* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 27 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LENDAL R. SMITH, III,

Plaintiff-Appellant,

v. LES BROWNLEE, Acting Secretary of the Army; WHITE SANDS MISSILE RANGE, New Mexico,

Defendants-Appellees. No. 04-2236 (D.C. No. CIV-03-929 JP/RHS)

(D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Smith also asserted a claim for slander under the F ederal Tort Claims Act

(FTCA). The district court dismissed this claim be cause the FTCA explicitly states that the United States has not waived sovere ign immunity for slander claims. 28 U.S.C. § 2680(h). Smith does not assert any challenge to that ruling on appeal. -2- Plaintiff Lendal R. Smith, a former employee of the Department of Defense at the White Sands Missile Range (White Sands), pro ceeding 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 dismi ss 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 o rder 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 begin ning point for when the time period [for filing an appeal unde r 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 jur isdiction over the district-3-

court’s July 12, 2004 order of dismissal and its Se ptember 2, 2004 order denying Smith’s untimely motion for reconsideration.
II. The parties are familiar with the facts and procedu ral history and we will not repeat them except as necessary for our analysi s. Smith alleged Rehabilitation Act claims for wrongful termination based on his di sability and for failure to provide a reasonable accommodation for his disabili ty. 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 reme dies is a prerequisite to suit under Rehabilitation Act). In particular, it is un disputed that Smith failed to initiate his equal employment opportunity (EEO) gri evance 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 rec eipt 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 admini strative remedies should be equitably tolled. We review the district court’s g rant of summary judgment de novo, and its decision not to apply equitable to lling for an abuse of discretion.-4-

Harms v. IRS , 321 F.3d 1001, 1006 (10th Cir. 2003). We have re viewed the briefs, the record, and the applicable law in lightof these standards, and we conclude that the district court correctly decided that equitable tolling was not warranted. It is undisputed that Smith received inhis termination letter notice of his EEO rights and the time line applicable for fil ing an EEO complaint. He thus has provided no grounds to excuse his untimely fili ngs in the administrative process. Regarding his district court action, it i s also undisputed that Smith failed to provide any basis to toll the statute of limitat ion on equitable grounds. His unawareness of the rules governing service of defen dants 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 g rounds to invoke equitable tolling). We therefore AFFIRM the judgment in favor of the de fendants for substantially the reasons given by the district cou rt in its Memorandum and Order entered July 12, 2004. The mandate shall issue forthwith. Entered for the Court
Timothy M. Tymkovich Circuit Judge