Nicholson v. Bessent

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 22, 2025
• Docket: 25-4142
• Status: Unpublished

Opinion

Appellate Case: 25-4142 Document: 9-1 Date Filed: 12/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court JASON J. NICHOLSON,

Plaintiff - Appellant,

v. No. 25-4142 (D.C. No. 1:25-CV-00049-AMA) SCOTT BESSENT, Secretary of the (D. Utah) Treasury; INTERNAL REVENUE SERVICE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before FEDERICO, BALDOCK, and MURPHY, Circuit Judges. _________________________________

After examining the appellant’s brief and appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Jason Nicholson appeals from an order of the district court dismissing his

action with prejudice as untimely. See R. at 27 n.5 (citing 29 C.F.R. § 1614.310(d)).

In so doing, the district court denied Nicholson’s request to equitably toll the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-4142 Document: 9-1 Date Filed: 12/22/2025 Page: 2

limitations period based on a whistleblower claim Nicholson filed in the United

States District Court for the District of Utah. R. at 28 (identifying that prior case as

1:24-cv-00090). The district court concluded Nicholson could not use 1:24-cv-00090

to toll the limitations period in the instant action because 1:24-cv-00090 was also

untimely filed. R. at 28. Nicholson appeals.

This court exercises appellate jurisdiction pursuant to 28 U.S.C. § 1291. This

court reviews the district court’s interpretation of 29 C.F.R. § 1614.310(d), including

its timeliness requirement, de novo. See Harms v. I.R.S., 321 F.3d 1001, 1009 (10th

Cir. 2003). The district court’s refusal to apply equitable tolling is reviewed for abuse

of discretion. Garrett v. Fleming, 362 F.3d 692, 695 (10th Cir. 2004).

In his brief on appeal, Nicholson does not argue that the district court erred as

to any of its calculations of when the applicable limitations period expired. Instead,

he asserts the district court erred in concluding 1:24-cv-00090 was not timely filed.

According to Nicholson, he previously sent to the district court a “copy of postmark

showing that it was timely filed.” Appellant’s Opening Br. at 2. The problem for

Nicholson is two-fold. First, the document he identifies was attached to a misdirected

notice of appeal filed in this court. R. at 32-34. Although this court redirected the

misdirected notice of appeal to the district court pursuant to Fed. R. App. P. 4(d),

Nicholson has not identified any authority indicating the district court erred in

declining to consider materials attached to a notice of appeal. Second, and more

fundamentally, Nicholson has not identified any authority indicating a mailbox rule

applies to non-prisoners. Indeed, “a large body of . . . authority has rejected the

2 Appellate Case: 25-4142 Document: 9-1 Date Filed: 12/22/2025 Page: 3

general argument that a notice of appeal is ‘filed’ at the moment it is placed in the

mail addressed to the clerk of the court-this on the ground that receipt by the district

court is required.” Houston v. Lack, 487 U.S. 266, 274 (1988) (adopting a mailbox

rule in the context of prisoner filings, but noting such rule does not “disturb” the

general rule that receipt by the district court is required in civil cases to count as

filing). As the district court correctly noted, the complaint he filed in 1:24-cv-00090

was received by the Clerk of the United States District Court for the District of Utah

on May 29, 2024, well past the May 1, 2024, deadline set out in § 1614.310(d). R. at

28. Because 1:24-cv-00090 was not timely filed, the district court did not abuse its

discretion in concluding that case could not serve as a basis to equitably toll the

§ 1614.310(d) limitations period in this case.

For those reasons set out above, the order of the United States District Court

for the District of Utah dismissing Nicholson’s action with prejudice is hereby

AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge