                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      December 7, 2007
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 JAMES D. CUNNINGHAM,

               Plaintiff - Appellant,
                                                         No. 07-1074
          v.                                               D. Colo.
 TOM RIDGE; MICHAEL MUKASEY;                 (D.C. No. 04-cv-01423-WDM-BNB)
 DAVID M. STONE; JAMES LOY;
 RENE DHENIN; RALPH HAMBLIN;
 LINDA LANGLEY; RON DEGAUS;
 ELLIE VASCONEZ; STEVE
 GILLMOR; THOMAS MULHERN;
 MARTINA GRIGGS JOHNSON;
 CAROLYN J. WILLIAMS; VELMA
 WILEY,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      James D. Cunningham appeals from the dismissal of his complaint, which

alleges the Department of Homeland Security and, specifically, employees of the

Transportation Security Administration (the TSA), wrongfully terminated his

employment. We affirm.

                               I. BACKGROUND

      The TSA hired Cunningham in October 2002 as a “full-time ‘temporary’

employee for a period not to exceed five years.” (Vol. I, Tab 1.) After working

for the TSA at Walker Field in Grand Junction, Colorado, for approximately eight

months, Cunningham failed to locate a pocket knife while screening a bag. Three

days later, he was placed on administrative leave. He submitted a written report

stating his version of events. Approximately one week later, Cunningham’s

employment was terminated because a security background check revealed he

failed to disclose he was fired from a previous job. Cunningham filed a

complaint with the Office of Special Counsel’s Merit Systems Protections Board

alleging he was wrongfully terminated for “whistleblowing.” Eventually,

Cunningham established that he was not fired from the previous job. On February

23, 2004, Cunningham was reinstated with no loss in pay or benefits but he never

reported back to work.

      On May 28, 2004, the TSA terminated Cunningham’s employment for his

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failure to locate the knife and for his disrespectful and abusive behavior when this

failure was brought to his attention. Apparently, Cunningham did not seek

administrative review of the termination. Cunningham filed a pro se complaint in

federal district court claiming a violation of due process and whistle blower

protections pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). His lawsuit named fourteen defendants in their

official and individual capacities. He sent copies of the summons and complaint

by registered mail to the eight defendants located in Washington, D.C. (D.C.

Defendants) but did not effect personal service as required by Rule 4 of the

Federal Rules of Civil Procedure. 1 The remaining defendants, located in Grand

Junction (Local Defendants), were personally served at their workplace. 2

However, Cunningham delivered the complaint and summons for these defendants

(in their official capacity) to Assistant United States Attorney Craig Wallace, who

left the United States Attorney’s office shortly thereafter and was not designated

to receive service.

      On October 28, 2004, Cunningham filed a motion for default judgment,




      1
        The D.C. Defendants were Defendants Tom Ridge, Michael Mukasey for
John Ashcroft, David M. Stone, James Loy, Carolyn Williams, Martina Griggs
Johnson, Thomas Mulhern, and Velma Wiley.
      2
      The Local Defendants were Defendants Ralph Hamblin, Rene Dhenin,
Ron DeGaus, Linda Langley, Ellie Vasconez, and Steve Gilmore.

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which was referred to a magistrate judge. 3 The magistrate judge held a status

conference on January 24, 2005, in which he carefully explained in detail the

shortcomings of Cunningham’s service of process to that point. The magistrate

judge reviewed the relevant rules with Cunningham and told him what he needed

to do to properly effectuate service. The magistrate judge wisely recommended

Cunningham retain a lawyer to assist with the procedural requirements and gave

Cunningham until February 28, 2005, to comply. Pending that deadline, the

magistrate judge recommended Cunningham’s default motion be denied for

failure to effect proper service on all defendants. The court agreed and denied the

motion.

      The defendants filed motions to dismiss. The Local Defendants filed in

their individual and official capacities. The D.C. Defendants filed in their official

capacities. 4 All defendants argued Cunningham’s official capacity claims were

barred by sovereign immunity. See Dept. of the Army v. Blue Fox, Inc., 525 U.S.

255, 260 (1999). The Local Defendants also asserted Cunningham’s individual

capacity claims were pre-empted by the Civil Service Reform Act, 5 U.S.C. §§



      3
         Cunningham argues he never consented to the referral to the magistrate
judge. His argument fails to recognize the district court does not need his consent
to “designate a magistrate judge to [consider any pre-trial motion] . . . and to
submit to a judge of the court proposed findings of fact and recommendations for
the disposition, by a judge of the court. . . .” 28 U.S.C. § 636(b)(1).
      4
        The D.C. Defendants asserted no response was necessary in their
individual capacities because they had not been properly served.

