Petition for Writ of Certiorari — Jeffry Thul, Petitioner v. Deb Haaland, Secretary of the Interior, et al.

Supreme Court briefJun 6, 2023

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Supreme Court, U.S.

FILED

JUN 0 6 2023

-II1J

No.

OFFICE OF THE CLERK

in Wfyz

Supreme Court of tf)e QUntteti States

JEFFRY THUL,

Petitioner,

DEBORAH HAALAND, Secretary of the Interior,

PAUL DANIEL SMITH

ROSE BLANKENSHIP

NHIEN TONY NGUYEN AMY RISLEY, Owner,

RESOLUTION SERVICES, LLC,

KEN BRODIE

RESOLUTION SERVICES, LLC,

DAVE DAVIES

Unknown Employees 1-4,

JOHN ESWORTHY

ROBERT VOGEL

LYNDA GLOVER

SARA CRAIGHEAD

SHERRI FIELDS

LANCE HATTEN

STAN AUSTIN

ED BUSKIRK

BUFFY BRYANT

GREG ROBINSON

BRAD BENNETT

RONALD HAYES

REGGIE TILLER

In their individual capacities,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT FOR CERTIORARI

Jeffry Thul

P.O. Box 1403

Dayton, TN 37321

(423) 774-8440

jeffrythul@gmail.com

RECEIVED

JUN - 8 2023

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED

Whether service of process is relevant in a psycho

logical disability case when the equal protection

component of the Due Process Clause confers on all

federal employees injured in the line-of-duty, a federal

constitutional right to be free from any discrimination,

that would prevent cases involving Post-Traumatic

Stress Disorder from being in every way expedited?

42 U.S. Code § 2000e-5(f)(5), “ ... to cause the case to

be in every way expedited.”

Whether or not the National Park Service municipality

or its properly constituted legislative body’s putatively

unconstitutional actions should be a consideration in

determining “good cause” for a psychologically disa

bled employee’s inability to effectuate service of pro

cess; otherwise, tolling the death knell for their entire

cause of action?

RULE 29.6 STATEMENT

The petitioner has no parent corporation or pub

licly held company that owns 10% or more of its stock

RELATED CASES

• Thul v. Defendants et al., No. 22-5440,

U.S. Court of Appeals for the Sixth Circuit.

Judgment entered March 01, 2023.

• Thul v. Secretary of the Interior, No. l:20-cv-0354,

U.S. District Court Eastern District of Tennessee

Judgment entered March 24, 2022.

• Thul v. Defendants et al, No. 22-5440,

U.S. Court of Appeals for the Sixth Circuit.

Petition for Rehearing DENIED on

March 23, 2023.

Ill

TABLE OF CONTENTS

Page

Questions Presented...............................................

Rule 29.6 Statement...............................................

Related Cases..........................................................

Table of Contents....................................................

Table of Authorities................................................ vm

Opinions Below........................................................

Jurisdictional Statement.......................................

Special Notifications...............................................

A. Notification to Solicitor General of the

United States................................................

B. Notification to the Department of Interior

C. Notification to the 23 Individual Defend

ants ................................................................

Relevant Constitutional and Statutory Provi

sions Involved......................................................

Statement of the Case...........................................

Problem

Crux of the Problem.....

i. Conflicting Opinions

C. Gravamen of this Case ..

Introduction...............................

A. Relevant Herein.............

B. Theoretical Test.............

TABLE OF CONTENTS 14(c) - Continued

Page

Reasons for Granting the Writ................................

The Sixth Circuit’s decision conflicts with

the Supreme Court’s decisions related to

the Existence of Irreparable Harm involv

ing federal municipal liability under the

Fifth Amendment............................................ 12

A. Merits..........................................................

B. Culpability.................................................

II.

The Sixth Circuit’s decision conflicts with

this Court’s decisions related to the princi

ples of Equal Protection Under the Law..... 15

A. Petitioner’s Substantive Rights...........

III.

The Sixth Circuit’s decision conflicts with

this Court’s decisions related to principles

of Doctrine of Clean Hands.......................... 18

A. Controlling Weight..................................

B. Medically Acceptable Clinical Diag

nostic Techniques.................................... 19

C. Other Substantial Evidence - Handi

capping Barriers....................................... 20

ii. Property Right Deprivations........... 21

i. Egregious Harassing Behavior.......

iii. Irreparable Harm - NPS EEO Neg

ligent Investigation............................ 22

iv. Injury in Fact.......................................

D. Challenged Policy of Inaction.................

i. The Doctrine of Clean Hands.........

TABLE OF CONTENTS 14(c) - Continued

Page

ii. Theoretical Proof................................

IV.

The Sixth Circuit’s decision Creates an

Intra-District Split Between the Eastern

District in Tennessee and the Western

District of Michigan when Seeking Good

Cause.................................................................. 29

A. United States Court of Appeals for the

Sixth Circuit psychological determina

tion for Inability to Effectuate Service

of Process.................................................... 29

i. There Must be physical symptoms....

ii. PTSD Causes a lack, or is marked by

a lack, of intellectual acuity............. 30

B. United States District Court for the

Western District of Michigan psycholog

ical determination for Inability to Effec

tuate Service of Process......................... 31

i. Serious Illness Outside the Peti

tioner’s Control - Agency Refusal to

Investigate Hostile Work Environ

ment Claim........................................... 31

ii. Biased Decisionmaker.......................

The Sixth Circuit’s decision conflicts with

the Supreme Court’s decisions related to

principles of Expeditious Case Manage

ment and Preclusive Effect under the Re

habilitation Act................................................ 35

A. Theoretical Test........................................

B. Preclusive Effect.......................................

• VI

TABLE OF CONTENTS 14(c) - Continued

Page

VI.

The U.S. District Court Eastern District of

Tennessee’s decision conflicts with the

Tenth Circuit decision related to princi

ples of Serving Multiple Defendants under

Rule 4.................................................................. 37

VII.

Epilogue.............................................................

VIII. Ergo the Question Presented before this

Court................................................................... 41

Conclusion......................................................................

APPENDIX Rule 14(c)

Opinions of the United States Court of Appeals,

Pet. App. 1-9

March 01, 2023

Memorandum and Opinion of the U.S. District

Court for the Eastern District of Tennessee,

Pet. App. 10-19

March 24, 2022

Opinions of the United States Court of Appeals,

Pet. App. 20-21

March 23, 2023

Final Agency Decision, Department of Interior,

Office of Diversity, Inclusion and Civil

Pet. App. 22-83

Rights

Case Management Directive, Case No. 23-5094,

U.S. District Court for the Eastern District of

Pet. App. 84-87

Tennessee, filed May 18, 2022

Petitioner’s Office of Workers’ Compensation

Benefit Statement, Pay Period March 26,2023

Pet. App. 88-90

thru April 22, 2023..........................

Riverview Psychiatry March 5, 2018

Pet. App. 91-93

Vll

TABLE OF CONTENTS 14(c) - Continued

Page

Riverview Psychiatry April 16, 2018 ....Pet. App. 94-95

Riverview Psychiatry March 20, 2023 ....Pet. App. 96-99

Sept 16 Ltr.......................................... Pet. App. 100-103

Sept 17 NPS Response...................... ..... Pet. App. 105

B. Sprayberry 6_5_2019.................... Pet. App. 106-111

Excerpt, RM-16E, 2.1, Separation of

Employees...................................... Pet. App. 112-113

NPS EEO Office Correspondence.... Pet. App. 114-117

DOI Waiver........................................ Pet. App. 118-119

B. Sprayberry 9_28_2018.................. Pet. App. 120-124

Vlll

TABLE OF AUTHORITIES

Page

Cases

Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807,

127 L.Ed.2d 114(1994)........................................

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

(1959)........................................................................

Bein v. Heath, 6 How. 228 (1848)............................

Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 US. 388

(1971)........................................................................

Burger King Corp. v. Rudzewicz, 471 U.S. 462

(1985)........................................................................

