Federal Government Defendants

A federal government defendant answers on a different clock from the one taught so far. An ordinary defendant must answer a complaint within 21 days after being served with the summons and complaint,¹ and must answer a counterclaim or crossclaim within 21 days after being served with the pleading that states it.² The United States, its agencies, and its officers and employees receive 60 days instead, and those 60 days start on a different event.

Two provisions supply the longer period, and the capacity in which the defendant is sued chooses between them. Rule 12(a)(2) covers the United States, a United States agency, and an officer or employee sued only in an official capacity.³ Rule 12(a)(3) covers an officer or employee sued individually for an act or omission connected with federal duties.⁴ Both reach answers to complaints, counterclaims, and crossclaims, so the pleading being answered never changes the analysis; only the defendant's identity and capacity do. An answer that applies 21 days to a government defendant has chosen the wrong rule before counting a single day.

Official-Capacity Defendants

Rule 12(a)(2) gives the United States, a United States agency, and a United States officer or employee sued only in an official capacity 60 days to answer a complaint, counterclaim, or crossclaim, counted from service on the United States attorney.⁵ That period replaces the 21-day default,⁶ and the agency and the officer sued in that capacity receive it on the same terms as the United States itself.

The starting event is service on the United States attorney, and no earlier delivery counts. The agency, a supervisor, or the named officer may receive the papers weeks before the United States attorney does, yet none of those deliveries starts the 60 days. The rule evidently ties the period to the office that will handle the defense, so the clock begins only when that office has been served.

A private corporation served on that same June 1 must answer by June 22. The 21-day default governs it, and Rule 12(a)(2) says nothing about private parties.⁷ The coverage of counterclaims and crossclaims matters most when the government is the plaintiff. If the United States sues to collect a debt and the defendant files a counterclaim, the government's answer is due 60 days after service on the United States attorney.⁸ A private plaintiff facing the same counterclaim has only 21 days after being served with the pleading that states it.⁹

The rule's wording marks three boundaries. It names the United States and its agencies, officers, and employees, so a private party stands outside it. It speaks of an official capacity only, so a federal employee who is also sued personally for an act done on the government's behalf falls under the provision taken up next. And because it starts the clock at service on the United States attorney, a count of 60 days from the day the agency itself received the papers uses the right period and the wrong starting event, which misses the true deadline by the gap between the two deliveries.

Individual-Capacity Defendants

Rule 12(a)(3) governs a federal officer or employee who is sued as a person rather than as the government's stand-in. Such a defendant, sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf, must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.¹¹ The official-capacity rule, by contrast, keys the clock to service on the United States attorney alone.¹² The individual-capacity provision has two working parts: a nexus requirement that decides whether the 60-day period applies at all, and a trigger that decides when it begins. The nexus comes first, because a defendant outside it never reaches the trigger.

The nexus requirement asks what the suit is about. The alleged act or omission must have occurred in connection with duties performed on the United States' behalf. A defendant whose alleged conduct has no such connection falls outside Rule 12(a)(3) and answers within the 21-day default, counted from service of the summons and complaint.¹³ A federal job title does not earn the longer period; the connection between the act and federal duties does.

Once the nexus is met, the trigger compares two service dates and takes the later one. Rule 12(a)(2) looks to a single event, service on the United States attorney.¹⁴ Rule 12(a)(3) looks to two, and the 60 days cannot start until both the officer and the United States attorney have been served.¹⁵ A clock keyed to the officer alone could start before the United States attorney had been served, and a clock keyed to the United States attorney alone could start before the officer had been served at all. The later-of formula removes both risks. The earlier service starts nothing, and counting 60 days from it yields a deadline earlier than the rule allows whenever the two dates differ.

The two federal-defendant rules differ in coverage and in trigger, so a stem that names a federal employee calls for a short sequence of questions, best asked in this order.

Exam Analysis Steps

The capacity in which the employee is sued selects the rule, and the connection to federal duties selects the period, so the analysis moves from one to the other. The steps are these:

Determine whether the officer or employee is sued only in an official capacity, because that defendant falls under Rule 12(a)(2) and counts 60 days from service on the United States attorney alone.¹⁶
For a defendant sued individually, ask whether the alleged act or omission occurred in connection with duties performed on the United States' behalf, because only a connected act brings Rule 12(a)(3) into play.¹⁷
If the connection exists, identify the date of service on the officer or employee and the date of service on the United States attorney, choose the later date, and count 60 days from it.¹⁸
If the connection is missing, apply the 21-day default, which runs from service of the summons and complaint on the defendant.¹⁹

Step 2 does the work students most often skip. A stem that describes a purely private act, such as the personal car accident above, points back to the default no matter where the defendant works.