IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11061

BLANCA RUIZ, 

 Plaintiff - Appellant 

v. 

MEAGAN BRENNAN, Postmaster General, United States Postal Service 

(Southwest Area) Agency, 

 Defendant - Appellee 

Appeal from the United States District Court 

for the Northern District of Texas 

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges. 

STEPHEN A. HIGGINSON, Circuit Judge:

Plaintiff-Appellant Blanca Ruiz filed an administrative complaint 

claiming disability discrimination by the United States Postal Service. After 

both the Postal Service and the Equal Employment Opportunity Commission 

(EEOC) determined that her case was subsumed within a pending 

administrative class action, Ruiz sued the Postmaster General. The magistrate 

judge initially dismissed Ruiz’s case without prejudice for lack of subject 

matter jurisdiction, holding that Ruiz failed to exhaust her administrative 

remedies on the merits of her disability discrimination claim. This court 

reversed and remanded to the magistrate judge to decide whether Ruiz’s claim 

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2017

Lyle W. Cayce

Clerk

 Case: 16-11061 Document: 00513914198 Page: 1 Date Filed: 03/16/2017
No. 16-11061

2 

was properly subsumed within the class action.1 On remand, the magistrate 

judge determined that Ruiz’s claim was properly subsumed within the class 

action and dismissed Ruiz’s case for failure to exhaust. Ruiz again appealed, 

and we now affirm. 

I. 

Ruiz began working as a clerk for the Postal Service in 1990. Ruiz was 

born with a hearing impairment, and she was also diagnosed with carpal 

tunnel syndrome, a work-related injury, in 1994. After the carpal-tunnelsyndrome diagnosis, Ruiz was reassigned to a modified position at the Postal 

Service that she could perform despite these medical limitations. 

Sometime in 2010, Ruiz’s modified-duty assignment was reviewed as 

part of the National Reassessment Process (NRP), a program developed to 

standardize the procedures for assigning work to injured-on-duty Postal 

Service employees. As part of the NRP, the Postal Service offered Ruiz a 

different position working at the front desk of a postal facility. The Postal 

Service told Ruiz to either accept the new position or provide updated medical 

information for a new modified assignment. Ruiz agreed to “try out” the new 

front-desk assignment. Because of her hearing impairment, Ruiz was unable 

to perform some of the tasks required of the new front-desk position. After only 

two days, on September 22, 2010, the Postal Service retracted Ruiz’s job offer 

to work at the front desk because of her hearing impairment. That same day, 

Ruiz’s supervisor notified her that the District Assessment Team had 

completed a search pursuant to NRP guidelines and was unable to identify any 

available tasks that Ruiz could perform with her medical limitations. Ruiz’s 

supervisor told her not to report back to work unless contacted. 

 

1 Consistent with 28 U.S.C. § 636(c), the parties agreed to proceed before a magistrate 

judge.

 Case: 16-11061 Document: 00513914198 Page: 2 Date Filed: 03/16/2017
No. 16-11061

3 

Ruiz filed a complaint with the Equal Employment Opportunity division 

of the Postal Service, alleging that the Postal Service discriminated against 

her on the basis of her disability by denying her reasonable accommodation. 

The Postal Service determined that Ruiz’s individual complaint was subsumed 

by a pending administrative class action, McConnell v. Potter, which alleged 

disability discrimination related to the NRP. See EEOC Appeal No. 

0720080054, 2010 WL 332083, at *6, 10 (EEOC Jan. 14, 2010) (reversing final 

agency order rejecting certification of class). Ruiz appealed the Postal Service’s 

decision to the EEOC. On May 18, 2011, the EEOC affirmed the Postal 

Service’s decision, concluding that Ruiz’s disability discrimination claims were 

properly subsumed within the McConnell class action. The EEOC decision 

included notice of Ruiz’s right to file a civil action within 90 days of receiving 

the decision.

 Ruiz sued the Postmaster on August 19, 2011, again alleging 

employment discrimination based on the Postal Service’s denial of reasonable 

accommodation. In response to the Postmaster’s motion to dismiss, Ruiz filed 

an amended complaint on November 11, 2011. Ruiz’s amended complaint 

alleged that the EEOC erred in finding her case subsumed within the 

McConnell class action because her case is “different from McConnell.” “In view 

of the amended complaint,” the magistrate judge denied without prejudice the 

Postmaster’s motion to dismiss the original complaint and ordered the 

Postmaster to respond to the amended complaint.