Califano v. Webster, 430 U.S. 313 (1977)...............

Citizens to Preserve Overton Park, Inc. v. Volpe,

15,17,29,35,37

401 U.S. 402 (1971)

Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397

(1997)........................................................................

Complainant v. Jeff B. Sessions, Attorney Gen

eral, Department of Justice (Federal Bureau of

Prisons), Appeal No. 0120150443 (February

28, 2018)..................................................................

Compton v. Jesup, 68 F. 263 (C. C. A. 6)................ 9, 40

Craig v. Boren, 429 U.S. 190 (1976)........................

Daniels v. Williams, 474 U.S. 327 (1986).............

Davis v. Passman, 442 U.S. 228 (1979).... 4, 8, 9,15,16

Dickey v. Turner, 49 F.2d 998 (6th Cir. 1931)

TABLE OF AUTHORITIES - Continued

Page

Equal Emp. Op. Com’n v. MacMillan Bloedel

Containers, Inc., 503 F.2d 1086 (6th Cir.

1974).........................................................................

Espinoza v. US., 52 F.3d 838 (10th Cir. 1995).....37, 38

Gibson v. Berryhill, 411 U.S. 564 (1973).............. 4, 33

Grichenko v. United States Postal Serv., 524

F.Supp. 672 (E.D.N.Y. 1981)...........

In re Murchison, 349 U.S. 133 (1955)

4, 32, 33

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401,

51 L.Ed.2d 711 (1977)...........................................

Johnson v. Smith, 835 F. App’x 114 (6th Cir.

2021).........................................................................

Johnson v. Yellow Cab Co., 321 U.S. 383 (1944) ..

Keystone Driller Co. v. General Excavator Co.,

290U.S. 240(1933)............................................... 27,28

Loughran v. Loughran, 292 U.S. 216 (1934)........

Lujan v. National Wildlife Federation, 497 U.S.

871 (1990)................................................................

McGee v. International Life Insurance Co., 355

U.S. 220 (1957).......................................................

Monell v. New York City Dept, of Social Services,

436 U.S. 658 (1978)...............................................

Oklahoma City v. Tuttle, 471 U.S. 808 (1985).....

Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 813

(6th Cir. 2004).........................................................

Pembaur v. Cincinnati, 475 US. 469 (1986)........

TABLE OF AUTHORITIES - Continued

Page

Precision Co. v. Automotive Co., 324 U.S. 806

(1945)........................................................................

Rauccio v. Frank, 750 F.Supp. 566 (D.Conn.

1990).........................................................................

Savoie v. City ofEast Lansing, No. 21-2684, 2022

WL 3643339 (6th Cir. Aug. 24, 2022).................

St. Louis v. Praprotnik, 485 U.S. 112 (1988)........

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1

(1972)........................................................................

Turney v. Ohio, 273 U.S. 510 (1927)....................... 4, 33

United States v. Lee, 106 U.S. 196 (1882).............

University of Tennessee v. Elliott, 478 U.S. 788

(1986)........................................................................

U.S. v. Caver, 470 F.3d 220 (6th Cir. 2006)........... 22,34

Wilson v. Commissioner of Social Sec., 378 F.3d

541 (6th Cir. 2004).................................................

Withrow v. Larkin, 421 U.S. 35 (1975)..................

Constitutional Provisions

U.S. Const, amend. V...........

4, 6, 7,12,14-17,25,39

Statutes, Rules and Regulations

5 C.F.R. § 353.102.............................

5 C.F.R. § 353.301.............................

5 C.F.R. § 353.301(d)......................... 4, 7,11,16, 17, 40

TABLE OF AUTHORITIES - Continued

Page

20 C.F.R. § 404.1527(d)(2)

29 C.F.R. § 1614.108(b)....

5 U.S.C. § 702...................

5 U.S.C. § 3331.................

5 U.S.C. § 7703(c)............

15,17, 29, 35, 37

28 U.S.C. § 1254(1)..........

29 U.S.C. §794.................

5,17, 36, 40

42 U.S.C. § 1983..............

42 U.S.C. § 2000e-5(e).....

42 U.S.C. §2000e-5(f)(4)..

42 U.S.C. §2000e-5(f)(5)..

Fed. R. Civ. P. 4.......

............................8, 9, 36, 37, 39

Fed. R. Civ. P. 4(m)..

6, 9,15,17, 29, 31, 34, 36-38, 40

Fed. R. Civ P. 4(i)....

8,38

Fed. R. Civ P. 4(i)(3)

38, 39

Other Authorities

2 Pomeroy, Equity Jurisprudence (5th Ed.)

§§ 379-399....................................................

OPINIONS BELOW

Rehabilitation Act Claim

Whether Jeffry Thul (Complainant) has been sub

jected to disparate treatment on the bases of disability

(mental) and reprisal (Agency Case Nos. DOI-NPS18-0033, DOI-NPS-18-0571) when on September 17,

2019, the Assistant Regional Director, Administration

(RM02) issued to Complainant a non-disciplinary re

moval for inability to perform the duties of his position.

Pet. App. 23.

Department of Interior Final Agency Decision

“After careful review and analysis of your Equal

Employment Opportunity (EEO) complaint and the

Report of investigation (ROI), the U.S. Department of

the Interior (DOI or Agency), Office of Diversity, Inclu

sion and Civil Rights (ODICR) takes final action on

your complaint by issuing this Final Agency Decision

(FAD). “ODICR finds that you have been subjected to

disparate treatment and denial of reasonable accom

modation based only on disability (mental), in violation

of the Rehabilitation Act.” Pet. App. 22.

U.S. District Court Eastern District of Tennes

see at Chattanooga

“The United States Supreme Court has ‘never sug

gested that procedural rules in ordinary civil litigation

should be interpreted so as to excuse mistakes by those

who proceed without counsel.’ ” Instead, the Supreme

Court counsels that "strict adherence to the procedural

requirements specifed by the legislature is the best

guarantee of evenhanded administration of the law.”

Pet. App. 15.

“[W]ithout proper service of process, consent,

waiver, or forfeiture, a court may not exercise personal

jurisdiction over a named defendant.” Pet. App. 18.

Sixth Circuit Appellate Court

"Nor do we find that ThuPs mental disorders ex

cused his failure to effect timely service. As the defend

ants argue, ThuPs mental disorders did not preclude

him from filing voluminous pleadings in the district

court that required extensive legal research. So we are

unpersuaded that these same mental disorders were

an external impediment to ThuPs ability to effect

proper and timely service of process.” Pet. App. 7.

JURISDICTIONAL STATEMENT

The Sixth Circuit entered judgment on March 1,

2023. Plaintiff’s petition for rehearing was denied on

March 23, 2023. This Court has jurisdiction under 28

U.S.C. § 1254(1).

SPECIAL NOTIFICATIONS

If the United States or any federal department, of

fice, agency, officer, or employee is a party to be served,

service shall be made on:

Notification to Solicitor General of the United

States,

Elizabeth Prelogar

Solicitor General of the United States

Room 5616, Department of Justice

950 Pennsylvania Ave., N. W.,

Washington, DC 20530-0001.

Attch: 3 paper copies, 1 electronic copy

When an agency of the United States that is a

party is authorized by law to appear before this Court

on its own behalf, or when an officer or employee of the

United States is a party, the agency, officer, or employee

shall be served in addition to the Solicitor General.

Notification to the Department of Interior,

Lisa Doehl

U.S. Department of Interior

Office of the Solicitor

2021 4th Ave. North, Suite 112

Billings, MT 59101

Attch: 3 paper copies, 1 electronic copy

Notification to the Twenty-three Individual De

fendants

The individual defendants listed on the front cover

were served though their appointed agent at the DOI,

ODICR’s Employment and Labor Law Unit at

DOICivilRights@ios.doi.gov. Waiver presented for re

view at Pet. App. 118,119.

