Supplemental Appendix — Rockefeller v. Tacha

, Sapagne Cane, U5.

1LED

OZL35RFER NT 2H

No. 03 -

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 tbh<

District of Columbia Circuit

SUPPLEMENTAL APPENDIX

Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(SOS) 628 - 3541

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

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

9555 Fourth Street, N.W.

Washington, DC 20530

(202) 307 - 0492

TABLE OF CONTENTS

Page

APPENDIX 4 1-12

USDC - DC Memorandum Opinion,

file date of February 10, 2003.

APPENDIX 5 13 - 18

Related USDC - NM Pleading of

Petitioner - Issue of Untimeliness.

APPENDIX 4

UNITED STATES DISTRICT COURT

FOR TIE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

Doc. 21

Plaintiff,

v. Civ. No. 01-2627

UNITED STATES COURT FILED

OF APPEALS OFFICE, FOR FEB 10 2003

THE TENTH CIRCUIT

JUDGES, et al.,

Defendants.

MEMORANDUM_ OPINION

This matter comes before the Court upon

defendants’ motion to dismiss the complaint pur-

suant to Federal Rule of Civil Procedure 12(b)(6)."

The plaintiff's complaint alleges that the defendants

are: (1) criminally liable under 18 U.S.C. §§ 242 and

371 (2000), for violations of the plaintiff's First, Fifth

, and Seventh Amendment rights of the United

States Constitution; and (2) civilly liable for damages

under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e (2000) (“Title VII”), as a result of his

termination by the United States Department of

Energy (“DOE”), purportedly in retaliation for

allegations he made that the DOE had

1. Because of the plaintiff's status as a pro se litigant, this

Court issued an Order on January 3, 2003, as required by Fox

v. Strictland, 837 F.2d 507 (D.C. Cir. 1988), wherein the

plaintiff was notified of the potential consequences of failing to

fully and completely respond to the defendants’ dismissal

motion. The plaintiff has failed to respond to the Court’s Order.

a

engaged in violations of safety and environmental

laws.” Original Complaint (“Compl.”) at 1. Upon

consideration

«Os

2. While it is unclear from the plaintiffs original complaint

whether he is asserting claims against the defendants in both

their official and individual capacities, in a subsequent memo-

randum submitted to the Court, he clearly states that his

claims are only against the defendants in their official capa-

cities. See Memorandum in Support of Motion for Leave of

Court to File Amended Complaint and Judicial Notice of Adju-

dicative Facts | 37. In addition, in this same memorandum,

the plaintiff sought leave of court to amend his com- plaint to

indicate that this Court should take judicial notice of certain

adjudicative facts that he claims the defendants admitted to

by not filing a brief in opposition to his petition for a writ of

certiorari before the United States Supreme Court. Apparently

, the plaintiff is also seeking to add the Chief Justice’s name to

the list of defendants in the caption of this case. While this

Court recognizes that pursuant to Fed.R.Civ.P. 15(a) leave to

file an amended complaint “shall be freely given when justice

so requires|,]|” the Court concludes that no such need exists in

this case. The Court agrees with the defendants that justice

does not require the amendment of a complaint when such an

amendment would be futile. See James Madison Ltd. v. Lud-

wig, 82 F.3d 1085, 1099 (D.C. Cir. 1996); Firestone v. Fire-

stone, 76 F.3d 1205, 1208 (D.C. Cir. 1996); Moldea v. New

York Times, 22 F.3d 310, 319 (D.C. Cir. 1994). First, the

Court notes that the defendants in this case are not parties to

the case that is the subject of the plaintiff's petition for a writ

of certiorari and thus were not obligated to file a brief with the

Supreme Court in that case. In addition, even if they had

been parties in that case, the filing of an opposition brief is

voluntary and not a mandatory obligation and therefore the

failure to file an opposition cannot constitute an admission.

See Sup.Ct. R. 12(6). Second, the Court notes that the plain-

tiffs apparent attempt to add Chief Justice Rehnquist as a de-

fendant in this case is futile. This is because the plaintiff fails

to assert any additional claims against the Chief Justice that

would survive a motion to dismiss, as he failed to assert any

factual allegations or claims against Chief Justice Rehnquist,

and even if he had, any such claims against Chief Justice

Rehnquist would have to be dismissed for the same reasons

the Court, as set forth below, is dismissing the claims against

the New Mexico district judge and the Tenth Circuit judges.

of the parties’ submissions regarding the defen-

dants’ motion and for the reasons set forth below,

the Court will grant the defendants’ motion to dis-

miss because it is impermissible to bring a private

cause of action under 18 U.S.C. §§ 242 and 371.

