                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MORRIS I. ONYEWUCHI,                       :
                                           :
               Plaintiff,                  :         Civil Action No.:     08-0360 (RMU)
                                           :
               v.                          :         Re Document No.:      20
                                           :
EMILIO T. GONZALEZ                         :
Director, U.S. Citizenship and Immigration :
Services,                                  :
                                           :
               Defendant.                  :

                                 MEMORANDUM OPINION

       DENYING THE PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE FIRST AMENDED
        COMPLAINT AND REOPEN DISCOVERY; GRANTING THE DEFENDANT LEAVE TO
           SUPPLEMENT ITS DISPOSITIVE MOTION TO ADDRESS THE DISPARATE
               IMPACT CLAIMS RAISED IN THE FIRST AMENDED COMPLAINT

                                      I. INTRODUCTION

       This case comes before the court on the plaintiff’s motion for leave to amend the first

amended complaint and to reopen discovery. The pro se plaintiff, an African-American attorney

and naturalized citizen originally from Nigeria, alleges that the U.S. Citizenship and Immigration

Services (“USCIS”) discriminated against him based on his race and national origin when it did

not select him for a position for which he had applied. Two months after the close of discovery,

the plaintiff filed this motion for leave to amend his complaint to add a claim that USCIS’s

employment practices had a disparate impact on foreign-born and African-American applicants.

The plaintiff also requests that the court reopen discovery. The defendant opposes the motion on

the grounds that granting the requested relief at this stage of the proceedings would prejudice the

defendant and that the proposed amendment would be futile.
       Because the deadline for amending the pleadings has long since passed, and because the

plaintiff was plainly aware of the information underlying his proposed amended claims well

before filing this motion for leave to amend, the court denies his motion for leave to amend and

his related request to reopen discovery. The court, however, notes that the current operative

complaint sufficiently put the defendant on notice of the disparate impact claims the plaintiff

sought to add through his proposed amended complaint. Accordingly, the court will grant the

defendant an opportunity to supplement its pending dispositive motion to address those claims.



                     II. FACTUAL & PROCECURAL BACKGROUND 1

       The plaintiff joined the Immigration and Naturalization Service (“INS”) as an attorney in

2002. Proposed 2d Am. Compl. ¶ 3. In 2003, the INS was abolished, and its responsibilities

transferred to two agencies within the Department of Homeland Security: U.S. Immigration and

Customs Enforcement (“USICE”) and USCIS. Id. ¶¶ 3-4. The plaintiff was assigned to USICE

in 2003. Id. ¶ 5.

       On May 6, 2004, USICS announced a vacancy for an Associate Counsel position in its

Dallas, Texas office, for which the plaintiff immediately applied. Id. ¶¶ 7-9. Approximately two

weeks later, Judith Patterson and Catherine Muhletaler, the two recommending officials for the

position, interviewed the plaintiff via telephone. Id. ¶¶ 10-12, 23. On June 10, 2004, Patterson

e-mailed the plaintiff to notify him that he had not been selected for the position. Id. ¶ 13.

Patterson stated that familiarity with the Dallas area and academic credentials were among the



1
       For the purposes of ruling on this motion, the court assumes that the plaintiff's allegations are
       true. See Atherton v. D.C. Office of the Mayor, 567 F.3d 673, 681 (D.C. Cir. 2009) (observing
       that “[w]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the
       factual allegations contained in the complaint”) (quoting Erickson v. Pardus, 551 U.S. 89, 94
       (2007)).


                                                    2
selection criteria used to assess candidates, but did not inform the plaintiff specifically why he

had not been chosen. Id. ¶¶ 14, 20, 32.

        On October 20, 2004, the plaintiff filed an Equal Employment Opportunity (“EEO”)

complaint with the USCIS, alleging that it had discriminated against him on the basis of race,

disability2 and national origin by not selecting him for the Associate Counsel position. See

generally Def.’s Opp’n to Pl.’s 2d Mot. to Amend (“Def.’s Opp’n”), Ex. 4. After USCIS denied

the plaintiff’s claim on May 11, 2006, the plaintiff appealed. Proposed 2d Am. Compl. ¶ 40. On

December 4, 2007, the Equal Employment Opportunity Commission (“EEOC”) denied the

appeal and notified the plaintiff of his right to sue. Id.