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1201-1206 (the CSRA). See United States v. Fausto, 484 U.S. 439, 443 (1988);

Petrini v. Howard, 918 F.2d 1482, 1483-84 (10th Cir. 1990). The magistrate

judge recommended the court dismiss all the defendants in their official capacities

based on sovereign immunity, but deny the Local Defendants’ motion in their

individual capacities because they had failed to cite to the specific CSRA

regulations at issue. At the same time, the magistrate judge ordered Cunningham

to show cause why he had not complied with the 2004 Order requiring proper

service.

      Cunningham failed to respond to the order to show cause, despite being

given an extension of time to do so. On January 24, 2006, the magistrate judge

recommended all claims be dismissed against the D.C. Defendants in their

individual capacities for failure to prosecute by failing to effect service. The

district court adopted the recommendations of the magistrate judge. It dismissed

all official capacity claims based on sovereign immunity. The individual claims

against the D.C. Defendants were dismissed for failure to prosecute. It agreed the

claims against the Local Defendants in their individual capacities would remain

pending but expressly invited them to renew their motion to dismiss.

      Thereafter, the Local Defendants renewed the motion to dismiss, this time

citing to the specific CSRA regulations pre-empting Cunningham’s claims. The

magistrate judge recommended the motion be granted. It further recommended

the case be dismissed in its entirety due to Cunningham’s failure to effect proper

                                          -5-
service. The district court agreed. It dismissed the individual claims against the

Local Defendants because Cunningham had failed to seek relief under the CSRA

and dismissed the entire case.

      Cunningham appeals, claiming he complied with the requirements for

service of process. Cunningham does not address the substantive conclusions of

the district court regarding sovereign immunity and preemption of his individual

claims by the CSRA. Therefore, these issues are waived. King v. PA Consulting

Group, Inc., 485 F.3d 577, 589 (10th Cir. 2007). As a result, the only remaining

issue in this case is whether the district court properly dismissed Cunningham’s

claims against the D.C. Defendants in their individual capacities for failure to

prosecute.

                                 II. DISCUSSION

      We review the decision to dismiss a defendant for failure of proper service

for abuse of discretion. Ledbetter v. City of Topeka, 318 F.3d 1183, 1186 (10th

Cir. 2003). Although we liberally construe Cunningham’s pro se complaint, we

do not “assume the role of advocate.” Id. at 1187-88. Moreover, Cunningham’s

pro se status “does not excuse [his] obligation . . . to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

      Rule 4(i) of the Federal Rules of Civil Procedure states in relevant part:

      (2)    (B) Service on an officer or employee of the United

                                         -6-
             States sued in an individual capacity . . . is effected by
             serving the United States in the manner prescribed by
             Rule 4(i)(1) and by serving the officer or employee in
             the manner prescribed by Rule 4 (e), (f), or (g).

Rule 4(e) states:

      Unless otherwise provided by federal law, service upon an individual
      from whom a waiver has not been obtained and filed, . . . may be
      effected in any judicial district of the United States:

      (1) pursuant to the law of the state in which the district court is
      located, or in which service is effected, for the service of a summons
      upon the defendant in an action brought in the courts of general
      jurisdiction of the State; 5 or

      (2) by delivering a copy of the summons and of the complaint to the
      individual personally or by leaving copies thereof at the individual's
      dwelling house or usual place of abode with some person of suitable
      age and discretion then residing therein or by delivering a copy of
      the summons and of the complaint to an agent authorized by
      appointment or by law to receive service of process.

      Cunningham claims he filed copies of the summons and complaint by

certified mail to the D.C. Defendants, thereby effecting proper service. However,

the magistrate judge specifically informed him that merely mailing a summons

and complaint was insufficient to effect service on the D.C. Defendants in their

individual capacities. Cunningham was told he also must provide proof of

personal service under Rule 4(e). He does not argue he has done so.

       AFFIRMED.

                                                ENTERED FOR THE COURT

                                                Terrence L. O’Brien
                                                Circuit Judge


      5
        Rule 4(e)(1) of the Colorado Rules of Civil Procedure also requires
personal service.

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