Also, the plaintiff has failed to state a claim upon

which relief can be granted under Title VII because

he has never been an employee of the defendants.

In addition, the Court notes that even if it were to

construe the plaintiff's pro se complaint liberally

and conclude that a claim under 42 U.S.C. § 1983

(2000) has been asserted, the claim would still have

to be dismissed. This is because a § 1983 claim

upon which relief could be granted can never be

established against a federal government official for

the performance of his or her official duties, and in

any event the defendants are entitled to the

protection of absolute immunity.°

I. Factual Background .

In April 1993, the plaintiff began his employ-

ment at the DOE as an Environmental Scientist at

the Carlsbad Area Office in Southeastern New Mex-

ico. Compl. ¢ 9. In September 1997, the plaintiff

filed a claim with the DOE’s Merit System Protec-

tion Board (“MSPB”) after the DOE notified him that

it proposed to terminate his employment because of

poor job performance. See Rockefeller v. Abraham,

Nos. 01-2054, 00-2480, 2001 WL 1434623, at *1

(10% Cir. Nov. 15, 2001). In his claim before the

MSPB, the plaintiff alleged that the proposed

termination was in retaliation for alleged whistle-

~

3. The defendants also assert that the plaintiff's complaint |

should be dismissed pursuant to Fed.R.Civ.P 12(b)(1), 12(b)(3),

and 12(b)(5) for lack of subject matter jurisdiction, personal

jurisdiction, and venue. However, this Court need not address

these arguments because it concludes that. dismissal is

appropriate on other grounds.

blowing activities he had engaged in regarding his

prior identification of the DOE’s purported viola-

tions of safety and environmental laws. Id. In

November 1997, an MSPB administrative judge

issued an initial decision finding that the plaintiff

had not engaged in protected whistle-blowing

activities, and the plaintiff filed a petition for

review of that decision with the MSPB. Id.

Upon actually being terminated by the DOE

in December 1997, the plaintiff filed another claim

with the MSPB asserting that he was fired because

of an alleged disability, as retaliation for having

engaged in protected activities.‘ Id. After an ad-

ministrative hearing was held on these claims, the

MSPB ruled in favor of the DOE, concluding that it

had sustained its burden of proof by demonstra-

ting that the plaintiff's termination was due to his

unacceptable job performance. Id. In addition, the

MSPB held that the plaintiff failed to prove that he

engaged in protected whistle-blowing activity, that

his termination resulted from employment discri-

mination, that he suffered from a disability, or that

his termination was related to a disability. Id.

Plaintiff then filed a petition for review with the

MSPB, which was later then voluntarily dismissed

by the plaintiff. Id. In granting the plaintiff's re-

quest for voluntary dismissal, the MSPB required

that if plaintiff re-filed his petition, he had to do so

by a specified deadline. Id. When plaintiff attemp-

ted to re-file his petition after the expiration of the

designated deadline, the MSPB denied the petition

due to its untimeliness and the plaintiff's failure to

show good cause why it should be accepted late. Id

Thereafter, the plaintiff filed a complaint with

the Equal Employment Opportunity Commission,

“ies

4. The nature of the plaintiff's alleged disability is unclear

from what is set forth in the complaint.

which was later denied for lack of jurisdiction. Id.

After the EEOC dismissal, the plaintiff filed a com-

plaint in the United States District Court for the

District of New Mexico alleging that: (1) the DOE

denied him reasonable accommodations for his dis

abilities as guaranteed by the Americans with Disa-

bilities Act (“ADA”), 42 U.S.C. §§12,181- 89 (2000),

and the Rehabilitation Act, 29 U.S.C. §§ 701- 96

(2000); and (2) he suffered an adverse employment

action in violation of Title VII by being placed under

a “Performance Improvement Plan” in retaliation for

complaining to the DOE’s Equal Employment

Opportunity Office (“EEO”). See Rockefeller, 2001

WL 1434623, at *2. The plaintiff then amended his

complaint to include an allegation that he was im-

properly removed from his employment for engaging

in whistle-blowing activities, in violation of the False

Claims Act (“FCA”), 31 U.S.C. § 3730(h) (2000). See

Rockefeller 2001 WL 1434623, at *2. The plaintiff

later filed another complaint, which was consoli-

dated with his amended complaint, wherein he al-

leged that the DOE violated the ADA and Rehabili-

tation Act by intimidating his physicians in an effort

to prevent him from receiving proper treatment. Id.