Attch: 1 electronic copy

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment provides that “[n]o person

shall be . . . deprived of life, liberty, or property, without

due process of law. . . .” In numerous decisions, this

Court “has held that the Due Process Clause of the

Fifth Amendment forbids the Federal Government to

deny equal protection of the laws.” Davis v. Passman,

442 U.S. 228, 235-36 (1979).

Withrow v. Larkin, 421 U.S. 35, 47 (1975) This

Court firmly holds that, “Concededly, a ‘fair trial in a

fair tribunal is a basic requirement of due process.’ ” In

re Murchison, 349 U.S. 133,136 (1955). This applies to

administrative agencies which adjudicate as well as to

courts. Gibson v. Berryhill, 411 U.S. 564, 579 (1973).

Not only is a biased decisionmaker constitutionally un

acceptable but ‘our system of law has always endeav

ored to prevent even the probability of unfairness.’ In

re Murchison, supra, at 136; cf. Tumey v. Ohio, 273 U.S.

510,532 (1927).

5 C.F.R. § 353.301(d) protects federal employees

from losing their jobs stating:

Agencies must make every effort to restore in

the local commuting area, according to the cir

cumstances in each case, an individual who

has partially recovered from a compensable

injury and who is able to return to limited

duty. At a minimum, this would mean treating

these employees substantially the same as

other handicapped individuals under the Re

habilitation Act of 1973, 29 U.S.C. § 794

(Supp. Ill 1979).

STATEMENT OF THE CASE

Petitioner, Mr. Jeffry Thul is a qualified individual

with a psychological handicap in the United States,

who for over five years now, continues to remain par

tially recovered from a compensable line-of-duty in

jury that will not begin to properly heal without this

Court’s intervention.

Petitioner’s case arises from the U.S. Department

of the Interior’s (DOI or Agency) March 11, 2021, find

ing that the National Park Service (NPS) violated the

Rehabilitation Act when they terminated Mr. Thul

based solely on his psychological disability, Post-Trau

matic Stress Disorder (PTSD). Mr. Thul, however, still

remains aggrieved because of the Agency’s failure to

take final action on his Rehabilitation Act claims.

Where, for the past 5 years, he has been able, willing,

and seeking to return to limited duty so he can begin

healing from the psychological injuries he suffered in

the line-of-duty. The DOI however refuses to remove

the handicapping barrier preventing Mr. ThuTs recov

ery, and consequently his return back to duty

A. Problem

Currently the Sixth Circuit courthouse doors are

locked pursuant to an absolute U.S. Court of Appeals

for the Sixth Circuit interpretation of Rule 4(m);

thereby, tolling the death knell and disposing of Mr.

Thul’s meritorious Rehabilitation Act discriminatory

termination claim. Pet. App. 22, Final Agency Decision.

Which is now time-barred.

The Court’s 4(m) dismissal also disposes of Mr.

Thul’s:

Case No. : l:20-CV-0354 Biven’s action

against the individual defendants et al.,

Doc 15, f V(A)(i), PageID#s 237-239;

Case No. : l:20-CV-0354 Biven’s action

against the Contractor, Resolution Ser

vices, LLC, Doc 15, f V(A)(ii), PageID#s

239-243;

Case No. : l:20-CV-0354 Fifth Amend

ment violation of his right to due process,

Id. Doc 15, Page ID# 241; and,

Case No. : l:20-CV-0354 Conspiracy to

Overthrow the Federal Government’s

Constitutional Form of Government

claim, Doc 15, f V(A)(iii), PageID#s 237239.

(Doc 6, Appeal Br., n 58, 59).

B. Crux of the Problem

The disposition of these claims prevents Mr. Thul

who is classified under 5 C.F.R. § 353.301(d) from “be

ing able to return to the site of the incident without

significant anxiety or dysfunction so he can begin heal

ing from the psychological injuries he suffered in the

line-of-duty.” Pet. App. 94. Injuries that are demon

strated to be exacerbated by the individual defendants’

putatively unconstitutional actions taken in the course

of their official conduct. Actions that are proximate to

Mr. Thul’s inability to effectuate service of process.

Conflicting Opinions

The questions presented in this case involve gen

uine and current conflicts between the Supreme Court

and the U.S. Court of Appeals for the Sixth Circuit de

cisions related to the principles of: 1) Irreparable Harm

- Federal Municipal Liability under the Fifth Amend

ment; 2) Equal Protection under the Law; 3) CleanHands Doctrine; and 4) Efficient Case Management

and Preclusive Effect under the Rehabilitation Act.

Equaling burdensome to the U.S. Court of Appeals

for the Sixth Circuit are internal opposing opinions, in

cluding diametrically opposing opinions between the

Eastern District at Chattanooga and the U.S. Court of

Appeals for the Tenth Circuit when applying a solici

tous attitude toward psychologically disabled pro se

plaintiffs who are first, forced into this compulsory fed

eral litigation; then second, they find themselves faced

with the complex requirements of service of process in

cluding multiple service under Rule 4(i).

This case is significant and substantially im

portant because at the current time, psychologically

disabled federal employees seeking “good cause” for

failing to timely effectuate or attempt to effectuate ser

vice of process under Fed. R. Civ. R 4 inexplicably face

vastly differing standards of proof depending on which

district they file in, and which circuit panel reviews the

case.

Gravamen of this Case

Like Davis v. Passman, 442 U.S. 228 (1979), Mr.

Thul’s termination was also the result of putatively un

constitutional actions taken in the course of the NPS

municipal’s official conduct. The difference between

the two cases however is that the NPS municipal’s un

constitutional actions resulted in the petitioner’s ina

bility to recover from the severe psychological trauma

he suffered in the line-of-duty. Injuries that are caus

ally connected to Mr. Thul’s inability effect service of

process. Where for 5-years now, the defendants et al.

have benefited from this handicapping barrier; allow

ing them to hold Mr. Thul in a state of isolation and

uncertainty for no other reason to protect their own ca

reers at the expense of Mr. Thul’s health and welfare.

This Court holds that:

«(

No man in this country is so high that he is

above the law. No officer of the law may set

that law at defiance with impunity. All officers

of the government, from the highest to the

lowest, are creatures of the law, and are bound

to obey it.’ United States u. Lee, 106 U.S. [196,]

220 [(1882)].”

Therefore, “a suit against a [municipality or it’s

properly constituted legislative body] for putatively

unconstitutional actions taken in the course of their of

ficial conduct [will not] raise special concerns counsel

ing hesitation.” Davis at 246.

Ironically, the Defendants et al.’s only defense in

this case rests solely on the Eastern District’s strictest

interpretation of 4(m) resulting in a dismissal that was

based exclusively on the petitioner’s inability to pro

vide “documentation” that would establish the Eastern

District of Tennessee at Chattanooga court’s personal

jurisdiction in this case. Pet. App. 18.

Sending the message that in the Sixth Circuit,

psychologically disabled federal employees seeking

“good cause” will not receive any form of a reasonable

accommodation pro interesse suo to the technical as

pects of Rule 4.

Introduction

As far back as 1931, the 6th Cir. has been holding

that the power of the court is amply sufficient to pre

vent its process from becoming an instrument of

wrongdoing. Dickey v. Turner, 49 F.2d 998, 1000 (6th

Cir. 1931), citing Compton v. Jesup, 68 F. 263, 279 (C.

C. A. 6).

Judge Taft saying:

“Again, every court has inherent equitable

power to prevent its own process from work

ing injustice to any one, and may entertain a

petition by the aggrieved person, either in the

form of a simple motion, or by intervention

pro interesse suo in the cause in which the pro

cess issued, or by ancillary or dependent bill

in equity, and may afford such relief as right

and justice require.”

The Supreme Court holding that jurisdictional

rules may not be employed in such a way as to make

litigation “so gravely difficult and inconvenient” that a

party unfairly is at a “severe disadvantage” in compar

ison to his opponent. Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985), citing The Bremen v. Zapata OffShore Co., 407 U.S. 1, 18 (1972) {re forum-selection

provisions); McGee v. International Life Insurance Co.,

355 U.S. 220 (1957). Where, “[t]he basis of injunctive

relief in the federal courts has always been irreparable

harm and inadequacy of legal remedies,” Beacon Thea

tres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959).

