Nehemiah v. Director of the Office of Personnel Management

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
QUITO I. NEHEMIAH,
Plaintiff,
v. 	No. 1:24-cv-00929-MLG-LF
DIRECTOR OF THE OFFICE OF
PERSONNEL MANAGEMENT,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on defendant Director of the Office of Personnel
Management’s (“OPM”) Motion to Dismiss (Doc. 48). United States District Judge Matthew
Garcia referred this case to me under 28 U.S.C. § 636(b)(1)(B), (b)(3), and Virginia Beach
Federal Savings & Loan Ass’n v. Wood, 901 F.2d 849 (10th Cir. 1990) “to perform any legal
analysis required to recommend to the Court an ultimate disposition of the case.” Doc. 70.
Having reviewed the briefings, the law, and being otherwise fully advised, I recommend that the
Court grant OPM’s motion to dismiss. Specifically, I recommend that the Court find that Mr.
Nehemiah has abandoned his review of the MSPB decision, and that this matter should proceed
solely as an employment discrimination case. I further recommend that the Court dismiss Mr.
Nehemiah’s Title VII discrimination claim, Title VII retaliation claim, and Rehabilitation Act
claim without prejudice. Finally, I recommend that the Court provide Mr. Nehemiah thirty days
to move the Court for leave to file an amended complaint.
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BACKGROUND
This is an employment dispute filed by plaintiff Quito Nehemiah, whose employment
with the United States Department of Veterans Affairs (“VA”) was terminated after he was
accused of falsifying his application for employment. Doc. 80-2 at 1084–88. The United States
Office of Personnel Management (“OPM”) directed the VA to terminate Mr. Nehemiah’s
employment and barred him from federal employment for three years. Id. at 1086–88. Mr.
Nehemiah’s removal became effective May 5, 2023. Id. at 1088.
Mr. Nehemiah appealed OPM’s decision to the United States Merit Systems Protection
Board (“MSPB”), raising as affirmative defenses race- and gender-based discrimination,
disability-based discrimination, and reprisal for prior protected activity. Id. at 1097. The MSPB
affirmed OPM’s decision and rejected Mr. Nehemiah’s discrimination and reprisal claims. Id. at
1090–1102. Mr. Nehemiah appealed the MSPB’s decision to the United States Court of Appeals
for the Federal Circuit, which transferred the case to this Court after finding that Mr. Nehemiah
had brought a “mixed case” that could only be heard in federal district court.1 Doc. 2 at 2.
After the case was transferred to this Court, the “entire [389-page] Federal Circuit docket
was placed on this Court’s docket as a Complaint,” and Mr. Nehemiah proceeded to file
numerous motions and other documents, including three previous motions for summary
judgment. Doc. 32 at 2 (internal quotations omitted); see Docs. 14, 15, 22. After determining
that the record did not contain a formal petition asserting the claims and legal theories that Mr.
Nehemiah wished to raise in this matter, the Court ordered (1) Mr. Nehemiah to file a formal
petition setting forth all claims for relief that he intended to raise by February 14, 2025, Doc. 32
1 As explained further below, a “mixed case” arises where the plaintiff complains of an adverse
personnel action, such as a termination of employment, and also alleges that the action was based
on discrimination. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 422 (2017).
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at 2–3, and (2) OPM to file a response to Mr. Nehemiah’s petition by April 7, 2025, Doc. 39 at
1–2. Mr. Nehemiah timely filed a petition on February 3, 2025, see Doc. 37, although he also
later filed additional petitions and claims for relief without leave of the Court, see Docs. 41, 56,
58–59, 65, 71–72, 84–85. OPM moved for an extension of time to respond to Mr. Nehemiah’s
petition, which Mr. Nehemiah did not oppose, and the Court permitted OPM to file its response
by May 1, 2025. See Docs. 46, 47. OPM then timely filed its Motion to Dismiss for Failure to
State a Claim (Doc. 48) on May 1, 2025, Mr. Nehemiah filed a response on May 16 (Doc. 49),
and OPM filed a reply in support of its motion on May 29 (Doc. 50).2
ANALYSIS
OPM sets forth two arguments for dismissing the petition: (1) that Mr. Nehemiah has
abandoned any right to appeal the MSPB decision by not raising those claims in his petition; and
(2) that Mr. Nehemiah’s petition fails to state any discrimination claim upon which relief may
granted. I address each argument in turn.
I. 	Mr. Nehemiah has abandoned his appeal of the MSPB decision, and this case
should proceed solely on Mr. Nehemiah’s discrimination claims.
The Civil Service Reform Act of 1978 (“CSRA”) provides certain procedures through
which federal employees may appeal serious adverse employment actions, such as termination
from federal service. See Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 422–23 (2017). Serious
adverse employment actions may be appealed to the Merit Systems Protection Board (“MSPB”).
Id. at 422. If the employee disagrees with the MSPB’s decision, the employee’s path to judicial
review of that decision depends on the types of claims the employee asserts. An employee that
2 Mr. Nehemiah also filed a surreply (Doc. 53) and three supplements to that surreply (Docs. 53,
54–55, 56). As clearly stated in this District’s local rules, “[t]he filing of a surreply requires
leave of the Court.” D.N.M.LR-Civ. 7.4(b). Because Mr. Nehemiah did not seek leave to file a
surreply, I will not consider his surreply nor any of its supplements in analyzing this motion.
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asserts only claims under the CSRA may seek judicial review exclusively in the United States
Court of Appeals for the Federal Circuit. Id.; 5 U.S.C. § 7703(b)(1). However, if “an employee
complains of a personnel action serious enough to appeal to the MSPB and alleges that the action
was based on discrimination,” the employee has brought a “mixed case” involving claims under
both the CSRA and federal antidiscrimination laws. Perry, 582 U.S. at 424 (internal quotations
omitted). When the MSPB dismisses a mixed case on the merits, procedural grounds, or for lack
of jurisdiction, judicial review of that decision may be sought only in federal district court rather
than the Federal Circuit. Id. at 426, 434–37; see also Kloeckner v. Solis, 568 U.S. 41, 56 (2012)
(“A federal employee who claims that an agency action appealable to the MSPB violates an
antidiscrimination statute . . . should seek judicial review in district court, not in the Federal
Circuit.”).
