Petition for Writ of Certiorari — Rockefeller v. Tacha

a Supreme Cour, UB

031358 FEB > 2004

No. 03 - —

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OFAICE AE ror Om

In The

Supreme Court of the United States

Tod N. Rockefeller

Petitioner,

Vv.

Deanell Tacha, Chief Judge,

United States Court of Appeals

for the Tenth Circuit, et al.,

Respondents.

On Appeal to the United States

Court of Appeals for the

District of Columbia Circuit

Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(S05) 628 - 3541

Heather Graham-Oliver, Ass’t U.S. Attorney

U.S. DOJ, Judiciary Cntr. Bldg., Rm. 10-911

955 Fourth Street, N.W.

Washington, DC 20530

(202) 307 - 0492

END

Preface Statement

Petitioner had filed a Petition for Rehearing

En Banc with the DC Circuit. Such Petition

detailed that the grounds used for the dismissal of

Petitioner’s appeal [03-5076], should no longer

apply when subject to the pleadings within the

Petition.

Question Presented

i. Whether this Court will determine that

Petitioner’s claim for injunctive relief was

well-founded and meritorious ?

eee ae |

Parties Proceeding

Petitioner was plaintiff (01-2627 RBW) in the

DC District Court, and subsequently Appellant to

the U.S. CoA for the DC Cir. (03-5076).

Respondents are Tacha, 10 Cir. Chief Judge, and

Circuit Judges Baldock, Brorby, and Kelly.

Respondents are judges who dismissed

Petitioner’s 10” Cir. cases [00-2480; 01-2054].

Respondents’ contact is through their counsel:

Heather Graham-Oliver, Asst. U.S. Attorney

U.S. DOJ Judiciary Center Bldg., Rm. 10-911

555 Fourth Street, N.W.; Wash., D.C. 20530

(202) 307 - 0492

Table of Contents

Question Presented | i

Parties to Proceeding ii

Table of Authorities iil

Rules /Jurisdiction iii

; Constitutional Provisions at Issue 1

Statement of the Case 1

Angunecut 2 thru 4

Appendix 1 A-1

Appendix 2 A-2 thru A-3

Appendix 3 A-4 thru A-13

Table of Authorities

CONSTITUTIONAL PROVISIONS

U.S. Const., Amend. I

U.S. Const., Amend. V

U.S. Const., Amend. VII

STATUTES

15 U.S.C. § 2622 (a)

28 U.S.C. § 1254 (1)

42 U.S.C. §§ 300j-9(i), 6971, 9610(a)

42 U.S.C. §§ 2000e-1 through 2000e-17

CASES

Pulliam v. Allen, 466 U.S. 522, 528, 537, 541

(1984);

Forrester v. White, 484 U.S. 219, 228-29 (1988);

Hewitt v. Helms, 482 U.S. 755, 766 (1987);

Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991);

In re Justices of Supreme Court of Puerto Rico, 696

F.2d 17 (1™* Cir.1982);

Heimbach v. Lyons, 597 F.2d 344 (2™ Cir. 1979);

Slavin v. Curry, 574 F.2d 1256 (5™ Cir. 1978);

WXYZ, Inc. v. Hand, 658 F.2d 420 (6™ Cir.1981);

Harris v. Harvey, 605 F.2d 330 (7 Cir. 1979);

Richardson v. Koshiba, 693 F.2d 911 (9™ Cir. 1982).

Rules

Supreme Court (“Sup.Ct.”) Rules 10(a), 10(c), 14.1

Jurisdiction

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254 (1). The U.S. CoA for

the DC Cir. denied Petitioner’s Petition for

Rehearing En Banc (03-5076) with an Order filed

on NOV 17, 2003.

ee

Constitutional Provisions at Issue

First Amendment Right of Free Speech :

Fifth Amendment Right of Due Process of Law

Seventh Amendment Right of Trial by Jury

Statement of the Case

This case involves retaliations taken upon

Petitioner by a former manager of his employer at

the time, the United States (“U.S.”) Department of

Energy (“DOE ”). Petitioner is a disabled individual

who was employed with the DOE as an Environ-

mental Scientist at the Waste Isolation Pilot Plant

(“WIPP ”) in Southeastern New Mexico. The WIPP is

a nuclear waste repository for the disposal of

defense program generated transuranic waste.

Petitioner is simply just an honest man.

When Petitioner began making attempts to

identify and correct safety deficiencies, the former

DOE manager of the WIPP engaged in reprisals

towards Petitioner. The retaliations against

Petitioner culminated in his removal from federal

service during December of 1997 for putative “poor

performance”.

