                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                             5
       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



                                          6
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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