Once a mixed case arrives at the district court, the court’s standard of review depends on
the nature of the claims asserted: discrimination claims are reviewed de novo while non-
discrimination claims are reviewed on the administrative record. 5 U.S.C. § 7703(c); Williams v.
Rice, 983 F.2d 177, 179–80 (10th Cir. 1993). A petition for review of a MSPB decision on non-
discrimination claims filed in federal district court is subject to the Federal Rules of Appellate
Procedure governing review or enforcement of an order of an administrative agency, board,
commission, or officer. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th
Cir. 1994) (“Reviews of agency action in the district courts must be processed as appeals. In
such circumstances the district court should govern itself by referring to the Federal Rules of
Appellate Procedure.”); Bussey v. Carter, No. 1:16-cv-906-MCA-LF, 2018 WL 1684317, at *2
(D.N.M. Apr. 5, 2018) (applying Federal Rules of Appellate Procedure 16 and 17 to a non-
discriminatory claim presented as part of a mixed case); F ED. R. APP . P. 15–20. Federal Rule of
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Appellate Procedure 15 specifies that a petition for review must “specify the order or part thereof
to be reviewed.” F ED. R. APP . P. 15(a)(2)(C). While noting that “a mistaken or inexact
specification of the order to be reviewed is not fatal,” mere “bare references” mentioning an
order “fall short of giving timely notice [that the petitioner] is seeking review of that order”
pursuant to Rule 15. See Ogunbode v. Barr, 780 F. App’x 628, 633 (10th Cir. 2019) (quoting
Am. Rivers v. FERC, 895 F.3d 32, 44 (D.C. Cir. 2018)).
In his appeal of his termination of federal employment to the MSPB, Mr. Nehemiah
raised both claims under the CSRA and claims of discrimination, thus bringing a mixed case
before the MSPB. Doc. 80-2 at 1088, 1097; see Perry, 582 U.S. at 422. The MSPB decided
against Mr. Nehemiah on the merits, affirming OPM’s negative suitability determination. Doc.
80-2 at 1102. Because the MSPB ruled against Mr. Nehemiah in a mixed case on the merits, the
proper path for judicial review of the MSPB’s decision is in federal district court. See Perry, 582
U.S. at 426; 5 U.S.C. § 7703(b)(2). Mr. Nehemiah instead filed a petition for review of the
MSPB decision in the U.S. Court of Appeals for the Federal Circuit. Doc. 2 at 2. The Federal
Circuit determined that Mr. Nehemiah brought a mixed case and that it thus lacked jurisdiction
over his appeal. Id. The Federal Circuit therefore transferred Mr. Nehemiah’s case to this Court
pursuant to 28 U.S.C. § 1631. Id.
OPM argues that any appeal of the MSPB decision should be dismissed because Mr.
Nehemiah abandoned any claim to appeal by not making such claims in his petition. Doc. 48 at
6–8. OPM notes that the petition “does not mention the MSPB or its decision, nor allege that it
should be reversed,” nor does it raise any of the three standards for reversing the decision. Id. at
7; Doc. 50 at 2; see 5 U.S.C. § 7703(c) (setting forth the three standards upon which the
administrative record shall be reviewed). In his response, Mr. Nehemiah states only that he “did
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appeal to the Merit protection Board they did not properly weigh the evidence and consider the
plaintiff affirmative defense.” Doc. 49 at 3. OPM replies that this is just a statement of the
procedural history of the case and that Mr. Nehemiah “does not actually argue that he is seeking
to appeal the MSPB Decision.” Doc. 50 at 1. The only other reference Mr. Nehemiah makes to
the MSPB is a general statement unconnected to any of the facts or procedural history of this
case: “The plaintiff has the option of not appealing an unfavorable Merit Systems Protection
Board (MSPB). If the agency doesn’t petition the MSPB for review (called a Petition for
Review or PFR), the employee can directly appeal to the U.S. Court of Appeals for the Federal
Circuit.” Doc. 49 at 4.
Although difficult to follow, a careful review of Mr. Nehemiah’s petition reveals that it
does not reference the MSPB’s decision to affirm OPM’s negative suitability determination at all,
appearing to attack the underlying negative suitability determination rather than the MSPB
proceedings affirming it. See generally Doc. 37. Mr. Nehemiah briefly references the MSPB’s
decision in his response to OPM’s motion, stating that the MSPB “did not properly weigh the
evidence” nor “consider [his] affirmative defense,” Doc. 49 at 3, but that is his only reference to
the decision; the remainder of the response is dedicated to his discrimination claims. Mr.
Nehemiah nowhere clearly responds to OPM’s argument that he has abandoned his appeal. He
does not cite to the administrative record at all in his response to OPM’s motion,3 let alone
clearly state that he is appealing the decision or on what specific grounds.
Although Mr. Nehemiah filed a Petition for Review that addressed the MSPB
proceedings when he first filed this action with the Federal Circuit, Doc. 1 at 14–17; 52–62, he
3 Mr. Nehemiah does not assert that he never received the administrative record, and OPM states
that it served the record on Mr. Nehemiah. Doc. 45 at 1.
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did not renew these claims in the operative petition in which he was ordered to “set[] forth all
claims for relief that he intends to raise in this matter,” Doc. 32 at 2. The bare reference to the
MSPB’s decision in his response to OPM’s motion, especially compared to the length of Mr.
Nehemiah’s discussion of his discrimination claims, supports the view that Mr. Nehemiah has
abandoned his appeal of the MSPB’s decision and is instead “solely pursuing a discrimination
claim based on OPM’s underlying suitability determination.” Doc. 50 at 1; see Ogunbode, 780 F.
App’x at 633 (finding a “bare reference” to an order insufficient to petition for review of that
order under F ED. R. APP . P. 15(a)). I therefore recommend that the Court find that Mr. Nehemiah
has abandoned any appeal of the MSPB’s decision of his non-discrimination claims and proceed
solely on Mr. Nehemiah’s discrimination claims.
