                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-2122


MINOO E. KOBRAEI,

                  Plaintiff – Appellant,

           v.

GENERAL   KEITH   B.   ALEXANDER,   Director,   National   Security
Agency,

                  Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:11-cv-03498-ELH)


Submitted:   March 25, 2013                     Decided:   April 5, 2013


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


James C. Strouse, STROUSE LEGAL SERVICES, Columbia, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Andrew
G.W. Norman, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Minoo        Kobraei       appeals       the     district         court’s     order

granting summary judgment as to her employment discrimination

claims under Title VII for failure to exhaust her administrative

remedies.        On appeal, Kobraei asserts that the district court

erred     in        concluding           that     she      failed          to     exhaust       her

administrative remedies when she did not respond to the vast

majority       of    the      agency      investigator’s             interrogatories.             We

disagree, but we remand to the district court for dismissal of

the action for lack of subject matter jurisdiction.

               As      a     threshold          matter,        we        must     consider      the

appropriate         standard        of    review.        It     is       well-settled      that    a

plaintiff must exhaust her administrative remedies before filing

a lawsuit under Title VII.                  See, e.g., Chacko v. Patuxent Inst.,

429   F.3d      505,       513   (4th      Cir.       2005).         “[A]       failure    by   the

plaintiff to exhaust administrative remedies concerning a Title

VII     claim       deprives        the    federal        courts          of    subject    matter

jurisdiction over the claim.”                     Jones v. Calvert Grp., Ltd., 551

F.3d 297, 300 (4th Cir. 2009); see Bonds v. Leavitt, 629 F.3d

369, 379 (4th Cir.), cert. denied sub nom Bonds v. Sebelius, 132

S. Ct. 398 (2011); Davis v. N.C. Dep’t of Corr., 48 F.3d 134,

137   (4th      Cir.       1995).        Where    the    court       lacks       subject   matter

jurisdiction,          “the      proper     course       [is]       to    dismiss    the     claim

instead of granting summary judgment on it.”                                   Laber v. Harvey,

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438 F.3d 404, 414 n.5 (4th Cir. 2006); see Jones, 551 F.3d at

301.

             The       plaintiff     bears       the       burden    of     proving     the

existence of subject matter jurisdiction.                        Smith v. Wash. Metro.

Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002).                                  In

considering a Rule 12(b)(1) motion challenging the factual basis

for    subject     matter    jurisdiction,         “the      district     court    is   to

regard the pleadings’ allegations as mere evidence on the issue,

and    may   consider        evidence    outside            the     pleadings     without

converting       the     proceeding     to       one       for    summary     judgment.”

Richmond, Fredericksburg & Potomac R. Co. v. United States, 945

F.2d 765, 768 (4th Cir. 1991).                     The court should grant the

motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter

of law.”     Id.

             Applying this standard, we conclude that the district

court appropriately determined that Kobraei failed to exhaust

her    administrative       remedies.        Kobraei        essentially      asserts    on

appeal that the interrogatories propounded by the agency’s Equal

Employment Opportunity (“EEO”) investigator imposed too heavy a

burden on her, contrary to Congressional policy, and that her

limited compliance with the investigator’s requests was adequate

to exhaust her remedies.             We are cognizant that the exhaustion

requirement        “should     not     become          a    tripwire      for     hapless

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plaintiffs”        through     unduly         burdensome         technical       requirements.

See Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th Cir. 2012).

However,      Kobraei’s       assertions           are    unavailing.           While    Kobraei

relies    heavily       on   Clark       v.    Chasen,       619    F.2d    1330       (9th    Cir.

1980), we find this case readily distinguishable on its facts.

Moreover,       Clark     expressly           recognized         that   dismissal        may    be

appropriate for failure to exhaust administrative remedies when,

as    here,    a   complainant       fails         to    meaningfully        cooperate         with

reasonable investigatory efforts.                       See id. at 1337 n.18.

               Although Kobraei asserts that she provided evidence to

establish that the investigator refused to interview her, our

review of the record indicates that the district court properly

rejected this contention.                Kobraei provides no basis to conclude

that her provision of voluminous records, without explanation or

organization,        enabled       the    investigator             to   reach     an    informed

understanding        of      her   claims,             absent     further       guidance       from

Kobraei       regarding      her   allegations.                 Rather,     despite      several

extensions of time to comply with the investigator’s requests

for    written     responses       and        multiple       warnings      of    the    agency’s

intent to dismiss her claims, Kobraei wholly failed to answer

interrogatories regarding the basic underpinnings of her claims.

Kobraei’s failure to provide responses to any of the substantive

interrogatories           propounded          by       the      investigator       effectively

prevented the investigator from performing the functions served

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by    the   administrative       exhaustion          requirement.               Under       these

circumstances,        we     conclude    that        the    EEO     was      justified        in

dismissing her complaint for failure to cooperate, see 29 C.F.R.

§§ 1614.107(a)(7), 1614.108(c)(3) (2012), and that her actions

were    inconsistent          with    exhaustion           of      her       administrative

remedies, see Woodard v. Lehman, 717 F.2d 909, 913-17 (4th Cir.

1983); Johnson v. Bergland, 614 F.2d 415, 417 (5th Cir. 1980);

cf. Jasch v. Potter, 302 F.3d 1092, 1094-96 (9th Cir. 2002).

              Finally, Kobraei argues that she is entitled to review

of the merits of her claim because the EEO office took more than

180    days    to    investigate        her       claim    and     to     reach        a    final

determination.        Because Kobraei did not raise this issue in the

district court, we decline to review it in the first instance.

See    Muth v.      United   States,     1    F.3d    246,       250     (4th    Cir.       1993)

(recognizing        that     issues     raised       for    first        time     on       appeal

generally are not considered absent exceptional circumstances).

              Accordingly, although we conclude the district court

properly      determined       that      Kobraei          failed        to    exhaust         her

administrative remedies, we remand to the district court for

entry of an order dismissing the case for lack of subject matter

jurisdiction.         We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials




                                              5
before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                       VACATED AND REMANDED




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