Kathleen Melendez v. Secretary Kathleen Sebelius

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1909
KATHLEEN I. MELENDEZ,
Plaintiff - Appellant,
v.
SECRETARY KATHLEEN SEBELIUS, Secretary, U.S. Department of
Health and Human Services; UNITED STATES ATTORNEY'S OFFICE;
UNITED STATES ATTORNEY GENERAL,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:13-cv-02747-WMN)
Submitted: April 24, 2015 Decided: May 18, 2015
Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald M. Temple, TEMPLE LAW GROUP, Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney, Sarah A.
Marquardt, UNITED STATES ATTORNEY’S OFFICE, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kathleen I. Melendez -- an employee of the United States
Department of Health and Human Services (“the department”) --
appeals from the district court’s order denying her Fed. R. Civ.
P. 59(e) motion seeking reconsideration of its prior order
granting Defendant Secretary Kathleen Sebelius’ motion under
Fed. R. Civ. P. 12(b)(1) and dismissing her civil action under
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, and the Rehabilitation Act of 1973 for
lack of subject matter jurisdiction. We affirm.
Where a challenge under Rule 12(b)(1) is raised to the
asserted basis for subject matter jurisdiction, the burden of
proving the asserted basis for jurisdiction falls on the
plaintiff. Smith v. Wash. Metro. Area Transit Auth., 290 F.3d
201, 205 (4th Cir. 2002); Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
In determining whether jurisdiction exists, the district court
is to regard the allegations in the complaint as “mere evidence”
and may consider evidence outside the pleadings without
converting the motion into one for summary judgment. Richmond,
Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. The court
should grant a Rule 12(b)(1) motion to dismiss “only if the
material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.” Evans v. B.F.
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Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal
quotation marks omitted). We review a district court’s
dismissal under Rule 12(b)(1) de novo. Id.
Federal employees like Melendez who seek to enforce their
rights under Title VII, the Americans with Disabilities Act, and
the Rehabilitation Act must exhaust their available
administrative remedies before pursuing an action in federal
court. 29 U.S.C. § 794a(a)(1) (2012); 42 U.S.C. § 2000e-16(c)
(2012); 42 U.S.C. § 12117(a) (2012); Brown v. Gen. Serv. Admin.,
425 U.S. 820, 832 (1976); Laber v. Harvey, 438 F.3d 404, 415-16
(4th Cir. 2006); 29 C.F.R. § 1614.103(a), (b)(2) (2014).
The exhaustion requirement exists to minimize “judicial
interference with the operation of the federal government.”
Doe v. Oberweis Dairy, 456 F.3d 704, 712 (7th Cir. 2006).
The requirement is meant “‘to give the agency the opportunity to
right any wrong it may have committed.’” Jasch v. Potter,
302 F.3d 1092, 1096 (9th Cir. 2002) (quoting McRae v. Librarian
of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988) (per curiam)).
“If the agency has had this opportunity and has made a
determination concerning discrimination, the administrative
process has not been obstructed. It has been exhausted.”
Jasch, 302 F.3d at 1096.
“Exhaustion [with respect to a federal employee] requires
that a plaintiff comply with regulatory and judicially-imposed
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exhaustion requirements, including the requirement to pursue the
administrative claim with diligence and in good faith.” Id. at
1094 (internal quotation marks omitted). “A complainant’s
failure to cooperate in the administrative process precludes
exhaustion when it prevents the agency from making a
determination on the merits.” Id.; see Wilson v. Pena, 79 F.3d
154, 164 (D.C. Cir. 1996) (“If a complainant forces an agency to
dismiss . . . the complaint by failing to provide sufficient
information to enable [investigation], he may not
file . . . suit. Even though the dismissal is final
action, . . . the suit will be barred for failure to exhaust
administrative remedies.” (internal quotation marks omitted));
Woodard v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983) (“When the
plaintiffs refused to provide such information and thereby
frustrated administrative review of the merits of their claims,
the District Court should not have reached the merits of their
claims but should have granted the defendant’s motion to dismiss
for failure to exhaust administrative remedies.” (internal
quotation marks omitted)).
Here, Melendez initially availed herself of the relevant
administrative process by filing an administrative complaint
with the department and requesting a hearing before and decision
from an administrative judge after the issuance of the
department’s investigative report. See Laber, 438 F.3d at 416;
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29 C.F.R. §§ 1614.106, .108 (2014). Following the appointment
of the administrative judge, however, Melendez failed to
cooperate with the requirements of the administrative process by
failing to respond to the department’s discovery requests and
failing to reinstate her administrative complaint after its
dismissal without prejudice. By failing to so cooperate,
Melendez precluded the possibility of exhaustion by preventing a
determination by the administrative judge on the merits of her
claims. See Jasch, 302 F.3d at 1094; Wilson, 79 F.3d at 164;
Woodard, 717 F.2d at 915. She thus failed to exhaust her
administrative remedies. In view of this lack of exhaustion,
the district court was deprived of subject matter jurisdiction
over her civil action and properly dismissed it. See Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009); Laber,
438 F.3d at 414 n.5.
After review of the parties’ briefs, we reject Melendez’s
claim of error, raised for the first time on appeal, that she
was not required to administratively exhaust her claim of
post-complaint retaliation. See Karpel v. Inova Health Sys.
Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). We also reject as
without merit Melendez’s contentions that she exhausted her
administrative remedies and acted in good faith in the
administrative process.
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We further reject as without merit Melendez’s challenge to
the district court’s denial of her Rule 59(e) motion.
See Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc.,
674 F.3d 369, 378 (4th Cir. 2012) (“A Rule 59(e) motion [the
denial of which is reviewed for abuse of discretion] may only be
granted in three situations: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” (internal quotation marks
omitted)). Melendez did not rely on any intervening change in
law. She also was not entitled to relief to account for new
evidence because nothing in the record suggests that the
evidence on which she relied in her motion was unavailable to
her at the time of the district court’s dismissal ruling.
See Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 198
(4th Cir. 2006). The district court did not reversibly err in
dismissing Melendez’s action, and nothing in her motion
suggested the presence of a manifest injustice. Because Rule
59(e) motions “may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised
prior to the entry of judgment,” Exxon Shipping Co. v. Baker,
554 U.S. 471, 486 n.5 (2008) (internal quotation marks omitted),
Melendez’s Rule 59(e) motion raising additional arguments to
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support her position on administrative exhaustion properly was
denied.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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