II. 	Mr. Nehemiah has not stated plausible claims of retaliation or discrimination.
OPM next argues that Mr. Nehemiah’s claims of discrimination and retaliation must be
dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. Doc. 48 at 9–12. Whereas the non-discrimination claims in a mixed case
are reviewed on the administrative record, courts review discrimination claims de novo.
Williams, 983 F.2d at 179–80; Bobelu-Boone v. Wilkie, 526 F. Supp. 3d 971, 983–84 (D.N.M.
2021) (evaluating a mixed case’s discrimination claim under F ED. R. C IV. P. 12(b)(6)).
Under Rule 12(b)(6), courts accept all well-pleaded factual allegations as true and
construe them in the light most favorable to the plaintiff. Waller v. City & Cnty. of Denver, 932
F.3d 1277, 1282 (10th Cir. 2019) (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007)). However, courts must “disregard conclusory statements and look only to
whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). Although a complaint need not contain
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“detailed factual allegations,” it must contain “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations omitted). Moreover, if factual allegations in a complaint are “so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged
their claims across the line from conceivable to plausible.” Khalik, 671 F.3d at 1191 (internal
quotations omitted).
Mr. Nehemiah is proceeding pro se in this matter. In analyzing pro se filings under Rule
12(b)(6), courts liberally construe the factual allegations. See Northington v. Jackson, 973 F.2d
1518, 1520–21 (10th Cir. 1992); Hall v. Bellmon, 935 F.2d 1106, 1100 & n.3 (10th Cir. 1991)
(“[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.”). But a pro se litigant’s pleadings still are judged by
the same legal standards that apply to all litigants, and pro se litigants are not excused from
following the applicable rules of court. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir.
1994). Although a pro se litigant may face a disadvantage against opponents represented by
counsel, it is not “the proper function of the district court to assume the role of advocate for the
pro se litigant.” Hall, 935 F.2d at 1100; see also Whitney v. New Mexico., 113 F.3d 1170, 1175
(10th Cir. 1997) (providing that a court should “not supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf”).
In deciding a Rule 12(b)(6) motion, courts focus on the plaintiff’s operative pleading and
generally may not consider evidence outside the pleadings. Alvardo, 493 F.3d at 1215–16. But
“[i]t is well-established that district courts may take judicial notice of, and consider, documents
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in the administrative record on a Rule 12(b)(6) motion to dismiss.” Wyo-Ben Inc. v. Haaland, 63
F.4th 857, 867 n.10 (10th Cir. 2023). In the present case, Mr. Nehemiah was ordered to file “a
formal petition asserting the claims and legal theories that he wishes to raise in this case.” Doc.
32 at 2. Mr. Nehemiah timely filed that petition on February 3, 2025, and that is the pleading
that OPM was ordered to respond to. Doc. 39 at 1–2. However, after the Court issued its Case
Management Order (Doc. 39), Mr. Nehemiah continued to file subsequent pleadings without the
Court’s permission: another petition on February 10 (Doc. 41), three filings entitled “Claim of
Relief” (Docs. 56, 58, 59), a Petition for Damages (Doc. 65), two “Answer and Affirmative
Defenses” (Docs. 71–72), and two Cross Complaints (Docs. 84–85). I will disregard these
filings for the purposes of analyzing the motion to dismiss and only consider the first petition,
Mr. Nehemiah’s response to OPM’s motion, and the administrative record.
Because a motion to dismiss depends on the sufficiency of the facts alleged in the
plaintiff’s pleading, those facts will preface further discussion. Mr. Nehemiah’s twenty-page,
single-spaced, 880-line petition asserts numerous facts, which are summarized as follows.4
A. Mr. Nehemiah’s petition
Mr. Nehemiah first worked for the federal government through a work-study program
while attending the University of Arizona. Doc. 37 at 1. As part of the work-study program, Mr.
Nehemiah worked at the Tucson VA Medical Center and worked in a different role each
semester: “Library assistant, Mailroom clerk, Medical records specialist and administrator, and
Volunteer services.” Id.
4 As OPM correctly points out, the “Factual Background” section (Doc. 37 at 10–19, lines 428–
839) of Mr. Nehemiah’s petition is identical to his “Introduction” section (id. at 1–10, lines 15–
426). Doc. 48 at 7 n.4.
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Sometime after—“the petitioner is not sure of the exact dates”—Mr. Nehemiah again
worked for the federal government after being hired as a statistical clerk with the U.S. Census
Bureau. Id. at 7. While working as a statistical clerk, he applied for an opening for a statistician
but was not extended an interview. Id. He later discovered that the position was given to a
“White female that did not have a college Diploma and 24 hours of statistics,” despite the
position requiring a bachelor’s degree. Id. He wrote two congressmen and contacted the Equal
Employment Opportunity Commission (EEOC), and the Census Bureau closed the position. Id.
Mr. Nehemiah then resigned from his position at the Census Bureau. Id.
Years later, Mr. Nehemiah would again apply to work at the Census Bureau as a
statistician. Id. He attended “a mass interview” with “hundreds of people white people and four
black people.” Id. He interviewed with “a Black female,” and when he later inquired about his
application, he was told that “he was not selected because he did not meet the minimum
qualifications.” Id. Mr. Nehemiah then contacted the EEOC and an attorney, and states that “[i]t
was determined that the United States Census had discrimination against [him] based on his race
and gender and agreed to a settlement for $ 5,000.00 Dollars and [to] hire [him] as a statistical
clerk.” Id.
After he was hired again with the Census Bureau, Mr. Nehemiah states that he was
subjected to harassment by human resources. Id. He states that someone in human resources
would not accept his social security card or his driver’s license as two forms of identification, but
that a human resources manager intervened and ensured they were accepted. Id. at 7–8. He
states that human resources then placed him in a new position that he did not apply for so that
“they could over scrutinize his movement.” Id. at 8. He states he was placed “in a big open
room surrounding him with twenty white employees all related all from Indiana,” and was
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supervised by “a Black Supervisor over all of these white folks put in place by human resources
to give the harassment legitimacy.” Id. Mr. Nehemiah asserts that he was written up for trivial
reasons, such as for leaving the work area when he only went to a water fountain in the same
room or after being excused to use the restroom; for being late when he was standing but not
sitting at his desk when work began; and for sleeping at his desk when it only looked like he was
sleeping because he is tall and must look down at his computer. Id.
