Appendix — Mascheroni v. Regents of the University of California

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, Supreme Court, U.S.

») FILED

98 844 SEP 151998

OFFICE OF THE CLERK

DOCKET NO.

IN THE SUPREME COURT OF THE UNITED STATES

Fj OCTOBER TERM, 1998

PEDRO LEONARDO MASCHERONI,

Petitioner

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

ET AL.

Respondents

APPENDICES TO PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF APPEAL FOR THE

STATE OF CALIFORNIA,

FIRST APPELLATE DISTRICT

Richard Harrington

Counsel of record

Chandler, Wood, Harrington & Maffly

111 Sutter Street, Suite 1900

San Francisco, CA 94104

(415) 421-5484

TABLE OF CONTENTS TO APPENDICES

Appendix

Document Court Filed Page

Rule 14(i)(i)

Opinion California District 3/31/98 A-1

Court of Appeal

Order Superior Court of 4/17/97 B-1]

Alameda County

Order Superior Court of 12/23/96 = C-1

Alameda County

Opinion California District 7/24/92 D-1

Court of Appeal

Order Superior Court of —_5/29/9] E-1

Alameda County

Rule 14(1)(ii)

Order California Supreme 6/17/98 F-]

Court

Order California Supreme 4/26/95 G-1

Court

Order State of New 4/26/95 H-1

Mexico, First

Judicial District

Order California District 3/15/95 I-]

Court of Appeal

Order Superior Court of 11/28/94 J-]

Alameda County,

California

Order United States District 9/6/94 K-]

Court, District of

New Mexico

Appendix - i

TABLE OF CONTENTS TO APPENDICES (Cont.)

Document

Opinion

Order

Rule 14(i)(iii)

Order

Rule 14(i)(iv)

Judgment

Rule 14(1)(vi)

Court

US Court of Appeals

for the 10th Circuit,

28 F3d 1554

US District Court,

District of New

Mexico

US District Court,

District of New

Mexico

California District

Court of Appeal

California District

Court of Appeal

US District Court,

District of New

Mexico

Superior Court of

Alameda County

Superior Court of

Alameda County

Special Report to the Inspector General,

DOE

Decision by Director Los Alamos

National Laboratory

Report and Recommendation by

David E. Feller, Hearing Officer

Appendix - ti

Appendix

File Page

7/11/94 L-1

12/14/92. M-1

4/15/92 Nel

4/27/98 O-l

8/12/92 P-1

7/17/92 Ql

7/18/91 Rel

6/23/97 Sl

11/21/91 T-1

2/8/91 U-1

11/19/90‘ V-1

FILED MAR 31 1998

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION FOUR

PEDRO LEONARDO MASCHERONI,

Plaintiff and Appellant,

REGENTS OF THE UNIVERSITY OF CALIFORNIA

et al.,

Defendants and Respondents.

A078918

(Alameda County Super. Ct. No. 675223-9)

The trial court sustained without leave to amend a

demurrer filed by respondent Regents of the University of

California challenging appellant Pedro Leonardo Mascheroni's

complaint for wrongful termination. Mascheroni appeals the

order sustaining the demurrer without leave to amend and the

subsequent judgment of dismissal. He contends that (1) a

complaint may properly join a petition for writ of mandate

with other causes of action; (2) the trial court's stay of his

California action against the Regents precluded him from

filing a petition for writ of administrative mandate until the

stay was lifted; (3) the statute of limitations on his petition for

A-1 APPENDIX A

writ of administrative mandate was tolled by the stay of his

judicial action against the university, and (4) the limitations

period of this cause of action was equitably tolled by the filing

of his complaint for damages. We affirm the judgment.

I. FACTS

From 1979 to 1988, appellant Dr. Pedro Leonardo

Mascheroni was employed by respondent Regents of the

University of California to work as a physicist at Los Alamos

National Laboratory in New Mexico. In 1986, Mascheroni

criticized some of the laboratory's projects, suggesting that its

federally obtained funding would be better spent on other

projects. His supervisors told Mascheroni to cease his

criticism, but he did not. In January 1987, the laboratory's

work force was reduced. Mascheroni's position was __

terminated and he was reassigned to another position, which

was later terminated as well. His employment was terminated

in March 1988.

In January 1991, Mascheroni filed an action for

damages in Alameda County Superior Court against

respondents Regents and the University of California’,

alleging that he had been wrongfully terminated from

employment at the laboratory. He alleged that he was

terminated because of his criticism of the laboratory's

projects. He alleged causes of action for wrongful termination

in violation of public policy, breach of contract of continued

employment, breach of the implied covenant of good faith and

fair dealing, and intentional and negligent infliction of

1 For convenience, both respondents will be referred to as

“the Regents.”

A-2 APPENDIX A

emotional distress. He also filed a grievance with the Regents,

which was formally and finally denied on February 8, 1991. In

the civil action, the Regents moved for dismissal or stay of

this action on forum non conveniens grounds, arguing that the

action should be brought in New Mexico. In April 1991,

Mascheroni had also brought action against the Regents in

United States District Court in New Mexico. In May 1991,

the trial court stayed the California action on forum non

conveniens grounds. We upheld that stay order on appeal in

July 1992. (Mascheroni v. Regents of the University of

California (July 24, 1992) A054464 [nonpub. opn.].)

Mascheroni's motion to modify or dissolve the stay was

denied.

In July 1994, the Tenth Circuit of the United States

Court of Appeals dismissed Mascheroni's state law claims and

remanded the matter to the district court in New Mexico with

instructions to vacate its judgment and dismiss for lack of

jurisdiction over those claims. The federal appellate court also

affirmed the district court's dismissal of Mascheroni's federal

law claim. In September 1994, the United States District

Court in New Mexico ordered that Mascheroni's complaint be

modified to dismiss the state law claims without prejudice.

In October 1994, Mascheroni moved to vacate the

stay in state court, seeking leave to file a first amended

complaint and petition for writ of administrative mandate. The

trial court denied the motion to vacate its earlier stay order.

Mascheroni petitioned for a writ of mandate in this court, but

we denied his petition in March 1995 and the California

Supreme Court denied a petition for review the following

month. In May 1996, a New Mexico state court ruled that

Mascheroni's complaint was filed in that court outside the

applicable periods of limitation. Thus, the complaint was

A-3 APPENDIX A

dismissed without prejudice.

In August 1996, Mascheroni again sought to vacate the stay

and to file a first amended complaint and petition for writ of

administrative mandate. In December 1996, the Alameda

County court granted his motion to lift the stay, but denied his

motion for leave to file an amended complaint as premature

because it was filed while the stay was still in effect. A week

later on December 30, 1996, Mascheroni filed his first

amended complaint. The complaint alleged causes of action

for tortious discharge in violation of public policy, breach of

contract, breach of the covenant of good faith and fair

dealing, intentional and negligence infliction of emotional

distress, and also petitioned for a writ of administrative

mandate.

In February 1997, the Regents demurred to the first

amended complaint. After hearing on this motion, the trial

court sustained the demurrer without leave to amend in April

1997. It held that the cause of action for administrative __

mandate was time-barred and that the remaining causes of

action were defective because the complaint failed to allege

exhaustion of administrative remedies.

Il. NONMANDATE CLAIMS

First, we address the nonmandate causes of action to

determine whether they were properly pled. Mascheroni

contends that a complaint may properly join a petition for writ

of mandate with other causes of action. The Regents counter

that Mascheroni may not lawfully file any causes of action

arising from his termination until he first obtains a writ of

administrative mandate overturning the administrative finding

that his termination was lawful. Put another way, the Regeats

A-4 APPENDIX A

argue that Mascheroni's filing of his wrongful termination and

other related nonmandate claims was premature and

jurisdictional ly defective because he has not yet exhausted his

judicial remedies by obtaining a writ of administrative

mandate. (See Code Civ. Proc., § 1094.5.)

Under California law, the primary rights theory

determines the scope of a cause of action. When determining

what constitutes a primary right, the significant factor is the

harm suffered. (Swartzendruber v. City of San Diego (1992) 3

Cal.App.4th 896, 904.) Both the civil action and the

administrative grievance that Mascheroni asserted were

predicated on the alleged impropriety of his termination.

Under the primary rights theory, these claims are all part of a

single claim for invasion of one primary right. (See ibid)

When a public’ employee suffers an adverse

determination in an administrative hearing and fails to

challenge that determination by writ, the administrative

decision becomes final and collaterally estops the employee

from relitigating the validity of the hearing officer's

adjudication. (Oquendo v. California Institution for Women

(1989) 212 Cal.App.3d 520, 522-523; see Swartzendruber v.

City of San Diego, supra, 3 Cal.App.4th at p. 903.) Thus,

before the employee may bring an action against a public

employer for claims arising from his or her termination, the

2. The Regents of the University of California is a quasi-

judicial agency deemed to be the equivalent of a state

administrative agency. (Apte v. Regents of University of

California (1988) 198 Cal.App.3d 1084, 1090-1091; Regents

of University of California v. City of Santa Monica (1978)

77 Cal.App.3d 130, 135.)

A-5 APPENDIX A

employee must first overturn the adverse administrative

determination by means of a petition for writ of administrative

mandate. (Swartzendruber v. City of San Diego, supra, at p.

903; see Westlake Community Hosp. v. Superior Court

(1976) 17 Cal.3d 465, 483-485 [summary judgment case].)

Mascheroni has not yet obtained a writ of

administrative mandate. Thus, he has not exhausted his

judicial remedies for the causes of action arising from his

termination. (See Swartzendruber v. City of San Diego,

supra, 3 Cal.App.4th at pp. 903-904 & fn. 2.) The lack of a

writ of administrative mandate overturning the adverse

administrative ruling constitutes a jurisdictional impediment to

those claims necessarily based on a different version of the

facts of the termination. (See City of Fresno v. Superior

Court (1987) 188 Cal.App.3d 1484, 1490.) Thus, the trial

court had no choice but to sustain the Regents’ demurrer to

the nonmandate aspects of Mascheroni's wrongful termination

action without leave to amend and dismissed this portion of

his complaint.

Ill. MANDATE

Mascheroni makes various challenges to the trial

court's conclusion that his petition for writ of mandate was

not timely filed. He argues that the stay of his state

proceeding against the Regents precluded him from filing a

petition for writ of administrative mandate until the stay was

lifted. He claims that the limitations period for filing this

petition was tolled by the stay of the initial complaint. Finally,

Mascheroni contends that the limitations period for this cause

of action was equitably tolled by the filing of his initial

complaint. None of these claims are meritorious.

A-6 APPENDIX A

The administrative decision was rendered on February

8, 1991, when the Regents denied his grievance. An action for

a writ of administrative mandate is a statutorily based action

that must be commenced within three years. (See Code Civ.

Proc., §§ 335, 338, subd. (a), 1094.5.) Thus, the time for

commencing Mascheroni's action to obtain a writ of

administrative mandate ended on February 8, 1994.

Mascheroni did not file his petition until December 30, 1996,

and thus, the petition was time-barred.

Mascheroni argues that the two aspects of the

underlying action-the mandate petition and the complaint for

the nonmandate causes of action-were properly joined and

should be viewed as a single action. Under his theory, the

time for filing the petition for writ of administrative mandate

was tolled while the stay of the action on the initial complaint

was in effect-from May 29, 1991, until December 23,

1996-and the December 30, 1996, petition for writ of

administrative mandate was filed within the statutory three-

year period. (See Code Civ. Proc., §§ 335, 338, subd. (a),

1094.5.)

However, we have already determined that the

nonmandate causes of action were procedurally defective

because Mascheroni did not obtain a writ of administrative

mandate before filing his wrongful termination causes of

action. (See pt. II., ante.) As the courts of this state had no

jurisdiction to entertain these nonmandate claims until and

unless Mascheroni ob/ained--not merely sought--a writ of

administrative mandate, the entirety of the initial complaint

was effectively void.

The running of a limitations period is suspended

during any period in which the plaintiff is legally prevented

A-7 APPENDIX A

from taking action to protect his or her rights. (Di//on v.

Board of Pension Commrs. (1941) 18 Cal.2d 427, 431.)

Mascheroni was not legally prevented from filing his petition

for writ of administrative mandate during the period of the

stay of the initial complaint. In fact, he was obligated to file

and to obtain such a writ before filing a proper wrongful

termination action. (Swartzendruber v. City of San Diego,

supra, 3 Cal.App.4th at p. 903; see Westlake Community

Hosp. v. Superior Court, supra, 17 Cal.3d at pp. 483-485.)

Both logically-because of the fatal defect in his initial

complaint-and legally-in order to exhaust his judicial

remedies, Mascheroni should have filed a separate petition for

writ of administrative mandate during the three- year period

from February 8, 1991, until February 8, 1994. The fate of his

petition for wnt of administrative mandate was not linked to

that of the jurisdictionally defective January 1991 complaint,

which was effectively void. Thus, we conclude that the trial

court properly sustained the Regents’ demurrer to

Mascheroni's December 1996 petition for wnt of

administrative mandate because it was filed beyond the statute

of limitations period.’

*The initial complaint cannot be construed as a petition for a

writ of mandate. (See, e.g., Hill v. City of Manhattan Beach

(1971) 6 Cal.3d 279, 287.) As of the January 1991 filing of

the initial complaint, the February 1991 administrative ruling

denying Mascheroni’s administrative grievance had not yet

occurred. (See Lee v. Bank of America (1994) 27 Cal.

App.4th 197, 205.)

A-8 APPENDIX A

FILED APR 17 1997

IN THE SUPERIOR COURT

OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

PEDRO MASCHERONI, _) No. 675223-9

Plaintiff ) ORDER AFTER

HEARING

VS. )

REGENTS OF UC, et al, ) ON 4-17-97

Defendant )

This matter came on calendar on April 17, 1997 at 9:15 am in

Dept. 81. The Court, having taken the matter under

submission, now rules as follows: The tentative ruling is

affirmed. The general demurrer to the Ist cause of action is

SUSTAINED WITHOUT LEAVE TO AMEND as it is time-

barred. Demurrers to 2nd-7th causes of action SUSTAINED

WITHOUT LEAVE TO AMEND for failure to allege

exhaustion of Judicial remedies. See Swartzendruber v. City

of San Diego (1992) 3 Cal App 4th 896.

Date APR 17 1997

Sandra Margulies

JUDGE SANDRA MARGULIES

IT IS SO ORDERED.

B-1 APPENDIX B

FILED DEC 23 1996

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

PEDRO LEONARDO MASCHERONI, Plaintiff,

VS.

THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA, and DOES 1-50. Defendant

No. 675223-9

ORDER AFTER HEARING RE MOTION TO LIFT STAY

AND LEAVE TO FILE FIRST AMENDED COMPLAINT:

The motion of plaintiff. Pedro Leonardo Mascheroni

to Vacate Stay and for Leave to File First Amended

Complaint came on regularly for hearing before this Court on

November 25, 1996 at 10:00 a.m. in Department 81 in the

above entitled Court. Richard Harrington, of Chandler,

Wood, Harrington & Maffi, appeared on behalf of plaintiff.

Kirsten Komoroske of Becherer, Beers, Murphy, Kannett &

Schweitzer appeared on behalf of defendant, The Regents of

the University of California.

The Court, after taking the matter under submission,

and having considered all papers filed in support of the

motion, all papers filed in opposition to the motion, all papers

filed in reply to the motion, and the oral arguments of

counsel, hereby rules as follows:

C-1 APPENDIX C

The motion to lift stay is granted. See Archibald v.

Cinerama Hotels (1976) 15 Cal.3 d 853, 862.

The motion for leave to file a first amended complaint

is denied without prejudice as premature. The motion was

filed while the stay was in effect.

IT IS SO ORDERED.

DATED: 12/18/96

The Honorable Sandra Margulies

Judge of the Superior Court

APPENDIX C

FILED JUL 24 1992

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEDRO LEONARDO MASCHERONI,

Plaintiff and Appellant,

REGENTS OF THE UNIVERSITY OF CALIFORNIA

et al.,

Defendants and Respondents.

A054464

Alameda County (Super. Ct. No. 675223-9)

Appellant Pedro Leonardo Mascheroni filed an action

against respondents Regents of the University of California

and the University uf California’ alleging that he had been

1. For convenience, both respondents will be referred to as

“the Regents.”

D-1 APPENDIX D

DN anna OF I

wrongfully terminated from employment at Los Alamos

National Laboratory in New Mexico. The trial court granted

the Regents’ motion to stay the action on forum non

conveniens grounds. (See Code Civ. Proc., S 410.30.)

Mascheroni appeals,’ contending that the stay order leaves

him without a suitable alternative forum where he may fully

and fairly litigate his claim. He has also moved for sanctions.

We affirm the stay order and deny the request for sanctions.

