John Swauger v. Dept. of Defense – Defense Intelligence Agency

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          USCA11 Case: 20-12205     Date Filed: 03/19/2021   Page: 1 of 8



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 20-12205
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 5:19-cv-01039-HNJ


JOHN SWAUGER,

                                                         Plaintiff-Appellant,

                                      versus

DEPARTMENT OF DEFENSE - DEFENSE INTELLIGENCE AGENCY,
Robert P. Ashley, Jr. - Director,

                                                         Defendant-Appellee,

                            _____________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (March 19, 2021)

Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges:

PER CURIAM:

      John Swauger, a former federal employee, appeals the district court’s order

granting the Defense Intelligence Agency’s motion to dismiss his complaint for lack
          USCA11 Case: 20-12205       Date Filed: 03/19/2021   Page: 2 of 8



of subject-matter jurisdiction. The court held that Swauger failed to exhaust his

administrative remedies, and it dismissed his case with prejudice. The point of

contention on appeal is whether the DIA’s final agency action was delivered to

Swauger’s counsel. If Swauger’s counsel timely received or is presumed to have

received the final agency action, then Swauger’s complaint in federal district court

was untimely and the court was without jurisdiction. Upon consideration, we affirm

the dismissal of the complaint for lack of subject-matter jurisdiction but remand for

the court to reenter its judgment to be without prejudice.

                                          I.

      After the DIA terminated Swauger’s employment, he filed an Equal

Employment Opportunity complaint with the DIA, alleging violations of the

Rehabilitation Act. These alleged violations included claims of disability

discrimination, hostile work environment, and unlawful retaliation. The DIA

investigated Swauger’s complaint and provided Swauger with a copy of its report.

Swauger requested a hearing before an Equal Employment Opportunity Commission

administrative law judge. The DIA then filed a motion for summary judgment, which

the administrative law judge granted. The DIA adopted the administrative law

judge’s decision as its final agency action on January 27, 2017. A little more than

eight months later, on October 4, 2017, Swauger appealed the DIA’s decision to the

EEOC. The EEOC dismissed the appeal as untimely. Swauger filed a complaint with


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the district court on July 3, 2019, 61 days after the EEOC’s dismissal. In response,

the DIA moved to dismiss Swauger’s complaint under Federal Rule of Civil

Procedure 12(b)(1) for failure to exhaust administrative remedies.

      To support its motion to dismiss for lack of subject-matter jurisdiction, the

DIA attached four documents, including: a screenshot of the Federal Sector EEO

Portal address, listing Swauger’s counsel’s zip code as 35216; a response submitted

to the EEOC, listing Swauger’s counsel’s zip code as 35209; a statement from

Swauger to the EEOC, listing Swauger’s counsel’s zip code as 35216 on the

letterhead but 35209 at the end of the document; and some certificates of service and

postal receipts.

      The certificates of service and postal receipts show that the DIA mailed the

final agency action to both Swauger and his counsel on January 27, 2017, with

sufficient postage and the proper addresses, which for Swauger was the 35216 zip

code. The documents also show that USPS delivered the final agency action to

Swauger and attempted to deliver it to his counsel at the 35209 zip code on February

6, 2017. The USPS left Swauger’s counsel notice of the attempted delivery at the

35209 zip code.

      The district court held that Swauger had not rebutted the presumption that his

counsel had received a copy of the final agency action and that the action had been

properly addressed, stamped, and placed in the mail. The court noted that Swauger’s


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counsel used both the 35209 and 35216 zip codes interchangeably with an otherwise

identical address and that the two zip codes are located next to each other. The

address exists only in the 35216 zip code; no such address exists in the 35209 zip

code. The court concluded that Swauger’s time to file a complaint or appeal to the

EEOC began running on February 9, 2017, three days after the USPS provided

notice of its attempted delivery. Accordingly, Swauger’s appeal to the EEOC was

untimely, and equitable tolling was unavailable against a jurisdictional bar. Even if

equitable tolling were available, the court noted that it would decline to toll the time

period because Swauger was not diligent. The court consequently granted the DIA’s

motion to dismiss and dismissed Swauger’s complaint with prejudice. Swauger

appealed to this Court.

                                          II.

      Swauger argues that the time to file his complaint under the Rehabilitation

Act never began to run because his counsel never received the final agency action

from the EEOC. Swauger also argues, for the first time on appeal, that the court

should not presume that his counsel received the final agency action because the

DIA did not use his counsel’s proper address. He asserts that the different zip codes

on the DIA’s certificate of service and the USPS’s notice of attempted delivery show

that the final agency action was not properly addressed to his counsel. Finally,




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Swauger argues that the court erred in failing to apply equitable tolling. Each

argument fails.

