United States District Court, D. Utah, Central Division
JASON J. NICHOLSON, Plaintiff,
JACOB J. LEW, Secretary, Department of the Treasury Internal Revenue Service, Defendant.
NUFFER CHIEF DISTRICT JUDGE.
MEMORANDUM DECISION AND ORDER
M. WARNER, CHIEF UNITED STATES MAGISTRATE JUDGE.
District Judge David Nuffer referred this matter to Chief
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). Before the court is Jason J.
Nicholson's (“Plaintiff”) motion for leave to
file an amended complaint. 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).
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”). Accordingly, the
court will also screen Plaintiff's action as required
under the IFP Statute. See 28 U.S.C. §
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.” 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.
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
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.
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.
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.” This court takes judicial
notice that Plaintiff was indicted on three
counts of making false statements under 18 U.S.C. §
1001. Plaintiff entered into a pretrial
diversion agreement and successfully completed the court's
RISE Program.Pursuant to the diversion agreement, the
government moved to dismiss the indictment and the court did
so with prejudice.
March 22, 2017, Plaintiff filed a motion for leave to file an
amended complaint.Specifically, Plaintiff sought to
substitute Defendant with his successor, current Treasury
Secretary, Steven Mnuchin. Plaintiff also provided some
additional factual context to his allegations.
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
[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
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).
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 ...