A. Relevant Herein

A remedy which restrains the NPS municipality

or it’s properly constituted legislative body from vio

lating the federal rights conveyed to their employees

by statute is unavailable. On June 14, 2016, the

House Committee on Oversight and Government

Reform found these same NPS’ senior and influen

tial policymakers were engaging in misconduct,

mismanagement and unethical behavior. The Commit

tee’s Chairman Jason Chaffetz demanded these fed

eral rights violations stop, immediately. Where circa.

2017 through 2021, the defendants et aVs deliberate

indifference to the federal rights conveyed to Mr. Thul

by 5 C.F.R. § 353.301(d), is proven to be causally con

nected to his inability to recover from his line-of-duty

caused injuries; thereby affecting his ability to effectu

ate service of process to the exacting standards de

manded by the Eastern District.

Based on a prima facie claim of irreparable harm

as a reason for “good cause,” forms the bases for the

injunctive relief needed at this time. Especially when

the only defense protecting the Defendants et at., is the

Eastern District court’s subjective interpretation of

which federal rights are to be afforded to psychologi

cally disabled employees.

B. Theoretical Test

Simply remove the handicapping barrier causing

Mr. Thul’s inability to effectuate service of process, pro

interesse suo, and the Defendants are now forced to de

fend: 1) a policy of inaction that was causing injuries

in 2016; and, 2) the same policy of inaction that again

is demonstrated to be causing Mr. Thul’s injuries, to

day.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit’s decision conflicts

with the Supreme Court’s decisions re

lated to the Existence of Irreparable

Harm involving federal municipal liabil

ity under the Fifth Amendment

In Monell v. New York City Dept ofSocial Services,

436 U.S. 658 (1978), this Court concluded that munici

pal liability under 42 U.S.C. § 1983 is limited to depri

vations of federally protected rights caused by action

taken “pursuant to official municipal policy of some na

ture. . . rid., at 691.

Mr. Thul is requesting a writ of certiorari to deter

mine federal municipal liability under the Fifth

Amendment for deprivations of federally protected

rights caused by an action taken “pursuant to official

federal municipal policy of some nature ...” [T]he ‘de

cision to grant certiorari represents a commitment of

scarce judicial resources with a view to deciding the

merits ... of the questions presented in the petition. >»

St. Louis v. Praprotnik, 485 U.S. 112,120 (1988) (quot

ing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

A. Merits

On Mon, Sep 16, 2019 at 6:13 PM, 22 hours, and 7

minutes before the decision was made to terminate Mr.

Thul, the NPS’ properly constituted legislative body

made up of Defendants Tony Nguyen, Ken Brodie, and

Letitia Coleman received Mr. Thul’s ***URGENT and

IMMEDIATE*** Request for an Intervention. Pet. App.

104. In his reasonable accommodation request Mr.

Thul notified this legislative body that Buskirk’s

planned termination would result in constitutional

and statutory violations. Pet. App. 100.

On September 17, 2019 at 4:20 PM, exactly 40

minutes before the Plaintiff was to be terminated, De

fendants Ed Buskirk, Ken Brodie, Letitia Coleman,

and Cecelia Townes stood by and witnessed Defendant

N. Tony Nguyen, the NPS’ Associate Director, Work

force and Inclusion, effectually serve Mr. Thul with the

following NPS municipality DECLARATION:

“Thank you for your email to the Director. I

am responding on his behalf. It is our practice

not to comment on matters that are the sub

ject of litigation or part of the Equal Employ

ment Opportunity (EEO) complaint process. I

would refer you to the Deciding Official, Mr.

Buskirk, and/or the Solicitor, Ms. Cecelia

Townes, to discuss the matter further.”

Pet. App. 104,105.

On September 17, 2019 at 5:00 PM, the NPS mu

nicipality sanctioned Buskirk’s termination of Mr.

Thul’s federal service based solely on his disability.

Pet. App. 22-23, DOI, ODICR Final Agency Decision

(March 11, 2021).

Mr. Thul alleges that based on the above taken ac

tion, the NPS’ properly constituted legislative body or

authorized decisionmaker has negligently deprived a

plaintiff of a federally protected right and the munici

pality acted culpably.

B. Culpability

[The 5th Amendment] itself “contains no state-ofmind requirement independent of that necessary to

state a violation” of the underlying federal right. Dan

iels v. Williams, 474 U.S. 327, 330 (1986). In any Fifth

Amendment suit, however, the plaintiff must establish

the state of mind required to prove the underlying vio

lation. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397,

405 (1997). Accordingly, “proof that a municipality's

legislative body or authorized decisionmaker has in

tentionally deprived a plaintiff of a federally protected

right necessarily establishes that the municipality

acted culpably” Id. Comm’rs of Bryan Cty.

On October 13, 2017, Interior Secretary Ryan

Zinke vowed:

“there would be ‘no quarter’ for employees

who sexually harass or discriminate against

colleagues. He said he would dismiss anyone

found guilty of harassment and supervisors

who sweep such charges under the rug. Stat

ing, I have no problem removing manager af

ter manager until none are left. Intimidation,

harassment, and discrimination are viruses

within an operation, and we’re going to eradi

cate them”

Allowing for the trier of fact to logically conclude

the Defendants et al.’s deliberate indifference to Mr.

Thul’s statutorily defined rights could be for no other

reason that to protect their own careers at the expense

of the petitioner’s health and welfare. Demonstrating

there exists a prima facie existence of irreparable

harm, and an opportunity to improve the inadequacy

of the current legal remedies used to determine good

cause involving psychologically disabled employees.

Therefore, because the Eastern District court

failed to determine existence of irreparable harm, and

make a determination if there was an opportunity to

improve the inadequacy of the current legal remedies

used to determine good cause involving psychologically

disabled employees, the Supreme Court must set aside

the Eastern District court’s decision to grant the Ap

peared Defendants motion to dismiss under 4(m), and

REMAND this case back to the Eastern District be

cause it was obtained without procedure required by

law, rule, or regulation having been followed; or, unsup

ported by substantial evidence.” 5 U.S.C. § 7703(c)

(1994); see also Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 414 (1971).

II.

The Sixth Circuit’s decision conflicts

with this Court’s decisions related to

principles of Equal Protection Under the

Law

The Fifth Amendment provides that “[n]o person

shall be . . . deprived of life, liberty, or property, without

due process of law. . . In numerous decisions, this

Court “has held that the Due Process Clause of the

Fifth Amendment forbids the Federal Government to

deny equal protection of the laws. Davis v. Passman,

442 U.S. 228, 235 (1979) (citations removed). “To with

stand scrutiny under the equal protection component

of the Fifth Amendment’s Due Process Clause, ‘classi

fications by gender must serve important governmen

tal objectives and must be substantially related to

achievement of those objectives.’ Craig v. Boren, 429

U.S. 190,197 (1976).” Califano v. Webster, 430 U.S. 313,

316-317 (1977). The equal protection component of the

Due Process Clause thus confers on petitioner a federal

constitutional right to be free from gender discrimina

tion which cannot meet these requirements. Id. Davis

at 236.

A. Petitioner’s Substantive Rights

It is undisputed that Mr. Thul is partially recov

ered, and receiving compensatory payments. Pet. App.

88. Under OPM’s regulations, employees have differ

ent substantive rights based on whether they have

fully recovered, partially recovered, or are physically

disqualified from their former or equivalent positions.

5 C.F.R. § 353.301. Partially recovered employees are

those who “though not ready to resume the full range”

of duties, have “recovered sufficiently to return to

part-time or light duty or to another position with less

demanding physical requirements.” 5 C.F.R. § 353.102.