Mr. Nehemiah asserts that the harassment was so intense that he told a staff nurse that he
was having difficulty with concentrating and falling asleep, was feeling irritable and having
aggressive outbursts, nightmares, upsetting dreams, and distressing memories about the Census
Bureau. Id. Mr. Nehemiah contends that the harassment had nothing to do with work, but rather
“white folks who did not invest in themselves educationally or served their Country in the
Military or any other way.” Id. Mr. Nehemiah states that the harassment was so intense that he
decided to resign. Id. at 9. Before making that decision, he requested reasonable
accommodations, but those requests were ignored. Id. Before he could resign, however, he was
notified that his employment with the Census Bureau was being terminated. Id. Mr. Nehemiah
states that the experience was so traumatic that “it never happened in [his] mind he just could not
remember.”5 Id.
Sometime later, Mr. Nehemiah again applied to work for the federal government through
the USAJOBs website.6 Id. at 1. Mr. Nehemiah asserts that the website allowed him to save five
5 Mr. Nehemiah does not provide any dates in his petition, but the administrative record states
that Mr. Nehemiah’s employment at the Census Bureau was terminated on November 6, 2018.
Doc. 80-2 at 1085.
6 The administrative record states that Mr. Nehemiah began applying for positions in 2021. Doc.
80-2 at 1085–86.
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resumes on it, and that he followed instructions to list any experience that relates to the positions
he applied for. Id. He was first offered and accepted a position as a Medical Support Assistant at
the GS-6 level in Salt Lake City, Utah, but he rejected the offer after being involved in a car
accident on the way to Salt Lake City. Id. at 1–2. Months later, he received a call about a
position in Newington, Connecticut that took him by surprise because he “sent out so many
resumes he did not remember applying for the position.” Id. at 2. Mr. Nehemiah also states that
he did not remember which resume he had submitted in his application. Id. After interviewing,
Mr. Nehemiah was offered and accepted the position as a medical records clerk at the GS-4 level,
but because he had previously worked at the GS-5 level, he felt that “human resources was
excited to get a sucker to accept the position.” Id. (emphasis in original).
Mr. Nehemiah then asserts that “[t]hrough search, experimentation and help from the
Union [he] uncovered that” the VA and human resources were illegally discriminating against
Black men and Puerto Ricans. Id. at 3. He then emailed “the Chief of VISN 1 and to all of his
managers and the Chief of Human Resources and to all of his manager stating that they are being
sued by [Mr. Nehemiah] for discrimination by Race and Gender in employment.”7 Id. Mr.
Nehemiah asserts that he contacted the EEOC, and that human resources agreed to mediation.
Id. Mr. Nehemiah states that “mediation was a disaster,” and he began applying to other
positions within the VA. Id. He eventually received an offer to work as a Medical Support at the
GS-6 level in Boston, Massachusetts. Id. at 4. He was asked to provide a SF-50 form showing
that he had previously worked at the GS-5 level, but Mr. Nehemiah only possessed an SF-50
7 Mr. Nehemiah does not provide the date he sent this email, but a copy of the email in the
administrative record reflects that it was sent on June 8, 2022. Doc. 80-2 at 398–99. “VISN”
refers to a “Veterans Integrated Services Network,” which is part of the VA. Doc. 48 at 11, n.6.
VISN 1 includes Maine, Vermont, New Hampshire, Massachusetts, Connecticut, and Rhode
Island. See https://www.va.gov/HEALTH/visns.asp (last visited 2/9/2026).
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showing that he had worked at the GS-4 level. Id. The job offer was later rescinded, though no
explanation was provided for why. Id.
Mr. Nehemiah then applied for the position of Transportation Specialist at the GS-6 level
in Newington, Connecticut. Id. He was never extended an interview, and when he asked the
recruiter why, he was told that he had failed to provide a current SF-50 form. Id. Mr. Nehemiah
contends that this exchange “is the point where the discrimination based on Race, Gender, Color,
Veteran status and the incompetence of the recruiter occurred.” Id. Mr. Nehemiah replied that
he had provided the SF-50 for his current position at the GS-4 level, but the recruiter replied that
he needed a SF-50 showing that he had worked at the GS-5 level at any point in his career. Id.
Mr. Nehemiah asked whether he was expected to provide two different SF-50 forms despite the
job qualifications not specifying so, and the recruiter said yes. Id. Mr. Nehemiah told the
recruiter that he is a veteran, that he worked at the GS-5 level for three years, and that he had
previously been offered a GS-6 level position in Salt Lake City. Id. Mr. Nehemiah then asserts
that a “white female” was selected for the position despite not having a college degree, not being
a veteran, and previously working “in the coffee shop.” Id. Mr. Nehemiah contends that this is
because the VA and OPM are “dominated by white female employees on every level of
management,” and because they ignore qualified Black male and Puerto Rican veterans “by
picking apart with laser focus their resumes to discriminate against them based on race and
gender” while emphasizing “the most negligible qualifications of their white female counterpart
in order to qualify them for a position they are not qualified to hold.” Id.
Mr. Nehemiah then applied to and was accepted for a role as a Transportation Specialist
at the GS-5 level in Miami, Florida. Id. However, he then received an offer for a transportation
position in Albuquerque, New Mexico and accepted. Id. About two weeks after starting his new
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position in Albuquerque, Mr. Nehemiah and his supervisor were told to report to human
resources. Id. at 4–5. There, the human resources director handed Mr. Nehemiah an envelope
containing a letter notifying him about allegations that he had falsified his resume and stating he
had 30 days to respond or be terminated. Id. at 5. Mr. Nehemiah believes he received this notice
in retaliation for previously contacting the EEOC. Id.
Mr. Nehemiah contests the allegation that he falsified his resume and contends that it was
a mistake rather than an intentional act. See id. at 3, 5–7. He states that he had five resumes
saved in USAJOBs “and he was editing copying, cutting and pasting from each one of them
simultaneously and the cut and paste probably pasted the prior information the petitioner copying
and pasting instead of the intended information the petitioner wanted.” Id. at 3. Therefore,
“[t]he cut and paste did not work and the dates and other information were save[d] and released
on the incorrect resume.” Id. Mr. Nehemiah faults the VA and OPM for not doing their due
diligence in evaluating his resume, because the error was obvious: “The petitioner has not live[d]
in Louisville, KY for twenty four years so the Petitioner could not have work[ed] for the VA
hospital as Medical record administrator for twenty four years[,] it [is] not humanly possible.”
Id. He contends that clarification could have been obtained at any time and that human resources
“could have asked [him] to explain the situation during the first week of employment not two
years later.” Id. He asserts that the falsification allegation is “a clear, cautious and unadulterated
schematic (sic) of retaliation.” Id.
In addition to asserting that the incorrect information appeared on his resume because of
copy and paste errors, Mr. Nehemiah asserts that he genuinely did not remember being
terminated from the Census Bureau when he certified that he had not been fired from
employment in the last five years. Id. at 6. Mr. Nehemiah contends that, at the time he certified
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that everything in his application was accurate, he “was struggling with long term Dyslexia,
PTSD and Brain Trauma,” and “as a result [he] membered (sic) what his mind allowed him to
remember.” Id. He states that if he could have remembered his termination from the Census
Bureau, “he would have answered yes and explained the situation,” but that he “[a]nswered NO
because he could not recall or remember the event or situation.” Id. at 7. Mr. Nehemiah asserts
that he is being penalized for his disability. Id.
Upon this factual basis, Mr. Nehemiah seeks remedies for employment discrimination
under Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act. Id. at 19.
He requests that OPM pay him compensatory damages and that he be reinstated as a Medical
Support Assistant at the GS-6 level.8 Id. at 1, 19–20.
B. Relevant Facts from the Administrative Record.
In addition to the above facts alleged in Mr. Nehemiah’s petition, the Court should also
consider the following relevant facts from the administrative record. On June 7, 2008, Mr.
Nehemiah transferred from the Census Bureau to the VA. Doc. 80-2 at 1085. Mr. Nehemiah
worked with the VA until he resigned on August 26, 2011. Id. On April 30, 2018, he was
employed again with the Census Bureau, but his employment was terminated on November 6,
2018. Id. Mr. Nehemiah applied for a file clerk position with the VA in September 2021 and
received a career-conditional appointment on October 24, 2021. Id. at 1085–86.
8 Mr. Nehemiah provides different amounts for the damages he is seeking at different points in
his petition. He first states that OPM should pay him “$140.000.00” for lost wages and
“$260.000.00 dollars in compensatory damages.” Doc. 37 at 1. Later he states that he should
receive “$100.000.00 dollars at 20% interest damages (Back Pay at 20% interest), Punitive
damages, in the amount of $100.000.00 dollars.” Id. at 19 (emphasis in original). He then states
that he “is seeking 500.000. 00 dollars monetary compensation.” Id. at 20.
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On January 10, 2022, the VA referred Mr. Nehemiah’s case to OPM for government-wide
debarment, and OPM assumed jurisdiction over the case on March 16, 2022. Id. at 1087. On
August 28, 2022, Mr. Nehemiah was promoted from File Clerk at the GS-4 level to
Transportation Assistant at the GS-5 level. Id. On September 25, 2022, his appointment was
converted to a career-conditional appointment. Id. On October 5, 2022, OPM notified Mr.
Nehemiah of its allegations that (1) his resume contained false statements about his work
experience, and (2) that he had twice falsely certified that he had not been previously terminated
from federal employment. Id. at 1087–88. Mr. Nehemiah submitted two responses to those
allegations, and OPM issued a final determination letter on April 27, 2023, finding him
unsuitable for federal service based on “material, intentional false statement, or deception or
fraud in examination or appointment.” Id. at 1088. OPM “directed the VA to separate him from
its rolls, cancel all eligibility for reinstatement to the VA or any covered position, and debar him
from any covered position for three years.” Id. Mr. Nehemiah’s termination of employment with
the VA became effective May 5, 2023. Id.
C. Mr. Nehemiah has not stated a plausible claim for Title VII discrimination.
Title VII of the Civil Rights Act of 1964 “makes it unlawful to discharge any individual,
or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” Khalik, 671 F.3d at 1192 (internal quotations omitted). A plaintiff may prove
a violation of Title VII through direct evidence of discrimination or circumstantial evidence
established through a burden-shifting framework. McNellis v. Douglas Cnty. Sch. Dist., 116
F.4th 1122, 1137 (10th Cir. 2024) (citing Khalik, 671 F.3d at 1192)). Upon considering a Rule
12(b)(6) motion to dismiss, a court need only determine whether the plaintiff has sufficiently
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stated a claim for relief under Title VII “by plausibly alleging either direct evidence of
discrimination or a prima facie discrimination claim.” Id. at 1137–38.
Direct evidence of discrimination proves the existence of a fact in issue without inference
or presumption; statements that require an inference that discrimination motivated an
employment decision are at most circumstantial evidence. Id. at 1137. Direct evidence of
discrimination is “evidence from which the trier of fact may conclude, without inference, that the
employment action was undertaken because of the employee’s protected status,” such as an
employer’s policy that is discriminatory on its face. Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101,
1105 (10th Cir. 2008).
Circumstantial evidence of discriminatory intent may be established through application
of the three-step McDonnell Douglas analysis, which first requires the plaintiff to prove a prima
facie case of discrimination.9 McNellis, F.4th at 1137. The McDonnell Douglas framework
“does not create a pleading requirement,” and “a plaintiff need not conclusively prove a violation
of Title VII” to survive a 12(b)(6) motion to dismiss. Id. (internal quotations omitted).