While the plaintiff's case was pending before

the District Court of New Mexico, he filed several

motions, including a motion to compel production of

documents and a motion for the court to accept a

748-page document as self-authenticating. Id. The

district judge denied the motion to compel on the

grounds that it was overly broad and unduly burden

-some. The court also denied the motion for the

acceptance of the putative self-authenticated

document, but instructed the plaintiff to submit for

its consideration any parts of the document that he

believed would preclude the entry of summary

judgment for the defendant. Id. The district court

awarded summary judgment to the defendant on the

Se

ADA and Rehabilitation Act claims on the ground

that both acts authorize an employer to request an

employee’s medical information while a request for

an accommodation due to a claimed disability is

under consideration. Id. The court dismissed the

plaintiffs remaining claims because (1) section

3730(h) of the FCA does not provide a remedy for

discrimination against a federal employee, such as

the plaintiff, but rather, is only applicable to a suit

by a private person; (2) the court lacked jurisdic-

tion over the MSPB appeal, as only the United

States Court of Appeals for the Federal Circuit has

jurisdiction to review MSPB jurisdictional deci-

sions involving mixed claims; and (3) the com-

plaint filed in the district court was untimely. Id at

2-4. The plaintiff appealed the district court’s de-

cision to the United States Court of Appeals for the

Tenth Circuit, which affirmed the district court’s

decision and denied the plaintiffs motion for a re-

mand. The plaintiff subsequently filed the com-

plaint that is now before this Court, in which he

has named as defendants the district court judge

in New Mexico who presided over his case that was

filed there and the Tenth Circuit judges who

comprised the three-judge panel that affirmed the

district judge’s rulings.

Il. Standard of Review: Rule 12(b)(6)

On a motion to dismiss for failure to State a

claim upon which relief can be granted pursuant

to Fed.R.Civ.P 12(b)(6), this Court must construe

the allegations and facts in the complaint in the

light most favorable to the plaintiff and must grant

the plaintiff the benefit of all inferences that can

be derived from the facts alleged. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Kowal v.

MCI Communications Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). However, the Court need not

accept inferences or conclusory allegations that

are unsupported by

-6-

the facts set forth in the complaint. Kowal, 16 F.3d

at 1276. In deciding whether to dismiss a claim

under Rule 12(b)(6), the Court can only consider the

facts alleged in the complaint, documents attached

as exhibits or incor- porated by reference in the

complaint, and matters about which the Court may

take judicial notice. E.E.O.C. v. St. Francis Xavier

Paraochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.

1997). The Court may dismiss a claim pur- suant to

Rule 12(b)(6) only if the defendant can demon-

strate “beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would

entitle him to relief.” Conley, 355 U.S. at 45-46.

III. Legal Analysis

(A) The Plaintiff's Claims Pursuant to 18

U.S.C. §§ 242, 371 for Violations of his

Constitutional Rights.

The plaintiff brings this pro se action against

the defendants under 18 U.S.C. §§ 242 and 371

(2000) for alleged violations of the First, Fifth, and

Seventh Amendments of the United States Constitu-

tion. However, the plaintiff is precluded from asser-

ting any claims pursuant to 18 U.S.C. §§ 242 and

371 because, as criminal statues, they do not con-

vey a private right of action. See Dugar v. Coughlin,

613 F. Supp. 849, 852 n.1 (S.D. N.Y. 1981) (stating

that 18 U.S.C. § 242 does not create a private right

of action); Fiorino v. Turner, 476 F.Supp. 962, 963

(D. Mass. 1979) (“With regard to the alleged

violations of 18 U.S.C. §§ . . . 242 [and]... 371...

the plaintiff has failed to cite, and the court has

been unable to locate, any authority which would

support implying a civil cause of action for violations

of these provisions.”). Therefore, the Court must

dismiss the plaintiff's claims that have been brought

pursuant to 18 U.S.C. §§ 242 and 371.

mo

(B) The Plaintiff's Claims Pursuant to Title VII

The plaintiff has also filed a claim under

Title VII of the United States Code. Title VII makes

it unlawful for an employer to discriminate against

any of its employees. See 42 U.S.C. § 2000e.