A partially recovered individual’s substantive

rights with regard to restoration are set forth at 5

C.F.R. § 353.301(d) which provides as follows:

Agencies must make every effort to restore in

the local commuting area, according to the cir

cumstances in each case, an individual who

has partially recovered from a compensable

injury and who is able to return to limited

duty. At a minimum, this would mean treating

these employees substantially the same as

other handicapped individuals under the Re

habilitation Act of 1973, 29 U.S.C. § 794

(Supp. Ill 1979).

Establishing the Petitioner’s constitutional

claims withstand scrutiny under the equal protection

component of the Fifth Amendment’s Due Process

Clause. Where his classification as a federal employee

who has partially recovered from a compensable injury

and who is able to return to limited duty, serves an im

portant governmental objective to return these em

ployees back to work; depending on the circumstances

in each individual case. 5 C.F.R. § 353.301(d).

Because Mr. Thul’s federal rights are conveyed by

statute, the Eastern District’s decision to grant the Ap

peared Defendants motion to dismiss under 4(m), vio

lates 5 C.F.R. § 353.301(d). Therefore, the Supreme

Court must set aside the Eastern District court’s deci

sion to grant the Appeared Defendants motion to dis

miss under 4(m), and REMAND this case back to the

Eastern District because it was obtained without pro

cedure required by law, rule, or regulation having been

followed; or, unsupported by substantial evidence.” 5

U.S.C. § 7703(c) (1994); see also Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971).

III.

The Sixth Circuit’s decision conflicts

with this Court’s decisions related to

principles of Doctrine of Clean Hands

According to the DSM-5, the essential feature of

Post-Traumatic Stress Disorder (PTSD) is the “devel

opment of the of characteristic symptoms following ex

posure to one or more traumatic events.” See American

Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders: Fifth Edition 274 (2013).

The “clinical presentation of PTSD” varies from indi

vidual to individual. Some sufferers experience loss of

memory of the traumatic event, diminished participa

tion in previously enjoyed activities, or the tendency to

engage in aggressive physical or verbal behavior with

little or no provocation, among other things. Establish

ing that by definition, PTSD is a “serious illness.” How

ever, PSTD is not often a permanent ailment. Complete

recovery within three months of the onset of symptoms

occurs in approximately one-half of adults. Id. DSM-V.

In Mr. Thul’s case,

“The prognosis would have been much im

proved if Mr. Thul had been exposed to a con

sistently supportive work environment. If

that had been the case, his PTSD symptoms

would have most likely resolved themselves

over the course of 6 months or less and the se

vere depression would not have occurred.”

Pet. App. 108,109.

A. Controlling Weight

A [trier of fact] must give the opinion of a treating

source controlling weight if he finds the opinion “wellsupported by medically acceptable clinical and labora

tory diagnostic techniques” and “not inconsistent with

the other substantial evidence in [thel case record.”

Wilson v. Commissioner of Social Sec., 378 F.3d 541,

544 (6th Cir. 2004), citing 20 C.F.R. § 404.1527(d)(2).

B. Medically Acceptable Clinical Diag

nostic Techniques

Among many of Mr. Thul’s treating psychiatrists’

well-supported and medically acceptable clinical diag

nostic techniques, his treatment team provided the

NPS with the discretionary awareness that:

On January 26, 2017 Mr. Thul was the first

responder to a gruesome suicide that occurred

at a park where Mr. Thul was working. He had

contact with the victim shortly before the in

cident and was nearby when it occurred. He

has felt emotionally overwhelmed with flash

backs, nightmares and insomnia, persistent

reliving of the moments of that day, irritabil

ity and feeling emotionally overwhelmed, and

intense anxiety and panic. PTSD symptoms

can interfere greatly with ability to function

at work and home due to difficulty focusing,

avoidance of triggering environment, dysregulation of mood and secondary decline in mo

tivation and energy. Pet. App. at 91.

In June 2017, an issue arose between Mr. Thul

and a supervisor ... Mr. Thul maintains that

he was bullied and intimidated and has filed

a report detailing this. Compiling the stress of

this claim and having to repeatedly file re

ports and relive the events of the trauma in

the park has worsened the primary PTSD

symptoms . .. The quickest path to his recov

ery will be the one with the most concentra

tion on managing symptoms and healing from

the trauma. Pet. App. at 92.

C. Other Substantial Evidence - Handi

capping Barriers

i. Egregious Harassing Behavior

The Department of Interior found Bennett and

Buskirk’s motive was purely retaliatory, “[tjhere is suf

ficient evidence to establish an inference of a causal

connection between Complainant's protected activity

and his removal because Defendant Bennett (RMOl)

and Defendant Buskirk (RM02) were named as re

sponsible management officials in Complainant’s pre

vious EEO complaints, and because of the temporal

proximity between RMOl and RM02’s spring 2019 in

terviews regarding a different EEO complaint and the

June 5, 2019 Proposed Removal.” Pet. App. 57.

Establishing both Defendants Buskirk and Ben

nett’s conduct was, “severe or pervasive, including but

not limited to, threatening behavior, touching, hitting,

or other egregious harassing behavior.” See Ingraham

v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51

L.Ed.2d 711 (1977), the Court declared that “[a]mong

the historic liberties protected by the Due Process

Clause is the right against ‘unjustified intrusions on

personal security’ at the hands of the state.”

ii. Property Right Deprivations

The other substantial evidence includes Mr. Thul’s

deprivation of his property right to the mandatory pro

cedures within the NPS Anti-Harassment Policy, Di

rector’s Order 16E.

Reference Manual 16E provides the Agency’s

mandatory procedures that when followed, protects

psychologically disabled federal employees from any

kind of unwanted supervisory psychological harass

ment. Applying the facts in this case to the NPS’ mini

mum due process requirements, returns the following

mandatory guidance:

“If the conduct is severe or pervasive, includ

ing but not limited to, threatening behavior,

touching, hitting, or other egregious harass

ing behavior, Defendant Bennett, RMOl shall

separate [himself] from [Mr. Thul], at least

until the matter otherwise can be resolved . ..

Management [Defendant Buskirk, RMO 2],

should not move Mr. Thul. If the alleged vic

tim, without having been asked or prompted,

specifically requests such a move or transfer,

Defendant Buskirk, shall inform Mr. Thul

that instead because Defendant Bennett, was

the employee alleged to be responsible for the

harassing conduct, Bennett may be moved.

Nonetheless, to the extent possible, the Asso

ciate Regional Director for Administration,

Defendant Buskirk shall honor Mr. ThuPs re

quest.”

Pet. App. 112.

Clarifying the alleged HWE handicapping bar

rier: Every named party knew that I “maintained] I

was bullied and intimidated ...” Each individually

named defendant also knew Buskirk was not moving

Bennett, whose conduct was found to be, “severe or per

vasive, including but not limited to, threatening behav

ior, touching, hitting, or other egregious harassing

behavior” and “[I filed 35] reports detailing this.”

iii. Irreparable Harm - NPS EEO Neg

ligent Investigation

On June 14, 2016, the House Committee on Over

sight and Government Reform made expressed find

ings of fact that, dating as far back as 2006, the Service

has failed to meet its EEOC requirements that led to a

culture of harassment, discrimination and reprisal

against NPS employees that was became the standard

operating procedure, a fact of life, a normal condition

of employment. See Oversight of the National Park

Service, Serial No. 114-73 (June 14, 2016). Chairman

Jason Chaffetz ordering the Department of Interior

that this practice must stop immediately.

In 2017, Mr. Thul again made these same harass

ment, discrimination and reprisal claims in his Case

No.: NPS-18-0033, providing Agency EEO managers

with documentary evidence that Resolution Services,

LLC was violating 29 C.F.R. § 1614.108(b) by rewriting

the narrative in his complaints. Then in 2018, the

Complainant in Complainant, v. JeffB. Sessions, Attor

ney General, Department of Justice (Federal Bureau of

Prisons), Appeal No. 0120150443 (February 28, 2018),

made these same serious accusations against the Bu

reau of Prisons EEO leadership relating to the narra

tive changes being made in her complaint. The

Commission ordering these practices to stop. Id. Com

plainant v. Sessions.