Generally, a prima facie discrimination claim requires a plaintiff to plausibly allege that (1) he is
a member of a protected class, (2) he suffered an adverse employment action, and (3) the
challenged action occurred under circumstances giving rise to an inference of discrimination.10
9 Should the plaintiff clear this first step, the burden then shifts to the defendant to provide a
“legitimate, non-discriminatory reason for the adverse employment action.” McNellis, 116 F.4th
at 1137 (quoting Barlow v. C.R. Eng., Inc., 703 F.3d 497, 505 (10th Cir. 2012)). If the defendant
clears the second step, the burden finally shifts back to the plaintiff to prove that his protected
status was a determinative factor in the defendant’s employment decision or that the defendant’s
explanation is pretextual. Id.
10 While stating this general rule, the U.S. Court of Appeals for the Tenth Circuit noted that “the
precise requirements of a prima facie [discrimination] case can vary depending on the context.”
McNellis, 116 F.4th at 1139 (alteration in original). However, the “critical prima facie inquiry in
all cases is whether the plaintiff has [alleged] that [an] adverse employment action occurred
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Id. at 1139. While a plaintiff need not plead any specific facts in particular, “a plaintiff must
include enough context and detail to link the allegedly adverse employment action to a
discriminatory or retaliatory motive with something besides sheer speculation.” Bekkem v.
Wilkie, 915 F.3d 1258, 1274–75 (10th Cir. 2019) (internal quotations omitted).
A liberal reading of Mr. Nehemiah’s petition suggests that he is attempting to allege that
OPM discriminated against him on the basis of race, gender, color, and possibly his status as a
veteran in violation of Title VII.11 As a preliminary matter, veteran status is not a protected class
under Title VII and thus Mr. Nehemiah’s claim of discrimination on that basis necessarily fails.
See 28 U.S.C. § 2000e-2(a) (listing protected classes as “race, color, religion, sex, or national
origin”); Khalik, 671 F.3d at 1189 n.1 (noting that a plaintiff’s “claim for relief based on ‘ethnic
heritage’ discrimination necessarily fails because ‘ethnic heritage’ is not a protected class under
Title VII”).
Mr. Nehemiah’s petition fails to detail with sufficient particularity how OPM
discriminated against him. Although Mr. Nehemiah has alleged that he is a member of a
protected class—“an Indigenous Black United States citizen,” Doc. 37 at 8, and he alleges he
was terminated, id. at 5, which presumably was based on OPM’s directive, Mr. Nehemiah fails to
plausibly allege circumstances giving rise to an inference of discrimination. Mr. Nehemiah
relates several points at which he believes he was discriminated against during his years working
for the federal government, but he fails to state what OPM did to him that gives rise to any
under circumstances which give rise to an inference of unlawful discrimination.” Id. (alterations
in original) (quoting Barlow, 703 F.3d at 505).
11 Mr. Nehemiah does not specify these bases in his claims for relief, merely “asserting a claim
under Title VII of the Civil Rights Act of 1964.” Doc. 37 at 19. However, he provides these
bases earlier in the petition. See id. at 4 (stating “[t]his is the point where the discrimination
based on Race, Gender, Color, Veteran status . . . occurred,” and that “Human Resources . . . was
practicing systemic discrimination based on Race and Gender”).
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inference of discrimination. There is no suggestion that OPM treated other people who were not
members of a protected class more favorably than him, nor does he allege any direct evidence of
discrimination. Mr. Nehemiah also does not cite a facially discriminatory policy as the reason
for OPM’s actions against him. See Sanders, 544 F.3d at 1105. Thus, Mr. Nehemiah has failed
to plausibly allege a claim of Title VII discrimination by OPM, and I recommend that the Court
dismiss Mr. Nehemiah’s Title VII discrimination claim without prejudice.
D. Mr. Nehemiah has not stated a plausible Title VII claim of retaliation.
Title VII also prohibits employers from retaliating against employees for opposing
unlawful discrimination. 42 U.S.C. § 2000e-3(a); McNellis, 116 F.4th at 1142. For a Title VII
retaliation claim to survive a 12(b)(6) motion to dismiss, the plaintiff must plausibly allege “(1)
that she [or he] engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action.” McNellis, 116 F.4th at
1142 (quoting Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir. 2021)).
To plead the first element of a Title VII retaliation claim, plaintiffs “need not establish
that the conduct [they] opposed actually violated Title VII,” but “only that [they] had both a
subjective good faith and objectively reasonable belief that it did.” Reznik, 18 F.4th at 1260.
Protected opposition “can range from filing formal charges to voicing informal complaints to
superiors.” Equal Emp. Opportunity Comm’n v. PVNF, L.L.C., 487 F.3d 790, 804 (10th Cir.
2007) (finding that an employee’s statement to a supervisor that she was thinking of reporting
discrimination to the EEOC “falls comfortably” into the category of protected opposition).
Mr. Nehemiah refers to several instances where he opposed what he believed to be
unlawful discrimination over the course of his employment with the federal government. During
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his first term of employment with the Census Bureau, Mr. Nehemiah describes writing to two
congressmen and contacting the EEOC about the Census Bureau’s discrimination. Doc. 37 at 7.
After not being selected for a second term of employment with the Census Bureau, Mr.
Nehemiah describes again contacting the EEOC, which he states resulted in a determination that
the Census Bureau had discriminated against him and a $5,000 settlement. Id. Finally, during
his term of employment with the VA, Mr. Nehemiah describes emailing “the Chief of VISN 1,”
“all of his managers,” “the Chief of Human Resources,” and “all of his manager” to tell them he
was suing them for employment discrimination on the basis of race and gender. Id. at 3. He
further states that he again contacted the EEOC, resulting in mediation that ultimately was
unsuccessful. Id. Mr. Nehemiah thus may have adequately pled that he engaged in protected
opposition to discrimination.