Thus, the determination of whether an individual

is an employee os of “crucial significance for those

seeking to redress alleged discriminatory actions

in federal employment.” Spirides v. Reinhardt,

613 F.2d 826, 829-30 (D.C. Cir. 1979). The

analysis used to determine whether an employee-

employer relationship exists requires the Court to

weigh numerous factors regarding the work rela-

tionship. Although no one factor is determinative,

the extent of the employer’s right to control the

“means and manner” of the worker’s performance

is the most important factor to review. See Redd v.

Summers, 232 F.3d 933, 938 (D.C. Cir. 2000)

(quoting Spirides, 613 F.2d at 831). The other

additional factors for the Court to consider in-

clude: (1) the kind of occupation; (2) the skill re-

quired; (3) whether the “employer” or the indivi-

dual in question furnishes the equipment used

and the place of work; (4) the length of time during

which the individual has worked; (5) the method of

payment; (6) the manner in which the work rela-

tionship is terminated; (7) whether annual leave is

afforded; (8) whether the work is an integral part of

the business of the “employer”; (9) whether the

worker accumulates retirement benefits; (10) whe-

ther the “employer” pays social security taxes, and

(11) the intention of the parties. Id. at 939. Apply-

ing each of these factors to the instant case, it is

abundantly clear that the plaintiff has never been

an employee of the defendants, but was merely a

party to a lawsuit presided over by the defendant

judges. Therefore, the Court is compelled to find

that the plaintiff has failed to state a claim upon

which relief can be granted under Title VII.

=~ i

Accordingly, the plaintiffs Title VII claim must also

be dismissed.

(C) The Plaintiff's Status as a Pro Se Party and

the Liberal Construction of his Complaint

Although the Court finds that a liberal

reading of the plaintiffs complaint requires the

conclusion that he has failed to state a claim upon

which relief can be granted, because the plaintiff is

a pro se litigant, his complaint must be construed

liberally. See Haines v. Kerner, 404 U.S. 519, 520-

21 (1972) (holding that allegation in pro se com-

plaints are held to less stringent standards than

formal pleadings drafted by lawyers). For example,

in Dixon v. State of Maryland by Carter, 261

F.Supp. 746, 747 (D. Md. 1966), where the court

was faced with a pro se complaint alleging a private

cause of action pursuant to 18 U.S.C. § 242, the

court liberally construed the plaintiff's complaint as

asserting a claim for a violation under 42 U.S.C. §

1983 because it recognized that the plaintiff could

not pursue a civil claim pursuant to 18 U.S.C. §

242. Id.; see also Powell, 511 F.Supp. at 704.

Viewing the complaint here even from a liberal per-

spective, however, does not yield a different result.

(1) The Plaintiff is Unable to State a

Claim Under 42 U.S.C. § 1983

Even if a liberal construction of the plaintiffs

complaint permitted the Court to conclude that a

claim pursuant to 42 U.S.C. § 1983 was being

asserted, the plaintiff would still be unable to state a

claim upon which relief can be granted. To estab -

lish a claim under § 1983, a plaintiff must prove two

elements: (1) “that the defen- dant deprived him of a

right secured by the Constitution and the laws of

the United States” and (2) “the . . . defendant

deprived him of this constitutional right under color

of... State [law].” Adickes v. Kress & Co., 398 U.S.

.

144, 150 (1970). However, the “[a]ctions of the

Federal Government or its officers are exempt from

[§ 1983's] proscriptions.” Powell, 511 F.Supp. at

704 (citing District of Columbia v. Carter, 409 U.S.

418, 424-25 (1973)) Thus, because all of the acts

the plaintiff is challenging were being performed

by individuals who were acting in their official ca-

pacities as federal government officials, the defen-

dants’ acts are exempt from suit under § 1983.

(2) The Defendants are Protected by

Absolute Immunity

The Supreme Court has established two

avenues by which public officials may receive

immunity from personal liability in a civil action

for damages: absolute and qualified immunity. To

determine whether an official is entitled to either

absolute or qualified immunity depends upon the

function being performed by that official. See

Forester v. White, 484 U.S. 219, 224 (1988). A

public official performing a discretionary function

receives qualified immunity in a civil action, pro-

vided that his or her conduct does not violate

“clearly established federal statutory or constitu-

tional rights” of which a reasonable person would

have known. See Harlow v. Fitzgerald, 457 U.S.

