United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 29, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
-------------------- Clerk
No. 06-20494
Summary Calendar
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LARRY CARTER
Plaintiff - Appellant
v.
DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS
Defendants - Appellees
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Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CV-1379
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Larry Carter appeals the district
court’s dismissal of his employment discrimination case. For the
reasons that follow, we AFFIRM the judgment of the district
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
This suit arises from three different cases alleging
discrimination that Carter brought before the Department of
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Veteran’s Affairs (the “Department”): Veterans Affairs Case
Numbers 2003-0851-2001118028 (“8028"), 2001-0851-2002100608
(“608"), and 2003-0851-200313509 (“3509"). Carter filed two
separate lawsuits in federal district court to challenge his
employer’s actions. The case before this court arises out of the
second suit.
A. The Original Suit
In November 2003, before the Department had issued a final
decision in any of the three cases listed above, Carter filed a
pro se complaint against the Department in federal district court
in the Southern District of Texas. Carter later retained counsel,
but apparently did not inform his attorney about the pro se
complaint until after it had been dismissed.
On June 25, 2004, the district court dismissed the case for
want of prosecution. Carter’s counsel filed a motion for
reconsideration of the dismissal on July 9, 2004.
On March 22, 2005, the district court granted Carter’s
motion for reconsideration and reinstated the original suit.
B. Our Case
In December 2003, the Department’s Office of Employment
Discrimination Complaint Adjudication issued a Final Agency
Decision concerning cases 8028 and 608, finding that Carter
failed to prove discrimination. On December 29, 2003, the Final
Agency Decision arrived at Carter’s counsel’s office building,
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which was the address designated by Carter. The lawyer’s office
was closed from December 24, 2003 to January 4, 2004, and an
employee of the building’s landlord accepted and signed for the
letter. It was not until on or about January 3, 2004, that an
employee of the law firm picked up the letter from the building’s
central mailing area.
Later, the Department issued a decision as to case 3509,
dismissing it for “untimely EEO contact” because Carter had not
contacted an EEO counselor until more than forty-five days after
the alleged discriminatory incident had occurred.
On April 2, 2004, Carter filed this lawsuit challenging the
outcome of all three cases.
On September 8, 2004, defendants-appellees filed a motion to
dismiss for lack of subject matter jurisdiction, or in the
alternative, for summary judgment. The defendants argued with
regard to the first two cases that the lawsuit had been filed
after the expiration of the statute of limitations. As to the
third case, the defendants argued that Carter had not exhausted
his administrative remedies within the time period mandated by
regulation.
The district court in this case, unaware of the
reinstatement of the original suit, granted the defendants’
motion and dismissed the case for lack of subject matter
jurisdiction on May 11, 2005. Carter then filed a motion for a
new trial and informed the district court of the reinstatement of
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the original suit. The district court denied the motion on June
29, 2005. Carter appealed.
II. STANDARD OF REVIEW
We review de novo a dismissal for lack of subject matter
jurisdiction. Gandy Nursery, Inc. v. United States, 318 F.3d 631,
636 (5th Cir. 2003). However, when a district court declines to
exercise its equitable power to toll a statute of limitations, we
review for abuse of discretion. Teemac v. Henderson, 298 F.3d
452, 456 (5th Cir. 2002).
The standard of review for a motion to alter judgment
depends on whether the district court considered any new
material: if it did, then the standard is de novo; if not, the
standard is abuse of discretion. Templet v. HydroChem, Inc., 367
F.3d 473, 477 (5th Cir. 2004). In this case, it is unclear
whether the district court considered additional materials.
Thus, we review the denial of the motion as if no new material
had been considered; in other words, for abuse of discretion.
Id.
III. DISCUSSION
A. The Motion to Dismiss
1. Cases 8208 and 608
Carter argues that he filed suit within the statutory
limitations period. Under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-16, a plaintiff must file a judicial complaint
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within ninety days of receiving notice of a final agency action
regarding plaintiff’s administrative complaint. 42 U.S.C.
§ 2000e-16(c); see also 29 C.F.R. § 1614.407(a). The notice may
be constructive, as well as actual. Irwin v. Dept. of Veteran’s
Affairs, 498 U.S. 89, 93 (1990); Espinoza v. Mo. Pac. R.R., 754
F.2d 1247, 1250 (5th Cir. 1985).