        The plaintiff filed a complaint in this court on February 29, 2008. See generally Compl.

Pursuant to Federal Rule of Civil Procedure 15(a), the plaintiff amended his complaint as a

matter of right on March 7, 2008. See generally 1st Am. Compl. At a status hearing held on

September 9, 2008, the court ordered that the parties submit any motions to further amend the

pleadings by October 8, 2008. See Minute Entry (Sept. 9, 2008). Additionally, the court set a

discovery deadline of January 7, 2009, which was subsequently extended to January 21, 2009.

See id.; Minute Order (Jan. 4, 2009).

        Prior to the close of discovery, a dispute arose concerning whether the defendant was

required to produce documents concerning all of the approximately 120 applicants who had

applied for the position. Def.’s Opp’n at 5. Ultimately, the court ordered the defendant to

produce these documents, which were provided to the plaintiff on February 25, 2009. Id. at 6.

        On March 6, 2009, the plaintiff filed this motion requesting leave to amend his first

amended complaint. See generally Pl.’s 1st Mot. to Amend. The court denied the motion for


2
        The plaintiff has not asserted claims for disability discrimination in this action. See generally
        Compl.; 1st Am. Compl.


                                                     3
failure to comply with Local Civil Rule 15.1, see Minute Order (Mar. 6, 2009), which provides

that motions to amend or correct pleadings “shall be accompanied by an original of the proposed

pleading as amended,” LCvR 15.1. One week later – a week before dispositive motions were

due and nearly eight weeks after discovery had closed – the plaintiff filed a second motion for

leave to amend the first amended complaint, see Pl.’s 2d Mot. to Amend (“Pl.’s Mot.”), which

the defendant opposed, see generally Def.’s Opp’n. 3

       Through this motion for leave to amend, the plaintiff seeks to add claims of disparate

impact to the disparate treatment claims asserted in the first amended complaint. See generally

Pl.’s Mot. Specifically, the plaintiff seeks to add a claim that requiring applicants to have

familiarity with the Dallas area had a discriminatory adverse impact on foreign-born applicants.

Proposed 2d Am. Compl. ¶ 85. The plaintiff also seeks to add a claim that the defendant’s use of

the U.S. News and World Report law school rankings as a criterion in determining applicants’

academic credentials had a disparate impact on graduates of historically black law schools, such

as the plaintiff. Id. ¶ 44. In addition, the plaintiff requests that the court reopen discovery. The

court now turns to the applicable legal standard and the parties’ arguments.




3
       On March 23, 2009, while the plaintiff’s second motion for leave to amend was pending, the
       defendant filed a motion for judgment on the pleadings or, in the alternative, for summary
       judgment on the plaintiff’s first amended complaint. See generally Def.’s Mot. for J. on the
       Pleadings or, in the Alternative, for Summ. J. (“Def.’s Mot.”). The court ultimately suspended all
       briefing of the defendant’s motion pending resolution of the plaintiff’s motion for leave to amend.
       Minute Order (May 5, 2009).


                                                   4
                                         III. ANALYSIS

             A. The Court Denies the Plaintiff’s Motion for Leave to Amend the
                     First Amended Complaint and Reopen Discovery

             1. Legal Standard for a Motion for Leave to Amend the Complaint

       Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a

matter of course within twenty-one days of serving it or, if the pleading is one to which a

responsive pleading is required, twenty-one days after service or a responsive pleading or

twenty-one days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier. FED.

R. CIV. P. 15(a). Otherwise, a plaintiff may amend the complaint only by leave of the court or by

written consent of the adverse party. See id. The grant or denial of leave lies in the sound

discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The

court must, however, heed Rule 15’s mandate that leave is to be “freely given when justice so

requires.” Id.; see also Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080,

1083 (D.C. Cir. 1998). Indeed, “[i]f the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim

on the merits.” Foman, 371 U.S. at 182. Denial of leave to amend therefore constitutes an abuse

of discretion unless the court gives sufficient reason, such as futility of amendment, undue delay,

bad faith, dilatory motive, undue prejudice or repeated failure to cure deficiencies by previous

amendments. Id.; Caribbean Broad. Sys., 148 F.3d at 1083.

       Denial of leave to amend based on futility is warranted if the proposed claim would not

survive a motion to dismiss. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.