I. FACTS

From 1979 to 1988, appellant Dr. Pedro Leonardo

Mascheroni was employed by respondent Regents to work as

a physicist at Los Alamos National Laboratory in New

Mexico. In 1986, Mascheroni criticized some of the

laboratory's projects, suggesting that its federally obtained

funding would be better spent on other projects. His

supervisors told Mascheroni to cease his criticism, but he did

not. In January 1987, the laboratory's work force was

reduced. Mascheroni's position was terminated and he was

2. All statutory references are to the Code of Civil Procedure.

3. Mascheroni filed a timely appeal from the order staying

the action on forum non conveniens grounds and from the

order denying his motion to vacate that order. An order

granting a motion to stay an action on forum non conveniens

grounds is appealable. (§ 904.1, subd. (C).) Although it is

unclear whether.an order denying a motion to vacate such an

order is also appealable, Mascheroni’s brief does not address

the appeal from the denial of the motion to vacate. (See §

1710.40.) Therefore, we need not determine whether this

order is independently appealable.

D-2 APPENDIX D

reassigned to another position, which was later terminated as

well. His employment was terminated in March 1988.

In January 1991, Mascheroni filed a complaint against

the Regents for damages in Alameda County Superior Court

in California. He alleged that he was terminated because of his

criticism of the laboratory's projects. He alleged causes of

action for wrongful termination in violation of public policy,

breach of contract of continued employment, breach of the

implied covenant of good faith and fair dealing, and

intentional and negligent infliction of emotional distress. The

Regents moved for dismissal or stay of this action on the

grounds of forum non conveniens, arguing that the action

should be brought in New Mexico. By April 1991,

Mascheroni had also brought action against the Regents in

United States District Court in New Mexico. In May 1991,

the trial court stayed the California action on forum non

conveniens grounds. Mascheroni's motion to modify or

dissolve the stay was denied. After he filed his notice of

appeal from the stay order in this action, some claims raised in

the New Mexico action have been dismissed.

II. FORUM NON CONVENIENS

Mascheroni contends that the trial court abused its

discretion in issuing the stay order on forum non conveniens

grounds. He argues that the order leaves him without a

suitable alternative forum where he may fully and fairly

litigate his claim, especially now that some of his claims have

been formally dismissed in the New Mexico forum. He also

contends that there were no valid alternative grounds on

D-3 APPENDIX D

sie Sere thre atahestt adh DY sas te itn itt ina halal ilies

which the trial court could properly have based its order.*

When a court finds that in the interests of justice an

action should be heard in a forum outside California, the court

must dismiss or stay the action. (S 410.30, subd. (a).) Forum

non conveniens is an equitable doctrine invoking the

discretionary power of a court to decline to exercise its

jurisdiction over a transitory cause of action when it believes

that the action may be more appropriately, justly tried

elsewhere. The party moving for dismissal or stay bears the

burden of proof. The grant or denial of the motion is within

the trial court's discretion. On appeal, we accord substantial

deference to the trial court's determination. (Stangvik v.

Shiley Inc. (1991) 54 Cal.3d 744, 751.)

When determining whether to grant a motion on

forum non conveniens grounds, the trial court must first

determine whether the alternative forum is a suitable place for

trial. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.)

"[This is a nondiscretionary determination by the trial ccurt."

(Shiley Inc, v. Superior Court (1992) 4 Cal.App.4th 126,

131.) An action may not be dismissed unless a suitable

alternative forum is available to the plaintiff. If there is no

suitable alternative forum--if the defendant is not subject to

jurisdiction elsewhere or if the plaintiff's action is barred

elsewhere by the statute of limitations--the suit will be

entertained in our forum, no matter how inappropriate it may

be, unless the court is willing to accept the stipulation that the

4. As the result of actions taken by the United States District

Court in New Mexico after briefing was completed in this

appeal, the parties have filed additional letter briefs and urged

this court to consider them. We have done so.

D-4 APPENDIX D

defendant will not raise this defense in the alternative forum.

(Stangvik v. Shiley Inc., supra, at p. 752.)

On appeal, Mascheroni argues that the trial court

abused its discretion because the stay order gives him no

option but to proceed in New Mexico where the applicable

law denies him an effective remedy and the statute of

limitations bars his claims. However, even if this is so, it is

irrelevant to the matter before us. When a cause of action

arises in another state and that state's limitations period

precludes maintenance of an action in that state, an action

shall not be maintained in this state, except in favor of one

who has been a California citizen and who has held the cause

of action from the time it accrued. (S 361.) Mascheroni was

not a resident of this state at the time that his causes of action

accrued. In this situation, section 361 has the effect of

borrowing the statute of limitations of New Mexico for use in

this state. (See Delfosse v. C.A.C.I.. Inc.-Federal (1990) 218

Cal.App.3d 683, 691.) Thus, the New Mexico limitations

period applies even if this action were tried in California (see

S 361; Biewend v. Biewend (1941) 17 Cal.2d 108, 115;

Delfosse v. C.A.C.I.. Inc.-Federal, supra, at pp. 691-692;

Outboard Marine Corp.. v. Superior Court (1976) 59

Cal.App.3d 434, 440-441), and can have no bearing on our

determination of whether a suitable forum exists in that state.

Considering the factors that we are permitted to consider, the

trial court properly concluded that the United States District

Court in New Mexico is a suitable alternative forum for this

action.®

5. Mascheroni has cited a Judicial Council comment to

section 410.30 that states, in part, that a “suit will be

entertained, no matter how inappropriate the forum may be, if

D-5 APPENDIX D

PARI Cel enh bs Rem Wad Dien bs

eines

The second issue to be resolved is whether the balance

of private and public interests justified a stay of the action.

(See Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 752.) The

private interest factors are those such as the ease of access to

sources of proof, the cost of obtaining attendance of

witnesses, and the availability of compulsory process for

attendance of unwilling witnesses. The public Interest factors

include avoidance of overburdening local courts with

congested calendars, protecting the interests of potential

jurors so that they are not called on to decide cases in which

the local community has little concern, and weighing the

competing interests of California and New Mexico in the

litigation. (See j~L, at p. 751). In the case at bar, these factors

support the trial court's stay of the California action in favor

of trial in New Mexico. The plaintiff and the witnesses are in

New Mexico. The place of employment was in New Mexico.

The evidence is located in that state. New Mexico law

applies, at least in some respects. (See S 361.) The competing

interests of the two states in this litigation favor trial in New

Mexico.

.... the plaintiff's cause of action would elsewhere be barred

by the statute of limitations, unless the court is willing to

accept the defendant’s stipulation that he will not raise this

defense in the second state [citations].” (Judicial Council

com., 14 West’s Ann. Code Civ. Proc. (1973 ed.) § 410.30,

pp. 492-493.) The language “elsewhere be barred” clearly

envisions the application of different limitation periods where

the action would be barred in the foreign state but not barred

in California. Such is not our case because of California’s

borrowing statute (see § 361), and no stipulation waiving the

statute of limitations was required.

D-6 APPENDIX D

The final inquiry is whether the possibility of an

unfavorable change in the law in the alternative forum will

result in a remedy that is so clearly inadequate or

unsatisfactory that it is no remedy at all. (See Stangvik v.

Shiley Inc., supra, 54 Cal.3d at p. 753.) The fact that an

alternative jurisdiction's law is less favorable to a litigant than

California law should not be afforded any weight when

deciding a forum non conveniens motion if some remedy is

afforded. Id., at pp. 753-754, fn. 5, 764.) The New Mexico

court's latest order gives Mascheroni the right to file an

amended complaint stating a title VII claim. Even now that

the New Mexico court has precluded some of his claims,

Mascheroni is not precluded from obtaining some relief in that

forum. Thus, the unfavorable change in the law--assuming

that such a change in the law exists--cannot be considered.

at pp. 753-754, fn. 5.)

It bears noting that the trial court stayed the California

action pending the outcome of the New Mexico litigation; it

did not dismiss the underlying action. If New Mexico does

not ultimately prove to be a suitable forum for Mascheroni, he

will not have been prejudiced by the stay--he may petition the

court to lift it at that time. The trial court did not abuse its

discretion in granting the stay. (See Stangvik v. Shiley Inc.,

supra, 54 Cal.3d at p. 751.)

Ill. SANCTIONS

Mascheroni has also moved for sanctions, arguing that

the Regents acted in bad faith by making inconsistent

arguments in California and New Mexico courts. Whether

arguments presented in the trial courts are inconsistent and

suggestive of bad faith are best resolved by the trial courts

under the circumstances of this case.

D-7 APPENDIX D

eee

IV. CONCLUSION

The order granting a stay is affirmed. The request for

sanctions is denied without prejudice to renewal in the

superior court.

Reardon, J

WE CONCUR:

Poche, Acting P.J.

Perley, J

D-8 APPENDIX D

FILED MAY 29 1991

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

PEDRO LEONARDO MASCHERONI, Plaintiff,

VS.

THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA, and DOES 1-50. Defendant

No. 675223-9

ORDER OF STAY

Defendant's motion to stay or dismiss this lawsuit

based on forum non conveniens was heard by this court,

Department 19, on April 29, 1991. Anthony Graham of

Chandler, Wood, Harrington & Maffly appeared on behalf of

plaintiff. John Beers of Crosby, Heafey, Roach & May

Professional Corporation appeared on behalf of defendant.