800, 818 (1972). On the other hand, absolute

immunity is provided when the plaintiff's claim

against the defendant is directly attributable to the

defendant’s performance of judicial, legislative, or

prosecutorial functions. See Forrester, 484 U.S. at

227. In Forrester, the Supreme Court stated that

judges enjoy absolute immunity from personal lia-

bility for their judicial or adjudicatory acts. 484

U.S. at 227-28 (1988). Forrester described quin-

tessential judicial acts as being those that “involve

resolving disputes between parties who have in-

voked the jurisdiction of a court.” Id. What distin-

guishes a judicial act from an administrative

«- 6.

—————

a

act is the character of the act itself, rather than who

is making the decision. Id. (citations omitted). In

addition to the requirement that such officials must

act within their judicial capacity to be afforded ab-

solute immunity, they must also not be doing so in

the “clear absence of all jurisdiction.” See Stump v.

Sparkman, 435 U.S. 349, 354-55 (1978) (quoting

Bradley v. Fisher, 13 Wall. 335, 351 (1872)) (gran-

ting a judge absolute immunity because he satisfied

both requirements of having acted within his judi-

cial capacity in a matter over which he had jurisdic-

tion.). The Forrester Court explained that the pur-

pose of absolute immunity is to prevent an influx of

“powerful incentives for judges to avoid rendering

decisions likely to provoke such suits.” 484 U.S. at

227-28 (citations omitted).

In this case, it is clear that the plaintiff is pre-

cluded from asserting any claims against the district

and circuit judges for the roles they played in the

adjudication of the claims he filed in the New Mexico

litigation. This is because the judges were clearly

acting in their judicial capacity in a matter over

which they clearly had proper jurisdiction. The

district judge was clearly acting within his judicial

capacity when, in connection with addressing issues

related to the claims raised in the plaintiff's com-

plaint, the judge, for example, ruled that certain

evidence would be excluded, determined whether the

748-page document offered by plaintiff qualified as a

self-authenticated document, permitted physicians

to view plaintiff's medical history, determined which

statute of limitations was applicable to the case,

dismissed a claim for lack of jurisdiction, and

disallowed a private claim because it had been filed

under the FCA. Likewise, the circuit judges were

also acting within their judicial capacity when they

reviewed the district court’s decisions. These actions

were taken in an effort to resolve a legal dispute

| &

ne ee eee

a ee ee

that had been initiated by the plaintiff, and

therefore, are clearly within the quintessential

definition of judicial acts as defined in Forrester.

In addition, it is undisputed that both the District

Court, under 28 U.S.C. § 1331 (2000),° and the

Circuit Court, under 28 U.S.C. § 1291 (2000),°

acted within their jurisdiction when they perform-

ed the acts being challenged by the plaintiff in the

lawsuit now before this Court. Accordingly, all of

the defendant judges are entitled to absolute

immunity, and are therefore shielded from any

civil liability for the acts they performed.

IV. Conclusion

In view of the foregoing analysis, the

plaintiffs claims against the defendants must be

dismissed because they fail to state any claims

upon which relief can be granted.’

SO ORDERED this 7" day of February,

2003.

s/Reggie B. Walton

United States District Judge

«32.

5. Under 28 U.S.C. § 1331, a federal district court “shall have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” The

plaintiffs claims for violations of the ADA, Rehabilitation Act,

and Title VII, that he pursued in the New Mexico court were

clearly claims arising under federal law.

6. 28 U.S.C. § 1291 provides that “the courts of appeals...

shall have jurisdiction of appeals from all final decisions of the

district courts of the United States.” There is no dispute that

the Tenth Circuit had jurisdiction to review the final decisions

of the New Mexico district court.

7. An Order consistent with the Court’s ruling accompanies

this Memorandum Opinion.

APPENDIX 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

Plaintiff,

Vv. No.

99 -1059

BILL RICHARDSON, in his official PK /KBM

capacity as SECRETARY, UNITED

STATES DEPARTMENT OF

ENERGY (DOE),

Defendant.

Net Nee ee ee ee ee ee ee

RESPONSE TO DEFENDANT’S MOTION

FOR PARTIAL SUMMARY JUDGEMENT

The relevant portion of this pleading follows

below in regard to the issue of untimeliness.

Defendant makes three arguments, the

first is that: “This Court Lacks Jurisdiction

Because Plaintiff's Judicial Complaint is Untimely.”

