                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                       No. 18-6746

UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DARIUS DONNELL FREEMAN,

                     Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Robert J. Conrad, Jr., District Judge. (5:13-cr-00080-RJC-DSC-1; 5:18-cv-
00013-RJC)

Submitted: October 18, 2018                                   Decided: October 23, 2018

Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior
Circuit Judge.

Dismissed and remanded by unpublished per curiam opinion.

Darius Donnell Freeman, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

       Darius Donnell Freeman seeks to appeal the district court’s order denying relief on

his 28 U.S.C. § 2255 (2012) motion. This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C.

§ 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

545-46 (1949). “Ordinarily, a district court order is not final until it has resolved all claims

as to all parties.” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (internal quotation

marks omitted). “[I]f it appears from the record that the district court has not adjudicated

all of the issues in a case, then there is no final order.” Id. (applying rule to habeas cases);

Fed. R. Civ. P. 15(a)(1)(A) (permitting party to amend complaint once as matter of right

before responsive pleading is served).

       Upon review of the record, we conclude that the district court did not rule on

Freeman’s motion for leave to amend his § 2255 motion, which was docketed in his civil

case, No. 5:18-cv-00013-RJC, prior to the entry of the district court’s order denying § 2255

relief. Thus, the order Freeman seeks to appeal is neither a final order nor an appealable

interlocutory or collateral order. See Porter, 803 F.3d at 696.

       Accordingly, we dismiss the appeal for lack of jurisdiction and remand the case to

the district court to consider Freeman’s motion for leave to amend. We deny Freeman’s

motion for a certificate of appealability as unnecessary. 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.

                                                             DISMISSED AND REMANDED

                                               2


                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                               No. 13-2072

PEGGY LUE COLEMAN (Widow of EVERETT DEAN COLEMAN),

                Petitioner,

          v.

CEDAR   COAL   COMPANY;   DIRECTOR,   OFFICE    OF   WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(12-0298-BLA)

Submitted:   February 18, 2014               Decided:   February 26, 2014

Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Peggy Lue Coleman, Petitioner Pro Se.     Mark Joseph Grigoraci,
David Y. Yaussey, ROBINSON & MCELWEE, PLLC, Charleston, West
Virginia; Sarah Marie Hurley, Gary K. Stearman, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

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

           Peggy      Coleman       seeks    review     of    the   Benefits       Review

Board’s   decision         and    order    affirming    the     administrative          law

judge’s   denial      of    black    lung    benefits       pursuant    to   30    U.S.C.

§§ 901-945 (2012).          Our review of the record discloses that the

Board’s   decision         is    based    upon   substantial        evidence      and    is

without reversible error.             Accordingly, we deny the petition for

review for the reasons stated by the Board.                         Coleman v. Cedar

Coal Co., No. 12-0298-BLA (B.R.B. Feb. 27, 2013; July 18, 2013).

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.

                                                                       PETITION DENIED

                                            2


935 F.2d 279
19 U.S.P.Q.2d 1799
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.QUANTUM CORPORATION and Plus Development Corporation,Plaintiffs-Appellees,v.TANDON CORPORATION, Defendant-Appellant.
No. 91-1207.
United States Court of Appeals, Federal Circuit.
April 29, 1991.

Before NIES, Chief Judge, and RICH and MAYER, Circuit Judges.
ON MOTION
ORDER
RICH, Circuit Judge.

1
Quantum Corporation moves to dismiss the appeal of Tandon Corporation for lack of appellate jurisdiction.  Tandon opposes the motion.  Quantum moves for leave to file a reply.  Tandon opposes the motion for leave.

2
Quantum sued Tandon in the United States District Court for the Northern District of California for infringement of Quantum's reissue patent.  Pursuant to the parties' motions for summary judgment, on January 14, 1991, the district court (1) denied Tandon's motion for partial summary judgment of invalidity due to deficiencies in Quantum's reissue oath, (2) granted Quantum's motion for partial summary judgment on that issue, (3) denied Tandon's motion for partial summary judgment of invalidity for failure to satisfy the best mode requirement determining that the issue presented genuine issues of material facts, and (4) denied Quantum's motion for partial summary judgment of infringement because genuine issues of material fact existed.  On February 11, 1991, the district court denied Tandon's motion for reconsideration and its motion for certification of the order pursuant to 28 U.S.C. Sec. 1292(c)(1).  Tandon's appeal here is from the January 14, 1991 order and the February 11, 1991 order.

3
Tandon argues that the court has jurisdiction pursuant to the Gillespie rule and/or the Cohen doctrine.*   We disagree.  In Copelands' Enterprises, Inc. v. CNV, Inc., 887 F.2d 1065, 1068 (Fed.Cir.1989) (in banc), we acknowledged that "the Supreme Court has severely limited Gillespie as a basis for accepting an interlocutory decision."    In Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30 (1978) the Supreme Court determined that Gillespie must be limited to the unique facts of the Gillespie case lest the final judgment rule be stripped of all significance.  Accordingly Tandon's reliance on Gillespie is misplaced.