Now, here we are again in 2023, the direct evi

dence establishing that Defendant Ms. Rose Blanken

ship, NPS, Chief, Office of Equal Opportunity, despite

both Congress and the EEO Commission’s warning to

stop acting with deliberate indifference, failed to act

after receiving knowledge that her subordinate EEO

Specialist Defendant Hayes was directing the narra

tive of this entire investigation. This time by ordering

their Contractor, Resolution Services, LLC’s lead in

vestigator Wayne Stephens not to investigate Mr.

Thul’s HWE claims, and restricted this investigation

to collecting evidence relating to the removal claim

ONLY. Pet. App. 114. See also U.S. u. Caver, 470 F.3d

220, 233 (6th Cir. 2006), “ . . . elements of conspiracy.”

Defendant Blankenship’s violation of 29 C.F.R.

§ 1614.108(b) can only be viewed as litigatory abuse

targeted directly at the vulnerably weak, psychologi

cally disabled, pro se federal employees who have no

other choice but to trust in her office.

Therefore this is a case having irreparable harm

and inadequacy of legal remedies for psychologically

disabled employees who like the petitioner are forced

into this compulsory litigation and must proceed pro

se, at the risk of causing further injuries to themselves

and their families. Albright v. Oliver, 510 U.S. 266, 27173, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994), the

Court stated that “[t]he protections of substantive due

process have for the most part been accorded to mat

ters relating to marriage, family, procreation, and the

right to bodily integrity.”

iv. Injury in Fact

When it became clear that Defendant Buskirk was

not moving the employee alleged to be responsible for

the harassing conduct, and the NPS EEO office was re

fusing to investigate the alleged HWE complaint, on

April 30, 2018, based on his treating psychiatrist’s

well-supported and medically acceptable clinical diag

nosis, Mr. Thul exercised his constitutional right to be

temporarily relocated until the HWE allegations were

resolved,

“Secondarily, the Plaintiff was, also navi

gating an issue involving a hostile work envi

ronment complaint. Each time that the work

environment complaint is further delayed in

being resolved sets him back tremendously in

his PTSD recovery, despite his compliance

with treatment recommendations . . . The

process of having to reiterate his complaint

is both distracting from his treatment and

traumatic by nature . . . While he has been

working towards returning to his prior posi

tion, it has become clear that he needs to be

relocated to another park. The process of heal

ing from the trauma inflicted by the suicide

that occurred involves being able to return to

the site of the incident without significant

anxiety or dysfunction . . . Therefore, I am

writing in support of his request to transfer to

another facility working in a similar capacity

We cannot determine a return to work date

until we know the status of this request.”

Pet. App. at 94.

The documentary evidence establishes Mr. Thul’s

35 desperate attempts notifying the individual defend

ants of his emergent psychological treatment need to

be removed from a hostile environment that was med

ically described to be “distracting from his treatment

. . . traumatic by nature . . . and dysfunctional.” De

spite having this knowledge, not one individual de

fendant responded.

D. Challenged Policy of Inaction

With this understanding, it is plain that munic

ipal liability may be imposed for a single decision by

municipal policymakers under appropriate circum

stances. Pembaur v. Cincinnati, 475 U.S. 469, 480

(1986). No one has ever doubted, for instance, that a

federal municipality may be liable under the Fifth

Amendment for a single decision by its properly con

stituted legislative body - whether or not that body

had taken similar action in the past or intended to do

so in the future - because even a single decision by

such a body unquestionably constitutes an act of offi

cial government policy See also Rauccio v. Frank, 750

F.Supp. 566 (D.Conn. 1990), the district court allowed

a due process claim because the defendants (plaintiff’s

superiors) had repeatedly acted in a manner that fore

closed his ability to pursue remedies for his demotion

and termination under the Civil Service Reform Act of

1978. Similarly, Grichenko v. United States Postal

Serv., 524 F.Supp. 672 (E.D.N.Y. 1981), “plaintiff was

allowed to bring a due process claim against several

postal employees based on their “intentional failure

timely to process his claim for compensation in FECA.”

Establishing the NPS’ discriminatory Policy of

Inaction. Based on medically acceptable clinical diag

nostic techniques, Mr. Thul’s treating psychiatrist’s all

agree Mr. Thul’s inability to recover from his psycho

logical injuries are consistent with the NPS agency

head; EEO Director; agency EEO contractor, including

members of their immediate staff’s putatively uncon

stitutional actions taken in the course of their official

conduct. Dr. Beasley restating her 2018 position,

I made it clear previously that it was most

beneficial to return him to work as soon as

possible in order to minimize on-going stress

from being in a state of isolation and uncer

tainty.

Pet. App. at 98.

The Doctrine of Clean Hands

The guiding doctrine in this case is the equitable

maxim that “he who comes into equity must come with

clean hands.” Precision Co. v. Automotive Co., 324 U.S.

806, 815 (1945). This maxim is far more than a mere

banality. It is a self-imposed ordinance that closes the

doors of a court of equity to one tainted with inequita

bleness or bad faith relative to the matter in which he

seeks relief, however improper may have been the be

havior of the defendant. That doctrine is rooted in the

historical concept of court of equity as a vehicle for af

firmatively enforcing the requirements of conscience

and good faith. This presupposes a refusal on its part

to be “the abettor of iniquity.” Bein v. Heath, 6 How.

228, 247 (1848). Thus while “equity does not demand

that its suitors shall have led blameless lives,”

Loughran v. Loughran, 292 U.S. 216, 229 (1934), as to

other matters, it does require that they shall have

acted fairly and without fraud or deceit as to the con

troversy in issue. Keystone Driller Co. v. General Exca

vator Co., 290 U.S. 240, 245 (1933); Johnson v. Yellow

Cab Co., 321 U.S. 383, 387 (1944); 2 Pomeroy, Equity

Jurisprudence (5th Ed.) §§ 379-399.

This maxim necessarily gives wide range to the

equity court’s use of discretion in refusing to aid the

unclean litigant. It is “not bound by formula or re

strained by any limitation that tends to trammel the

free and just exercise of discretion.” Keystone Driller

Co. v. General Excavator Co., supra, 245, 246. Accord

ingly one’s misconduct need not necessarily have been

of such a nature as to be punishable as a crime or as to

justify legal proceedings of any character. Any willful

act concerning the cause of action which rightfully can

be said to transgress equitable standards of conduct is

sufficient cause for the invocation of the maxim by the

chancellor.

Mr. Thul presents that based on medically ac

ceptable clinical diagnostic techniques, the evidence

establishes his psychological injuries are consistent

with the NPS agency head; EEO Director; agency EEO

contractor, including other authorized decisionmakers

within their immediate staff’s constitutional and stat

utory violations. Violations proven to be proximate to

his inability to provide the documentation necessary to

establish he effectuated service of process.

Thereby providing this Court the maxim neces

sary to give wide range to the equity court’s use of dis

cretion in refusing to aid the unclean litigant. You are

“not bound by formula or restrained by any limitation

that tends to trammel the free and just exercise of dis

cretion.” Keystone Driller Co.

ii. Theoretical Proof

Remove the NPS agency head; EEO Director;

agency EEO contractor, including members of their im

mediate staff’s deliberate indifference and:

“The prognosis would have been much im

proved if Mr. Thul had been exposed to a con

sistently supportive work environment. If

that had been the case, his PTSD symptoms

would have most likely resolved themselves

over the course of 6 months or less and the se

vere depression would not have occurred.”

Because the district court's decision serves to aid

the unclean litigant, the decision can be said to trans

gress all equitable standards of judicial discretion.

Therefore, the Supreme Court must set aside the

Eastern District court’s decision to grant the Appeared

Defendants motion to dismiss under 4(m), and RE

MAND this case back to the Eastern District because

it was obtained without procedure required by law,

rule, or regulation having been followed; or, unsup

ported by substantial evidence.” 5 U.S.C. § 7703(c)

(1994); see also Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 414 (1971).

IV.