Subsequent to his removal, Petitioner filed

complaints in the U.S. district court for the district

of New Mexico, and then appeals with the 10"

Circuit. These courts had not addressed the

pleadings of Petitioner. E.g.: 748 pages of evidence

filed. Petitioner next filed Petition 01-1143 with this

Court. After Petition 01-1143 was denied, Petitioner

filed a complaint in the DC district court,which was

dismissed on the ground, for example, that the 10°

Cir. judges were immune from suit. The DC Cir.

affirmed the dismissal of the com- plaint. A Petition

for Rehearing En Banc (hence- forth “Rehearing”)

with the DC Cir., requesting only injunctive relief,

was filed which is included with, and is the basis of,

this instant Petition.

es

a Ses ee ee

Argument

Question 1.

The original Order (henceforth “8/12 Order”)

of the DC Cir. dismissing Petitioner’s appeal [03-

5076] is included below as Appendix 2. There are

three issues identified within the 8/12 Order that

the DC Cir. used as grounds for the dismissal of

03-5076 which are: 1) “judicial immunity”; 2)

“failure to state a claim under Title VII”; and 3)

“lack of a private cause of action under 18 U.S.C. §§

242, 371.” App. 2 at A-2, A-3.

To address the ground concerning “18 U.S.C.

§§ 242, 371" originally, for example, Petitioner had

pointed out that the cases accepted by the lower

courts to support their position on this issue were

not valid. Petitioner had made this claim because,

the cases cited by Appellees [E.g.: Dugar v. Coughlin

, 613 F.Supp. 849, 852 n.1 (S.D. Ohio 1985)] to

support their claim towards 18 U.S.C. §§ 242, 371,

did not employ the precedent set by this Court

[four-part test within Cort v. Ash, 422 U.S. 66, 78

(1975)]. According to this precedent, a court would

apply the Cort test for determining if there was an

implied cause of action within a statute, including

those that are criminal.

While Petitioner is of the opinion that he

made a very valid point concerning the application

of the Cort test precedent, this point is moot.

All of the grounds specified above for the dismissal

of 03-5076 are rendered inapplicable to Petitioner’s

case if the facts and grounds within his Rehearing

are considered. E.g.: The silence cof the DOE

towards Petition 01-1143 constitutes an adoptive

admission of pretext per Fed.R.Evid. 801(d)(2)(B).

See United States v. Andrus, 775 F.2d 825, 839-40

(7" Cir. 1985); see also page A-10 below. The

established pretext relates to the fact that

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Petitioner’s claim for injunctive relief is meritorious.

Petitioner had learned of another precedent

set by this Court, applicable to this case, during

the process of his research towards defense against

dismissal. In the Pulliam case, this Court ruled that

judicial immunity did not bar injunctive relief. In

comparing the ruling in Pulliam to the Adminis-

trative Procedures Act, 5 U.S.C. § 701 et seq.,

Petitioner found that both coincide with allowing

injunctive relief while not allowing damages. In

filing his requested Rehearing with the DC Cir.,

Petitioner had respectfully apologized to the court

for his previous lack of knowledge in the area of

injunctive relief. The entitlement to injunctive relief

and irreparable harm suffered in the absence of

such relief towards Petitioner are outlined below.

See App. 3 at A-6 through A-11.

ee nt ne em

Conclusion

Are not the rulings of this Court for the

purpose of demonstrating the intentions and

desisns behind the law, to ensure the most uniform

and just application of such ? Was this Court’s

ruling in Pullium towards injunctive relief based, in

part, upon the Administrative Procedures Act ? It

is hoped that the merits of this case have been

adequately demonstrated by Petitioner to this Court.

Might such case become an example of when

relevant facts and case law are effectively presented

to this Court, that justice prevails within the

greatest democracy in the world . . . the United

States ?

Prayer for Relief

What the lower courts were misled into

believing about Petitioner, to justify the dismissal of

his complaints, by the tyrannical DOE manager of

the WIPP at the time, has now been admitted to

have been untrue. This has resulted in harmful

error towards Petitioner. Petitioner prays that this

Court grant this instant Petition, and find that his

request for injunctive relief has merit.

Respectfully submitted,

s/Tod N. Rockefeller

319 Sunnyview St.

Carlsbad, NM 88220

(SO5) 628 - 3541

APPENDIX 1

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-5076 September Term, 2003

01cv02627

TOD N. ROCKEFELLER,

Appellant, Filed On:

Vv. NOV 17 2003

DEANELL TACHA, Chief

Judge, United States Court

of Appeals for the Tenth

Circuit, et al.,

Appellees.

BEFORE: Ginsburg, Chief Judge, and Edwards,

Sentelle, Henderson, Randolph,

Rogers, Tatel, Garland, and Roberts,

Circuit Judges.

ORDER

Upon consideration of appellant’s petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: s/Michael C. McGrail

Deputy Clerk

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Se

APPENDIX 2

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-5076 September Term, 2002

01cv02627

Tod N. Rockefeller, Former,

Environmental Scientist, Filed On:

United States Depart. of Energy, AUG 12 2003

Appellant,

Vv.

DEANELL TACHA, Chief

Judge, United States Court

of Appeals for the Tenth

Circuit, et al.,

Appellees.

BEFORE: Ginsburg, Chief Judge, and Sentelle,

and Henderson, Circuit Judges.

ORDER

Upon consideration of the motion for

summary affirmance, the opposition thereto, and

the reply, it is

ORDERED that the motion for summary

affirmance be granted. The merits of the parties’

positions are so clear as to warrant summary

action. See Taxpayers Watchdog, Inc. v. Stanley,

819 F.2d 294, 297 (D.C. Cir. 1987)(per curiam);

Walker v. Washington, 627 F.2d 541, 545 (D.C.

Cir.) (per curiam). The district court properly dis-

missed appellant’s complaint on the grounds of

judicial immunity, see Forrester v. White, 484 U.S.

219, 225 (1988); Stump v. Sparkman, 435 U.S.

349, 356-57 (1978); failure to state a claim under

A-2

Title VII because of the lack of employment

relationship between appellant and appellees; and

the lack of a private right of action under 18 U.S.C.

§§ 242, 371.

Pursuant to D.C. Circuit Rule 36, this

disposition will not be published. The Clerk is

directed to withhold issuance of the mandate herein

until after seven days after the resolution of any

timely petition for rehearing en banc. See

Fed.R.App.P. 41(b); D.C. Cir. Rule 41.

Per Curiam

s/Ginsberg, Sentelle, Henderson [Initials]

APPENDIX 3

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

TOD N. ROCKEFELLER, former} Case No.

ENVIRONMENTAL SCIENTIST,} 03 - 5076

WIPP SITE TEAM, CARLSBAD }

AREA OFFICE, UNITED } USDC -DCNo.

STATES DEPART. OF ENERGY,} 01-2627 RBW

Plaintiff / Petitioner - Appellant }

v. } Sup.Ct. Pet.

U. S. COURT OF APPEALS } 01-1143

FOR THE TENTH CIRCUIT }

JUDGES: TACHA, Chief Judge, } 10 Circuit Nos.

BALDOCK, BRORBY, and } 00-2480; 01-2054

KELLY, Circuit Judges, } USDC-NM Nos.

Defen. / Respondents - Appellees.} 99-1059; 00-652

Petition for Rehearing by the Panel

and Petition for Rehearing En Banc

I. Introduction

Appeal No. 03-5076 was dismissed by this Court

with an Order filed on 8/12/03. Petitioner-Appellant is

filing a combined pleading as captioned above. See DC

Cir. HdBk at 57. Petitioner was a Physical Scientist [GS

1301-13] at the United States (“U.S.”) Department of

Energy’s (“DOE’s”) Waste Isolation Pilot Plant (“WIPP”’)

, which is a repository for defense program generated

transuranic nuclear waste. Petitioner is simply just an

honest scientist who was trying to take preventative

measures to preclude the possibility of safety deficiencies

from turning into disasters, which could be very damaging

A-4

to our nation. The DOE had removed Petitioner from

federal service during December of 1997 for putative “poor

performance”. In response to his removal, Petitioner filed

complaints in the USDC, appeals in the Tenth Circuit, (as ,

captioned above) and then a Petition for Writ of Certiorari

in the Supreme Court (“Sup.Ct.”) No. 01-1143. After

exhausting all of his avenues of administrative relief

[Petition 01-1143], Petitioner filed Complaint No. 01-2627

RBW in the DC district court.

As a result of the proceeding concerning Sup.Ct.

Petition 01-1143 [Encl. I to doc. 7 of 01-2627 RBW],

Petitioner has established as fact a number of violations of

the laws and Constitution of the U.S. by the DOE and the |

10" Cir. that will be detailed below. Complaint 01-2627,

that was the subject of the appeal in this Court [03-5076],

demanded damages in dollars from the Judicial Branch.

Petitioner has recently learned that a demand for damages

in case 01-2627 is inappropriate as will also be explained

below. Injunctive relief only, is what Petitioner can |

appropriately request from this Court in an Official-

capacity suit. See doc. 7 and Amended Complaint. The

panel decision in question is attached as “Addendum I ”.

II. The Constitution of the U.S.

Since the beginning of our nation, the Bill of

Rights did not apply to all Americans. E.g.: African-

Americans. During the late 1860s, enough of the nation

became aware of the plight of African-Americans at the

hands of the Klu Klux Klan, and others, to force the

Legislature to take action. In response to the crisis above,

the Klu Klux Klan Act was enacted [also known as the

Civil Rights Enforcement Act of 1871]. Unfortunately,

however, for African-Americans, said Act above was

essentially ineffectual. It had to take nearly another 100

years, with the enactment of the Civil Rights Act of 1964,

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for enforcement of civil rights, for truly all Americans, to

become a reality within our nation.

This instant Petition presents a very important

issue concerning the democracy of this nation. The

question is whether or not enforcement of the Bill of

Rights is currently available for all Americans within the

present day judicial system of the U.S. ? Is it true that if a

law exists, but it is unenforceable, that said law is then

without any value and meaningless ? Petitioner was

formerly very proud to be a federal employee within the

Defense Logistics Agency, especially during “Operation

Desert Shield” and “Operation Desert Storm”. Petitioner

prays that this Court will restore his faith and pride in the

Government of this nation by granting this instant Petition

for the justifications set forth below.

III. DC Circuit Panels - Injunctive Relief

Panels of this Court have ruled that there are four

requirements that must be satisfied for a litigant to be

entitled to a grant of injunctive relief. These requirements

are:

“(1) that he is substantially likely to succeed

on the merits of the suit, (2) that in the absence

of an injunction, he would suffer irreparable

harm for which there is no adequate legal

remedy, (3) that the injunction would not

substantially harm other parties, and (4) that

the injunction would not significantly harm

the public interest.”

See Wagner v. Taylor, 836 F.2d 566, 576 (D.C. Cir.

1987); Virginia Petroleum Jobbers Ass’n v. FPC, 259

F.2d 921, 925 (D.C. Cir. 1958); see also Tenacre Foun-

dation v. INS, No. 95-5294 (D.C. Cir., March 19", 1996).

Concerning injunctive relief, the Sup.Ct. has stated the

following:

A-6

a

“Under the Court of Appeals’ remand order,

the District Court could, and probably

should, have entered judgment granting the

requested declaratory and injunctive relief.

Instead, the District Court first took up the

question of immunity, and, upon finding }

qualified immunity, precipitately issued an

order closing the case. No order was entered

disposing of respondent’s pending claims for

equitable relief.”

See Hewitt v. Helms, 482 U.S. 755, 766-67 (1987)

(Marshall, J., dissenting). Concerning Appeal No. 03-5076

with this Court, the same is true as quoted from the Hewitt

case above. After this Court found Defendants immune,

an order was filed on 8/12/03 “closing the case”, without

“disposing” of Petitioner’s “pending claims for equitable

relief” [remand back to Trial Court as injunctive relief

while allowing no damages].

In addition, Appeal No. 03-5076's claim for

equitable relief was ripe for a judicial decision. A panel of

this Court ruled the following:

“The two-pronged test for npeness established

by the Supreme Court in Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49 (1967), requires

the court to consider both the “fitness” of the

issues for judicial decision and the “hardship”

to the parties of withholding review. “Purely

legal questions,” such as those presented in the

instant case, are “presumptively [fit] for judicial

review.” City of Houston v. HUD, 24 F.3d

1421, 1431 (D.C. Cir. 1994)(quoting Better

Gov't Ass'n v. Department of State, 780 F.2d

86, 92 (D.C. Cir. 1986).”

See Chamber of Commerce of the U.S., et al. v. Reich, No.

95-5135 (D.C. Cir., June 21*, 1995).

A-7

A a 6 ts _—

erential

As will be demonstrated below, Petitioner’s Appeal [03-

5076] met the four “requirements” that panels of this

Court have ruled which entitled him to injunctive relief,

and that Petitioner’s pending claims for equitable relief

were indeed ripe for a judicial decision.

IV. Judicial Immunity - Injunctive Relief / Damages

The Sup.Ct. and six different U.S. Circuit Courts

have all ruled that judicial immunity does not bar

injunctive relief. These cases include:

a. Pulliam v. Allen, 466 U.S. 522, 528, 537, 541

(1984);

b. Forrester v. White, 484 U.S. 219, 228-29

(1988);

c. Hewitt v. Helms, 482 U.S. 755, 766 (1987);

d. Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991);

e. In re Justices of Supreme Court of Puerto Rico,

696 F.2d 17 (1* Cir. 1982);

f. Heimbach v. Lyons, 597 F.2d 344 (2™ Cir.

1979);

g. Slavin v. Curry, 574 F.2d 1256 (5" Cir. 1978);

h. WXYZ, Inc. v. Hand, 658 F.2d 420 (6" Cir.

1981);

i. Harris v. Harvey, 605 F.2d 330 (7" Cir. 1979);

j. Richardson v. Koshiba, 693 F.2d 911 (9" Cir.

1982).

As a result of all of the judgments above, Petitioner

should have been granted a remand of his original New

Mexico district court cases [99-1059 & 00-652 ] back to

Trial Court as injunctive equitable relief that had been

requested from Defendants [10" Cir. Appeal Nos. 00-

2480 & 01-2054]. This request for equitable relief has

been established as meritorious from the admissions-

by-silence of the DOE concerning Sup.Ct. Petition 01-

1143 that will be demonstrated below.

A-8

—

The ruling of this Court that Defendant judges are

immune from suit now does not matter concerning

Petitioner’s Appeal [03-5076]. Judicial immunity is not

being challenged any longer by Petitioner-Appellant. No

damages in dollars can therefore be demanded, only

injunctive relief. Petitioner came to this conclusion after

studying both the Sup.Ct. ruling in Pulliam, and the

Administrative Procedures Act (“APA’’), 5 U.S.C. § 701 et

seq.. For a 42 U.S.C. § 1983 complaint reviewing an

agency action under the APA, no damages are allowed only

injunctive relief. See 5 U.S.C. § 702. The requirement

noted above of the APA coincides with the ruling in

Pulliam concerning § 1983 claims against a member of the

judiciary [no damages allowed only injunctive relief]. For

this reason, Petitioner realized that only injunctive relief is

available to him, no damages. Petitioner respectfully

apologizes to this Court for his lack of knowledge of the

law in this regard.

V. Entitlement to Injunctive Relief

a. Meritorious Claims of Petitioner - as described above,

Petitioner had filed Petition No. 01-1143 with the Sup.Ct..

Within said Petition, it is specifically outlined how facts

concerning the DOE and the removal of Petitioner from

federal service amounted to pretext for his termination.

Also, that the DOE had made several knowingly false

representations concerning Petitioner’s Equal Employ-

ment Opportunity (“EEO”) Complaints investigation. See

doc. 7 at 4 through 7, and doc. 7's Enclosure I at A-31

through A-46 [Petition 01-1143]. The DOE had remained

silent concerning the allegations within Petition 01-1143

and had admitted to them by the well-established doctrine

of admission-by-silence. The 9" Cir. has ruled that:

“The general rule concerning admissions-

A-9

by-silence or acquiescence is well estab-

lished. When an accusatory statement is made

in the defendant’s presence and hearing, and he

understands and has the opportunity to deny it,

the statement and his failure to deny are

admissible against him.”

See United States v. Moore, 522 F.2d 1068, 1075 (9" Cir.

1975); see also Arpan v. United States, 260 F.2d 649, 655-57

(8" Cir. 1958); Commonwealth v. Kruah, No. 97-P-2164

(Mass. App. Ct., July 21*, 1999); Commonwealth v.

MacKenzie, 413 Mass. 498, 506 (1992); Commonwealth v.

Olszewski, 416 Mass. 707, 718 (1993), cert. denied, 513 U.S.

835 (1994); Fletcher v. Weir, 455 U.S. 603, 607 (1982);

Jenkins v. Anderson, 447 U.S. 231, 238-40 (1980); Osborne vy.

United States, 371 F.2d 913, 921 (9" Cir. 1967); United States

vy. Andrus, 775 F.2d 825, 839-40 (7" Cir.1985); United States v.

Aponte, 31 F.3d 86, 87 (2™ Cir. 1994); United States v. Flecha

539 F.2d 874, 877 (2™ Cir. 1976); United States v. Giese, 597

F.2d 1170, 1195-96 (9" Cir. 1979); United States v. Oplinger,

150 F.3d 1061, 1072 (9 Cir. 1998); United States v. Schaff,

948 F.2d 501, 505 (9" Cir. 1991); United States v. Zanabria

74 F.3d 590, 593 (5" Cir. 1996); Wiedemann v. Walpole, 2

Q.B. 534, 539 (1891).