4
The Supreme Court has articulated a three-pronged test to determine whether an interlocutory order is appealable pursuant to the Cohen collateral order doctrine.  The order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.    Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.Ct. 1133, 1136-37 (1988).  Here, Tandon argues that the district court's failure to address Tandon's Fed.R.Civ.P. 56(f) declarations and the need for additional discovery is reviewable under the Cohen doctrine.  Again we disagree.  The "failure" to address a matter in the context of a partial summary judgment does not satisfy any of the three requirements of the Cohen test.  Accordingly, Tandon's reliance on the Cohen doctrine is misplaced.

5
Accordingly,

IT IS ORDERED THAT:

6
(1) Quantum's motion to dismiss is granted.

7
(2) Quantum's motion for leave to file a reply is granted.

*
 Gillespie v. United States Steel Corp., 379 U.S. 148 (1964) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)


                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                   )
JAMES CRAWFORD,                    )
                                   )
            Plaintiff,             )
                                   )
      v.                           )                       Civil Action No. 14-cv-0436 (KBJ)
                                   )
JEH JOHNSON, Secretary, Department )
of Homeland Security,              )
                                   )
            Defendant.             )
                                   )

                                     MEMORANDUM OPINION

          Plaintiff James Crawford is an African-American employee of the Department of

Homeland Security (“DHS”) who claims that DHS discriminated against him on the

basis of his race, subjected him to a hostile work environment, and retaliated against

him because of his engagement in protected activity, all in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. (See generally Compl., ECF

No. 1.) Crawford filed the instant complaint against Jeh Johnson, in his official

capacity as Secretary of DHS (“Defendant”), in March of 2014, alleging that DHS

employees intentionally targeted him with eleven discrete discriminatory and/or

retaliatory acts that have commission dates ranging from November of 2010 to

December of 2011. (See id. at 2–3.) 1 On February 9, 2015, this Court granted

Defendant’s partial motion to dismiss Crawford’s complaint as conceded, and thereby

dismissed the complaint’s allegations with respect to eight of the eleven allegedly

1
    Page numbers herein refer to those the Court’s electronic filing system automatically assigns.

                                                      1
discriminatory and/or retaliatory events, but the Court also ordered Defendant to answer

or otherwise respond to Crawford’s remaining contentions—i.e., his assertion that DHS

violated Title VII when it (1) issued an unwarranted negative annual performance

appraisal of him in October of 2011, (2) appointed a less-qualified individual to a

supervisory position above him in November of 2011, and (3) suspended him from work

without just cause in December of 2011. (See Mem. Op. & Order, ECF No. 5, at 2.)

       Before this Court at present is DHS’s motion to dismiss, or in the alternative for

summary judgment, with respect to these three allegedly discriminatory and/or

retaliatory acts of Defendant. (See Def.’s Mot. to Dismiss or[] in the Alternative[] for

Summ. J. (“Def.’s Mot.”), ECF No. 8.) DHS maintains that it is entitled to dismissal of

the complaint’s claims with respect to all three events because Crawford did not include

any of these allegedly discriminatory or retaliatory acts in his formal Equal

Employment Opportunity (“EEO”) pleading, and thus, Crawford failed to exhaust his

administrative remedies. (See id. at 10–11.) Alternatively, Defendant contends that the

complaint fails to state a retaliation claim with respect to the negative performance

appraisal because Crawford had not engaged in prior protected activity, and also that

summary judgment should be granted in Defendant’s favor because DHS had legitimate

non-discriminatory reasons to suspend Crawford. (See id. at 11–14.) In response,

Crawford asserts only that he attached certain exhibits to his initial EEO complaint that

touch upon the three events at issue here, and that this Court should treat these exhibits

as having been integrated into the EEO complaint for the purpose of its evaluation of

the exhaustion issue. (See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 11, at

4.)

                                            2
       Upon consideration of the parties’ submissions, the relevant authorities, and the

record as a whole, this Court concludes that Crawford’s attachment of exhibits was

insufficient to exhaust administrative remedies with respect to the three alleged

instances of discrimination or retaliation that remain at issue in the instant case.

Consequently, and as explained fully below, Defendant’s motion will be GRANTED.

       A separate order consistent with this Memorandum Opinion will follow.