Upon reviewing defendant's moving papers and reply

papers, and plaintiff's opposition papers, and after

consideration of the argument presented at the hearing on this

motion, and good cause appearing, the Court ordered that

this action No. 675223-9 be stayed on grounds of forum non

conveniens, or alternatively that the action be dismissed on

terms acceptable to each party if agreement on such terms

could be reached by the parties.

E-] APPENDIX E

Upon being advised by the parties that agreement on

terms of dismissal could not be reached, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that:

This action (No. 675223-9 in the Superior Court of

California, County of Alameda) is hereby stayed.

Dated: April 29 1991.

AND PRESENTED FOR SIGNATURE AND SIGNED

MAY 29 1991

JAMES R. LAMBDEN,

Judge of the Superior Court

E-2 APPENDIX E

FILED JUN 17 1998

First Appellate District, Division Four, No. A078918

$O70179

IN THE SUPREME COURT OF CALIFORNIA

Pedro Leonardo Mascheroni, Appellant

Regents of the University of California et al,

Respondents

Appellant’s petition for review DENIED.

[GEORGE]

Chief Justice

F-] APPENDIX F

FILED APR 26 1995

Frst Appellate District, Division Four, No. A068666

SO045602

IN THE SUPREME COURT OF CALIFORNIA

PEDRO LEONARDO MASCHERONI, Petitioner

ALAMEDA COUNTY SUPERIOR COURT, Respondent

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Real Party In Interest

Petition for review DENIED.

[LUCAS]

Chief Justice

G-] APPENDIX G

isa,

ENTERED APR 26 1995

FIRST JUDICIAL DISTRICT

COUNTY OF SANTA FE

STATE OF NEW MEXICO

No. SF 95-1694 (c)

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF

CALIFORNIA, UNIVERSITY OF CALIFORNIA, and LOS

ALAMOS NATIONAL LABORATORY, and JOHN DOES

1-50,

Defendants.

ORDER

THIS MATTER COMING BEFORE THE COURT for

consideration of

Defendants’ Rule 12(b) defenses, and the Court having heard

argument of counsel on April 1, 1996, and having reviewed

the memorandum of law, and being advised in the premises,

IT IS HEREBY ORDERED:

: The Complaint was filed outside all applicable New

H-1 APPENDIX H

Mexico tort and

2. The Complaint herein should be, and hereby is,

dismissed without prejudice.

MICHAEL E. VIGIL

DISTRICT COURT JUDGE

H-2

APPENDIX H

FILED MAR 15 1995

STATE OF CALIFORNIA

COURT OF APPEAL

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEDRO LEONARDO MASCHERONI

SUPERIOR COURT, ALAMEDA COUNTY

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

A068666

Alameda County

Sup. Ct. No. 6752239

BY THE COURT:

Petitioner’s application for permission to file his reply

to the opposition is granted

The petition is denied.

(Anderson, P.J., Perley, J. and Reardon, J.

participated in the decisions.)

Dated: _ MAR 15 1995

[POCHE, ACTING P.J.] es

I-] APPENDIX I

i Rai hae

FILED NOV 28 1994

SUPERIOR COURT OF CALIFORNIA -

COUNTY OF ALAMEDA

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA, and DOES 1-50,

Defendants.

No. 678223-9

ORDER DENYING

PLAINTIFF PEDRO LEONARDO MASCHERONI’S

MOTION TO VACATE ORDER OF STAY

Plaintiff Pedro Leonardo Mascheroni’s Motion to

Vacate Order of Stay came before the Court on

November 15, 1994, in Department 81, the Honorable

James R. Lambden presiding. Chandler, Wood, Harrington &

Maffly, by Richard Harrington, [not] appeared on behalf of

plaintiff. Crosby, Heafey, Roach & May, by Kirsten

Komoroske [not] appeared on behalf of defendant. The

Regents of California.

After full consideration of the papers in support of aad

in Opposition to plaintiff's motion, and with good cause

appearing, the Court finds and orders as follows:

IT IS ORDERED that plaintiff's Motion to Vacate

Order of Stay is DENIED.

J-1 APPENDIX J

DATED: Nov. 15, 1994

AND PRESENTED FOR

SIGNATURE AND SIGNED

NOV 28 1994 JAMES R. LAMBDEN

JUDGE OF THE SUPERIOR

COURT

J-2 APPENDIX J

ee ee ee ee

FILED SEP 6 1994

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF

CALIFORNIA, et al.,

Defendants.

ORDER ON REMAND

No. CIV 91-399 JC/RWM

THIS MATTER came on for consideration of the

July 11, 1994 opinion entered by the Tenth Circuit Court of

Appeals in the above-captioned case. The Tenth Circuit

affirmed dismissal with prejudice of the Title VII claim, but

found that the Eleventh Amendment prohibited this Court

from exercising jurisdiction over the state law claims.

Wherefore,

IT IS ORDERED that the April 15, 1992 order of

Dismissal of the Second Amended Complaint be, and hereby

is, modified to dismiss the state law claims without prejudice.

In all other respects the Order of April 15, 1992 remains

K-] APPENDIX K

unchanged.

DATED August 31, 1994.

John E. Conway

UNITED STATES DISTRICT JUDGE

K-2 APPENDIX K

FILED JUL 11 1994

PEDRO LEONARDO MASCHERONI,

Plaintiff-Appeliant,

BOARD OF REGENTS OF THE UNIVERSITY OF

CALIFORNIA, UNIVERSITY OF CALIFORNIA, LOS

ALAMOS NATIONAL LABORATORY,

Defendants-Appellees.

No. 93-2021

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

28 F.3d 1554

PRIOR HISTORY: [**1] Appeal from the United States

District Court for the District of New Mexico. (D.C. No.

CIV-91-399-JC). D.C. Judge JOHN E. CONWAY

CORE TERMS: regents, immunity, state law, continuing

violation, supervisors, discriminatory, arm, termination, sua

sponte, jurisdictional, entity, laboratory, security clearance,

limitations period, sovereign immunity, filing period, national

origin, permissive, certification, deception, tenure,

governmental entities, applicability, occurrence, occurring,

mandatory, empowered, tolled, sponte, waive

COUNSEL: Michael D. Bustamante, Albuquerque, New

Mexico (Roberto D. Ortega, Albuquerque, New Mexico, and

Richard Harrington of Chandler, Wood, Harrington &

L-] APPENDIX L

Maffly, San Francisco, California, with him on the briefs) for

Plaintiff-Appellant.

Daniel H. Friedman of Simons, Cuddy & Friedman, Santa Fe,

New Mexico, for

Defendants-Appellees.

JUDGES: Before BALDOCK, BRORBY, and EBEL, Circuit

Judges.

OPINIONBY: EBEL

OPINION:

[*1555] EBEL, Circuit Judge.

Dr. Pedro Leonardo Mascheroni ("Dr. Mascheroni") appeals

two orders dismissingstate law causes of action and a federal

Title VII claim against his former employer, the Board of

Regents of the University of California (the "Board of

Regents"). While we affirm the court's dismissal of the Title

VII [*1556] claim as time barred, we hold that the court

improperly exercised jurisdiction over Dr. Mascheroni's state

law claims because the Eleventh Amendment shields the

Board of Regents from suit in federal court for alleged state

law violations.

I. BACKGROUND

The Board of Regents operates the Los Alamos National

Laboratory in New Mexico under a contract with the United

States Department of Energy ("DOE"). Dr. Mascheroni was

employed by the Board of Regents between 1979 and 1988 as

a physicist at the Los Alamos National Laboratory. This suit

arises from his supervisors’ actions, which he alleges were

L-2 APPENDIX L

based on his national origin, and his ultimate termination from

the Los Alamos National Laboratory. Although a United

States citizen since 1972, Dr. Mascheroni is Argentine by

birth. another division in April 1987. Between April and May

1987, Dr. Mascheroni was investigated for alleged security

infractions. Based on his supervisors’ recommendations, the

DOE withdrew his security clearance in September 1987.

nl Dr. Mascheroni contends that he fell into disfavor with

his supervisors when he criticized a proposed krypton fluoride

laser project and sought to promote his hydrogen fluoride

laser project in its place. Of course, to the extent that Dr.

Mascheroni's difficulties stemmed from a dispute over

technical issues, that undermines his claim that he was

discriminated against because of national origin. The mere

fact that Dr. Mascheroni possesses a protected classification

does not give him special rights beyond the right not to be

discriminated against because of the classification.

