Cite as: 517 U. S. 654 (1996)
Thomas, J., dissenting
Act is "technically inapplicable" in this case, Brief for United States 16, n. 14, because Rule 4( j) was not promulgated by this Court but rather was enacted by Congress, see Pub. L. 97-462, 96 Stat. 2528, and the Rules Enabling Act by its terms nullifies only statutory rules of procedure that conflict with rules promulgated by the Supreme Court.
The majority acknowledges the inapplicability of the Rules Enabling Act, ante, at 668, but appears to apply the Act nonetheless, ante, at 669-670 (citing 28 U. S. C. § 2072(b)). The majority is not entirely clear on this point, however, and it appears that the majority may instead find that Rule 4( j) effected an implied repeal of § 2's service requirement independent of the Rules Enabling Act. See ante, at 668 ("[A] Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes"). The majority may mean by this statement only that the Rules Enabling Act pertains equally to Rules of Procedure promulgated by this Court and by Congress, but I am reluctant to assume, absent clearer indication, the Court's reliance on a method of statutory construction that allows us to rewrite a statute when the text does not address the specific situation before us or when it does not generate an outcome that we desire. Regardless of the rubric under which this case is actually decided, the Court, in my opinion, reaches the wrong conclusion. In contrast to the rest of the procedures that apply in SAA cases, the Act requires a specific method of service even though the procedures that govern similar cases may differ. This, in combination with the critical fact that this case involves a waiver of sovereign immunity, leads me to conclude that Rule 4( j) does not displace the service requirement of § 2 either under the Rules Enabling Act or as an implied repeal.
The only question remaining is whether Henderson served his complaint on the United States "forthwith." There is no reasonable argument that he did. Henderson served his complaint on the United States Attorney 148 days after he
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