I.     BACKGROUND

       A. Facts

       James Crawford is a Special Security Officer (“SSO”) at DHS’s Special Security

Programs Division in Washington, D.C. (See Compl. at 4.) According to Crawford, on

eleven distinct occasions between November of 2010 and December of 2011, several

DHS management officials and supervisors retaliated and/or discriminated against him

on the basis of his race. (See id. at 2–3.) Crawford maintains, for example, that he was

unreasonably denied leave requests, that management officials conspired against him

and allegedly made false statements about his performance, and that unlike his white

male counterparts he did not receive additional assistance personnel when he requested

it from his superiors. (See id. at 2.) Crawford first contacted an EEO counselor on

October 25, 2011, to report eight incidents of discrimination that allegedly occurred in

the eight months between November of 2010 and July of 2011. (See id.) Crawford

alleges that three additional incidents happened in the months that followed—

specifically, that, on October 21, 2011, he received a negative annual performance

appraisal that was entirely unjustified; that an unknown, less-qualified individual was

                                             3
appointed to a supervisory position above him on November 1, 2011; and that he was

suspended from work without just cause on December 12, 2011. (See id. at 3.)

       Subsequent informal attempts to resolve Crawford’s claims proved unsuccessful,

and on February 7, 2012, Crawford filed a formal EEO complaint. (See id. at 2; Pl.’s

Opp’n at 2.) The body of the administrative complaint specifically alleged that

Crawford had been subjected to a hostile work environment and/or reprisal based on the

first eight allegedly discriminatory actions that Crawford had spoken to the EEO

counselor about in October of 2011. (See Compl. at 2.) Crawford also purportedly

attached exhibits that referenced at least two of the three additional incidents detailed

above. 2 (See Pl.’s Opp’n at 4; Def.’s Mot. at 10, n.1.) Thereafter, the DHS’s EEO

office requested clarification of the scope of Crawford’s complaint (see Decl. of Oscar

Toledo, Ex. 2 to Def.’s Mot., ECF No. 8-2, at 1), and informed Crawford that it had

identified for investigation only the eight incidents of alleged discrimination and/or

retaliation that were specifically referenced in the body of the EEO complaint. (See

Request for Clarification Email, Ex. 1 to Decl. of Oscar Toledo, ECF No. 8-2, at 3–5.)

Crawford was silent regarding the three additional events that purportedly were

revealed in the attachments to his complaint, and ultimately, the EEO office dismissed

Crawford’s formal complaint for technical reasons unrelated to the instant action. 3 (See

Compl. at 4–6.)

2
 Crawford has not furnished the exhibits to his EEO complaint for this Court’s review, and has not
specified what they entail or what incidents they refer to. But Defendant concedes that, at a minimum,
Crawford attached a copy of his annual performance appraisal and the notification letter regarding his
suspension. (See Def.’s Mot. at 10, n.1.)
3
 Specifically, the EEO office of DHS dismissed the complaint as untimely on August 7, 2012, and the
EEO Commission itself affirmed that dismissal on December 13, 2013. (See Compl. at 4–6.)

                                                  4
       B. Procedural History

       Crawford filed the instant lawsuit on March 18, 2014, claiming that DHS had

committed eleven separate acts—the eight events that were referenced specifically in

the body of the EEO complaint plus the additional three that allegedly occurred between

October and December of 2011—that were discriminatory and/or retaliatory in violation

of Title VII. (See id. at 1–3.) On June 2, 2014, DHS filed a motion to dismiss

Crawford’s action for failure to exhaust administrative remedies, but its motion was

directed only at Crawford’s claims regarding the eight initial events (i.e., those that

took place between November of 2010 and July of 2011) and did not address the three

events that allegedly occurred in the fall of 2011. (See Def.’s Mot. to Dismiss, ECF

No. 3, at 8.) Upon receipt of Defendant’s partial motion, this Court advised Crawford

(who was proceeding pro se at that time) of his obligation under the Federal Rules of

Civil Procedure and the local rules of this Court to respond by July 21, 2014, and

warned him that if he did not respond, the Court might render Defendant’s motion

conceded. (See Order, ECF No. 4, at 1.) Crawford failed to file a timely opposition

despite this warning, however; and on February 9, 2015, this Court granted Defendant’s

motion and dismissed the complaint’s allegations regarding the eight challenged claims.

(See Mem. Op. & Order, at 2.)

       Notably, at that same time, the Court also ordered DHS to answer or otherwise

respond to the three remaining allegations of discrimination/retaliation in Crawford’s

complaint. (See id.) Defendant filed the instant motion to dismiss, or in the alternative

for summary judgment, on March 9, 2015. In the motion, Defendant primarily argues

that Crawford failed to exhaust his administrative remedies with respect to the

remaining allegations because he did not include them in his EEO complaint. (See
                                             5
Def.’s Mot. at 10–11.) Crawford has responded (see generally Pl.’s Opp’n), and the

motion is now ripe for this Court’s review.

