                                                  In the
                  United States Court of Appeals
                                    for the Fifth Circuit
                                            _______________

                                              m 01-60849
                                            Summary Calendar
                                            _______________




                 MARY GREEN-VICTORY; J.W. WILEY; JAMES L. SPENCER;
                     ALFRED SMITH; AND ANDREW ROBINSON, JR.,

                                                                   Plaintiffs-Appellants,

                                                 VERSUS

        UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF INTERIOR;
       NATIONAL PARK SERVICE; AND GALE A. NORTON,* SECRETARY OF INTERIOR,

                                                                   Defendants-Appellees.



                                     _________________________

                             Appeal from the United States District Court
                               for the Southern District of Mississippi
                                        m 5:99-CV-173-BrS
                                   _________________________

                                           December 27, 2002




   *
    Because plaintiffs sued the Secretary of Interior in an official capacity, Gale A. Norton is automatically
substituted for the previous Secretary. See FED. R. APP. P. 43(c)(2).
Before HIGGINBOTHAM, SMITH, and                            (“EEOC”), 29 C.F.R. § 1614.401(a), or he
  CLEMENT, Circuit Judges.                                 may file suit in federal court within 90 days, 42
                                                           U.S.C. § 2000e-16(c). If he appeals to the
PER CURIAM:**                                              EEOC, he may sue in federal court within 90
                                                           days of the EEOC’s final decision or 180 days
    Mary Green-Victory, J.W. Wiley, James                  after filing the appeal with the EEOC if the
Spencer, Alfred Smith, and Andrew Robinson,                EEOC has not acted. 42 U.S.C. § 2000e-
Jr., appeal the dismissal of their employment              16(c).
discrimination suit against their employers, the
United States, the Department of Interior                      These administrative procedures are juris-
(“Department”), and the National Park Ser-                 dictional: “Failure to comply with [them] . . .
vice. Reviewing the dismissal de novo, Ram-                wholly deprives the district court of jurisdic-
ming v. United States, 281 F.3d 158, 161 (5th              tion over the case.” Tolbert v. United States,
Cir. 2001), and finding no error, we affirm.               916 F.2d 245, 247 (5th Cir. 1990). The plain-
                                                           tiff bears the burden to prove essential jurisdic-
   Plaintiffs allege various kinds of racial dis-          tional facts. Ramming, 281 F.3d at 161. For
crimination or harassment in violation of title            instance, a federal employee must prove that
VII of the Civil Rights Act of 1964, 42 U.S.C.             he complied with these administrative pro-
§ 2000e et seq. The district court did not ad-             cedures before the court may exercise jur-
dress the merits of these allegations, because it          isdiction over his suit.
dismissed for want of subject matter jurisdic-
tion. See FED. R. CIV. P. 12(b)(1). In par-                    The court properly dismissed the suit as to
ticular, the court held that plaintiffs had not            Spencer, Smith, and Robinson, because they
timely exhausted their administrative remedies.            failed to cooperate with the Department’s in-
                                                           vestigation of their administrative complaint.
   A federal employee must satisfy certain ad-             The Department asked each to provide addi-
ministrative procedures before suing for em-               tional relevant information, but they never re-
ployment discrimination in federal court. At               sponded. The Department therefore dismissed
the outset, he must consult with his agency’s              their complaint. 29 C.F.R. § 1614.107(a)(7).
equal employment opportunity counselor in an               “If the agency does not reach the merits of the
effort to resolve his complaint informally. 29             complaint because the complainant fails to
C.F.R. § 1614.105(a). If that fails, he must file          comply with the administrative procedures the
a formal complaint with his agency. 29 C.F.R.              Court should not reach the merits either.”
§ 1614.106(a).                                             Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir.
                                                           1997). By not cooperating with the Depart-
   If the agency denies or dismisses the com-              ment, those three plaintiffs failed to exhaust
plaint, the employee may appeal to the Equal               their administrative remedies. Id. at 409.1
Employment Opportuni ty Commission

                                                              1
                                                                 Spencer, Smith, and Robinson argue for
   **
      Pursuant to 5TH CIR. R. 47.5, the court has          equitable tolling of limitations, because they claim
determined that this opinion should not be pub-            they did not receive the letters notifying them of the
lished and is not precedent except under the limited       Department’s dismissal. Even if true, this fact
circumstances set forth in 5TH CIR. R. 47.5.4.                                         (continued...)

                                                       2
    The court properly dismissed the suit as to                AFFIRMED.
Green-Victory and Wiley, because they sued in
federal court outside the limitations period of
§ 2000e-16(c). Both concede that their suit
was untimely under the first option of
§ 2000e-16(c), i.e., the 90-day period after the
Department dismissed. They contend, how-
ever, that their suit was timely under the sec-
ond option of § 2000e-16(c), i.e., appealing
from the Department to the EEOC and filing
suit after the EEOC takes final action or 180
days after filing the appeal if the EEOC has not
acted. Yet, the hefty record initially before the
court contained no evidence of an appeal to
the EEOC or a right-to-sue letter from the
EEOC (which would have implied an earlier-
filed appeal) beyond the assertions of Green-               (...continued)
Victory and Wiley during their depositions.                 Green-Victory and Wiley filed a motion to recon-
                                                            sider, which the court treated as a Rule 59(e) mo-
    Rather than dismiss the appeal, though, the             tion to amend the judgment. See FED. R. CIV. P.
court generously gave Green-Victory and                     59(e); Bass v. United States Dep’t of Agric., 211
Wiley fifteen days to submit additional docu-               F.3d 959, 962 (5th Cir. 2000) (stating that a mo-
                                                            tion to reconsider is treated as a motion to amend
mentary evidence of an appeal to the EEOC.
                                                            judgment if filed within ten days of judgment).
They then submitted the letter notifying them               They attached to the motion their right-to-sue let-
of the Department’s dismissal of their adminis-             ters, which prove that they in fact appealed the
trative complaint, which of course does not                 Department’s final action to the EEOC (though it
prove a perfected appeal to the EEOC.2 The                  does not prove a timely appeal). They argue that
court therefore dismissed their suit as un-                 the court abused its discretion by denying the mo-
timely.3                                                    tion. Yet, they do not explain why this evidence
                                                            was unavailable before judgment. This silence
                                                            alone justifies the court’s denial of the motion.
(...continued)                                              Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th
does not justify their failure to respond to the De-        Cir. 1991).
partment’s earlier requests for additional informa-
tion. Moreover, they did not raise this argument in             Furthermore, Green-Victory and Wiley admit
the district court, so we need not address it. Little       that in the ten-day window after the entry of judg-
v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th            ment “they contacted EEOC and had EEOC to
Cir. 1994) (en banc).                                       [sic] send them a copy of the EEOC final decisions
                                                            and right to sue.” They just as easily could have
   2
     Green-Victory also submitted what appears to           contacted the EEOC in the fifteen-day window
be an EEOC appeal form, but there was no proof              given them by the court to submit additional
that the form was filed.                                    documentary evidence of their EEOC appeal.
                                                            Thus, we conclude that the court did not abuse its
   3
       Within ten days after entry of judgment,             discretion by denying the motion to amend
                            (continued...)                  judgment.

                                                        3
