                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MARCIA J. HUMPHREY,

                Plaintiff-Appellant,

    v.                                                   No. 99-6219
                                                     (D.C. No. 98-CV-763)
    SHEILA E. WIDNALL, Secretary,                        (W.D. Okla.)
    Department of the Air Force,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(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      This order and judgment is not binding precedent, except under the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.
       Plaintiff seeks review of the district court’s order dismissing her civil rights

action brought pursuant to 42 U.S.C. §§ 2000e-2000e-17, alleging job

discrimination on the basis of race.   1
                                           The court dismissed the complaint pursuant

to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction because plaintiff failed to

exhaust administrative remedies by timely filing a formal complaint with the EEO

counselor at her place of employment as required by 29 C.F.R. § 1614.106(b)

(complaint must be filed within fifteen days of receipt of notice required by

§ 1614.105(d), (e), or (f)). The district court reviewed the documents submitted

in support of the motion to dismiss and plaintiff’s proffered reasons for the

untimely filing and determined, as had the EEOC, that plaintiff had failed to

submit adequate justification under 29 C.F.R. § 1614.604(c) to justify waiver,

estoppel or equitable tolling of the fifteen-day time period.

       We review the dismissal of a complaint under Rule 12(b)(1) de novo.         See

Hart v. Department of Labor ex rel. United States      , 116 F.3d 1338, 1339 (10th Cir.

1997); see also FDIC v. Oaklawn Apartments , 959 F.2d 170, 174 (10th Cir. 1992)

(facts regarding jurisdictional questions may be determined by reference to


1
      After the district court dismissed the complaint, plaintiff filed a “motion for
rehearing,” claiming the recent “discovery” of a postal receipt establishing that
her formal complaint was timely filed in December of 1996. The district court
denied the request for rehearing on the ground that the receipt could have been, in
the exercise of due diligence, discovered earlier and particularly in response to
defendant’s motion to dismiss. The court did not determine the credibility of this
newly presented evidence, nor do we.

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affidavits). “Reference to evidence outside the pleadings does not convert the

motion to dismiss into a motion for summary judgment in such circumstances.”

SK Fin. SA v. La Plata County, Bd. of County Comm’rs          , 126 F.3d 1272, 1275

(10th Cir. 1997).

       Postjudgment motions are reviewed for abuse of discretion.        See Brown v.

Presbyterian HealthCare Servs.    , 101 F.3d 1324, 1331 (10th Cir. 1996) (Rule

59(e); White v. American Airlines, Inc.    , 915 F.2d 1414, 1425 (10th Cir. 1990)

(Rule 60(b). A motion to reconsider is treated as a Rule 59(e)motion if filed

within ten days of judgment; otherwise, it is treated as one under Rule 60(b).        See

Elsken v. Network Multi-Family Sec. Corp.         , 49 F.3d 1470, 1476 (10th Cir. 1995).

In this case plaintiff’s notice of appeal was filed within sixty days of the district

court’s dismissal of the complaint.    See Fed. R. App. P. 4(a)(1)(B) (when United

States is party, notice of appeal may be filed by any party within sixty days after

judgment or order is entered). Therefore, we may consider the dismissal of the

complaint as well as the court’s denial of plaintiff’s motion for rehearing.




                                            -3-
      We have reviewed the record and carefully considered the parties’

arguments. We affirm the district court order for substantially the reasons given

in the orders dismissing the complaint and denying the motion for rehearing.

      AFFIRMED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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