Shelia S. Bowe-Connor, Appellant v. David J. Shulkin, Secretary of Veterans Affairs, Appellee (2017)

ORDER

Upon consideration of the motion for summary affirmance, the response thereto, and the reply; the motions for summary reversal, the response thereto, and the reply; the motion to grant the motion for summary reversal as conceded; the motion to strike initial submissions; and the motions to appoint counsel, it is

ORDERED that the motions to appoint counsel be denied. In civil cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is

FURTHER ORDERED that the motion to grant the motion for summary reversal as conceded and the motion to strike the initial submissions be denied. Appellant has not shown that she is entitled to such relief. It is

FURTHER ORDERED that the motion for summary affirmance be granted and the motions for summary reversal be denied. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). Appellant has failed to show that “the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable [persons] could not disagree” that the jury should have rendered a verdict in her favor. Williams v. First Gov't Mortg. and Investors Corp., 225 F.3d 738, 744 (D.C. Cir. 2000) (alteration in original) (quoting Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1534 (D.C. Cir. 1984)). Further, appellant has failed to show that the magistrate judge committed any errors that substantially affected the outcome of this case, Huthnance v. D.C., 722 F.3d 371, 381 (D.C. Cir. 2013), and makes no arguments regarding the denial of her motions for postjudgment relief, see Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996). Additionally, appellee did not concede appellant's May 3, 2017 motion for summary reversal by failing to respond because this appeal was in abeyance at the time appellant filed that motion.

Appellant does not dispute that she cannot bring her fraud and defamation claims under Title VII, see Meshal v. Higgenbotham, 804 F.3d 417, 428 (D.C. Cir. 2015), or that she failed to properly exhaust these claims under the Federal Tort Claims Act, see 28 U.S.C. § 2675(a). Therefore, the dismissal of these claims for lack of jurisdiction is affirmed. See McNeil v. U.S., 508 U.S. 106, 113 (1993). And while this court also summarily affirms the magistrate judge's dismissal of appellant's Title VII claims for non-promotion, it does so on a different ground. See Jenkins v. Washington Convention Ctr., 236 F.3d 6, 8, n.3 (D.C. Cir. 2001) (“The court may affirm the district court on grounds different from those relied upon by the district court.”); see also Haddon v. Walters, 43 F.3d 1488, 1491 (D.C. Cir. 1995). The failure to exhaust administrative remedies under Title VII results in a dismissal without prejudice for failure to state a claim under Rule 12(b)(6). See Kim v. U.S., 632 F.3d 713, 719 (D.C. Cir. 2011); see also Hurd v. D.C., 864 F.3d 671, 678 (D.C. Cir. 2017); Martini v. Fed. Nat'l Mortg. Ass'n, 178 F.3d 1336, 1348 (D.C. Cir. 1999).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam