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LEWIS v. NEWMAN

August 2, 1991

BRYANT LEWIS Plaintiff,
v.
CONSTANCE NEWMAN, et al., Defendants.



The opinion of the court was delivered by: D. LOWELL JENSEN

ORDER

 On July 31, 1991, his Court heard defendant's motion to dismiss the Merit System Protection Board, and its Chairman, Daniel Levinson, as defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). Sherry Armstrong of the Merit System Protection Board and Patricia Kenney of the Office of Personnel Management appeared for defendants. Bryant Lewis appeared for himself. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court DISMISSES the Merit System Protection Board and Daniel Levinson as defendants for the following reasons.

 I. SYNOPSIS OF COURT'S REASONING

 Bryant Lewis ("Lewis") was denied employment by the Internal Revenue Service and the Federal Deposit Insurance Corporation. After exhausting his administrative appeals through the Office of Personnel Management, the Merit System Protection Board, and the Equal Employment Opportunity Commission, Lewis brought a discrimination claim in this Court. In the complaint, Lewis named as defendants Constance Newman of the Office of Personnel Management, the Merit System Protection Board, and it's Chairman, Daniel Levinson.

 Lewis contends that he was discriminated against in violation of two statutes, the Civil Service Reform Act and the Civil Rights Act of 1964. However, the language of both statutes makes clear that the proper defendant in this case is the Office of Personnel Management and not the Merit System Protection Board. Therefore, the Court is required by law to dismiss the Merit System Protection Board and Daniel Levinson as defendants.

 Lewis' complaint of discrimination is still active with Constance Newman, Director of the Office of Personnel Management as the proper defendant. Lewis' rights to recover for his injuries his not been diminished should he prove he has a valid claim against the Office of Personnel Management.

 II. BACKGROUND

 Plaintiff was disqualified for employment by the Internal Revenue Service (IRS) and the Federal Deposit Insurance Corporation (FDIC) after failing to successfully pass an oral interview. On November 27, 1989, plaintiff appealed his denial of employment by the IRS and FDIC to the Merit Systems Protection Board ("Board") alleging religious and handicap discriminations. On March 23, 1990, the Board's administrative judge affirmed the denial. The decision became final on September 13, 1990, when the Board denied review. Plaintiff filed a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC), which was denied on February 4, 1991.

 In the motion presently before the Court, defendants move to dismiss the Board and Levinson as defendants pursuant to Federal Rules of Civil Procedure 12(b)(6).

 III. LEGAL DISCUSSION

 A. Standard Of Review

 The question presented by a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of his or her claim. "The accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In the Ninth Circuit, the Court making this determination must assume that the plaintiff's allegations are true, construe the complaint in a light most favorable to the plaintiff, and resolve every doubt in the plaintiff's favor. United States v. City of Redwood City, 640 F.2d 963, 966v (9th Cir. 1981).

 Furthermore, Federal Rule of Civil Procedure 15(a) provides that "leave [to amend] shall be freely given when justice so requires." The Rules in general embody a policy which favors the resolution of claims on the merits, rather than on procedural grounds, and Rule 15(a) has been interpreted in the light of this policy to require that amendments be freely allowed in absence of a narrowly defined set of exceptional circumstances. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). These exceptional circumstances include undue delay in bringing the amendment, dilatory motive and bad faith, prejudice to the opposing party, and circumstances indicating that the proposed amendment is futile. Id.; Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989); California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987). However, the Court will dismiss a futile claim without leave to amend only ...


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