II.    LEGAL STANDARDS

       A.     Exhaustion Of Administrative Remedies As A Prerequisite To Filing
              Suit In Federal Court Under Title VII

       A federal employee who seeks to file a civil action against his employer under

Title VII in federal district court generally must first exhaust available administrative

remedies. See 42 U.S.C. § 2000e-16(c); see also Kizas v. Webster, 707 F.2d 524, 543

(D.C. Cir. 1983) (“[T]he required recourse to administrative review has special

prominence with respect to the . . . claims of federal employees[.]”). Whereas

discrimination claims against private employers are filed directly with the Equal

Employment Opportunity Commission (“EEOC”), claims against a federal agency must

initially be brought before the agency’s EEO office itself. See Kizas, 707 F.2d at 543–

44. “The exhaustion requirement gives the charged agency notice of the claim,

provides a chance to narrow the issues for prompt adjudication, creates an opportunity

to resolve the matter internally [,] and [avoids] unnecessarily burdening the courts.”

Cheatham v. Holder, 935 F. Supp. 2d 225, 234 (D.D.C. 2013) (alterations in original)

(internal quotation marks and citations omitted).

       The regulatory framework that applies to federal employees navigating the

process of administrative exhaustion is laid out in Part 1614 of Title 29 in the Code of

Federal Regulations. See 29 C.F.R. Part 1614. To fulfill Title VII’s exhaustion

requirements under these regulations, the employee must first contact the agency’s EEO

counselor within 45 days of the alleged violation, and then file a formal administrative

complaint with the agency’s EEO office, allowing the agency to have an opportunity to

                                              6
investigate the allegations and render a final decision. See Dick v. Holder, 80 F. Supp.

3d 103, 110 (D.D.C. 2015) (citing 29 C.F.R. §§ 1614.105, 1614.106, 1614.108,

1614.407). Filing an individual formal complaint of discrimination typically involves

completing a standard DHS form and describing the circumstances surrounding the

allegedly discriminatory actions, the relevant dates, names of individuals responsible

for the action, and the resulting harm upon claimant. (See, e.g., EEO Compl., Ex. 1 to

Def.’s Mot. to Dismiss, ECF No. 3-1, at 3.) The agency’s EEO office reviews the

employee’s complaint and identifies for investigation any claims sufficiently described

in the complaint that were previously discussed in pre-complaint counseling. See 29

C.F.R. §§ 1614.106(c), 1614.105(b)(1). The agency then informs the complainant of

the claims identified for investigation and of his right to modify the agency’s

interpretation. See EEOC, Mgmt. Directive 110, ch. 5, Agency Processing of Formal

Complaints (2011), 2011 WL 10843310 (outlining the agency’s obligation to send an

“acceptance letter” to inform the complainant of “the claim(s) asserted and to be

investigated[,]” and the employee’s opportunity to “submit a statement to the agency

concerning the agency’s articulation of the claim, which shall become a part of the

complaint file”).

       Once a formal administrative complaint is filed and the agency has a chance to

conduct its own investigation and make a determination about the charges, the

employee may subsequently file a civil action in federal district court, but he or she

must do so within 90 days of receipt of the agency’s final decision “or after a complaint

has been pending for at least 180 days.” Koch v. Walter, 935 F. Supp. 2d 143, 149

(D.D.C. 2013). Because contacting an EEO counselor is a prerequisite to filing a

                                            7
formal EEO complaint, see 29 C.F.R. § 1614.105(d)—which, in turn, is a prerequisite to

administrative exhaustion, see id. § 1614.407—a plaintiff must both timely discuss a

claim with an EEO counselor and file a formal EEO complaint with regard to that

particular claim in order to be able to raise the allegation in the subsequent civil

lawsuit. In other words, to exhaust an issue raised informally during pre-complaint

counseling fully, an employee must proceed to include the issue in the formal EEO

complaint that is filed with the agency. See Hamilton v. Geithner, 666 F.3d 1344, 1350

(D.C. Cir. 2012) (stating that the informal presentation of a claim to an EEO counselor

was insufficient to establish administrative exhaustion of that claim, where plaintiff

later failed to ensure that the claim was included in the body of the formal EEO

complaint). It is well established that a plaintiff who files suit under Title VII may only

bring “those allegations that were contained in the EEO complaint” or claims “like or

reasonably related” to the allegations in a timely-filed EEO complaint. Bell v. Donley,

724 F. Supp. 2d 1, 8 (D.D.C. 2010) (citation omitted); accord Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002). Moreover, each discrete incident of

discrimination or retaliation constitutes a separate actionable “unlawful employment

practice” for which a plaintiff must exhaust his administrative remedies or lose the

ability to recover for it in the context of the civil action. See Morgan, 536 U.S. at 114–

15.

       Notably, although Title VII’s exhaustion requirements are not jurisdictional in

nature, exhaustion is a mandatory element of a Title VII claim that is akin to a statute

of limitations. See Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011); see

also Bell, 724 F. Supp. at 6 (quoting Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C.

                                             8
Cir. 2009)). As such, failure to exhaust will ordinarily bar a judicial remedy. See

Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985).