Dr. Mascheroni was ultimately dismissed from the Los

Alamos National Laboratory in March 1988. Approximately

140 days later, on August 3, 1988, Dr. Mascheroni filed a

complaint with the New Mexico Human Rights Commission,

alleging discrimination based on national origin. The

Commission referred Dr. Mascheroni's complaint to the Equal

Employment Opportunity Commission ("EEOC") on

November 27, 1990. Because neither the New Mexico

Human Rights Commission nor the EEOC filed an action on

Dr. Mascheroni's behalf within 180 days of the date he filed

his complaint, Dr. Mascheroni received notice of his right to

sue in January 1991.

L-3 APPENDIX L

On January 24, 1991, Dr. Mascheroni filed a complaint

against the Board of Regents in California Superior Court,

alleging multiple tort and breach of contract theories of

recovery. n2 The Board of Regents moved for a stay on the

grounds of forum non conveniens. Meanwhile, on April 24,

1991, Dr. Mascheroni filed a Title VII claim in the United

States District Court for the District of New Mexico. In May

1991, the California Superior Court stayed Dr. Mascheroni's

state law suit and subsequently denied Dr. Mascheroni's

motion to dissolve the stay. Next, on May 7, 1991, Dr.

Mascheroni amended his Title VII complaint in the District of

New Mexico to include the state law claims asserted in the

California Superior Court. He also added to this amended

complaint new state law claims of tortious discharge,

whistle-blower liability, and prima facie tort.

n2 The state law causes of action included wrongful

termination, breach of contract of continued employment,

breach of the implied covenant of good faith and fair dealing,

and neghgent and intentional infliction of emotional distress

The district court first granted the Board of Regents’ Fed.

R. Civ. P. 12(b) motion to dismiss the state law claims. Order

of July 17, 1992. The court concluded that the Board of

Regents, by virtue of operating the Los Alamos National

Laboratory in New Mexico, enjoys the same immunities to

tort actions available to New Mexico state governmental

entities under the New Mexico Tort Claims Act, N.M. Stat

Ann. 41-4-1 to -29. The court additionally held that Dr.

Mascheroni's contract claims were barred by New Mexico's

statute of limitations, N.M. Stat. Ann. §37-1-23. The district

court permitted Dr. Mascheroni to amend his Title VII

L-4 APPENDIX L

Bi seta iat oie uta FOR

aie.

AEE RE aE ig BAER Be dealt

CRetre ae!

complaint to demonstrate that he had timely filed the original

complaint with the New Mexico Human Rights Commission.

Because New Mexico is a deferral state, Dr. Mascheroni had

to show that the Board of Regents’ allegedly discriminatory

actions occurred within 300 days of the date on which he filed

his complaint with the Commission. n3 It was undisputed that

the reduction-in-force ("RIF") at the Los Alamos National

Laboratory and the supervisors’ recommendation to strip Dr.

Mascheroni of his security clearance occurred in excess of

300 days before Dr. Mascheroni filed his complaint with the

Commission.

n3 Title VII provides a 180-day filing period after the

occurrence of an unlawful discriminatory practice. <=1> 42

U.S.C. 2000e-5(e), as amended by 2000e-5(e)(1). The period

is extended to 300 days in "deferral states," where the EEOC

defers to the enforcement efforts of a state agency

empowered to undertake employment discrimination

investigations. See EEOC v. Commercial Office Prods. Co.,

486 U.S. 107, 110-12, 100 L. Ed. 2d 96, 108 S. Ct. 1666

(1988); Aronson v. Gressly, 961 F.2d 907, 911 (10th Cir.

1992). ;

In his second amended complaint filed on April 27, 1992,

however, Dr. Mascheroni invoked the continuing violation

doctrine in an attempt to cure his failure to file a timely

complaint. Dr. Mascheroni argued that his ultimate dismissal

from the Los Alamos National Laboratory, which occurred

within the 300-day period, was sufficiently related to the RIF

and security violation allegations so as to establish a pattern

of discrimination based on national origin. Alternatively, Dr.

Maschkeroni's amended complaint invoked the doctrine of

L-5 APPENDIX L

equitable tolling, alleging that because his supervisors actively

deceived him and lulled him into not filing a Title VII

complaint with the New Mexico Human Rights Commission,

the filing period should be tolled. The court, however,

dismissed Dr. Mascheroni's amended Title VII complaint as

time barred because Dr. Mascheroni failed to demonstrate a

continuing violation or to allege facts sufficient to warrant

equitable tolling of the limitations period. Order of

December 14, 1992.

Before us is Dr. Mascheroni's appeal from both district

court orders. He argues that (1) dismissal of the state law,

claims against a California entity based on New Mexico

immunity principles was improper; and (2) his Title VII

complaint was timely filed.

I]. STATE LAW CLAIMS

We first consider Dr. Mascheroni's appeal from the district

court's dismissal of his state tort and breach of contract

claims. Dr. Mascheroni argues that the sovereign immunity

bestowed on New Mexico state governmental entities under

the New Mexico Tort Ciaims Act does not apply to a foreign

governmental entity whose alleged tortious acts occurred in

New Mexico. Alternatively, Dr. Mascheroni asks us to certify

this question of first impression to the New Mexico Supreme

Court. n4 However, because we conclude that the Eleventh

Amendment bars Dr. Mascheroni's state law claims in federal

court against the Board of Regents, both we and the district

court lack jurisdiction to consider whether the New Mexico

Tort Claims Act applies to a California state governmental

entity operating in New Mexico, or to certify this question to

the New Mexico Supreme Court.

L-6 APPENDIX L

n4 The New Mexico Supreme Court accepted certification

of essentially the same question in two prior cases, but

dismissed certification in both cases on mootness grounds

following settlement of the underlying litigations. Sandford v.

Giles, CIV 92-368) (D. N.M.), certification accepted (No.

21,133) (N.M. April 19, 1993), dismissed (N.M. November 4,

1993); In re: Los Alamos Litigations, Individuals and Putative

Class Representatives v. Board of Regents of the University

of California (No. 92-6005) (D. N.M.), certification accepted

(No. 21,326) (N.M. June 28, 1993), dismissed (N.M.

January 25, 1994).

The Eleventh Amendment imposes a constitutional

limitation on the jurisdiction of Articie III courts. U.S. Const.

amend. XI ("The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.") (emphasis added); <=4> Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 98, 79 L. Ed. 2d

67, 104 S. Ct. 900 (1984) (noting that the Eleventh [*1558]

Amendment "affirms that the fundamental principle of

sovereign immunity limits the grant of judicial authority in

Art. III.").

Whether an Eleventh Amendment bar that is not raised by

the parties must be considered sua sponte by a court when its

applicability is discovered or whether it is subject to the

discretion of the court as to whether sua sponte to address

an unraised Eleventh Amendment issue, has been subject to

prolonged debate. In Pennhurst, the Supreme Court embraced

the mandatory rule, explaining that a "federal court must

L-7 APPENDIX L

examine each claim in a case to see if the court's jurisdiction

over that claim is barred by the Eleventh Amendment." <=5>

Id. at 121 (emphasis added); see also <=6> Charley's Taxi

Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869, 873 n.2

(9th Cir. 1987) ("The Eleventh Amendment may be described

as either creating an immunity for states or establishing a

jurisdictional limitation on federal courts . . . Like a

jurisdictional bar and unlike a traditional immunity, however,

the effect of the Eleventh Amendment must be considered sua

sponte by federal courts.") (emphasis added). Other circuits

impliedly adopt this mandatory rule. See, e.g., Atlantic

Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir.

1993) (“Although the parties do not address the Eleventh

Amendment in their briefs, we raise it sua sponte because it

affects our subject matter jurisdiction."), cert. denied, 126 L.

Ed. 2d 656, 114 S. Ct. 689 (1994); Sindia Expedition v.

Wrecked & Abandoned Vessel, 895 F.2d 116, 119 (3d Cir.

1990) (explaining that "we have ‘a special obligation’ to satisfy

ourselves of our own and the district court's jurisdiction");

Morris v. Washington Metropolitan Area Transit Authority,

226 U.S. App. D.C. 300, 702 F.2d 1037, 1040 (D.C. Cir.

1983) ("Such matters casting doubt upon the existence of

federal subject matter jurisdiction [on the basis of Eleventh

Amendment immunity] are the proper subject of consideration

on the court's own motion, as neither the consent or omission

of the parties nor the acquiescence of the court can confer

jurisdiction where none exists."); Whiting v. Jackson State

University, 616 F.2d 116, 127 n.8 (Sth Cir. 1980) ("Although

neither [defendant] has raised the bar of the eleventh

amendment, we consider it sua sponte because a defense

based upon the eleventh amendment is in the nature of a

jurisdictional bar.").

