immunity. Kenyon v. United States, 676 F.2d 1229, 1231 (9th Cir. 1981). As sovereign, the United States is immune from suit unless it consents to be sued; the terms of its consent to be sued in any court define that court's jurisdiction. United States v. Sherwood, 312 U.S. 584, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). The United States Supreme Court has stated that in suits arising under the SIAA, "statutes which wave immunity of the United States from suit are to be construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27, 96 L. Ed. 26, 72 S. Ct. 17 n.5 (1951).
Plaintiff urges this Court to reject the principle of sovereign immunity in finding that forthwith service is not a jurisdictional requirement. Plaintiff may be correct in arguing that sovereign immunity would seem to have little to do with an essentially technical requirement regarding service. However, this Court is not at liberty to ignore the long-held doctrine of sovereign immunity, despite the unquestionably harsh results here.
C. Third Circuit Approach
Plaintiff also urges this Court to follow the Third Circuit in finding that Federal Rule of Civil Procedures 4(j) supersedes the requirement of forthwith service contained in the SIAA. Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F.2d 62 (3d. Cir. 1985). In Jones & Laughlin Steel, the Third Circuit held that the SIAA's requirement of forthwith service "is not jurisdictional but rather is procedural." Id. at 66. That court found that Rule 4(j) must be read in light of 28 U.S.C. § 2072, which provides that "all laws in conflict with [the Federal Rules of Civil Procedure] shall be of no further force or effect after such rules have taken effect." Id. at 66. The Court then concluded that Rule 4(j) supersedes the SIAA's requirement of forthwith service. Id.
This Court finds the Third Circuit approach reasonable, particularly in light of the inherently ambiguous nature of the term forthwith. This Court also believes that rejecting the argument that § 742 is jurisdictional leads to a fairer result. However, the Ninth Circuit has considered and rejected this very argument. Amella, 732 F.2d at 713. This Court is not free to abandon Ninth Circuit authority in favor of the law of the Third Circuit, and is therefore compelled to likewise reject this argument.
D. Equal Protection
Plaintiff additionally makes the argument that the SIAA's requirement of forthwith service places litigants who sue the government in a "disadvantageous position" as compared to those who sue private parties. Plaintiff cites no case law for the proposition that such litigants are a "suspect class," nor is such a position reasonable. Plaintiff's only citation is to Judge Friendly's concurrence in Battaglia v. United States, 303 F.2d 683 (2d Cir. 1962), cert. dismissed, 371 U.S. 907 (1962), in which Judge Friendly supposed that the SIAA was designed to place the government in the same position as a private litigant. However, the court in Battaglia dismissed plaintiff's complaint for failure to satisfy the SIAA's waiver of sovereign immunity. Judge Friendly's dicta in that case does not support plaintiff's claim for equal protection.
It appears to this Court that the SIAA's requirement of forthwith service is actually a procedural rather than a jurisdictional one. However, this Court is bound by Ninth Circuit law and has no choice but to dismiss plaintiff's action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Like the Ninth Circuit, " we may not like § 742, but we cannot ignore it." Amella, 732 F.2d at 714, nor can we ignore the dictates of Ninth Circuit law. Accordingly, defendant's motion is GRANTED and this case is hereby DISMISSED.
IT IS SO ORDERED.
DATED: April 7, 1993.
EUGENE F. LYNCH
United States District Judge