Defendant also claims that the thirty day period to

file an appeal of an MSPB decision is jurisdictional.

Plaintiff will outline below alleged continuing

violations of Defendant towards Plaintiff. The

United States Supreme Court has ruled that:

“_. filing a timely charge with the Equal

Employment Opportunity Commission

(“EEOC”) pursuant to... Title VII () is

not a jurisdictional prerequisite to suit

in federal court, but a requirement that,

like a statute of limitations, is subiect to

~ 3-

waiver, estoppel, and equitable tolling ...”

See Zipes v. Trans World Airlines, Inc., 455 U.S.

385 (1982).

The Tenth Circuit has ruled that “the

Continuing Violation theory is an equitable tolling

doctrine... .” See Patricia Baty v. Willamette

Industries, Inc., No. 96-2181 JWL in the D.C.

Kansas. See also Seals v. Oil Data, Inc., No. 96-

5149, 1977 U.S. App. LEXIS 2360, 1997 WL 57133

at *1-(10™ Cir. Feb. 12, 1997) (citing Mascheroni

v. Board of Regents, 28 F.3d 1554, 1560 (10 Cir.

1994) ).

Plaintiff filed a Petition for Review with the

Board of the MSPB’s 4/6/98 Initial Decision, and

subsequently a motion to dismiss his petition for

Board review without prejudice until December 15,

1998, or until 30 days from the date of a final

decision by the DOL, whichever occurred first,

which was granted. Plaintiff re-filed his petitions

with the Board on 1/25/99, and requested

another dismissal without prejudice (41 days late).

This untimely filing is subject to equitable tolling

of the continuing violation doctrine as outlined

above.

To benefit from the continuing violation

theory, the plaintiff must show either (1) a series of

related acts taken against a single individual, one

or more of which falls within the limitations period

or (2) the maintenance of company-wide policy of

discrimination both before and during the

limitations period which evidences a pervasive

institutionalized system of discrimination. See

Parrett v. Raytheon Co., No. 95-3146, 1996 U.S.

App. LEXIS 4468, 1996 WL 108494 at *5 (10%

Cir. Feb. 29, 1996) (citing Purrington v. University

of Utah, 996 F.2d 1025, 1028-29 (10 Cir. 1993);

Bruno v. Western Elec. Co., 829 F.2d 957, 961

(10 Cir. 1987)).

=”

With respect to the first option above, the

Tenth Circuit has set forth several nonexclusive

considerations to help determine whether the

alleged incidents of discrimination constitute a

continuing violation or are discrete unrelated acts:

(1) subject matter; (2) frequency; and (3)

permanence. Mascheroni, 28 F.3d at 1561.

Subsequent to his removal on 12/10/97

Plaintiff had sought employment with no success.

Plaintiff knows that there is significant competition

for very few jobs in Southern New Mexico. Due to

this fact and the absence of any solid evidence,

Plaintiff had no reasonable basis for filing a

complaint against Defendant due to his rights being

violated. See Galloway v. General Motors Service

Parts Operations, 78 F.3d 1166 (7™ Cir. 1996);

Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340,

344 (7 Cir. 1999); Huckabay v. Moore, 142 F.3d

233 (5 Cir. 1998).

Up to and after the period of delay (12/15/98

to 1/25/99) for Plaintiff to re-file his

petitions to the Board, Plaintiff had no reasonable

basis to assume that his rights were being violated

by Defendant. This changed on 9/26/99 when

Plaintiff learned that the Carlsbad Environmental

Monitoring and Research Center (“CEMRC”), funded

by the Defendant, had hired an individual who had

no college degree for a job that Plaintiff had applied

for. Plaintiff received a notice from CEMRC that he

would not be hired only a couple of weeks before the

individual with no college degree was hired. Plaintiff

had more than seven years of experience and a

graduate degree that were directly related to the

CEMRC job. Plaintiff then became very aware that

his rights were allegedly being violated by Defendant

in the same manner as when he had been an

employee of Defendant. E.g.: his character and

abilities were

ee.

ee eee

being attacked to effect his employment. Plaintiff

applied for many jobs, with the vast majority of the

prospective employers not expressing any interest

in hiring Plaintiff despite his high educational level

and very broad range of experience.

