[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12205

Non-Argument Calendar

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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 

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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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