Kathleen Melendez v. Secretary Kathleen Sebelius, No. 14-1909 (4th Cir. 2015)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1909 KATHLEEN I. MELENDEZ, Plaintiff - Appellant, v. SECRETARY KATHLEEN SEBELIUS, Secretary, U.S.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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) granting motion seeking Defendant reconsideration Secretary Kathleen of its Sebelius’ prior order 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. Where a challenge under Rule We affirm. 12(b)(1) is raised to the asserted basis for subject matter jurisdiction, the burden of proving the plaintiff. asserted basis for jurisdiction falls on the 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.” 2 Evans v. B.F. Perkins Co., quotation 166 marks F.3d 642, 647 omitted). (4th 1999) review We Cir. a district dismissal under Rule 12(b)(1) de novo. (internal court’s Id. Federal employees like Melendez who seek to enforce their rights under Title VII, the Americans with Disabilities Act, and the Rehabilitation administrative court. Act remedies must before exhaust pursuing their an available action in federal 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); The exhaustion interference Doe v. 29 C.F.R. requirement with Oberweis the § 1614.103(a), exists operation Dairy, 456 of F.3d to minimize the 704, (b)(2) federal 712 (7th (2014). “judicial government.” 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 determination process has has had concerning not been this opportunity discrimination, obstructed. It and the has has made a administrative 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 3 exhaustion requirements, including the requirement to pursue the administrative claim with diligence and in good faith.” 1094 (internal failure to quotation cooperate exhaustion when it in marks the omitted). administrative prevents determination on the merits.” the agency “A Id. at complainant’s process precludes from making a Id.; see Wilson v. Pena, 79 F.3d 154, 164 (D.C. Cir. 1996) (“If a complainant forces an agency to dismiss . . . the information complaint to enable file . . . suit. Even by failing to [investigation], though the provide sufficient he may dismissal is not 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 department’s investigative report. 4 after the issuance of the See Laber, 438 F.3d at 416; 29 C.F.R. §§ 1614.106, .108 (2014). of the administrative judge, Following the appointment 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 dismissal reinstate without her administrative prejudice. By complaint failing to so after its 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. administrative remedies. She thus failed to exhaust her 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 post-complaint retaliation. exhaust merit administrative Melendez’s remedies contentions and claim of See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). without her acted administrative process. 5 that in We also reject as she good exhausted faith in her the 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 omitted)). law. injustice.” (internal quotation marks Melendez did not rely on any intervening change in 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). dismissing The district court did not reversibly err in Melendez’s action, and nothing in suggested the presence of a manifest injustice. her motion 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 6 additional arguments to support her position on administrative exhaustion properly was denied. Accordingly, We dispense with contentions are we oral affirm the argument adequately district because presented in court’s judgment. the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.