The Postmaster then moved to dismiss Ruiz’s amended complaint 

pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Ruiz failed to exhaust her 

administrative remedies on her disability discrimination claim because neither 

the Postal Service nor the EEOC reached the merits of her claim. The 

magistrate judge granted that motion and dismissed the case without 

prejudice for lack of subject matter jurisdiction because Ruiz had failed to 

 Case: 16-11061 Document: 00513914198 Page: 3 Date Filed: 03/16/2017
No. 16-11061

4 

exhaust. Ruiz appealed, and this court reversed and remanded. See Ruiz v. 

Donahoe, 569 F. App’x 207, 208 (5th Cir. 2014). Specifically, we determined 

that the magistrate judge had not addressed Ruiz’s challenge to the EEOC’s 

determination that her claim was subsumed within the McConnell class action.

Id. at 212. After concluding that Ruiz had “fully exhausted her administrative 

remedies with respect to the class action issue,” we explained that Ruiz’s 

lawsuit “should not have been dismissed without first addressing whether Ruiz 

was properly subsumed within the McConnell class action.” Id. Thus, we 

“remand[ed] to the magistrate judge to decide whether Ruiz was properly 

subsumed in the class.” Id.

On remand, and after receiving supplemental briefing from the parties 

on the class-action issue, the magistrate judge determined that Ruiz’s claim 

was properly subsumed within the McConnell class. The magistrate judge 

explained that “[Ruiz’s] removal from her [modified-duty position], job offer to 

work at the front desk, and lack of accommodation for her hearing impairment 

at the front desk were all the result of the NRP, and therefore she alleges an 

identical claim that is properly subsumed into the McConnell class action.” 

Because the claim had been properly subsumed into the pending class action, 

the magistrate judge found that Ruiz had not exhausted her administrative 

remedies. Although the Postmaster had moved for dismissal pursuant to Rule 

12(b)(1), the magistrate judge noted the existence of an intra-Fifth-Circuit split 

on whether administrative exhaustion is a jurisdictional prerequisite or merely 

a condition precedent to filing a lawsuit. Applying the rule of orderliness, the 

magistrate judge adopted the position of the earliest identified panel decision 

that exhaustion is a condition precedent rather than a jurisdictional 

prerequisite. Accordingly, the magistrate judge treated the Postmaster’s 

motion as a Rule 12(b)(6) motion to dismiss and dismissed Ruiz’s lawsuit 

 Case: 16-11061 Document: 00513914198 Page: 4 Date Filed: 03/16/2017
No. 16-11061

5 

without prejudice for failure to exhaust administrative remedies. Ruiz timely 

filed a notice of appeal. 

II. 

We review de novo the district court’s decision to dismiss a complaint 

under Rule 12(b)(6). Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 

2015). Additionally, we review de novo a district court’s determination that the 

plaintiff failed to exhaust her administrative remedies. Pacheco v. Mineta, 448 

F.3d 783, 788 (5th Cir. 2006).

 “To survive a Rule 12(b)(6) motion to dismiss, the complaint does not 

need detailed factual allegations, but it must provide the plaintiff’s grounds for 

entitlement for relief—including factual allegations that, when assumed to be 

true, raise a right to relief above the speculative level.” Taylor, 798 F.3d at 279

(quotations and citations omitted). In ruling on a Rule 12(b)(6) motion, we may 

consider the contents of the pleadings along with any attachments. Collins v. 

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Further, we 

may take judicial notice of matters of public record. Norris v. Hearst Trust, 500 

F.3d 454, 461 n.9 (5th Cir. 2007). Here, Ruiz attached several exhibits to her 

amended complaint that the magistrate judge properly considered as part of 

the pleadings. 

III. 

 Ruiz brings claims under the Rehabilitation Act, which prohibits the 

United States Postal Service from discriminating against its disabled 

employees. 29 U.S.C. § 794. A Rehabilitation Act claimant must satisfy the 

procedural requirements set forth in Title VII of the Civil Rights Act of 1964. 