       B. Motions To Dismiss, Or In The Alternative For Summary Judgment, For
          Failure To Exhaust Administrative Remedies

       “[M]otions to dismiss Title VII claims for failure to exhaust administrative

remedies are [typically] analyzed under Federal Rule of Civil Procedure 12(b)(6).”

Mount v. Johnson, 36 F. Supp.3d 74, 80 (D.D.C. 2014); see also Mahoney v. Donovan,

824 F. Supp. 2d 49, 58 (D.D.C. 2011) (internal quotation marks and citations omitted)

(explaining that “a 12(b)(6) motion to dismiss for failure to state a claim upon which

relief can be granted is the appropriate vehicle to challenge an alleged failure to exhaust

administrative remedies under Title VII[,]” in contrast to a motion brought under Rule

12(b)(1)). However, “[t]he defendant bears the burden of proving by a preponderance

of the evidence that the plaintiff has failed to exhaust his administrative remedies[,]”

Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 276 (D.D.C. 2011) (citing Bowden v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997)), and if materials outside the

pleadings that are submitted to satisfy this burden or otherwise address the exhaustion

issue are relied upon by the court, the court should treat the motion as one for summary

judgment under Rule 56, see Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6)

or 12(c), matters outside the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under Rule 56.”). In this case,

the record includes materials that are not clearly referenced or relied upon in the

complaint to establish exhaustion (see, e.g., Suspension Letters Attach. to EEO Compl.,

Exs. 2 & 3 to Def.’s Mot. to Dismiss, ECF No. 3-1, at 9–18; Performance Appraisal

Attach. to EEO Compl., Ex. 1 to Def.’s Mot., ECF No. 8-1), and Crawford’s sole

                                             9
argument in opposition to the pending motion to dismiss, or in the alternative, motion

for summary judgment is that he did, in fact, attach certain exhibits to his EEO charge

(see Pl.’s Opp’n, at 4.) Under these circumstances, this Court finds that it must

consider these materials in order to evaluate the validity of Defendant’s contention that

Crawford failed to exhaust his administrative remedies, and therefore, it will treat

Defendant’s motion as one for summary judgment under Rule 56. See Lane v.

Tschetter, 05-cv-1414, 2007 WL 2007493, at *2 (D.D.C. July 10, 2007) (noting that

“summary judgment rather than dismissal is the appropriate procedural device for

analyzing whether there was timely administrative exhaustion”).

       A court may grant summary judgment under Rule 56 when “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that is

capable of affecting the outcome of the litigation, see Anderson v. Liberty Lobby Inc.,

477 U.S. 242, 248 (1986), and a genuine issue is one in which the “evidence is such that

a reasonable jury could return a verdict for the nonmoving party[,]” id. In considering a

motion for summary judgment, the court regards the non-movant’s statements as true

and draws all reasonable inferences in his favor. See id. at 255. Merely “colorable” or

insignificantly probative evidence, however, is not enough to preclude summary

judgment; instead, the non-movant must support his position beyond the pleadings and

point to specific facts in affidavits, depositions, answers to interrogatories, or

admissions on file that raise genuine issues for trial. See id. at 249–50; see also Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).

                                             10
III.    ANALYSIS

        Crawford claims that DHS discriminated and/or retaliated against him between

October and December of 2011, when it (1) gave him a negative performance

evaluation, (2) promoted a less-qualified individual to be his superior, and (3)

suspended him without justification. DHS argues that Crawford failed to exhaust his

administrative remedies with respect to these alleged violations of Title VII because he

neither asserted allegations related to these events in his EEO complaint nor included

them in his response to the EEO office’s request for clarification. (See Def.’s Mot. at

10–11.) Crawford’s response to this assertion consists of a single contention: that, after

“the EEO counselor did not fully understand the exact nature of [his] concerns or

claims[,]” he proceeded to “file[] a[n EEO] complaint which in its body sited examples

of harassment but were referenced in attachments[,]” and the “examples of harassment

[in] the attachments should have been viewed and integrated into the complaint as

evidence of the sited harassment.” 4 (Pl.’s Opp’n at 4.)

        Unfortunately for Crawford, the precedents in this district establish that the

inclusion of specific instances of discrimination solely in attachments to an EEO

complaint (without referencing those events in the body of the complaint itself or

objecting to the agency’s omission) is insufficient to establish exhaustion of

administrative remedies, as explained below. Moreover, Crawford failed to amend his

EEO complaint to include the specific allegations that he says were reflected in the

4
  Notably, Crawford does not argue that the three incidents were “like or reasonably related” to the
eight incidents that were included in the EEO complaint, nor does he dispute DHS’s assertion that the
administrative complaint itself was not timely filed. See Pearsall v. Holder, 610 F. Supp. 2d 87, 98 n.9
(D.D.C. 2009) (holding that plaintiff’s unfiled claims were outside the scope of the civil lawsuit, even
if “like or related to” his administrative claims, because his formal EEO complaint was neither timely
asserted nor exhausted).

