* This order and judgment is not binding precedent, except under the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

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, 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.
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-

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
-3-

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. 
-4-

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