FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

APR 27 2005 

PATRICK FISHER 

Clerk 

LENDAL R. SMITH, III, 

Plain ti ff-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.l(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This order and judgment is not binding precedent, except under the 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. 

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Plaintiff Lendal R. Smith, a former employee of the Department of Defense 

at the White Sands Missile Range (White Sands), proceeding prose, 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)(l)] 

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)(l)(B), and this court does have jurisdiction over the district 

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. 

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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 wiII 

not repeat them except as necessary for our analysis. Smith aIIeged 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)(l), 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. 

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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. 

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Entered for the Court 

Timothy M. Tymkovich 

Circuit Judge 

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