      We review de novo a district court’s order granting a Rule 12(b)(1) motion to

dismiss for lack of jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond

Cnty., 

501 F.3d 1244

, 1250 (11th Cir. 2007). Arguments raised for the first time on

appeal that were not presented in the district court are deemed waived. Walker v.

Jones, 

10 F.3d 1569

, 1572 (11th Cir. 1994). When evaluating a motion to dismiss, a

court may consider outside documents without converting the motion into a motion

for summary judgment if (1) the document is central to the plaintiff’s claim, and (2)

its authenticity is not challenged. Day v. Taylor, 

400 F.3d 1272

, 1275–76 (11th Cir.

2005).

      “The Rehabilitation Act prohibits federal agencies from discriminating in

employment against otherwise qualified individuals with a disability.” Shiver v.

Chertoff, 

549 F.3d 1342

, 1344 (11th Cir. 2008) (cleaned up) (quoting Mullins v.

Crowell, 

228 F.3d 1305

, 1313 (11th Cir. 2000)). “The remedies, procedures, and

rights of Title VII are available to plaintiffs filing complaints under the

Rehabilitation Act.”

Id. And under the

Rehabilitation Act, employees must either

file a complaint within 90 days of receiving the final agency action or appeal to the

EEOC’s Office of Federal Operation within 30 days of receiving the final agency




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action. 42 U.S.C. § 2000e-16(c) (time for filing in district court); 29 C.F.R. 1614.402

(time for filing appeal with EEOC).

      The final agency action in this case was sent by mail. A rebuttable

presumption that a document sent by mail was received exists if the document was

(1) properly addressed, (2) stamped, and (3) mailed. See Barnett v. Okeechobee

Hosp., 

283 F.3d 1232

, 1240 (11th Cir. 2002). Upon receiving notice of an attempted

delivery, a party has three days to retrieve unsuccessfully delivered mail. Zillyette v.

Capital One Fin. Corp., 

179 F.3d 1337

, 1341–42 (11th Cir. 1999). To overcome a

presumption of receipt, an intended recipient must show that the failure to receive

the mail was in no way his fault and that the recipient inquired about late or missing

mail. Kerr v. McDonald’s Corp., 

427 F.3d 947

, 952–53 & n.8 (11th Cir. 2005).

      When a complaint under Title VII is time-barred for failure to exhaust

administrative remedies, it must be dismissed for lack of subject-matter jurisdiction.

Crawford v. Babbitt, 

186 F.3d 1322

, 1326 (11th Cir. 1999); FED. R. CIV. P. 12(h)(3).

A dismissal for lack of subject-matter jurisdiction is without prejudice. Stalley ex

rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 

524 F.3d 1229

, 1232 (11th Cir.

2008). Equitable tolling is not available for a jurisdictional time bar. See F.E.B.

Corp. v. United States, 

818 F.3d 681

, 685 & n.3 (11th Cir. 2016) (citing United

States v. Kwai Fun Wong, 

575 U.S. 402

, 407–10, 415–16 (2015)).




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      Here, Swauger’s first two arguments depend on his counsel not having

received the final agency action. Because the DIA created a rebuttable presumption

that his counsel received the mailing, both arguments fail. Swauger’s second

argument—that no presumption of receipt exists because the DIA used the incorrect

address—also fails because it was waived. But in any event, Swauger’s counsel

contributed to any error in delivery by using the two zip codes interchangeably

during the administrative proceedings.

      The documents submitted with the motion to dismiss show that the final

agency action was properly addressed, stamped, and mailed. So, Swauger’s counsel

can be presumed to have received the final agency action on February 9, 2019. These

documents may be properly considered at this stage because they are central to the

issue here and their authenticity is not challenged. The fact that the USPS’s tracking

website shows that delivery was attempted in an adjacent zip code does not factor

into our analysis. Accordingly, Swauger has not overcome the presumption that his

counsel received a copy of the final agency action.

      Because Swauger’s counsel is presumed to have received the final agency

action on February 9, 2017, three days after the USPS left notice of attempted

delivery, he had 30 days to appeal to the EEOC or 90 days to file his complaint in

the district court. His October 4, 2017 appeal to the EEOC was almost five months




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too late. And because timeliness is a jurisdictional bar here, equitable tolling was not

available to Swauger.

      Accordingly, we AFFIRM the dismissal of Swauger’s complaint for lack of

subject matter jurisdiction but REMAND for the court to reenter its judgment

without prejudice.




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