Plaintiff had applied for three jobs during

the period of delay (12/15/98 to 1/20/99) without

any results. See Exhibits BL-6 thru BL-8 of

Evidence of the Alleged Unlawful Blacklisting of

Plaintiff served on 10/3/00. This allegation of

Continuing Violation satisfies the first option

above of “a series of related acts taken against a

single individual” and also satisfies the three

“nonexclusive considerations” set by the Tenth

Circuit noted above.

In addition to satisfying the first option for

showing continuing violation, Defendant’s alleged

violations have also satisfied the second option of

demonstrating institutional type violations before,

during, and after the period of delay. From 1/93

thru 1/96, while Plaintiff was an employee of

Defendant, Exhibit O’Leary enclosed at 10, 15, &

20 - 25 clearly demonstrates institutional type

violations of Defendant. During the 41 day

period of delay are Exhibits DOL-1thru DOL-3

enclosed. Exhibit DOL-1 was received by Plaintiff

on 12/15/98 and the delay of receipt of this

document dated 12/11/98 was experienced by

Plaintiffs DOL Complaint attorney Mr. Edward

Slavin, Jr.. A complaint was expressed about the

delay in receipt of Exhibit DOL-1, and this is why

Plaintiff received the next document from

Defendant, Exhibit DOL-3, by Federal Express.

One example of a knowingly false representation,

which is alleged to have been passed on to DOL

judge Lasky by Mr. Ron O’Dowd of Defendant’s

Albuquerque office, was that Plaintiff had.made a

“mere oral comment” on 1/5/98 to an agent of the

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Environmental Protection Agency (“EPA”). Defen-

dant has used this knowingly false representation to

eliminate jurisdiction of Plaintiff's claims related to

the Clean Air Act (“CAA”) employee protection

provision coverage. See Exhibit DOL-1 at 4.

Defendant admits that Plaintiff made written

comments and NOT a mere oral comment to EPA.

See Exhibit DOL-3 at 3. This admitted violation is

described within Exhibit DOL-2 at 1 thru 3.

Numerous individuals, part of Defendant’s agency,

know of this false representation made for the

express purpose of stripping Plaintiff of his civil

rights and nothing has been done to correct this

violation. This argument is an independent basis to

justify the application of the Continuing Violation

Doctrine. See Parrett v. Raytheon Co., No. 95-3146,

1996 U.S. App. LEXIS 4468, 1996 WL 108494 at *5

(10 Cir. Feb. 29, 1996).

The institutional type Title VII violations of

Defendant continue on to this day with no end in

sight. This is clearly demonstrated within the

enclosed Additional Evidence of the Alleged Unlaw-

ful Processing of Plaintiff's Fifth EEO Complaint of

Discrimination and Retaliations (“Exhibit EEO-V

Processing - II”) and the initial evidence of this

served on 10/3/00.

The second argument that Defendant

makes is that: “This Court Lacks Jurisdiction to

the Extent Plaintiff is Appealing the Board’s

Dismissal of His Claims for Untimeliness.” First of

all, the U.S. Supreme Court has ruled that filing a

timely Title VII charge is not jurisdictional and

subject to equitable tolling. Plaintiff is not appealing

the Board’s dismissal of his claims for untimeliness.

What is being appealed is the Board’s lack of review

of Plaintiff's case on its

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merits. The continuing violations of Defendant

should equitably toll the issue of untimeliness as

outlined above. With the untimeliness issue

equitably tolled, the United States Court of

Appeals for the Federal Circuit does not have

jurisdiction to review Plaintiff's case on it merits

per 5 U.S.C. § 7703 (a) (2).

If the argument Plaintiff made in support of

this Court’s granting him equitable tolling for the

issue of untimeliness is sound, Defendant’s

argument directly above is moot. If Defendant’s

argument here was accepted, it would make

the equitable tolling for the continuing violations

doctrine meaningless and overturn all of the case

law Plaintiff cited above. Also, when considering a

motion for summary judgement, the court must

examine all the evidence in the light most

favorable to the non-moving party. See Jones v.

Unisys Corp., 54 F.3d 624, 628 (10 Cir. 1995);

Adikes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970).

Prayer for Relief:

Plaintiff prays that this Court will recognize,

thru the very specific detailing above, that the

Continuing Violation Doctrine does indeed apply

to this instant case, grant Plaintiff equitable tolling

for untimeliness, and deny Defendant’s Motion for

Partial Summary Judgement.

Dated: October 16”, 2000

Respectfully submitted,

s/Tod N. Rockefeller

319 Sunnyview Street

Carlsbad, NM 88220

(505) 628 - 3541

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