                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JEFFERSON BUNING,                                No.   16-16198

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-01176-APG-VCF
 v.

JEFFERSON B. SESSIONS III, Attorney              MEMORANDUM*
General; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                          Submitted December 5, 2017**
                            San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and ROSENTHAL,*** Chief
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
      Buning appeals the dismissal of his action for failure to timely effect service

of process, as required by Federal Rule of Civil Procedure 4(i), (m). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in dismissing the action,

because Buning failed to timely serve the United States attorney for the District of

Nevada. See Fed. R. of Civ. P. 4(i)(1)(A)(i), (m). Buning did not establish good

cause or excusable neglect for his failure to perfect service of process as required.

See Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).

      Buning argues either that (1) he was excused for service of process under

Rule 4 because 8 C.F.R. § 336.9(b) controlled or, even if it did not, (2) he

established good cause for failing to comply with Rule 4, because § 336.9(b)

created ambiguity with regard to service of process. Neither argument is

persuasive.

      First, to the extent that Buning has not waived these arguments, because he

failed to provide “any analysis to assist the court in evaluating [his] legal

challenge,” see Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th

Cir. 2003), there is no conflict between Rule 4 and 8 C.F.R. § 336.9(b). Section

336.9(b) merely informs the applicant which agencies must be served under Rule

4(i)(1)(C). Second, even if there were an ambiguity, Buning was aware of the


                                            2
requirements of Rule 4 when he moved under Rule 4(m) for additional time to

serve the Secretary of the Department of Homeland Security. See Whale v. United

States, 792 F.2d 951, 953 (9th Cir. 1986) (“We know of no cases in which

counsel’s failure to read Rule 4 and counsel’s resulting ‘assumption’ that mail

service was valid were held to constitute ‘good cause’ or ‘justifiable excuse.’”).

Moreover, Buning still failed to effect service in the additional time granted by the

district court. Accordingly, we cannot find good cause or excusable neglect. 1

      AFFIRMED.




      1
       Because we affirm the district court’s dismissal under Rule 4(m), we need
not address Buning’s additional arguments on appeal.
                                          3