                                                  11
attachments, even after it became clear that the EEO office had not considered those

events in its adjudication of Crawford’s discrimination and retaliation claims. Thus,

this Court agrees with Defendant that Crawford failed to exhaust his administrative

remedies with respect to these three alleged Title VII violations.

       A. Crawford’s Formal EEO Complaint Did Not Include The Three
          Instances Of Alleged Discrimination And/Or Retaliation Challenged
          Here, Despite The Attachments

       Title VII states that the formal charge of discrimination that an aggrieved

employee submits to an agency in order to fulfill the exhaustion obligation must “be in

writing under oath or affirmation and shall contain such information and be in such

form as the [EEO] Commission requires.” 42 U.S.C. § 2000e–5(b). Under EEOC

regulations, a formal complaint “must contain a signed statement” that is “sufficiently

precise to identify the aggrieved individual and the agency and to describe generally

the action(s) or practice(s) that form the basis of the complaint[,]” 29 C.F.R.

§ 1614.106(c) (emphasis added), and while a plaintiff need not use precise “magic

words[,]” he cannot merely rely on “vague or circumscribed” charges—in other words,

the EEO complaint must sufficiently “alert the EEOC and the [agency] with the nature

of the alleged wrongdoing.” Maryland v. Sodexho, Inc., 474 F. Supp. 2d 160, 162

(D.D.C. 2007).

       Crawford clearly failed to satisfy these requirements with respect to the three

events in question here. First of all, it is undisputed that Crawford did not specifically

reference the negative performance appraisal, the unknown individual’s appointment to

a supervisory position, or the work suspension incident in the body of his formal EEO

complaint, and the agency did not identify these three alleged incidents for

investigation. (See Compl. at 2.) Nor can Crawford rely upon the fact that he allegedly
                                            12
informally communicated these three incidents to the EEO officer prior to his filing of

the formal complaint (see id. at 3); even so, he manifestly failed to list those events in

the formal charges that he subsequently filed with the agency, and it is well established

that a plaintiff “cannot rely on the EEO counseling report to establish exhaustion of a

claim that he failed to include in his formal complaint[,]” Hamilton, 666 F.3d at 1350;

see also Pintro v. Wheeler, 35 F. Supp. 3d 47, 55 (D.D.C. 2014) (holding that the filing

of an informal complaint is insufficient for Title VII exhaustion).

       What is more, persuasive authorities in this district have squarely rejected the

contention that information revealed only in exhibits attached to an EEO complaint

should be treated as having been incorporated into the final complaint for exhaustion

purposes. (See Pl.’s Opp’n at 4.) The plaintiff in Dick v. Holder, 80 F. Supp. 3d 103

(D.D.C. 2015), for example, asserted that the “package containing his formal EEO

charge” had included a copy of a letter that he had previously sent to an EEO counselor,

which described additional claims that were not raised in the EEO complaint itself, and

that these additional claims should have been identified by the agency and incorporated

into his formal EEO complaint. Id. at 112–13. In its analysis, the Dick court explained

that, although “[a]n agency may not unreasonably omit claims from investigations[] in

hopes that a complainant’s tardy realization of the omission will constitute a failure to

exhaust[,]” id. at 114, where “the formal EEO charge neither explicitly incorporated the

[exhibit] nor . . . made any mention” of the discrete additional claims, the agency

cannot be said to have acted unreasonably in failing to identify the claims as part of the

formal EEO complaint. Id.

                                            13
       So it is here. Even if this Court accepts as true Crawford’s statement that he

included “attachments” to his EEO complaint “as evidence of the sited harassment”

(Pl.’s Opp’n at 4), it is clear on the face of the administrative pleading that Crawford

did not reference or specifically incorporate those exhibits into the body of his EEO

complaint (see EEO Compl. at 2–6), and given this failure, DHS’s omission of the three

additional claims that were buried in Crawford’s exhibits was entirely reasonable. See

Dick, 80 F. Supp. 3d at 114; see also Cook v. McHugh, No. 14-cv-00058-LTB-CBS,

2015 WL 4100423, at *7 (D. Colo. May 26, 2015) (finding that the agency’s omission

of a claim not clearly alleged or factually described in the EEO complaint was not

unreasonable); Mendoza v. Reno, No. EP–00–CA–008–DB, 2001 WL 681297, at *4

(W.D. Tex. Jan. 11, 2001) (“The Court finds that those thirty or so words, buried deep

within six pages of stories . . . do not sufficiently set forth a national origin claim[.]”).

Thus, Crawford’s argument that his EEO complaint should be construed as having

included allegations with respect to the three incidents by virtue of his having attached

exhibits is unavailing.

