                                                                          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      This order and judgment is not binding precedent except under the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.

                                       2
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




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