F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 27 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LENDAL R. SMITH, III,
Plaintiff-Appellant,
v. No. 04-2236
(D.C. No. CIV-03-929 JP/RHS)
LES BROWNLEE, Acting Secretary (D. N.M.)
of the Army; WHITE SANDS
MISSILE RANGE, New Mexico,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination 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.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Lendal R. Smith, a former employee of the Department of Defense
at the White Sands Missile Range (White Sands), proceeding pro se, appeals the
dismissal of his complaint against defendants asserting claims under the
Rehabilitation Act of 1973, 29 U.S.C. §§ 791-793 (Rehabilitation Act). 1
The
district court granted White Sands’ motion to dismiss or, in the alternative, for
summary judgment. We affirm.
I.
As a preliminary matter, White Sands contends this court lacks jurisdiction
because Smith filed an untimely notice of appeal. Their argument is based on the
incorrect premise that the district court’s final order was entered on July 9, 2004.
In fact, the district court docket sheet reflects that the final order, though dated
July 9, was entered on July 12, 2004. “The date of entry is the beginning point
for when the time period [for filing an appeal under Fed. R. App. P. 4(a)(1)]
begins to run.” Jenkins v. Burtzloff , 69 F.3d 460, 461-62 (10th Cir. 1995)
Hence, Smith’s September 10, 2004 notice of appeal was timely filed under Fed.
R. App. P. 4(a)(1)(B), and this court does have jurisdiction over the district
1
Smith also asserted a claim for slander under the Federal Tort Claims Act
(FTCA). The district court dismissed this claim because the FTCA explicitly
states that the United States has not waived sovereign immunity for slander
claims. 28 U.S.C. § 2680(h). Smith does not assert any challenge to that ruling
on appeal.
-2-
court’s July 12, 2004 order of dismissal and its September 2, 2004 order denying
Smith’s untimely motion for reconsideration.
II.
The parties are familiar with the facts and procedural history and we will
not repeat them except as necessary for our analysis. Smith alleged Rehabilitation
Act claims for wrongful termination based on his disability and for failure to
provide a reasonable accommodation for his disability. In its thorough opinion,
the district court dismissed Smith’s claims because he failed to timely exhaust his
administrative remedies. See Woodman v. Runyon , 132 F.3d 1330, 1341
(10th Cir. 1997) (exhaustion of administrative remedies is a prerequisite to suit
under Rehabilitation Act). In particular, it is undisputed that Smith failed to
initiate his equal employment opportunity (EEO) grievance within forty-five days
of his termination, as required by 29 C.F.R. § 1614.105(a)(1), and then failed to
file his civil action within ninety days of his receipt of the decision by the Equal
Employment Opportunity Commission (EEOC) that affirmed the dismissal of his
EEO complaint, as required by 42 U.S.C. § 2000e-16(c).
On appeal, Smith contends the district court erred in rejecting his
arguments that the time limits governing his administrative remedies should be
equitably tolled. We review the district court’s grant of summary judgment
de novo, and its decision not to apply equitable tolling for an abuse of discretion.
-3-
Harms v. IRS , 321 F.3d 1001, 1006 (10th Cir. 2003). We have reviewed the
briefs, the record, and the applicable law in light of these standards, and we
conclude that the district court correctly decided that equitable tolling was not
warranted. It is undisputed that Smith received in his termination letter notice of
his EEO rights and the time line applicable for filing an EEO complaint. He thus
has provided no grounds to excuse his untimely filings in the administrative
process. Regarding his district court action, it is also undisputed that Smith failed
to provide any basis to toll the statute of limitation on equitable grounds. His
unawareness of the rules governing service of defendants which led to the
dismissal of his first civil action is not a ground for equitable relief. See Montoya
v. Chao , 296 F.3d 952, 958 (10th Cir. 2002) (holding that lack of diligence or
lack of understanding of the law are insufficient grounds to invoke equitable
tolling).
We therefore AFFIRM the judgment in favor of the defendants for
substantially the reasons given by the district court in its Memorandum and Order
entered July 12, 2004. The mandate shall issue forthwith.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
-4-