The Sixth Circuit’s decision Creates an

Intra-District Split between the ED of

Tennessee and the Western District of

Michigan when Seeking Good Cause

A. United States Court of Appeals for the

Sixth Circuit psychological determi

nation for inability to effectuate ser

vice of process

i. There Must be physical symptoms

In the case before you, NOT RECOMMENDED

FOR PUBLICATION, the U.S. Court of Appeals for

the Sixth Circuit court consisting of a panel made up

of Circuit Judges Boggs, Griffin, Mathis DENIED

good cause in my psychological disability claim be

cause I failed to show physical symptoms like “paralysis,

severe muscle spasms, a bladder infection and numer

ous trips to the Cleveland Clinic for neurological and

physical therapy. Symptoms that, according to the

panel, would demonstrate my inability to effectuate

service of process on the defendants. Pet. App. 7.

ii. PTSD causes a lack, or is marked

by a lack, of intellectual acuity

In this matter, where Mr. Thul’s disability is not

apparent, substantial weight is being given to the

Eastern District’s refusal to act, along with the appel

late panel’s belief that PTSD causes a lack, or is

marked by a lack, of intellectual acuity. The panel giv

ing controlling weight to their own unsubstantiated

opinion:

“Nor do we find that Thul’s mental disorders

excused his failure to effect timely service. As

the defendants argue, Thul’s mental disorders

did not preclude him from filing voluminous

pleadings in the district court that required

extensive legal research. So we are unper

suaded that these same mental disorders

were an external impediment to Thul’s ability

to effect proper and timely service of process.”

As such . . . good cause was DENIED. Id.

B. United States District Court for the

Western District of Michigan psycho

logical determination for inability to

effectuate service of process determi

nation

In Savoie v. City of East Lansing, at *4 (6th Cir.

Aug. 24, 2022) NOT RECOMMENDED FOR PUBLI

CATION, the Court consisting of a panel made up of

Circuit Judges Moore, Cole and Nalbandian, defined

good cause in a psychological disability claim as, “a

reasonable, diligent effort to timely effect service of

process.” Johnson v. Smith, 835 F. App’x 114, 115 (6th

Cir. 2021) (quoting Pearison v. Pinkerton’s Inc., 90 F.

App’x 811, 813 (6th Cir. 2004)). Further emphasizing

that “we have identified three scenarios constituting

good cause under Rule 4(m): (1) when the defendant

has intentionally evaded service; (2) when the district

court has committed an error; and (3) when a pro se

plaintiff suffers from a serious illness. Savoie v. City

of East Lansing, “The common denominator in these

situations “is that something outside the plaintiff’s

control prevents timely service.” Id.

Serious Illness Outside the Peti

tioner’s Control - Agency Refusal

to Investigate Hostile Work Envi

ronment Claim

Circa. September, 2018, Mr. Thul’s psychothera

pist, Ms. Brook Sprayberry a Licensed Professional

Counselor with a Mental Health Service Provider

designation in the state of Tennessee alerted the

Agency that:

“[Mr. Thul] describes that the most challeng

ing aspects that he has experienced has been

his continued depression, anxiety, stress over

how it is effecting his wife, continual insomnia

and nightmares. But the most disturbing as

pect is having to retell the story over and over

again. He states that he has lost who he was

over the course of the past year. Previously

Mr. Thul defined himself by what he did, he

took great pride in his work and now that he

does not have that, it has stripped away his

identity.”

Pet. App. 120

Mr. Thul’s treating psychiatrist Dr. Marie Beasley

also notified the NPS that, “[t]he process of healing

from the trauma inflicted by the suicide that occurred

involves being able to return to the site of the incident

without significant anxiety or dysfunction.” Pet. App.

94.

More importantly though, the NPS was well aware

of Mr. Thul’s ongoing harassment complaints involving

Defendant Buskirk.

ii. Biased Decisionmaker

“Our system of law has always endeavored to pre

vent even the probability of unfairness.” In re Murchi

son.., 349 U.S. 133, 136 (1955), “To this end no man can

be a judge in his own case and no man is permitted to

try cases where he has an interest in the outcome.” In

this instant matter, the NPS’ properly constituted leg

islative body, acting as a single municipality, charged

Defendant Buskirk with the authority to decide

whether or not Mr. Thul would ever have a chance to

recover from his line-of-duty caused psychological in

juries. Directing, “I would refer you to the Deciding Of

ficial, Mr. Buskirk ... to discuss the matter further.”

This Court firmly holds that, “Concededly, a ‘fair

trial in a fair tribunal is a basic requirement of due

process.’ In re Murchison, 349 U.S. 133, 136 (1955).

This applies to administrative agencies which adjudi

cate as well as to courts. Gibson v. Berryhill, 411 U.S.

564, 579 (1973). Not only is a biased decisionmaker

constitutionally unacceptable but ‘our system of law

has always endeavored to prevent even the probability

of unfairness.’ In re Murchison, supra, at 136; cf. Tumey

v. Ohio, 273 U.S. 510, 532 (1927).

In the petitioner’s case, the NPS municipal, hav

ing the discretionary knowledge that, “[ejach time that

the work environment complaint is further delayed in

being resolved sets [Mr. Thul] back tremendously in his

PTSD recovery” acted with deliberate indifference to

Mr. Thul’s basic right to life, liberty and the pursuit of

happiness when he sanctioned, by written order that

Defendant Buskirk an obvious biased decision-maker,

first, terminate Mr. Thul based solely on his mental

disability; then second, walk away without resolving

the HWE complaint, “It is our practice not to comment

on matters that are the subject of litigation or part of

the Equal Employment Opportunity (EEO) complaint

process.” Pet. App. 104,105.

The direct medical evidence identifies that PTSD

is healed by being active mentally and physically and

engaging in meaningful, stimulating activities. In this

instant matter, the documentary evidence establishes

the remaining named defendants, while acting in their

official and individual capacities, knew of Bennett and

Buskirk’s unconstitutional plan to terminate Mr. Thul,

based solely on his disability. Where they too, after wit

nessing Buskirk terminate Mr. Thul, turned their

backs and walked away; leaving Mr. Thul alone, and in

a state of isolation and uncertainty. Pet. App. at 96.

Establishing the individual defendant’s culpabil

ity for what could be for no other reason than to protect

their own careers at the expense of the petitioner’s

health and welfare. Pet. App. 98; see also U.S. v. Caver,

470 F.3d 220, 233 (6th Cir. 2006), “ .. . elements of con

spiracy.”

Because the Eastern District court failed to de

termine if the Defendants’ motive to violate the Con

stitution, and the guiding principles of law, were

proximate to the serious psychological injuries causing

Mr. Thul’s inability to properly effectuate service of

process, the Supreme Court must set aside the Eastern

District court’s decision to grant the Appeared Defend

ants motion to dismiss under 4(m), and REMAND this

case back to the Eastern District because it was ob

tained without procedure required by law, rule, or

regulation having been followed; or, unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (1994); see

also Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402,414 (1971).

The Sixth Circuit’s decision conflicts

with the Supreme Court’s decisions re

lated to principles of Expeditious Case

Management and Preclusive Effect under

the Rehabilitation Act

The importance that Title VII attaches to the

avoidance of delay is evident from the language of the

statute. Equal Emp. Op. Com’n v. MacMillan Bloedel

Containers, Inc., 503 F.2d 1086 (6th Cir. 1974). Section

2000e-5(e), supra, places a relatively short statute of

limitations on the time for filing a charge. Also,

§ 2000e-5(f)(4) requires the chief judge of the district

in which the civil action is pending to designate imme

diately a judge to hear the case. The designated judge

has the responsibility to set the case for “hearing at the

earliest practicable date and to cause the case to be in

every way expedited.” 42 U.S.C. § 2000e-5(f)(5). Inter

estingly noted in the petitioner’s Case No. l:22-cv-96,

Judge McDonough after watching Mr. Thul again fail

at his attempt to effectuate service of process, inter

vened pro interesse suo and accommodated Mr. Thul by

providing him with step by step instructions to educate

him as to how to effectuate service of process in his

court. Pet. App. 84-87. After which, service of process

became a non-issue in that case.