In this case, Carter filed his suit more than ninety days
after notification of the final agency decision arrived at his
attorney’s building. Carter argues that because the letter was
received in the building rather than at his office, and because
Carter’s attorney did not claim the letter from the building’s
central mailing facility until three days after the letter
arrived, the statute of limitations should have run from that
later date.
“[T]he giving of notice to the claimant at the address
designated by him suffices to start the ninety-day period unless
the claimant, through no fault of his own, failed to receive the
right-to-sue letter or unless, for some other equitable reason,
the statute should be tolled until he actually receives notice.”
Espinoza, 754 F.2d at 1250. Here, the notice was delivered to
Carter’s attorney’s building on December 29, 2003. Although the
attorney’s offices were closed at the time, there were no
circumstances beyond the attorney’s control that prevented
collection of the notice. The mere fact that no one checked the
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central mailing facilities until several days after the letter’s
receipt does not prevent the limitations period from beginning to
run. A contrary rule would “encourage factual disputes about
when actual notice was received, and thereby create uncertainty
in an area of the law where certainty is much to be desired.”
Irwin, 498 U.S. at 93.
Carter also argues that the court should exercise its
equitable powers to toll the statute because his attorney’s
office was closed for the Christmas holidays when the notice
arrived. The fact that counsel was on vacation, however, does not
merit the tolling of the statute. See Irwin, 498 U.S. at 96
(holding that a case where a lawyer was absent from the office
when the notice arrived and did not file suit within the
limitations period constituted “a garden variety case of
excusable neglect,” and did not trigger equitable tolling).
Furthermore, Carter argues that because he was undergoing
treatment for prostate cancer during December 2003, he was
unavailable to his attorney at that time. However, Carter’s
treatment apparently ended in December, and there appears to be
no reason why the suit could not have been filed within ninety
days of receipt of the letter.
2. Case 3509
The district court affirmed the Department’s determination
that Carter had not contacted an EEO counselor within forty-five
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days of the alleged discriminatory event, as required by
regulation. See 29 C.F.R. § 1614.105(a)(1). Carter argues that
he was informally attempting to resolve issues with management
during this time period. Although any informal attempt at
resolution is commendable, the regulations provide no exception
to the limitations period. As Carter undisputedly knew of the
alleged violation forty-five days prior to the deadline, and no
one is alleged to have misled him concerning the nature of his
rights, the district court correctly held that Carter did not
exhaust his administrative remedies within the forty-five day
time limit provided by regulation.
B. Rule 59 Motion
Carter advances two general contentions as to why the denial
of the motion for reconsideration should be reversed. First, he
rehashes the arguments made in opposition to the motion to
dismiss, as discussed above. Second, he argues that under the
first-to-file rule, this case should have been consolidated with
the original suit or stayed until the first court had come to a
final determination on the merits.
The district court did not err in denying the motion.
Reconsideration of a judgment after its entry is an extraordinary
remedy which should be used sparingly. Templet v. HydroChem,
Inc., 367 F.3d 473, 479 (5th Cir. 2004). “Such a motion is not
the proper vehicle for rehashing evidence, legal theories, or
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arguments that could have been offered or raised before the entry
of judgment.” Id. at 478–9. Carter’s only new argument in the
motion was that the district court should transfer or stay the
case based on the first-to-file rule. That rule generally
applies when opposing parties have filed separate lawsuits
concerning the same core facts. In such a case, the district
court in which the later action was filed may dismiss, stay, or
transfer the suit in order to avoid duplicative litigation and
enforce the principle of comity. See W. Gulf Mar. Ass’n v. ILA
Deep Sea Local 24, 751 F.2d 721, 728–31 (5th Cir. 1985)
(reversing district court’s grant of a preliminary injunction
when similar case was pending in a different jurisdiction).
However, in order to be able to transfer the case, the court
must be aware of the existence of the original suit. At the time
the district court in this case issued its final judgment, the
court knew only that the previously filed case had been dismissed
for failure to prosecute. Carter failed to inform the district
court prior to final judgment that the case had been reinstated,
although Carter knew of the reinstatement seven weeks prior to
the issuance of the final order. Carter’s unexcused failure to
provide the district court with this information is, standing
alone, grounds for denying the motion. See Templet, 367 F.3d at
479 (5th Cir. 2004). The district court properly determined that
this information did not create “a manifest error of law or
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fact,” and did not merit the extraordinary remedy of altering the
judgment. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th
Cir. 1989).
IV. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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