29 U.S.C. § 794a(a)(1); see also Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304 

(5th Cir. 1981). One of these procedural requirements is the exhaustion of 

administrative remedies, which is satisfied when either (1) the employee 

receives notice of final agency action or by the EEOC upon appeal from an 

 Case: 16-11061 Document: 00513914198 Page: 5 Date Filed: 03/16/2017
No. 16-11061

6 

agency decision, or (2) 180 days have passed from the filing of the 

administrative complaint or appeal thereof without final agency action. See 42 

U.S.C. § 2000e-16(c); Prewitt, 662 F.2d at 304.

Congress has granted the EEOC authority to establish procedures for 

adjudicating discrimination claims. See 42 U.S.C. § 2000e–16(b); 29 U.S.C. 

§ 794a. Pursuant to this authority, the EEOC has promulgated regulations and 

guidance governing administrative class actions. See generally 29 C.F.R. 

§ 1614.204; U.S. Equal Emp. Opportunity Comm’n, MD-110, Management 

Directive for 29 C.F.R. Part 1614, ch. 8 (2015). When an administrative class 

complaint meets the EEOC’s class-certification requirements, see

§ 1614.204(a)(2) (setting forth four required elements for a class complaint), 

and a class action is pending, individual complaints alleging claims “identical 

to the class claim(s)” are subsumed within the class complaint. MD-110, ch. 8, 

part III.2

For an individual claim to be subsumed in an accepted class 

complaint, it must be identical in all respects to the class claim(s), 

including the issue and basis of discrimination alleged. When an 

individual complaint raises multiple claims, only those claims that 

are identical to those raised in the class complaint will be 

subsumed in it. The non-identical claims in the individual 

complaint shall be processed separately under the individual 

complaint process. 

Id.

 Accordingly, when an individual plaintiff’s claims are properly subsumed 

within an administrative class action, the plaintiff will be unable to meet the 

 

2 In support of its initial motion to dismiss the amended complaint, the Postmaster 

filed portions of EEOC Management Directive 110, dated November 9, 1999. MD-110 has 

since been revised, and this opinion refers to the currently effective version, updated as of 

August 5, 2015, and available at www.eeoc.gov/federal/directives/md110.cfm. See MD-110, 

preamble (noting that the updated directive supersedes the directive issued on November 9, 

1999).

 Case: 16-11061 Document: 00513914198 Page: 6 Date Filed: 03/16/2017
No. 16-11061

7 

administrative exhaustion requirement with respect to her individual claims

as long as the class action is pending. See Sanchez v. Brennan, No. 16-1164, 

2017 WL 587112, at *1–2 (10th Cir. Feb. 14, 2017) (affirming the district 

court’s ruling that the plaintiff failed to exhaust administrative remedies when 

his individual claims were subsumed by an administrative class action and he 

failed to either appeal the decision to subsume his claims or participate in the 

class-action settlement); Wade v. Donahoe, Nos. 11-3795, 11-4584, 2012 WL 

3844380, at *13–14 (E.D. Pa. Sept. 4, 2012) (dismissing plaintiff’s individual 

disability discrimination claims because they were properly subsumed by 

pending McConnell class action); cf. Johnson v. Rubin, 105 F.3d 665, 1997 WL 

14348, at *2–3 (9th Cir. 1997) (unpublished) (holding that individual claims 

placed on hold pending resolution of an administrative class complaint were 

unexhausted and thus could not serve as the basis for an individual complaint 

in federal court); Monreal v. Potter, 367 F.3d 1224, 1231–32 (10th Cir. 2004) 

(concluding that individual discrimination claims can be exhausted through a 

class administrative complaint). 

IV. 

