532 F.3d 1108 (10th Cir. 2008), 07-1490, Butler v. Kempthorne

Docket Nº:07-1490.
Citation:532 F.3d 1108
Party Name:William C. BUTLER, Plaintiff-Appellant, v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior, Defendant-Appellee.
Case Date:July 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1108

532 F.3d 1108 (10th Cir. 2008)

William C. BUTLER, Plaintiff-Appellant,

v.

Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior, Defendant-Appellee.

No. 07-1490.

United States Court of Appeals, Tenth Circuit.

July 14, 2008

Page 1109

William C. Butler, Evergreen, CO, pro se.

Marc Andrew Bonora , United States Attorney's Office, Michael C. Johnson, Denver, CO, for Defendant-Appellee.

Before KELLY , McKAY , and BRISCOE , Circuit Judges.

ORDER AND JUDGMENT[*]

Pro se plaintiff William C. Butler appeals from the dismissal of his employment discrimination case for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) .1 He also challenges the denial of his Fed.R.Civ.P. 59(e) motion to alter or amend judgment and the denial of his Fed.R.Civ.P. 60(b) motion for relief from judgment or order.

The district court set forth a detailed summary of the pertinent facts and we need not restate them here. R. Doc. 59 at 4-7. Suffice it to say that plaintiff, a geologist, filed this action in 2007 alleging that his former employer, the United States Geological Survey (USGS) (an agency within the United States Department of Interior (DOI)), violated 29 U.S.C. § 633a , a provision of the Age Discrimination in Employment Act (ADEA), when it eliminated his position on the basis of his age during an October 1995 reduction in force. Defendant countered with a Rule 12(b)(1) motion to dismiss, asserting that the district court lacked subject matter jurisdiction to consider plaintiff's complaint because he had failed to exhaust his administrative remedies before filing suit. That is, plaintiff never filed a timely appeal to the Merit Systems Protection Board (MSPB) and he never filed a complaint

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with the Equal Employment Opportunity Commission (EEOC).

The district court agreed with defendant. Specifically, it concluded that the EEOC's right to sue letter did not “demonstrate exhaustion of administrative remedies" and therefore did not “provide any basis to deny Defendant's motion to dismiss." R. Doc. 59 at 8-9. Plaintiff's August 1995 letter to the Office of Special Counsel (OSC) for the DOI also failed to demonstrate that plaintiff had exhausted his administrative remedies because he “never alleged in that letter that he was discriminated against on the basis of his age." Id. at 9. Nor could plaintiff rely on the...

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