       C. Crawford Did Not Seek To Amend The Formal EEO Complaint To
          Include The Three Remaining Claims

       It is also clear based on the instant record that Crawford failed entirely to take

specific steps to ensure that the three omitted contentions were actually incorporated

into the formal complaint, even though he had the opportunity to do so. (See Decl. of

Oscar Toledo at 1–2.) To be sure, Crawford alleges that he requested that the three

claims be added to his EEO complaint at some unspecified time (see Compl. at 2);

however, there is no allegation or evidence that he sought to amend his EEO complaint

“prior to the conclusion of the investigation” in order to ensure that the three remaining

                                              14
claims were included, much less that he successfully accomplished any such an

amendment, see 29 C.F.R. § 1614.106(d) (“A complainant may amend a complaint at

any time prior to the conclusion of the investigation to include issues or claims like or

related to those raised in the complaint.”). And it is clear beyond cavil that, “where an

agency reasonably fails to identify for investigation a[n employment discrimination]

claim indirectly asserted in a plaintiff’s administrative charge, and where the plaintiff

does not timely object to this omission before the agency, the plaintiff cannot show that

he has exhausted administrative remedies as to this claim.” Dick, 80 F. Supp. 3d at

114–15; accord McKeithan v. Boarman, 803 F. Supp. 2d 63, 68 (D.D.C. 2011) (internal

quotation marks and citations omitted) (“[F]ailure to respond to the [agency’s] framing

of the issue supports a finding that a plaintiff has failed to exhaust his administrative

remedies with respect to those claims not approved by the EEO.”).

       Thus, given the absence of any allegation that Crawford either timely filed a

formal EEO complaint addressing the three remaining issues, or, at the very least, filed

a timely objection to the EEO’s failure to include those issues, this Court cannot

conclude that Crawford has exhausted all available administrative remedies, and

Defendant’s motion must be sustained.

IV.    CONCLUSION

       With respect to the three allegedly discriminatory and/or retaliatory acts

remaining in Crawford’s complaint, the record is such that there is no genuine issue of

material fact regarding Crawford’s failure to exhaust his administrative remedies as

Title VII requires. Therefore, as set forth in the accompanying order, Defendant’s

                                             15
motion is GRANTED, and summary judgment will be entered in its favor regarding the

remaining claims.

DATE: February 26, 2016               Ketanji Brown Jackson
                                      KETANJI BROWN JACKSON
                                      United States District Judge

                                        16


                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    Is not citable as precedent. It is a public record.

      United States Court of Appeals for the Federal Circuit
                                         04-7177

                                FLORIDA A. MONDERO,

                                                        Claimant-Appellant,

                                             v.

                    JIM NICHOLSON, Secretary of Veterans Affairs,

                                                        Respondent-Appellee.

                            ___________________________

                            DECIDED: February 14, 2005
                            ___________________________

Before RADER, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.

       The United States Court of Appeals for Veterans Claims dismissed Ms. Florida A.

Mondero’s appeal from a decision of the Deputy Vice Chairman of the Board of

Veterans’ Appeals (Board) denying reconsideration of a July 30, 1999 Board decision.

Mondero     v. Principi, No. 04-0087 (Vet. App. July 6, 2004).         The Board did not

recognize Ms. Mondero as the surviving spouse of a veteran. The Veterans Court

dismissed her appeal for lack of jurisdiction because Ms. Mondero did not file her Notice

of Appeal (NOA) in a timely manner. Because Ms. Mondero raises no genuine legal or

constitutional issue, this court lacks jurisdiction to review the Veterans Court’s decision.

Accordingly, this court dismisses Ms. Mondero’s appeal.
                                            I.

      VA Form 4597, in its paragraph (3), reads, in part, “A Notice of Appeal must be

filed with the [Veterans Court] within 120 days from the date of mailing of the notice of

the [Board’s] decision.” Ms. Mondero’s motion for reconsideration was filed on February

9, 2000, more than 120 days after the filing date. The Board denied Ms. Mondero’s

motion for reconsideration because she did not prove that the Board decision contained

obvious error.   Ms. Mondero filed a second motion for reconsideration, which was

denied on January 28, 2003.       The Board denied Ms. Mondero’s third motion for

reconsideration on December 4, 2003.

      Ms. Mondero filed a NOA with the Veterans Court on January 23, 2004 that was

dismissed for lack of jurisdiction on July 6, 2004. The Veterans Court concluded that it

may not “review denials of reconsideration by the Board Chairman in cases where it

does not already have jurisdiction by virtue of a timely appeal from a final Board

decision.” Mondero, slip op. at 1-2. In addition, the Veterans Court declined to toll the

120-day filling period under Rosler v. Derwinski, 1 Vet. App. 241, 245 (1991).

      On August 2, 2004, Ms. Mondero filed a motion for reconsideration of the July 6,

2004 decision. Ms. Mondero argued that her receipt of the July 1999 Board decision

was delayed until December 23, 1999, due to a failure of her counsel. The Veterans

Court denied this motion on August 9, 2004 and entered judgment on August 27, 2004.

