                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


DOUGLAS A. PATTERSON,                 
               Plaintiff-Appellant,
                v.
STATE BUREAU OF INVESTIGATION;                   No. 03-1601
NORTH CAROLINA DEPARTMENT OF
JUSTICE,
             Defendants-Appellees.
                                      
           Appeal from the United States District Court
     for the Middle District of North Carolina, at Greensboro.
                William L. Osteen, District Judge.
                           (CA-01-236)

                  Submitted: November 5, 2003

                     Decided: February 17, 2004

  Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.



Affirmed as modified by unpublished per curiam opinion.


                            COUNSEL

Nancy Pulliam Quinn, THE QUINN LAW FIRM, Greensboro, North
Carolina, for Appellant. Roy Cooper, Attorney General, John H.
Watters, Special Deputy Attorney General, Raleigh, North Carolina,
for Appellees.
2            PATTERSON v. STATE BUREAU OF INVESTIGATION
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Douglas A. Patterson appeals the district court’s order dismissing
his action, alleging employment discrimination and retaliation claims
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e to 2000e-17 (2000), and pendent state claims, for
failure to timely proceed as directed by the court. The district court’s
dismissal operates as an adjudication of the merits under Fed. R. Civ.
P. 41(b). We affirm the dismissal of Patterson’s claims, but on the
alternate ground that the court lacked subject matter jurisdiction over
Patterson’s claims. In light of this basis for our decision, the judgment
of the district court is modified to reflect that the dismissal of the
complaint is without prejudice.*

   This Court "must consider questions regarding jurisdiction when-
ever they are raised, and even sua sponte." Interstate Petroleum Corp.
v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001) (en banc). If this Court
concludes that the district court lacked subject matter jurisdiction, the
case must be dismissed without prejudice. See id. at 219, 222; see

   *We note that the district court did not warn Patterson of its intention
to dismiss his action with prejudice. Nor is it clear from the record that
the district court applied the four factors required by this Circuit before
dismissing an action for failure to prosecute or comply with court orders.
These facts, combined with the potential unfairness in penalizing Patter-
son for the conduct of his counsel, prompt both parties to suggest on
appeal that the district court may have exceeded its discretion in dismiss-
ing Patterson’s claims with prejudice. See Hillig v. Comm’r of Internal
Revenue, 916 F.2d 171 (4th Cir. 1990); Ballard v. Carlson, 882 F.2d 93
(4th Cir. 1989); Andes v. Versant Corp., 788 F.2d 1033 (4th Cir. 1986).
On account of our conclusion that Patterson’s complaint should have
been dismissed without prejudice for lack of jurisdiction, we need not
consider whether the district court’s sanction of dismissal with prejudice
for failure to prosecute was appropriate.
             PATTERSON v. STATE BUREAU OF INVESTIGATION                 3
also Fed. R. Civ. P. 41(b). Even when other issues are raised, "ques-
tions of subject matter jurisdiction must be decided ‘first, because
they concern the court’s very power to hear the case.’" Owens-
Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (cita-
tions omitted); see also In re Bulldog Trucking, Inc., 147 F.3d 347,
352 (4th Cir. 1998) (federal courts are "constrained to exercise only
the authority conferred by Article III of the Constitution and affirma-
tively granted by statute. A primary incident of that precept is our
duty to inquire, sua sponte, whether a valid basis for jurisdiction
exists, and to dismiss the action if no such ground appears.").

   Patterson failed to exhaust his state administrative remedies under
N.C. Gen. Stat. § 126-16 (2001) prior to filing his charge with the
Equal Employment Opportunity Commission and filing this action. In
their district court filings, Appellees denied that Patterson had
exhausted his administrative remedies or otherwise met all jurisdic-
tional prerequisites to suit. Appellees also filed a motion to dismiss
the action for lack of subject matter jurisdiction. Although the district
court gave Patterson additional time in which to exhaust these reme-
dies, he failed to do so or to otherwise sustain his burden of proving
jurisdiction. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

   Because Patterson never exhausted his state remedies, the district
court lacked both original jurisdiction of his Title VII claims, see
Davis v. N.C. Dep’t of Corr., 48 F.3d 134 (4th Cir. 1995), and supple-
mental jurisdiction of his pendent state claims, see 28 U.S.C.
§ 1367(a) (2000). Accordingly, we modify the judgment below to
reflect that the case is dismissed without prejudice for lack of jurisdic-
tion, and we affirm the judgment as modified. See 28 U.S.C. § 2106
(2000); MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d
523 (4th Cir. 2002) ("[W]e are entitled to affirm the court’s judgment
on alternate grounds, if such grounds are apparent from the record.").
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                           AFFIRMED AS MODIFIED
