FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 1, 2020
_____________________________________
Christopher M. Wolpert
Clerk of Court
MAXINE SHEPARD,
Plaintiff - Appellant,
v. No. 19-1313
(D.C. No. 1:18-CV-01098-PAB-KMT)
UNITED STATES DEPARTMENT (D. Colo.)
OF VETERANS AFFAIRS; UNITED
STATES DEPARTMENT OF
DEFENSE,
Defendants - Appellees.
____________________________________
ORDER AND JUDGMENT *
____________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_____________________________________
Ms. Maxine Shepard sued the Departments of Defense and Veterans
Affairs, 1 alleging that they had secretly installed microchips in her and her
*
The panel concludes that oral argument would not help in the
decision, so we are deciding the appeal based on the briefs. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
Ms. Shepard also sued St. David’s North Austin Medical Center. But
she does not appeal any rulings involving St. David’s.
pet. The district court dismissed the action for failure to properly serve the
federal government, and we affirm.
Because Ms. Shepard was suing two federal agencies, she had to
comply with Fed. R. Civ. P. 4. Under this rule, Ms. Shepard had 90 days to
serve the U.S. Attorney (or a designated substitute), the U.S. Attorney
General, the Department of Defense, and the Department of Veterans
Affairs. Fed. R. Civ. P. 4(i)(1)-(2), 4(m).
Shortly after filing the complaint, Ms. Shepard sent Federal Express
packages of the complaint to the Departments of Defense and Veterans
Affairs. But this step didn’t effect service on either agency for two
reasons:
1. Federal Express is not a permissible way to serve a federal
agency. See Fed. R. Civ. P. 4(i)(2) (stating that the plaintiff
must serve a federal agency by registered or certified mail).
2. Ms. Shepard could not mail the packages herself because she is
a party. Fed. R. Civ. P. 4(c)(2); see Constien v. United States,
628 F.3d 1207, 1213 (10th Cir. 2010) (“Even when service is
effected by use of the mail, only a nonparty can place the
summons and complaint in the mail.”).
And Ms. Shepard hadn’t served the U.S. Attorney or the U.S. Attorney
General.
Ms. Shepard then filed an amended complaint but did nothing further
to serve the U.S. Attorney, the U.S. Attorney General, the Department of
Defense, or the Department of Veterans Affairs. Almost a year passed, and
Ms. Shepard had still not properly served the U.S. Attorney, the U.S.
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Attorney General, the Department of Defense, or the Department of
Veterans Affairs. So the magistrate judge ordered Ms. Shepard to show
cause why the action shouldn’t be dismissed for failure to effect service.
Ms. Shepard responded, but she failed to take further action to effect
service. The district judge ultimately ordered dismissal without prejudice
based on Ms. Shepard’s failure to effect service.
We review the dismissal for an abuse of discretion. Constien v.
United States, 628 F.3d 1207, 1213 (10th Cir. 2010). In our view, the
district court did not abuse its discretion.
In applying the abuse-of-discretion standard, we consider both Ms.
Shepard’s pro se status and the complexities of serving federal agencies.
Espinoza v. United States, 52 F.3d 838, 842 (10th Cir. 1995).
Ms. Shepard failed to properly effect service. She did nothing to
serve the U.S. Attorney or U.S. Attorney General. And even though she
sent the initial complaint to the Department of Defense and Department of
Veterans Affairs, this service was a nullity. Ms. Shepard could not mail the
service copies herself because she was a party, and she sent the complaint
by Federal Express rather than registered or certified mail. Even if she had
properly served the agencies with the initial complaint, however, this
service would quickly have become obsolete because Ms. Shepard then
amended the complaint and never sent it to anyone.
3
We thus consider whether the district court abused its discretion in
declining to extend Ms. Shepard’s time to effect service. An extension of
time may be mandatory or permissive. Fed. R. Civ. P. 4(m).
An extension of time would be mandatory in two situations: (1) if
Ms. Shepard had served the U.S. Attorney or U.S. Attorney General or (2)
if Ms. Shepard had shown good cause for an extension of time. Fed R. Civ.
P. 4(i)(4), 4(m). The first situation doesn’t exist because Ms. Shepard
didn’t serve either the U.S. Attorney or U.S. Attorney General. The
remaining issue is whether Ms. Shepard had shown good cause for an
extension. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.
1995).
Though Ms. Shepard was pro se, her ignorance of the rules would not
ordinarily constitute good cause. Broitman v. Kirkland (In re Kirkland),
86 F.3d 172, 176 (10th Cir. 1996). Ms. Shepard states that she showed
good cause by trying to comply with the rule. But after the magistrate
judge issued the show-cause order, Ms. Shepard had 72 days to effect
service. Yet there’s no indication that she made any effort to mail the first
amended complaint and summons to the U.S. Attorney, U.S. Attorney
General, the Department of Defense, or the Department of Veterans
Affairs. Nor did Ms. Shepard explain her failure to effect service. So the
district court did not abuse its discretion in declining to find good cause
for an extension of time.
4
Despite the lack of good cause, the district court could have still
given a permissive extension. Espinoza v. United States, 52 F.3d 838 (10th
Cir. 1995). In determining whether to grant a permissive extension, the
pertinent considerations include Ms. Shepard’s pro se status, the
complexity of the service requirements for federal agencies, the danger of
prejudice to the defendants, and the possible expiration of the statute of
limitations on the claims. See id. The district court determined that only
Ms. Shepard’s pro se status favored granting an extension.
On appeal, Ms. Shepard contends that her claims are now time-
barred. But Ms. Shepard didn’t argue in district court that the claims would
be time-barred, forfeiting the argument. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130-31 (10th Cir. 2011) (holding that unpreserved
arguments may not be considered on appeal absent a showing of plain
error).
The district court properly acknowledged the complexity of the
service requirements. But Ms. Shepard didn’t properly serve any federal
employee or entity.
The court also considered the danger of prejudice, reasoning that the
delay in serving the agencies could impede the agencies’ burden of
gathering evidence.
Ms. Shepard denies that the agencies were prejudiced, insisting that
President Obama, members of Congress, and Senators were aware of her
5
complaint. But Ms. Shepard has presented no evidence of such knowledge
or suggested how the Departments of Defense and Veterans Affairs could
have known of the first amended complaint when she hadn’t sent it to
anyone.
Viewing these considerations as a whole, the district court acted
within its discretion in denying a permissive extension of time. Indeed,
even without the extension of time, Ms. Shepard could have taken further
steps to effect service once she was ordered to show cause for her failure
to effect timely service. She still took no further action, and the court
finally dismissed the action 72 days later. Given Ms. Shepard’s inaction
and failure to provide a meaningful excuse for her delay, we conclude that
the district court acted within its discretion. We thus affirm the dismissal
without prejudice.
Entered for the Court
Robert E. Bacharach
Circuit Judge
6