                                            II.

      This court’s jurisdiction to review decisions of the Veterans Court is limited to

“any challenge to the validity of any statute or regulation or any interpretation thereof

. . . and to interpret constitutional and statutory provisions, to the extent presented and

04-7177                                     2
necessary to a decision.” 38 U.S.C. § 7292(c) (1994). “Except to the extent that an

appeal under this chapter presents a constitutional issue, the Court of Appeals may not

review (A) a challenge to a factual determination, or (B) a challenge to a law or

regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).

       In other words, this court may decide “all relevant questions of law, including

interpreting constitutional and statutory provisions” and must set aside any regulation or

interpretation thereof “other than a determination as to a factual matter” relied upon by

the Veterans Court that it finds to be: “(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (B) contrary to constitutional right, power,

privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or

in violation of a statutory right; or (D) without observance of procedure required by law.”

38 U.S.C. § 7292 (d)(1). In considering whether an appeal falls within its jurisdiction,

this Court looks to the substance of the issue presented rather than a party’s

characterization of the question. Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).

       Ms. Mondero did not challenge the validity or interpretation of any statute or

regulation. The Veterans Court decision that Ms. Mondero challenges did not elaborate

on the meaning of any statute, regulation, or rule of law. The Veterans Court applied

the established law concerning the procedures for the timely filing of appeals.

       Under section 7266(a), a NOA must be filed with the Veterans Court within 120

days after notice of a Board decision is mailed. However, the Veterans Court has also

held that the 120-day appeal period may be tolled and a NOA may be considered timely

if the appellant: (1) files a motion for Board reconsideration within 120 days after the

mailing date of the Board decision; and then (2) files a NOA within 120 days after the

04-7177                                       3
Board Chairman denied the reconsideration motion. See Rosler, 1 Vet. App. at 245.∗ In

Ms. Mondero’s case, the Veterans Court found that the NOA and the motions for Board

reconsideration were filed more than 120 days after the date of the July 1999 Board

decision. Mondero, slip op. at 1-2. Accordingly, the Veterans Court determined that

Ms. Mondero’s NOA was not timely filed and that neither of the conditions for tolling set

forth in Rosler had been met. Therefore, the Veterans Court dismissed for lack of

jurisdiction. Id.

       Although Ms. Mondero challenges the Board’s conclusion that she was not the

surviving spouse of the veteran, her arguments are beyond this Court’s jurisdiction

under 38 U.S.C. § 7292 because the Veterans Court decision was limited to matters of

jurisdiction.

       Even though Ms. Mondero asserts that the Veterans Court decided constitutional

issues, she does not explain how her constitutional rights were implicated by the

Veterans Court decision. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)

(holding that this Court does not have jurisdiction over assertions that are constitutional

“in name only”).

       Ms. Mondero’s assertion that the delay in filing her motion for reconsideration

was the fault of her attorney also raises no issues as to the validity or interpretation of

any statute or regulation. Additionally, this court finds all other arguments raised by Ms.

Mondero unpersuasive.

       ∗
             In Linville v. West, 165 F.3d 1382, 1385-86 (Fed. Cir. 1999), this court
adopted the Rosler rule. See Graves v. Principi, 294 F.3d 1350, 1352 (Fed. Cir. 2002).

04-7177                                     4
       In conclusion, because Ms. Mondero does not challenge the validity or

interpretation of any statute or regulation and raises no constitutional issues, this court

dismisses for want of jurisdiction. See 38 U.S.C. § 7292 (c), (d)(2).

04-7177                                     5


Criminal Case Template

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

IN RE:  ANTONIO SEPEDA

§

§

§

§

§

No. 08-04-00334-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

MEMORANDUM OPINION

           Relator Antonio Sepeda has filed a petition for writ of mandamus, seeking to
compel the trial court to rule on a motion.  Sepeda claims that he sent the trial court a
motion, a self-addressed stamped envelope, and a cover letter, asking the district clerk to
return a file-stamped copy of the motion to him.  He has received no response from the
clerk or the court.  Attached to the petition are copies of the motion and cover letter, as
well as a document purporting to be from the prison librarian, stating that a letter from
Sepeda to the district clerk was sent on September 1, 2004.  Sepeda certified under
penalty of perjury that all of the statements in his petition and the documents attached to
the petition are true and correct.
           Based on Sepeda’s petition and attachments, we ordered the trial court to file a
written status report, documenting the status of any motions it has received from Sepeda.
In compliance with our order, the trial court has informed this Court that nothing has been
filed by Sepeda since April 10, 2003.  In light of the trial court’s response, the petition for
writ of mandamus is denied.

                                                                  SUSAN LARSEN, Justice
December 30, 2004

Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.