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Nicholson v. Lew

United States District Court, D. Utah, Central Division

January 30, 2018

JACOB J. LEW, Secretary, Department of the Treasury Internal Revenue Service, Defendant.




         Chief District Judge David Nuffer referred this matter to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court is Jason J. Nicholson's (“Plaintiff”) motion for leave to file an amended complaint.[2] Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court elects to determine the motion on the basis of Plaintiff's written materials and finds that oral argument would not be helpful or necessary. See DUCivR 7-1(f).

         At the outset, the court recognizes that Plaintiff is proceeding pro se in this matter. Consequently, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). The court also recognizes that Plaintiff has been permitted to proceed in forma pauperis in this case pursuant to 28 U.S.C. § 1915 (“IFP Statute”).[3] Accordingly, the court will also screen Plaintiff's action as required under the IFP Statute. See 28 U.S.C. § 1915(e)(2)(B).

         BACKGROUND [4]

         Plaintiff filed a complaint against Jacob J. Lew, the former Secretary for the Department of the Treasury, Internal Revenue Service (“Defendant”). Plaintiff alleges that he was terminated from his position at the Internal Revenue Service (“IRS” or “Agency”) on the basis of “disability discrimination.”[5] Plaintiff appealed his termination to the Merit Systems Protection Board (“MSPB”). After a hearing, the MSPB Administrative Judge issued an order (“MSPB Order”) concluding that the Agency met the requirements to sustain Plaintiff's indefinite suspension and finding that, although Plaintiff had established that he is disabled, the Agency did not discriminate against him on that basis when it terminated him.

         Plaintiff appealed the MSPB Order to the EEOC. Attached to Plaintiff's one-page complaint is a decision from the EEOC (“EEOC Decision”), which upheld the MSPB Order. Because Plaintiff's complaint alone is scant on facts, the court sets forth the following facts from the EEOC Decision. Plaintiff was employed as a GS-6 Tax Examining Technician at the IRS. On October 27, 2010, and again on March 31, 2011, Plaintiff allegedly sent anonymous letters to the Treasury Inspector General for Tax Administration falsely claiming that three IRS employees discussed assassinating the President of the United States of America. During an April 4, 2011 interview, Plaintiff admitted that he authored the letters. Plaintiff claimed he did so because he believed that his coworkers had caused his performance evaluation to be lowered, which resulted in the loss of a scheduled salary grade increase.

         On October 6, 2011, the Agency notified Plaintiff that based on the letters containing the false allegations, it was proposing to suspend him from duty and pay indefinitely. Then on November 29, 2011, the Agency notified Plaintiff that it was sustaining his indefinite suspension because Plaintiff's actions had caused his supervisors to lose confidence in his trustworthiness to protect taxpayer information and his ability to interact with the public in his position as a tax examiner. As noted above, Plaintiff appealed his indefinite suspension, and after a hearing, the MSPB Administrative Judge issued the MSPB Order finding that Plaintiff had failed to demonstrate that the Agency's proffered reasons for the indefinite suspension were not the actual reasons and that discriminatory animus based on Plaintiff's disability was the Agency's true reason.

         Plaintiff appealed the MSPB Order to the EEOC. The EEOC concurred with the MSPB Order and concluded that the Administrative Judge correctly interpreted the laws, rules, regulations, and policies that govern this matter and that the MSPB Order is supported by substantial evidence in the record as a whole. See 29 C.F.R. § 1614.305(c). The EEOC determined that even assuming Plaintiff had demonstrated a prima facie case of discrimination, Plaintiff failed to show that the Agency's articulated legitimate, nondiscriminatory reasons for his indefinite suspension were merely a pretext for discrimination.

         Plaintiff then filed the instant case in this court asserting that (1) he was “falsely indicted, ” (2) the Agency “made false statements” to the MSPB and the EEOC, and (3) he was suspended “due to disability discrimination.”[6] This court takes judicial notice[7] that Plaintiff was indicted on three counts of making false statements under 18 U.S.C. § 1001.[8] Plaintiff entered into a pretrial diversion agreement[9] and successfully completed the court's RISE Program.[10]Pursuant to the diversion agreement, the government moved to dismiss the indictment and the court did so with prejudice.[11]

         On March 22, 2017, Plaintiff filed a motion for leave to file an amended complaint.[12]Specifically, Plaintiff sought to substitute Defendant with his successor, current Treasury Secretary, Steven Mnuchin. Plaintiff also provided some additional factual context to his allegations.


         Plaintiff's motion for leave to amend is governed by rule 15(a)(2) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15(a)(2). Under that rule, courts “should freely give leave when justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962). The decision regarding whether to provide a party leave to amend pleadings “is within the discretion of the trial court.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quotations and citation omitted). Furthermore,

[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be freely given.

Foman, 371 U.S. at 182 (quotations and citation omitted). “The purpose of the Rule is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Minter, 451 F.3d at 1204 (quotations and citation omitted).

         That said, even under the liberal standard for amending pleadings, “the district court may deny leave to amend where amendment would be futile. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (quotations and citation omitted). A proposed amendment is futile only where “it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to ...

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