Evincing a need for the Supreme Court to address

the constitutional question:

How is service of process even relevant in a

psychological disability case when the

equal protection component of the Due Pro

cess Clause confers on all federal employees

injured in the line-of-duty, a federal consti

tutional right to be free from any discrimina

tion, that would prevent cases like Mr. Thul’s

from being in every way expedited? 42 U.S.

Code § 2000e-5(f)(5), “ ... to cause the case to

be in every way expedited.”

A. Theoretical Test

• Remove the handicapping barrier, and Mr. Thul is

no longer being deprived access to the federal judicial

court system based, “solely on his disability.” 29 U.S.C.

§ 794 (Supp. Ill 1979).

B. Preclusive Effect

In this case, the Department of Interior has al

ready found the National Park Service (NPS) liable for

the injuries and damages caused by their violation of

the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp.

Ill 1979). Pet. App. 22-62. Yet, the NPS refuses to take

final action on this Rehabilitation Act claim. Pet. App.

63, VI. Statement of Relief. And, the Eastern District

court is denying the petitioner access to this property

right by locking the courthouse doors under 4(m). See

University of Tennessee v. Elliott, 478 U.S. 788, 799

(1986), citing Utah Construction & Mining Co., supra,

at 422, “federal courts must give the agency’s fact find

ing the same preclusive effect to which it would be en

titled in the [federal] courts.”

Because the Eastern District court’s decision con

flicts with this Court’s decisions related to principles of

Expeditious Case Management and Preclusive Effect

under the Rehabilitation Act, the Supreme Court must

set aside the Eastern District court’s decision to grant

the Appeared Defendants motion to dismiss under

4(m), and REMAND this case back to the Eastern Dis

trict because it was obtained without procedure re

quired by law, rule, or regulation having been followed;

or, unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c) (1994); see also Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971).

VI.

The U.S. District Court Eastern District

of Tennessee’s decision conflicts with the

Tenth Circuit decision related to princi

ples of serving multiple defendants under

Rule 4.

In determining whether Mr. Thul should be

granted a permissive extension of time, several factors

should guide the district court. Espinoza v. U.S., 52

F.3d 838, 842 (10th Cir. 1995). First, the advisory com

mittee’s note states that “[r]elief may be justified ... if

the applicable statute of limitations would bar the

refiled action.” Fed. R. Civ. P. 4(m) advisory commit

tee’s note (1993). As the petitioner noted, the Eastern

District court’s decision sounds the death knell for his

entire cause of action.

Applying Mr. Thul’s case to Espinoza in the Tenth

Circuit, would yield, upon reconsideration of Mr. Thul’s

claim, the Eastern District court should consider the

limitations period in deciding whether to exercise its

discretion under Rule 4(m).

Directly applicable to this case, other amendments

to Fed. R. Civ. P. 4 suggest that policy considerations

might weigh in favor of granting a permissive exten

sion of time to Mr. Thul. Specifically, Fed. R. Civ. P.

4(i)(3), a provision added by the 1993 amendments, ap

pears to provide an exception to Fed. R. Civ. P. 4(m) in

certain cases in which the plaintiff has tried, but failed,

to effect service upon the United States. Rule 4(i)(3)

reads:

The court shall allow a reasonable time for

service of process under this subdivision for

the purpose of curing the failure to serve mul

tiple officers, agencies, or corporations of the

United States if the plaintiff has effected ser

vice on either the United States Attorney or the

Attorney General of the United States. Fed. R.

Civ. P. 4(i)(3) (emphasis added).

The advisory committee’s note to Rule 4(i) states

that this rule “saves the plaintiff from the hazard of

losing a substantive right because of failure to comply

with the requirements of multiple service under [Rule

4(i)].” Fed. R. Civ. P. 4(i) advisory committee’s note

(1993). Espinoza at 842. Because Mr. Thul did serve

either the United States Attorney or the Attorney Gen

eral, Rule 4(i)(3) does apply to his case, and he has

therefore shown “good cause” under this rule. See also

DOI Waiver, Pet. App. 118.

It is Mr. Thul’s belief that because there is docu

mentary evidence that unquestionably establishes his

psychological injuries are causally connected to, and

consistent with, the NPS agency head; EEO Director;

agency EEO contractor, including members of their im

mediate staff’s putatively unconstitutional actions

taken in the course of their official conduct. Therefore

the Advisory committee would clearly evince the need

for a solicitous attitude toward the Fifth Amendment

rights protecting the vulnerable, psychologically disa

bled plaintiffs, who like the petitioner, cannot afford an

attorney, as well.

For this reason the Advisory committee’s note to

Rule 4(i) states that this rule saves plaintiffs who are

forced into this compulsory litigation; and then are

faced with the complex requirements of multiple ser

vice from the hazard of losing a substantive right be

cause of failure to comply with the requirements of

multiple service under Rule 4(i).

VII.

Epilogue

This case sufficiently demonstrates that even to

day, there still exists inexplicably differing standards

of proof among the many courts when psychologically

disabled federal employees proceeding pro se seek

“good cause” for failing to timely effectuate or attempt

to effectuate service of process under Fed. R. Civ. P. 4.

Thereby providing the bases of injunctive relief re

quired to unlock the Eastern District courthouse doors

to federal employees suffering from line-of-duty inju

ries, who are simply seeking to exercise their constitu

tional right to protect themselves as well as their

families from the NPS’ unlawful policies. See Lujan u.

National Wildlife Federation, 497 U.S. 871, 883 (1990)

“A person suffering legal wrong because of agency ac

tion, or adversely affected or aggrieved by agency ac

tion within the meaning of [29 U.S.C. § 794 (Supp. Ill

1979); 5 C.F.R. § 353.301(d); and 29 C.F.R. § 1614.108(b)]

is entitled to judicial review thereof.” 5 U.S.C. § 702.

Establishing the U.S. District Court Eastern Dis

trict of Tennessee at Chattanooga’s tolling of the death

knell under 4(m) has made this litigation “so gravely

difficult and inconvenient” for psychologically disabled

parties who are unfairly put at an even further “severe

disadvantage” in comparison to their opponents.

Compton v. Jesup, “Every court has inherent equitable

power to prevent its own process from working injus

tice to any one, and may entertain a petition by the ag

grieved person, either in the form of a simple motion,

or by intervention pro interesse suo” Where, “[t]he ba

ses of injunctive relief in the federal courts has always

been irreparable harm and inadequacy of legal reme

dies.”

VIII. Ergo the Questions Presented before this

Court.

Whether service of process is relevant in a

psychological disability case when the equal

protection component of the Due Process

Clause confers on all federal employees in

jured in the line-of-duty, a federal constitutional

right to be free from any discrimination, that

would prevent cases involving Post-Traumatic

Stress Disorder from being in every way expe

dited? 42 U.S. Code § 2000e-5(f)(5), “ ... to

cause the case to be in every way expedited.”

Whether or not the National Park Service

municipality or its properly constituted legis

lative body’s putatively unconstitutional ac

tions should be a consideration in determining

“good cause” for a psychologically disabled

employee’s inability to effectuate service of

process; otherwise, tolling the death knell for

their entire cause of action?

CONCLUSION

I am requesting this Court’s intervention pro interesse suo in a cause in which despite repeated Con

gressional and EEO Commission warnings to the

NPS’ properly constituted legislative bodies, the named

defendants’ deliberate indifference continues to be

targeted at the vulnerably weak, and psychologically

disabled pro se federal employees, who have no other

choice but to trust the offices in which the defendants

hold, and that their decisions will be based on their

sworn allegiance to protect the U.S. Constitution; not

one another. See 5 U.S. Code § 3331 - Oath of office.

Respectfully submitted,

Jeffry Thul

P.O. Box 1403

Dayton, TN 37321

(423) 774-8440

j effrythul@gmail. com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.