Melvin Avery Warren v. Dept. of Veterans

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3506
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Melvin Avery Warren, Sr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Department of Veterans Affairs; *
Anthony J. Principi, Secretary * [UNPUBLISHED]
of Veterans Affairs, *
*
Appellees. *
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Submitted: June 1, 2004
Filed: June 7, 2004
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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Melvin Avery Warren, Sr., a former employee of the Department of Veterans
Affairs (“VA”), brought an action claiming that the VA discriminated against him
when it fired him during his probationary period. Mr. Warren moved for entry of
default, and the VA moved for dismissal or summary judgment. The district court1
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
held that Mr. Warren’s action was barred because he had not timely exhausted his
administrative remedies, and that he was not entitled to default judgment.
Mr. Warren appeals.
Having carefully reviewed the record and the parties’ briefs, we agree that
Mr. Warren’s complaint was time barred as he did not exhaust his administrative
remedies by timely pursuing his administrative complaint, see 29 C.F.R. §§ 1614.105,
1614.106; Jensen v. Henderson, 315 F.3d 854, 859 (8th Cir. 2002), and thus he was
not entitled to entry of default, see Fed. R. Civ. P. 55(e) (no judgment by default shall
be entered against United States agency unless claimant establishes claim or right to
relief by evidence satisfactory to court). Accordingly, we affirm. See 8th Cir.
R. 47B.
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