We first address Ruiz’s argument that the magistrate judge erred in 

ruling that her disability discrimination claim was properly subsumed within 

the McConnell class action. In McConnell v. Potter, the EEOC approved the 

certification of an administrative class related to the NRP. 2010 WL 332083, 

at *9. The McConnell class is defined as “all permanent rehabilitation 

employees and limited duty employees at the agency who have been subjected 

to the NRP from May 5, 2006, to the present, allegedly in violation of the 

Rehabilitation Act of 1973.” Id. Further, the EEOC concluded that the class 

agent’s claims should be categorized into the following “broader issues”: (1) the

“NRP fails to provide a reasonable accommodation” (including “the question of 

the effect the NRP has on the interactive process and providing an individual 

 Case: 16-11061 Document: 00513914198 Page: 7 Date Filed: 03/16/2017
No. 16-11061

8 

assessment”); (2) the “NRP wrongfully discloses medical information”; (3) the 

“NRP creates a hostile work environment”; and (4) the “NRP has an adverse 

impact on disabled employees.” Id. at *9 & n.2. With respect to the 

commonality and typicality certification requirements, the EEOC explained 

that the administrative judge had found that “the class agent had shown that 

the agency had a nationwide practice of targeting employees in rehabilitation 

or limited-duty positions, adversely affecting their reasonable accommodations 

via the NRP.” Id. at *5, *8. Further, the administrative judge noted that “the 

specific alleged harm may be different for the various employees involved, but 

the common link was that all of these people were asserting that they were 

negatively affected by the NRP.” Id. (emphasis added). 

Ruiz essentially contends that her amended complaint presents two, 

distinct claims: (1) that she was improperly removed from her existing 

modified-duty position associated with her injured-on-duty disability (carpal 

tunnel syndrome), and (2) that her front-desk job was retracted due to the 

Postal Service’s failure to accommodate her non-work-related injury (her 

congenital hearing impairment). In the district court, Ruiz conceded that the 

first claim falls within the scope of the McConnell class action, and she does 

not argue otherwise on appeal. Ruiz has thus waived any argument that the 

district court erred in subsuming her first claim within the McConnell class 

action.3 Rather, Ruiz challenges the magistrate judge’s determination that her 

second claim—that the Postal Service failed to accommodate her hearing 

 

3 Even if we considered the merits of the magistrate judge’s decision with respect to 

Ruiz’s first claim, the amended complaint’s characterization of the claim unambiguously 

places it within the scope of the McConnell class. The amended complaint describes the claim 

as “NPR’s [sic] removal of Plaintiff from an existing modified position,” in violation of the 

Postal Service’s obligation to provide reasonable accommodation for Ruiz’s injured-on-duty 

disability. This claim is unquestionably subsumed within the McConnell class action. See 

McConnell, 2010 WL 332083, at *9.

 Case: 16-11061 Document: 00513914198 Page: 8 Date Filed: 03/16/2017
No. 16-11061

9 

disability—was subsumed within the McConnell class. According to Ruiz, her 

second claim is “non-identical” to the McConnell class claims because it relates 

to her non-injured-on-duty disability (her congenital hearing disability). 

We agree with the magistrate judge’s determination that Ruiz’s second 

claim is also subsumed by the McConnell class action. Even though the front 

desk position was allegedly retracted because of her congenital hearing 

impairment, rather than her injured-on-duty disability, she still satisfies the 

class definition with respect to her second claim: Ruiz was an employee placed 

in a modified position due to an injured-on-duty disability,4 who was subjected 

to the NRP between May 5, 2006 and the present, allegedly in violation of the 

Rehabilitation Act. See id. at *9. The NRP placed her in a front desk position 

she could not perform due to her physical limitations and failed to provide her 

reasonable accommodation while in the position as well as after the position 

was retracted. Ruiz thus shares “the common link” with other McConnell class 

members “asserting that they were negatively affected by the NRP.” See id. at 

*8. Her second claim also falls within the first and fourth “broader issues” 

identified in McConnell. See id. at *9 & n.2 ((1) the “NRP fails to provide a 

reasonable accommodation” (including “the question of the effect of the NRP 

 

4 The McConnell class definition references two groups of affected employees: 

“rehabilitation” employees and “limited-duty” employees. McConnell, 2010 WL 332083, at *9. 

Limited-duty employees are defined as injured-on-duty employees whom the 

agency expects will be able to return to their pre-injury positions as their 

medical conditions improve, while rehabilitation employees are defined as 

employees who were injured-on-duty and have reached a level of maximum 

medical improvement (MMI), and are not expected to be able to return to their 

pre-injury positions.

