                                                        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
                        --------------------


LARRY CARTER

                      Plaintiff - Appellant

     v.

DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS

                      Defendants - Appellees

          ----------------------------------------------
           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                       USDC No. 4:04-CV-1379
          ----------------------------------------------

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this opinion should not be published and is not precedent except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


                                     4
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



                                   5
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



                                  6
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


                                 7
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



                                   8
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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