At the same time, however, other authority adheres to a

L-8 APPENDIX L

permissive rule that grants courts the discretion whether to

consider sua sponte a potential Eleventh Amendment bar to a

suit against a state. See, e.g., Benning v. Board of Regents of

Regency Universities, 928 F.2d 775, 777 n.2 (7th Cir. 1991)

("We are not obliged to reach the Eleventh Amendment issue

because the Eleventh Amendment doctrine of sovereign

immunity, though often characterized as jurisdictional, does

not function as a true jurisdictional bar."). Two years prior to

Pennhurst, the Supreme Court appeared to have adopted this

permissive rule in dicta in <=13> Patsy v. Board of Regents,

457 U.S. 496, 516 n.19, 73 L. Ed. 2d 172, 102 S. Ct. 2557

(1982). In Patsy, the Court observed that because a state can

waive Eleventh Amendment immunity, the Court has "never

held that it is jurisdictional in the sense that it must be raised

and decided by this Court on its own motion." Id. Because the

Supreme Court's subsequent opinion in Pennhurst did not

expressly overrule Patsy, the continued vitality of the

permissive rule remains uncertain.

The two recent cases from our circuit to address this

question did not explicitly adopt either the mandatory or the

permissive rule, but in both instances the court did in fact

consider sua sponte whether the Eleventh Amendment barred

its jurisdiction. AMISUB (PSL) v. Colorado Dept. of

Social Services, 879 F.2d 789, 792 n.5 (10th Cir. 1989), cert.

denied, 496 U.S. 935, 110 L. Ed. 2d 660, 110 S. Ct. 3212

(1990); <=16> Esparza v. Valdez, 862 F.2d 788, 793-94

(10th Cir. 1988), cert. denied, 492 U.S. 905, 106 L. Ed. 2d

565, 109 S. Ct. 3214 (1989). In Esparza, we recognized that

the "Supreme Court appears never to have decided precisely

whether a court can or should raise Eleventh Amendment

jurisdictional issues sua sponte." <=18> 862 F.2d 788,

793-94 (quoting both the permissive language from footnote

19 in Patsy and the declarative statement in Pennhurst that

L-9 APPENDIX L

"inferred that sua sponte consideration is necessary").

[*1559] We need not decide whether we are required or

merely authorized to consider sua sponte the Eleventh

Amendment's applicability because, in either event, the law is

clear that we may consider whether the Eleventh Amendment

bars Dr. Mascheroni's state law claims against the Board of

Regents. And, in this case, whether we are compelled to

address the Eleventh Amendment issue or whether we merely

exercise Our discretion to address the issue, we do address it

and we find it dispositive of the issues on appeal pertaining to

Dr. Mascheroni's state law claims.

The threshold Eleventh Amendment issue is whether the

Board of Regents is an arm of the state for Eleventh

Amendment purposes. "The Eleventh Amendment

arm-of-the-state doctrine bestows sovereign immunity on

entities created by state governments that operate as alter

egos or instrumentalities of the states." Alex E. Rogers, Note,

Clothing State Governmental Eniities with Sovereign

Immunity: Disarray in the Eleventh Amendment

Arm-of-the-State Doctrine, <=19> 92 Colum. L. Rev. 1243,

1243 (1992). Under the arm-of-the-state doctrine, courts

classify state governmental bodies according to a dichotomy,

in which arms of the state enjoy Eleventh Amendment

immunity, whereas political subdivisions such as counties and

cities do not. See Lake Country Estates v. Tahoe Regional

Planning Agency, 440 U.S. 391, 402, 59 L. Ed. 2d 401, 99 S.

Ct. 1171 (1979) (denying Eleventh Amendment immunity to a

bi-state agency that was more akin to a political subdivision

than an arm of the State); Mt. Healthy Bd. of Educ. v. Doyle,

429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)

[**14] (concluding that an Ohio school board was "more

like a county or city than it [was] like an arm of the State");

L-10 APPENDIX L

ST SY See et :

Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.

1993) (en banc) (Eleventh Amendment immunity "extends

only to the states themselves and to those governmental

entities that are ‘arms of the state."").

Although we have never considered whether the Board of

Regents of the University of California is an arm of California

and thereby immune from suit in federal court, the Ninth

Circuit has held that Eleventh Amendment immunity applies

to the Board of Regents of the University of California, the

entity Dr. Mascheroni names in the instant suit. Jackson v.

Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982); see also

<=24> Armstrong v. Meyers, 964 F.2d 948, 949-50 (9th Cir.

1992). In so ruling, the Ninth Circuit relied on language in

<=25> Hamilton v. Regents, 293 U.S. 245, 257, 79 L. Ed.

343, 55 S. Ct. 197 (1934), that the "regents are, with

exceptions not material here, fully empowered in respect of ~—

the organization and government [**15] of the 28 F.3d

1554, *1559; 1994 U.S. App. LEXIS 16987, **15; LEXSEE

65 Fair Empl. Prac. Cas. (BNA) 632; 65 Empl. Prac. Dec.

(CCH) P43,276 university, which, as it has been held, is a

constitutional department or function of the state

government." The Ninth Circuit reached this conclusion by

examining the state law characterization of the Board of

Regents and the other factors upon which we relied in

Ambus, 995 F.2d at 1350, such as the state law

characterization of the entity, the guidance and control that

the state exercises over the entity, the degree of state funding

the entity receives, and whether the state has empowered the

entity to issue bonds and levy taxes. See, e.g., Jackson, 682

F.2d at 1350. nS We concur with this conclusion and

therefore conclude that the Board of Regents is clothed with

Eleventh Amendment immunity.

L-1] APPENDIX L

nS Within our circuit, we have likewise held that the Board

of Regents of the University of Oklahoma is an arm of the

state under the Eleventh Amendment, Seibert v. University of

Oklahoma Health and Sciences Center, 867 F.2d 591, 594

(10th Cir. 1989), as is the Board of Regents of the New

Mexico School of Mines. Korgich v. Regents of New Mexico

Sch. of Mines, 582 F.2d 549, 551-52 (10th Cir. 1978).

That Dr. Mascheroni attaches these state law claims to the

Title VII complaint under the doctrine of supplemental

jurisdiction does not render the Eleventh Amendment

inapplicable because the Supreme Court has held that "neither

pendent jurisdiction nor any other basis of jurisdiction may

override the Eleventh Amendment." <=30> Pennhurst, 465

U.S. at 121. Thus, Dr. Mascheroni may not sue the Board of

Regents in federal court absent express waiver of Eleventh

Amendment immunity, <=31> Port Authority Trans-Hudson

Corp. v. Feeney, 495 U.S. 299, 305, 110 S. Ct. 1868, 1872-

[*1560] 73, 109 L. Ed. 2d 264 (1990), or unequivocal

Congressional abrogation of the States’ Eleventh Amendment

immunity. <=32> Dellmuth v. Muth, 491 U.S. 223, 227, 105

L. Ed. 2d 181, 109 S. Ct. 2397 (1989). Inasmuch as Congress

has not abrogated the States’ Eleventh Amendment immunity

against state law claims brought in federal court, and because

the Board of Regents has not unequivocally waived immunity,

we hold that the Eleventh Amendment bars Dr. Mascheroni's

state law [**17] claims against the Board of Regents.

Furthermore, the mere fact that the Board of Regents has

appeared in this suit, without explicitly invoking Eleventh

Amendment immunity, does not, by itself, constitute a waiver

of Eleventh Amendment immunity, The Supreme Court has

adhered to a stringent test that waiver of Eleventh

L-12 APPENDIX L

Amendment immunity occurs "only where stated by the most

express language or by such overwhelming implication from

the text [of a state statute or constitution] as [will] leave no

room for any other reasonable construction.” Port Authority,

495 U.S. at 305 (quoting <=34> Atascadero State Hosp. v.

Scanlon, 473 U..5. 234, 239-40, 87 L. Ed. 2d 171, 105 S. Ct.

3142 (1985)). Accordingly, we have said that a state or arm

of the state does not waive Eleventh Amendment immunity

merely by appearing in a suit. AMISUB, 879 F.2d at 793

("The State has not ‘expressly stated' by its silence that it has

waived Eleventh Amendment immunity."). Accord Richins v.

Industrial Construction, Inc., 502 F.2d 1051, 1056 (10th Cir.

1974); see also Atascadero State Hosp., 473 U.S. at 241

(holding that California did not waive its Eleventh

Amendment immunity in the California Constitution, absent

an explicit statement to that effect).

Because the Eleventh Amendment imposes a threshold

jurisdictional bar to Dr. Mascheroni's state law claims brought

in the United States District Court for the District of New

Mexico, we dismiss and remand with instructions to the

district court to vacate its judgment and dismiss for lack of

jurisdiction.