Id. at *2 (citations omitted). The record is not clear as to whether Ruiz was considered a

limited-duty or rehabilitation employee. The distinction between rehabilitation employees 

and limited-duty employees is not relevant to this appeal, however, because both types of 

employees were subject to the NRP and are included in the class definition. Id. at *9. Thus, 

Ruiz’s claims fall within the scope of the class regardless of her classification as a limitedduty employee or rehabilitation employee.

 Case: 16-11061 Document: 00513914198 Page: 9 Date Filed: 03/16/2017
No. 16-11061

10

has on the interactive process and providing an individual assessment”) and

(4) the “NRP has an adverse impact on disabled employees”). Ruiz alleges that 

by placing her in a position she was unable to perform because of her hearing 

disability, subsequently retracting that position, and then failing to identify 

any necessary tasks within her medical restrictions, the “NRP fail[ed] to 

provide a reasonable accommodation” and did not afford Ruiz an interactive 

process and individual assessment. Id. Additionally, Ruiz’s second claim 

essentially alleges that the NRP had an “adverse impact” on her because she 

was a disabled employee (as a result of both her carpal-tunnel-syndrome and 

permanent-hearing disabilities). Id. at *9.

 The plain language of the amended complaint also supports the 

conclusion that Ruiz’s second claim is properly subsumed within the 

McConnell class action. Ruiz alleges that “NRP didn’t provide reasonable 

accommodation to Plaintiff’s known physical limitations: carpal tunnel 

syndrome and hearing impairment.” Similarly, Ruiz alleges that “NPR [sic] 

withdrew reasonable accommodation from an existing modified position and 

failed to provide reasonable accommodation at the new position being offered.”5

It makes no difference that Ruiz’s second claim alleges that the NRP

failed to accommodate only her “non-injured-on-duty” disability (her 

permanent hearing impairment). The existence of a work-related disability 

(such as Ruiz’s carpal tunnel syndrome) is a necessary precondition to an 

employee being subjected to the NRP in the first place, as the only employees 

 

5 Ruiz argues that because her amended complaint specifically alleges that her second 

claim is non-identical to the claims in the McConnell class, dismissal under Rule 12(b)(6) is 

improper. “However, ‘conclusory allegations or legal conclusions masquerading as factual 

conclusions will not suffice to prevent a motion to dismiss.’” Jones v. Alcoa, Inc., 339 F.3d 

359, 362 (5th Cir. 2003) (quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 

(5th Cir. 1993)). As explained above, the factual allegations in the amended complaint place 

Ruiz’s second claim squarely within the McConnell class.

 Case: 16-11061 Document: 00513914198 Page: 10 Date Filed: 03/16/2017
No. 16-11061

11

subject to the NRP were those in modified positions as a result of sustaining 

on-the-job injuries. McConnell, 2010 WL 332083, at *2. Once an employee is

subject to the NRP, however, the McConnell class does not distinguish between 

alleged failures to accommodate the employee’s limitations stemming from the 

on-the-job injury and alleged failures to accommodate any other limitations the

employee may have. Put differently, as defined by the EEOC, the McConnell

class claims are not limited to the NRP’s failure to accommodate only workrelated injuries or the NRP’s adverse impact on disabled employees only with 

respect to their work-related disabilities. See id. at *8 (“[T]he specific alleged 

harm may be different for the various employees involved, but the common link 

was that all of these people were asserting that they were negatively affected 

by the NRP.”). Ruiz alleges that she was subjected to the NRP and that the 

NRP failed to reasonably accommodate her limitations. 

Accordingly, the district court correctly concluded that Ruiz’s claims 

were subsumed within the McConnell class action. 

V. 

We next address the magistrate judge’s dismissal of Ruiz’s claims 

without prejudice under Rule 12(b)(6) because Ruiz failed to administratively 

exhaust her disability discrimination claims. Ruiz argues that the presence of 

“right to sue” language in the EEOC’s decision subsuming her claims within 

the McConnell class means that she has exhausted her administrative 

remedies with respect to her disability claims. Ruiz also contends that the 

magistrate judge erred in dismissing her claims pursuant to Rule 12(b)(6) 

rather than Rule 12(b)(1). Both of Ruiz’s arguments fail. 

