UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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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