III. TITLE VII CLAIM

Dr. Mascheroni next appeals the district court's dismissal of

his Title VII cause of action. n6 We review de novo the

court's dismissal of Dr. Mascheroni's Title VII claim because

"the sufficiency of a complaint is a question of law."

Ayala v. Joy Mfg., 877 F.2d 846, 847 (10th Cir. 1989)

(quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th

Cir. 1986)). "We will uphold a dismissal [under Fed. R. Civ.

L-13 APPENDIX L

P. 12(b)(6)] only when it appears that the plaintiff can prove

no set of facts in support of the claims that would entitle the

plaintiff to relief." Jacobs, Visconsi & Jacobs v. City of

Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). "For

purposes of making the foregoing determination, a court

must accept all the well-pleaded allegations of the complaint

as true and must construe them in the light most favorable to

the plaintiff." Williams v. Meese, 926 F.2d 994, 997 (10th

Cir. 1991).

n6 The Eleventh Amendment does not bar our jurisdiction

over Dr. Mascheroni's Title VII claim because the Supreme

Court has held that Congress expressly abrogated the States’

Eleventh Amendment immunity in its enactment of Title VII

of the Civil Rights Act of 1964. <=42> Fitzpatrick v. Bitzer,

427 US. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2686 (1976).

A. Continuing Violation Doctrine The statute of limitations

period in Title VII requires precise identification of the

occurrence of the “unlawful employment practices." <=43>

42 U.S.C. 2000e-5 [**20] (e); <=44> Delaware State

College v. Ricks, 449 U.S. 250, 257, 66 L. Ed. 2d 431, 101

S. Ct. 498 (1980). Dr. Mascheroni attempts to comply with

this rule by relying on the continuing violation doctrine, which

"permits a Title VII plaintiff to challenge incidents that

occurred outside the statutory time limitations of Title VII if

such incidents are sufficiently related [to events occurring

within the time limitations period] and thereby constitute a

continuing pattern of discrimination." <=45> Hunt v.

Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). The Supreme

Court discussed the continuing violation doctrine in <=46>

Havens Realty Corp. v. Coleman, 455 U.S. 363, 71 L. Ed. 2d

L-14 APPENDIX L

214, 102 S. Ct. 1114 (1982), where it examined numerous

[*1561] allegations of a realtor's unlawful "racial steering."

The Supreme Court, however, has tempered an expansive

treatment of the administrative statute of limitations with

reminders of the necessary objectives of setting time bars. For

instance, in Ricks, the Court observed that limitations periods

attempt to "protect employers [**21] from the burden of

defending claims arising from [distant] employment

decisions." <=47> Ricks, 449 U.S. at 256-57. There, the

plaintiff had first been denied tenure, and thereafter was

terminated. Notwithstanding that the ultimate loss of

employment followed a decision not to grant tenure, the

Supreme Court held that the plaintiff could not use the later

date of termination to reach the alleged discriminatory act of

denial of tenure. The Court said,

Mere continuity of employment, without more, is insufficient

to prolong the life of a cause of action for employment

discrimination.

_. . [This] is so even though one of the effects of the denial of

tenure -- the eventual loss of a teaching position -- did not

occur until later... . "The proper focus is upon the time of

the discriminatory acts, not upon the time at which the

consequences of the acts became most painful."

Id. at 257-58 (quoting Abramson University of Hawaii, 594

F.2d 202, 209 (1979)); accord Chardon v. Fernandez, 454

U.S. 6, 8, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981) (per curiam)

(applying Ricks to 42 U.S.C. 1983 actions). However, Ricks

does not provide specific guidelines to distinguish between

the occurrence of a “discriminatory act" and a later

"consequence."

L-15 APPENDIX L

We have held that a Title VII plaintiff may recover for

discriminatory acts occurring prior to the statutory limitations

period if at least one instance of the discriminatory practice

occurs within the filing period and the earlier acts are “part of

a continuing policy or practice that includes the act or acts

within the statutory period." Martin v. Nannie and the

Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993); see also

Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1543

(10th Cir. 1987) (explaining that the various acts must

constitute a “continuing pattern of discrimination"). The

discriminatory act occurring within the time period need not

constitute a legally sufficient Title VII claim in itself. Martin,

3 F.3d at 1415 n.5. However, the plaintiff cannot simply

assert that “acts [occurring] outside the required time limit

had a continuing effect within the statutory time allowed for

suit." <=55> Id. at 1415; <=56> United Air Lines v. Evans,

431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977)

(stating the critical question as not whether past practices

have current consequences, but whether “any present

violation exists").

Thus, to establish a continuing violation, Dr. Mascheroni

must allege that his employer engaged in a series of related

discriminatory acts, at least one of which falls within the

limitations period. <=57> Purrington v. University of Utah,

996 F.2d 1025, 1028 (10th Cir. 1993). To determine whether

the alleged incidents of discrimination constitute a continuing

violation or are discrete unrelated acts, we employ a

three-factor inquiry: "(i) subject matter -- whether the

violations constitute the . xme type of discrimination; (ii)

frequency; and (iii) permanence -- whether the nature of the

violations should trigger an employee's awareness of the need

to assert her rights and whether the consequences of the act

would continue even in the absence of a continuing intent to

L-16 APPENDIX L

discriminate." Martin, 3 F.3d at 1415.

Dr. Mascheroni's second amended complaint alleged

discriminatory treatment in two instances: (1) transfer from

his initial position, purportedly due to a RIF; and (2)

suspension of his security clearance arising from his

supervisors’ allegations of security breaches. He further

alleges that the allegations of security violations ultimately led

to his dismissal from the Los Alamos National Laboratory.

The two allegedly discriminatory acts occurred outside the

statutory time period for filing with the New Mexico Human

Rights Commission (i.e. in excess of 300 days before Dr.

Mascheroni filed his complaint [*1562] with the

Commission on August 3, 1988). n7 While the third act

occurred within the filing period, the court found that Dr.

Mascheroni did not allege sufficient facts to create a prima

facie case of discrimination solely on the latter termination.

The court declined to expand Dr. Mascheroni's filing window

to include previous acts based on the continuing violation

doctrine and thus granted the Board of Regents’ motion to

dismiss.

n7 Dr. Mascheroni filed his Title VII complaint on August

3, 1988. However, his initial RIF and transfer occurred in

March 1987, and the allegations of security breaches

preceded the DOE's suspension of his security clearance in

September 1987.

At oral argument, counsel for Dr. Mascheroni conceded that

Dr. Mascheroni's ultimate termination from the Los Alamos

National Laboratory in March 1988 -- the only event that falls

within the 300-day filing period -- did not violate Title VII,

nor was it an act of discrimination based on his national

L-17 APPENDIX L

origin. Instead, he explained that the termination occurred as

a result of budget limitations. Because the termination was

perceived as non-discriminatory, Dr. Mascheroni chailenged

this termination as a discrete actionable event only as a state

law claim. For purposes of the Title VII claim, he rests solely

on the supposition that the termination was a "predictable

result" of prior discriminatory acts and thus should extend the

time limitations period under the "continuing violation"

doctrine.

Inasmuch as Dr. Mascheroni fails to identify a

discriminatory act that occurred within the statutory time

period and that was part of a continuing violation, he cannot

satisfy the first prong of our test. Although the subsequent act

need not be actionable in its own right, it must be an act of

discrimination or it cannot share commonality with the

preceding acts on the most important characteristic of all --

that the acts are related acts of discrimination. Hence, Dr.

Mascheroni has failed to show a continuing violation that

includes at least one act of discrimination within the time

allowed for suit.

B. Equitable Tolling

Dr. Mascheroni argues, in the alternative, that the district

court should have equitably tolled the charge-filing period due

to alleged deceptive conduct of Laboratory supervisors.

We have explained that the time limits in Title VII "will be

tolled only if there has been ‘active deception’ of the claimant

regarding procedural prerequisites." Scheerer v. Rose State

College, 950 F.2d 661, 665 (10th Cir. 1991), cert. denied,

<=60> 120 L. Ed. 2d 872, 112 S. Ct. 2995 (1992); Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d

L-18 APPENDIX L

234, 102 S. Ct. 1127 (1982). A claimant who is aware of his

Title VII rights, however, is obligated to file promptly or

forfeit his clam. <=62> Purrington, 996 F.2d at 1031.

In his attempt to demonstrate actual deception, Dr.

