# Supplemental Appendix — Rockefeller v. Tacha

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1270%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Appendix
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1031

## Text

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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

- 16-

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

~ 7.

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1270%3A2. Public record. Not legal advice.