The EEOC’s decision subsuming Ruiz’s claims within the McConnell

class notified Ruiz that she had a right to file a civil action in federal district 

court within ninety days. The inclusion of this “right to sue” language informed 

Ruiz of her right to litigate the EEOC’s decision to subsume her claims within 

 Case: 16-11061 Document: 00513914198 Page: 11 Date Filed: 03/16/2017
No. 16-11061

12

the McConnell class—not her right to litigate those claims on the merits. See

MD-110, ch.8, pt. III (“When an agency makes a decision not to process an 

individual claim because it is identical to and subsumed by an accepted class 

complaint, it shall issue a decision advising the individual complainant of 

his/her right to appeal to OFO for a ruling on whether the individual claim 

should be subsumed in the accepted class claim(s).”). This court recognized as 

much in Ruiz’s prior appeal. There, we explained that by obtaining a decision 

from the EEOC, Ruiz “fully exhausted her administrative remedies with 

respect to the class action issue.” Ruiz, 569 F. App’x at 212. We thus remanded 

the case to the district court to consider whether Ruiz’s claims had been 

properly subsumed. Id. If the “right to sue” language in the EECO’s decision 

meant that Ruiz could litigate the merits of her discrimination claims, it would 

have been unnecessary for the prior panel to instruct the district court to 

examine whether Ruiz’s claims had been properly subsumed; rather, it would 

have simply remanded with instructions that the district court consider the 

merits of Ruiz’s claims. Accordingly, the EEOC’s notice of Ruiz’s right to sue 

does not establish that she exhausted her administrative remedies with 

respect to the merits of her disability discrimination claims. See, e.g., Simotas 

v. Kelsey-Seybold, 211 F. App’x 273, 274–75 (5th Cir. 2006) (unpublished) 

(affirming the dismissal of a suit filed after the plaintiff had received a rightto-sue notice from the EEOC, where the EEOC had found the plaintiff’s 

administrative claim to be untimely); Palma v. New Orleans City, 115 F. App’x 

191, 193–95 (5th Cir. 2004) (unpublished) (same). 

Ruiz’s contention that the magistrate judge erred in dismissing her 

complaint pursuant to Rule 12(b)(6) is likewise unavailing. “There is 

disagreement in this circuit on whether a Title–VII prerequisite, such as 

exhaustion, is merely a prerequisite to suit, and thus subject to waiver and 

estoppel, or whether it is a requirement that implicates subject matter 

 Case: 16-11061 Document: 00513914198 Page: 12 Date Filed: 03/16/2017
No. 16-11061

13

jurisdiction.” Pacheco, 448 F.3d at 788 n.7. The magistrate judge’s opinion 

correctly observed this intra-circuit conflict but ultimately determined that

this court’s decision in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th 

Cir. 1970) controlled, concluding that exhaustion is a condition precedent 

rather than a jurisdictional prerequisite. The magistrate thus converted the 

Postmaster’s Rule 12(b)(1) motion to a Rule 12(b)(6) motion and dismissed 

Ruiz’s claims for failure to exhaust administrative remedies.

Because neither party is arguing waiver or estoppel, and because the 

outcome would remain the same whether we consider exhaustion to be a 

condition precedent or a jurisdictional prerequisite, “we need not take sides in 

this dispute.” See Pacheco, 448 F.3d at 788 n.7. The magistrate judge dismissed 

Ruiz’s suit without prejudice, meaning that she may pursue her claims upon 

conclusion of the McConnell class if she is unsatisfied with the result. See 29 

C.F.R. § 1614.204(l). Had the magistrate judge dismissed her claims pursuant 

to Rule 12(b)(1), her claims would have likewise been dismissed without 

prejudice. See Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991) (holding 

that dismissal without prejudice is proper when the district court dismissed 

for lack of subject matter jurisdiction). Further, this court reviews de novo 

dismissal under both Rule 12(b)(6) and Rule 12(b)(1). See Lane v. Halliburton, 

529 F.3d 548, 557 (5th Cir. 2008). Accordingly, even if the magistrate judge 

had dismissed Ruiz’s claims under Rule 12(b)(1) for lack of subject matter 

jurisdiction, the dismissal would have been without prejudice and our review 

would remain unchanged. 

VI. 

We AFFIRM the district court’s dismissal of Ruiz’s claims without 

prejudice. 

 Case: 16-11061 Document: 00513914198 Page: 13 Date Filed: 03/16/2017