To plead the second element of his retaliation claim, a plaintiff must show “that a
reasonable employee would have found the challenged action materially adverse—that is, that
the action might dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. at 803 (citation modified) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006)). Here, the action Mr. Nehemiah is challenging is OPM’s negative
suitability determination. See Doc. 37 at 3. OPM argues that Mr. Nehemiah “never actually
alleges that OPM’s negative suitability determination . . . was discrimination or taken in
retaliation.” Doc. 48 at 11. While Mr. Nehemiah’s petition is rambling and nearly unintelligible,
one of his clearer allegations ascribes a retaliatory intent to OPM’s charge that he falsified his
application. See Doc. 37 at 2–3 (“The Office of personnel Management with the deliberate
deception of the Department of Veterans Affairs is trying to represent to the District court that the
petitioner falsified his resume. . . . This is a clear, cautious and unadulterated schematic (sic) of
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retaliation.”). As to the negative suitability determination itself, it stands to reason that a
recommendation that an employee be terminated would deter a reasonable employee from
engaging in protected opposition. See Toth v. Gates Rubber Co., No. 99-1017, 2000 WL 796068,
at *9 (10th Cir. 2000) (finding that negative evaluations which result in termination are adverse
employment actions). Thus, Mr. Nehemiah may have adequately pled this second element.
Mr. Nehemiah’s retaliation claim, however, fails on the third element. To plead the third
and final element of a retaliation claim, a plaintiff must plausibly allege a causal connection
between their protected opposition and the materially adverse action. McNellis, 116 F.4th at
1142. In other words, Mr. Nehemiah must plausibly allege that at least one of his three instances
of protected opposition is causally connected to OPM’s decision to issue a negative suitability
determination. “A causal connection can be inferred from the fact that the challenged action
closely follows the employee’s protected activity,” and temporal proximity as close as a month,
“alone, is sufficient to allow an inference of the existence of a causal connection between the two
events.” PVNF, L.L.C., 487 F.3d at 804 (noting that a month, twenty-four days, and six weeks
between protected activity and a challenged action gives rise to an inference of causation); see
also Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (finding that a three-month
period by itself is insufficient to infer causation).
The VA first referred Mr. Nehemiah’s matter to OPM for governmentwide debarment on
January 10, 2022, OPM assumed jurisdiction over the matter on March 16, 2022, OPM notified
Mr. Nehemiah of the falsification charges on October 5, 2022, and OPM issued a final
determination letter on April 27, 2023. Doc. 80-2 at 1087–88. Mr. Nehemiah’s first two
instances of opposition occurred during his employment with the Census Bureau. See Doc. 37 at
7. However, Mr. Nehemiah’s employment with the Census Bureau ended in 2018, several years
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before OPM even assumed jurisdiction over Mr. Nehemiah’s case. Doc. 80-2 at 1085–88. These
events are too temporally remote to give rise to an inference of causation. See Richmond, 120
F.3d at 209.
Mr. Nehemiah’s most recent alleged instance of protected opposition—his email to
management and contact with the EEOC—occurred on June 8, 2022, several months after the
VA first referred Mr. Nehemiah’s matter to OPM and OPM assumed jurisdiction over the matter.
See Doc. 80-2 at 398–99, 1087–88; Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1226
(10th Cir. 2016) (holding that the plaintiff “cannot establish the requisite causal connection
between his protected activity and the adverse employment action” where the adverse action
takes place before the protected activity occurred). Further, the email was sent over ten months
before OPM issued the final determination letter that Mr. Nehemiah is challenging. This
instance is again too remote to give rise to an inference of causation by itself. See Richmond,
120 F.3d at 209 (affirming that a three-month period between protected activity and adverse
action by itself is insufficient to infer causation).
Even where the protected conduct is not closely followed by the adverse action,
retaliation may still be inferred where a pattern of retaliatory activity begins soon after the
protected conduct. Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 329 (10th Cir. 1996). Here, Mr.
Nehemiah does not allege a pattern of retaliation by OPM after he sent the email. Nor does Mr.
Nehemiah allege that OPM prompted any other adverse employment actions after he sent the
email. He remained employed with the VA until OPM completed its investigation, and he does
not allege that he was written up, demoted, or suffered some other adverse employment action
during that time. See Marx, 76 F.3d at 329 (finding allegations of a write up and demotion
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before eventual termination to constitute a pattern of retaliatory conduct that precluded summary
judgment in favor of an employer).
Thus, while Mr. Nehemiah may have adequately pled the first two elements of a Title VII
retaliation claim, he has failed to plausibly allege a causal connection between his protected
opposition and the materially adverse action OPM took against him. I therefore recommend that
the Court dismiss Mr. Nehemiah’s Title VII retaliation claim without prejudice.
E. 	Mr. Nehemiah has not stated a plausible claim of discrimination under either the
Americans with Disabilities Act or the Rehabilitation Act.
Mr. Nehemiah raises a claim for relief under the Americans with Disabilities Act
(“ADA”). The Americans with Disabilities Act (“ADA”) prohibits a “covered entity” from
discriminating “against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). A “covered entity” is “an employer,” but the federal government is explicitly
excluded as an employer subject to the ADA. 42 U.S.C. § 12111(2), 5(B)(i); Brown v. Austin, 13
F.4th 1079, 1084 n.3 (10th Cir. 2021).
The sole defendant in this case is an entity of the federal government, OPM, and is not
subject to the ADA. The Rehabilitation Act—not the ADA—prohibits federal executive agencies
from discriminating against employees and job applicants based on disability. See 29 U.S.C.
§ 794. But Mr. Nehemiah’s petition only mentions the ADA. See generally Doc. 37 at 19.
Nonetheless, because employment discrimination claims brought under the ADA and the
Rehabilitation Act are governed by the same substantive standards, Cline v. Clinical Perfusion
Sys., Inc., 92 F.4th 926, 931 (10th Cir. 2024), I will construe Mr. Nehemiah’s ADA claim as a
Rehabilitation Act claim. See Brown, 13 F.4th at 1084 n.3; Padilla v. Mnuchin, 836 F. App’x
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674, 677 n.1 (10th Cir. 2020) (liberally construing a pro se plaintiff’s ADA claims as
Rehabilitation Act claims where the plaintiff was a federal employee excluded from coverage
under the ADA).
To state a claim under Section 504 of the Rehabilitation Act, Mr. Nehemiah must plead
“(1) that he is a ‘handicapped individual’ under the Act, (2) that he is ‘otherwise qualified’ for the
position, (3) that he was discriminated against solely by reason of his handicap, and (4) that the
program or activity in question receives federal financial assistance.” Cline, 92 F.4th at 932
(citation modified) (quoting Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 725 (10th
Cir. 2011)).