1996). An amended complaint is futile “if it merely restates the same facts as the original

complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a

legal theory or could not withstand a motion to dismiss.” Robinson v. Detroit News, Inc., 211 F.



                                                  5
Supp. 2d 101, 114 (D.D.C. 2002) (citing 3 FED. PRAC. 3d § 15.15[3]); Willoughby v. Potomac

Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (affirming the district court’s denial of

leave to amend given the “little chance” that the plaintiff would succeed on his claim).

         2. The Plaintiff Was Aware of the Basis of His Proposed Amended Claims
                              Long Before Filing this Motion

       Acknowledging that this motion comes long after the court-imposed deadline for motions

to amend, the plaintiff argues that the defendant failed to disclose the evidence giving rise to his

proposed disparate impact claims until well after that deadline had passed. Pl.’s Mot. ¶ 14.

Specifically, the plaintiff contends that the defendant withheld e-mails sent to rejected applicants

indicating that immigration law experience was a determinative factor in the hiring process. Id. ¶

5. Additionally, the plaintiff asserts that the defendant withheld e-mails indicating that the

interviewer had “a favorable bias towards University of Texas graduates.” Id. ¶ 10. The plaintiff

states that after receiving this additional evidence, he promptly moved for leave to amend his

complaint to add claims of disparate impact. See id. ¶¶ 1-13. The plaintiff contends that any

prejudice the defendant suffers is a result of its failure to disclose information. Id. ¶ 14.

Additionally, the plaintiff maintains that granting leave to amend would not be futile, insisting

that the proposed amended complaint asserts valid claims based on this newly discovered

information. Id. ¶ 15.

         The defendant responds that permitting the plaintiff to amend the complaint and reopen

discovery at this stage would result in undue prejudice because the defendant would be required

to assemble and analyze new evidence, engage in further discovery and amend its already-filed

motion to dismiss. Def.’s Opp’n. at 12-13. The defendant also argues that the “new” evidence

on which the plaintiff bases his proposed claim was already known by the plaintiff long before

he filed this motion for leave to amend. Id. at 7-12. Furthermore, the defendant asserts that the



                                                   6
plaintiff’s proposed claim is futile because it fails to state a cognizable claim of disparate impact

and because the plaintiff failed to exhaust his administrative remedies with respect to any

disparate impact claim. Id. at 14-17.

       A court “may deny a motion for leave to amend if the amendment would result in delay

or undue prejudice to the opposing party, or if a party had sufficient opportunity to state the

amended claims and failed to do so.” Equity Group, Ltd. v. Painewebber Inc., 839 F. Supp. 930,

932 (D.D.C. 1993) (citing Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C. Cir. 1987);

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987)).

Leave to amend is properly denied when the plaintiff was aware of the information underlying

the proposed amendment long before moving for leave to amend the complaint. See De Saracho

v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir. 2000) (observing that “[w]here the

party seeking amendment knows or should know of the facts upon which the proposed

amendment is based but fails to include them in the original complaint, the motion to amend may

be denied”) (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982));

Duggins v. Steak ’N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (affirming the district court’s

denial of leave to amend because the discovery deadline had already passed and because the

plaintiff “was obviously aware of the basis of the claim for many months, especially since some

underlying facts were made a part of the complaint”); Anderson, 818 F.2d at 57 (concluding that

the district court did not abuse its discretion in denying a motion for leave to amend the

complaint as the proposed claims were based on facts known to the plaintiff prior to the

completion of discovery); LaPrade v. Abramson, 2006 WL 3469532, at *5 (D.D.C. Nov. 29,

2006) (denying the plaintiff’s motion for leave to amend the complaint as dilatory and unduly

delayed because the plaintiff “knew sufficient facts before the amendment deadline to make the




                                                  7
claims she now seeks to add”); Yager v. Carey, 910 F. Supp. 704, 731 (D.D.C. 1995)

(concluding that the “plaintiffs [had] been dilatory and . . . unduly delayed their attempt to

amend their complaint because plaintiffs were aware of the facts giving rise to the cause of

action before initially filing the complaint) (citing Sandcrest Outpatient Servs., P.A. v.

Cumberland County Hosp. Sys. Inc., 853 F.2d 1139, 1149 (4th Cir. 1988)); Hollinger-Haye v.

Harrison W./Franki-Denys, 130 F.R.D. 1, 2 (D.D.C. 1990) (denying the plaintiff’s motion for

leave to amend because “the additional counts were based on facts known to the plaintiff prior to

the completion of discovery”).