Defendants had also violated the due process rights of

Petitioner by affirming the district court’s improper exclusion

of 748 pages of relevant admissible evidence that had been

filed. A number of additional violations were suffered by

Petitioner. See doc. 7's Encl. I at A-31 through A-46.

Petitioner most certainly was likely to succeed on the merits of

his 10" Cir. Appeals [00-2480 & 01-2054]. Petitioner has

indeed suffered from due process violations of Defendants.

The Sup.Ct. has ruled that a court is supposed to be forbidden

to violate a party’s due process rights. See Davis v. Passman,

442 US. 228, 234 (1979).

b. In the Absence of an Injunction - if this remains so,

Petitioner will suffer irreparable harm. Petitioner’s career has

been killed by the DOE. Employment was sought by Petitioner

A-10

earner aerate,

with numerous employers which did not result even with just |

being interviewed. All of Petitioner’s employment appli- |

cations had been denied. In addition, the DOE has admitted to

blacklisting Petitioner at the Carlsbad Environmental Moni-

toring and Research Center (““CEMRC’”). Petitioner had applied

for a position at CEMRC [a facility that ‘s partially funded by

the DOE]. As noted above, Petitioner did not even get an

interview with CEMRC despite his directly related graduate

degree and years of very relevant experience. E.g.: Petitioner

was an Atmospheric Research Scientist at the DOE’s

Environmental Measurements Laboratory (“EML’”) in New

York City. At EML, Petitioner had been working on the

characterization of air masses to aid in the ability to predict

global climate change. Rather than hire Petitioner, CEMRC

hired a Mr. Jeremy Staley who had NO college degree or

relevant experience (emphasis added). This was specifically

outlined within Petition 01-1143 at A-42. The DOE has

admitted-by-silence to the blacklisting of Petitioner.

Petitioner had worked very hard at developing a career

with quite a few years of taking his college classes at night,

while working full-time during the day to pay for his education

himself. All of the career aspirations of Petitioner have been

destroyed by the DOE. Petitioner was never a poor performer

as the DOE has now admitted to. Petitioner has no training in

regard to the law, yet he has successfully docketed four

petitions with the Sup.Ct.. This fact alone would very likely

prevent any jury from finding that Petitioner hac ever been a

poor performer [the claim the DOE used to remove Petitioner

from federal service]. Petitioner never had any desire to be

criticizing the Government and battling the DOE in court. A |

humble prayer is made by Petitioner for this Court to show him |

justice done.

c. An Injunction’s Harm to Defendants or the Public - if this

Court grants this instant Petition, and then subsequently grants

the injunctive relief that is sought noted above [remand back to

Trial Court], no harm will come to the 10" Cir. Defendants. No

damages can be sought towards the Defendants as outlined

A-11

above. All Petitioner wants to have vindicated is his Seventh

Amendment right to a fair jury trial towards the DOE. Injunc-

tive relief as such would certainly be of no harm to the public,

but would actually be of value by affirming the strength of the

Bill of Rights. ;

VI.. Conclusion

This Court’s 8/12/03 Order dismissing Appeal No.

03-5076 details three justifications. The first is the

“Judicial immunity” of Defendants, the second is “failure

to state a claim under Title VII’, and third is “the lack of a

private right of action under 18 U.S.C. §§ 242, 371.”

Since Petitioner has outlined that he can only seek injunc-

tive relief and no damages against Defendants, these

justifications for the dismissal of this Appeal [03-5076]

are moot as detailed above. Petitioner has demonstrated,

within this instant Petition, that there are well-founded

justifications for granting him the injunctive relief that he

seeks. In additional support, the Sup.Ct. has ruled that:

“Indeed, this Court has already settled that a

cause of action may be implied directly under

the equal protection component of the Due

Process Clause of the Fifth Amendment in

favor of those who seek to enforce this

constitutional right.

See Davis, 442 U.S. at 242. Petitioner prays that this

Court “enforce this constitutional right”.

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paca cca a

Prayer for Relief

Petitioner prays that this Court issues an order

granting this instant Petition for the justifications outlined

above. Such an order would be a very large step towards

vindicating Petitioner’s constitutional rights and restoring

faith in his government.

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541 :

Dated & Served: September 25", 2003

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