Mr. Nehemiah states that at the time he certified that all of the information in his
application was correct, he “was struggling with long term Dyslexia, PTSD and Brain Trauma”
and “as a result [he] membered (sic) what his mind allowed him to remember.” Doc. 37 at 6.
Mr. Nehemiah explains that “PTSD can significantly affect a person’s memory” and “can lead to
memory gaps and challenges with everyday memory functions as well.” Id. He further states
that if he “could remember the information that was asked of him then he would have answered
yes and explained the situation,” and that OPM “could have done a follow up question and
answer with” him. Id. at 7. He further states that the ADA “is meant to level the playing field
for people with disabilities, including those who are dyslexic.” Id. Mr. Nehemiah then goes on
to describe his prior employment at the Census Bureau. He does not connect his statements back
to his ADA claim. See id. at 7–10. Mr. Nehemiah refers to the ADA a few more times in his
petition, but only in statements wholly unconnected to the facts of his case:
The Supreme Court ruled in favor of Mr. Perez in a 9-0 decision. The case will
now return to the federal district court for the Western District of Michigan, where
Mr. Perez will have the chance to prove his ADA claim. The Supreme Court’s
decision means that across the United States, students with disabilities can now
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pursue federal claims requesting relief not available under the IDEA, like money
damages, without needing to exhaust IDEA’s administrative remedies.
Doc. 37 at 9.
Mr. Nehemiah appears to allege that his disabilities are “long term Dyslexia, PTSD and
Brain Trauma.” Doc. 37 at 6. He also appears to suggest that he falsely certified that the
information in his job application was accurate because his disabilities prevented him from
remembering certain information he was required to disclose on the application. See id. at 7.
These statements do not explain how Mr. Nehemiah’s disabilities factored into any action OPM
took towards him, nor is there any allegation that OPM even knew of Mr. Nehemiah’s alleged
disabilities. See Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 991 (10th Cir. 2021)
(holding that an employee did not demonstrate her termination was because of her disability
where the employee failed to show that her employer knew of her disability). At most, these
statements serve as an explanation for why Mr. Nehemiah included false information on his
application, but they do not explain how OPM discriminated against him because of his
disabilities. Mr. Nehemiah just concludes that OPM is penalizing him for his disabilities in not
allowing him to explain why he made a false statement on his application. Doc. 37 at 7. These
allegations are simply too conclusory to state a plausible claim. See Ashcroft, 556 U.S. at 678.
In summary, I recommend that the Court liberally construe Mr. Nehemiah’s ADA claim
as a claim under the Rehabilitation Act, but I also recommend that the Court find that Mr.
Nehemiah has failed to state a plausible claim for relief under the Rehabilitation Act.
Accordingly, I recommend that the Court dismiss Mr. Nehemiah’s Rehabilitation Act claim
without prejudice.
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CONCLUSION
For the foregoing reasons, I recommend that the Court GRANT OPM’s Motion to
Dismiss (Doc. 48). I recommend that the Court find that Mr. Nehemiah has abandoned any
appeal of the MSPB action; accordingly, this matter should no longer proceed as a “mixed case”
and instead solely as an employment discrimination case. I further recommend that the Court
dismiss Mr. Nehemiah’s Title VII discrimination and retaliation claims without prejudice;
although OPM requests dismissal with prejudice, it has not demonstrated that granting Mr.
Nehemiah leave to amend his complaint would necessarily be futile. See Brereton, 434 F.3d at
1219. I also recommend that the Court construe Mr. Nehemiah’s ADA claim as a claim under
the Rehabilitation Act and dismiss that claim without prejudice.
Should the Court adopt these recommendations, I further recommend that the Court allow
Mr. Nehemiah thirty (30) days in which to file a motion for leave to file an amended complaint
raising his discrimination and retaliation claims. See Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991) (“[P]ro se litigants are to be given reasonable opportunity to remedy the defects
in their pleadings.”). Mr. Nehemiah shall attach his proposed amended complaint as an exhibit
to the motion. See D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading must accompany
the motion to amend.”). The proposed amended complaint should be no longer than 20 double-
spaced pages and comport with the Federal Rules of Civil Procedure and the Local Rules of Civil
Procedure for the U.S. District Court for the District of New Mexico (“Local Rules”).12 The
12 For example, the Federal Rules of Civil Procedure require parties to state “a short and plain
statement of the claim showing that the pleader is entitled to relief” along with “a demand for the
relief sought.” F ED. R. C IV. P. 8(a)(2)–(3). Further, a party’s claims must be “in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” F ED. R. C IV. P.
10(b). The Local Rules provide that “the text of all documents must be double spaced,”
D.N.M.LR-Civ. 10.1.
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District of New Mexico provides a webpage with resources for pro se litigants that Mr.
Nehemiah may find helpful.13 Additionally, the docket does not reflect that the District’s Guide
for Pro Se Litigants has been sent to Mr. Nehemiah, and I direct the Clerk of the Court to mail
the Guide for Pro Se Litigants to him.
Mr. Nehemiah is warned that failure to comply with these requirements may result in
denial of the motion and dismissal of his case. Further, Mr. Nehemiah is warned that “[w]hen a
pro se litigant files complaints that are repetitive, duplicative of other filings, without merit, or
frivolous, he abuses the district court process,” Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir.
2013), and his ability to file documents may be restricted. Mr. Nehemiah has filed
approximately 50 documents since filing his Petition, most of which are nonsensical. I
recommend that the Court place filing restrictions on Mr. Nehemiah if he continues to abuse his
filing privileges.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written objections
must be both timely and specific. United States v. One Parcel of Real Prop., With Buildings,
Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73
F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party wants to have appellate review
of the proposed findings and recommended disposition. Failure to file timely and specific
objections will result in waiver of de novo review by a district or appellate court. Id. In
other words, if no objections are filed, no appellate review will be allowed.
Laura Fashing
U.S. Magistrate Judge
13 The webpage is available here: https://www.nmd.uscourts.gov/representing-yourself-pro-se.
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