       In this case, it is abundantly clear that the plaintiff was fully aware of the information

underlying his proposed disparate impact claims long before the disclosure of the e-mails on

which he purports to base those claims. Indeed, in his first amended complaint, the plaintiff

alleged that “the use of law school ranking has the effect of excluding all, or a substantial

number of, African-American graduates of Historically Black Colleges and Universities from

employment, because the U.S. News and World Report normally ranks HBCU law schools in the

fourth tier” and that the “unlawful use of ties or familiarity with [Dallas] has the effect of

excluding foreign-born applicants, such as the [p]laintiff, who was born in Nigeria, from

employment.” 1st Am. Compl. ¶ 44(d), (e). The fact that the plaintiff included the information

underlying his proposed disparate impact claims in his first amended complaint undermines his

contention that the proposed claims arose out of information unknown to him until the disclosure

of the defendant’s e-mails in February 2009. 4 Accordingly, the court denies the plaintiff’s

motion for leave to amend and his concomitant request to reopen discovery.


4
       Indeed, the plaintiff has failed to explain how the “newly discovered evidence,” comprised of e-
       mails in which Patterson stated that immigration law experience was critical for the position and
       that she had a favorable bias toward University of Texas Law School graduates, revealed
       information giving rise to his disparate impact claims. See generally Pl.’s Mot.


                                                   8
          B. The Court Grants the Defendant Leave to Supplement Its Dispositive
               Motion to Address the Disparate Impact Claims Asserted in
                             the First Amended Complaint

       By the same token, the aforementioned allegations in the first amended complaint, which

revealed the plaintiff’s prior awareness of the information underlying his proposed claims,

likewise put the defendant on notice that the plaintiff was asserting disparate impact claims. As

previously noted, in his first amended complaint, the plaintiff clearly alleged that reliance on the

U.S. News & World Report law school rankings had the effect of excluding African-American

graduates of historically black law schools from employment, and that consideration of an

applicant’s ties or familiarity with the Dallas area had the effect of excluding foreign-born

applicants from considerations. Id. ¶ 44(d), (e). In so doing, the plaintiff alleged the existence of

facially neutral employment practices having a disparate impact on protected classes. See

Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988) (observing that “disparate

impact” claims concern “facially neutral employment practices that have significant adverse

impact on protected groups”) (emphasis omitted).

       The defendant does not squarely address these disparate impact claims in its pending

dispositive motion, see generally Def.’s Mot., presumably because the aforementioned

allegations are subsumed in a single, sprawling count of “National Origin Discrimination,” 1st

Am. Compl. ¶¶ 41-45; see also Gilbert v. Chertoff, 2006 WL 2793169, at *2-3 (D.D.C. Sept. 28,

2006) (concluding that general allegations of unlawful conduct, disparate treatment and

retaliation not stated in separate counts “effectively preclude[d] Defendant from fashioning a

coherent answer to the Complaint”); Klauber v. City of Sarasota, 235 F. Supp. 2d 1263, 1269

(M.D. Fla. 2002) (holding that the complaint did not contain a First Amendment claim, despite

the plaintiff’s argument that the count alleging a Fourteenth Amendment violation encompassed




                                                 9
a First Amendment claim, as “[i]t is neither Defendants’, nor this Court’s, duty to play hide-and-

seek with claims that Plaintiff claims might be hidden somewhere within Plaintiff’s complaint”);

5A FED. PRAC. & PROC. § 1324 (observing that “the federal courts consistently have required

separate statements when separate claims are pleaded, notwithstanding the fact that the claims

arose from a single transaction”).

       Accordingly, the court will provide the defendant an opportunity to supplement its

pending dispositive motion to address the disparate impact claims raised in the plaintiff’s first

amended complaint. At that time, the court will consider any arguments concerning the absence

of statistical evidence of causation and the plaintiff’s failure to exhaust administrative remedies.



                                       IV. CONCLUSION

       For the foregoing reasons, the court denies the plaintiff’s motion to amend the first

amended complaint and reopen discovery and grants the defendant leave to supplement its

pending dispositive motion. An Order consistent with this Memorandum Opinion is separately

and contemporaneously issued this 17th day of March, 2010.



                                                            RICARDO M. URBINA
                                                           United States District Judge




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