Mascheroni alleges that Los Alamos National Laboratory

human resources personnel encouraged him to exhaust all

administrative processes and internal grievance mechanisms

before filing a Title VII complaint. He also points to

supervisors’ misrepresentations concerning the Laboratory's

efforts to revive his security clearance. n8 And he suggests

that a “laboratory culture that avoids outside scrutiny and

bristles at outside interference in internal affairs" further

pressured him to continue to work within the organization to

resolve his differences. n9

n8 Dr. Mascheroni does not appeal the district court's

dismissal of his claim to seek reinstatement of the security

clearance. Instead, he presents the allegations of security

violations as "further evidence" of discriminatory treatment.

n9 At oral argument, counsel for Dr. Mascheroni argued

that he was further dissuaded from filing a Title VII complaint

because his funding proposal for a hydrogen fluoride laser

project was still under consideration by Los Alamos National

Laboratory management. However, Dr. Mascheroni fails to

allege how the management's pefiding consideration of his

funding proposal misled him as to the grounds or procedures

required to commence a Title VII claim. <=63> Scheerer,

950 F.2d at 665.

Accepting as true Dr. Mascheroni's allegations, we conclude

L-19 APPENDIX L

that the district court properly refused to equitably toll the

charge-filing period. Dr. Mascheroni knew of the [*1563]

allegedly false and potentially discriminatory reasons for his

initial RIF and allegations of his security breaches more than

one year before he was dismissed. Comments by the security

division leader and the human resources department may have

given him false hope that his problems could be resolved

internally, but they do not rise to the level of active deception

about the procedures for filing a Title VII claim that we

articulated in Scheerer, 950 F.2d at 655, and Wilkerson v.

Siegfried Insurance Agency, 683 F.2d 344, 348 (10th Cir.

1982) (the evidence must establish either active deception

about the procedural prerequisites of Title VII or that the

plaintiff "has in some extraordinary way been prevented from

asserting his or her rights"). nl10 Merely alleging business

reasons or a corporate culture that discouraged him from

suing promptly does not state a basis for invoking the

equitable tolling doctrine. Accordingly, we affirm the court's

dismissal of Dr. Mascheroni's Title VII claim as untimely.

nl0 Dr. Mascheroni originally argued that his claims were

tolled by the internal grievance filing, but he does not make

that argument before this Court. But even if such a claim

were asserted on appeal, it would be without merit. Ricks,

449 US. at 261.

IV. CONCLUSION

We DISMISS Dr. Mascheroni's state law claims and

REMAND with instructions to the district court to VACATE

its judgment and dismiss for lack of jurisdiction over such

claims. V’e AFFIRM the court's dismissal of the Title VII

L-20 APPENDIX L

claim. n11

nll We DENY the Appellant's motion to certify to the New

Mexico Supreme Court the question of the applicability of the

New Mexico Tort Claims Act, and we DENY the Appellees’

motion for leave to file "Notice of Modification of

Representations at Oral Argument."

L-21 APPENDIX L

FILED DEC 14 1992

UNITED STATES DISTRICT COURT

ALBUQUERQUE, NEW MEXICO

FOR THE DISTRICT OF NEW MEXICO

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF -

CALIFORNIA, et al.,

Defendants.

No. CIV 91-399 JC/RWM

ENTER ON DOCKET

MEMORANDUM OPINION

THIS MATTER came on for consideration of the

Defendant’s Motion to Strike and Dismiss, filed May 28,

1992. The Court has reviewed the motion and the memoranda

submitted by the parties. The Court finds that the motion is

well-taken and will be granted. As a result, the defendants’

Objections to Magistrate's Order for relief from a siay of

discovery will be denied as moot.

When reviewing a motion to dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure, the Court

M-1 APPENDIX M

"must accept as true the plaintiff's well-pleaded factual

allegations and all reasonable inferences must be indulged in

favor of the plaintiff." Shaw v, Valdez, 819 F.2d 965, 968

(10th Cir. 1987). A motion to dismiss will be granted only if

“it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief "

, 754 F.2d 318, 321

(10th Cir. 1985).

The present motion to dismiss is premised upon plaintiff's

alleged failure to comply with the procedural prerequisites for

bringing this Title VII claim. Title VII provides that "[a]

charge ... shall be filed (with the EEOC] within one hundred

and eighty days after the unlawful employment practice

occurred." 42 U.S.C. ii 2000e-5(e)(1). The 1$0-day

requirement is extended to 300 days in a deferral state such as

New Mexico where the charge may be initially filed with the

state's Human Rights Commission. Id. "A timely filing, with

the EEOC is a prerequisite to a civil suit under ... Title VII

Aronson v. Gressly, 961 F.2d 907, 911 (loth Cir. 1992).

The essence of the Second Amended Complaint is that

adverse employment actions were in fact “continuing efforts

of Los Alamos... to silence Plaintiff and get plaintiff out of

Los Alamos and out of ICF research entirely." Response. Brief

at 5. As in his previous pleadings, Mascheroni asserts that his

advancement of certain scientific theories were negatively

1 Although the pleading is entitled “Second Amended

Complain. for Civil Rights Violations and Tortious Discharge

in Violation of Public Policy”, any state claims were

previously dismissed with prejudice aand will be stricken from

the pleading. See Orders filed April 15 and July 17, 1992.

M-2 APPENDIX M

received by his superiors in part because he is a hispanic of

Argentinean birth. Mascheroni alleges that several actions

taken by the defendant employer constituted disparate

treatment in violation of Title VII.' Specifically, he identifies

as actions constituting disparate treatment: (1) the loss of his

position in X-Division during a reduction-in-force ("RIF");

(2) the suspension of his security clearance; and (3)

termination from his position from N-Division.

Plaintiff contends that the time for filing his

administrative charge 1 1] start{ed] to run only upon his

termination from employment: that is March 16, 1988.11

Response Brief at 6. His charge was filed with the New

Mexico Human Rights Commission 140 days after this date.

Because plaintiff did not file an EEO€ charge within 300 days

of either his RIF termination from XDivision or the

suspension of his security clearance, I previously found that

these adverse actions cannot form the basis for a viable Title

VII Qlaim. See Order filed April 15, 1992.

Of the alleged discriminatory actions pled in the First

Amended Complaint, only the termination from N-Division

was within 300 days of the filing of his EEOC charge.

However, the First Amended Complaint did not allege that

this separation from employment violated Title VII. Thus, I

permitted plaintiff to file a Second Amended Complaint to

clarify the allegations relating to his termination from

N-Division in March 1988. See order filed April 15, 1992.

Mascheroni now alleges that his termination from

N-Division was “caused by Defendants’ continuing

discriminatory assertions of security violations through March

1988.11 Second Amended Complaint at 146. By

characterizing the security violation allegations as

M-3 APPENDIX M

"continuing", plaintiff attempts to circumvent his failure to file

a timely EEOC complaint charging discrimination in the

September 1987 suspension of his '1Q" security clearance.

Plaintiff further seeks to expand his claim for "continuing"

violations to include not only the removal from N-Division

and suspension of his clearance, but the earlier 1987

termination from X-Division as well.

Applying a "continuing" violation label to such

discrete events would defeat the purposes underlying the

filing of a timely charge. Moreover, plaintiff alleges that his

termination from N- Division resulted from.the allegations of

security violations which ultimately led to suspension of the

IQ" security clearance. The time for filing a complaint of

discrimination starts to run at the time of the discriminatory

act, not when the action results in negative consequences for

the employee. See Delaware State College v. Ricks, 449 U.S.

250, 256-58 (1980) ("alleged discrimination occurred--and

the filing limitations periods commenced--at the time the

tenure decision was made and communicated... That is SO

even though one of the effects of the denial of tenure--the

eventual loss of a teaching position--did not occur until

later").

Moreover, to the extent that an inquiry into the actual

reasons and merits of a decision for suspension of the security

clearance would be required, this Court has grave

reservations of its authority to second-guess the decision of

the executive branch. See Department.of Navy v. Egan, 484

U.S. 518, 528-32 (1988). The Tenth Circuit has

cautioned that

[i]f the merits underlying a revocation {ofa

security clearance] cannot be examined, there

M-4 APPENDIX M

are even stronger reasons why the merits

underlying an interim action such as a

suspension cannot be examined... if the

statutory constraints imposed in Egan can be

bypassed simply by invoking alleged

constitutional rights, it makes the authority of

Egan hardly worth the effort.

Hill v_D m Ai , 844 F.2d 1407, 1411 (10th

Cir. 1988). similarly, it seems doubtful that Mascheroni's

invocation of statutory civil nghts under Title VII could form

the independent jurisdictional basis for reviewing modification

of his security clearance that was found lacking in Hill.

Plaintiff also attempts to invoke “equitable tolling" to

excuse his failure to file a timely charge of discrimination. He

contends that the “laboratory culture" induced him not to file

a charge, but to seek to resolve the dispute internally. The

Second Amended Complaint makes it clear that plaintiff was

aware of the Title VII procedures available to him and

consciously chose not to pursue that remedy in a timely

manner. In the absence of “active deception" by the employer

as to the charge filing process, equitable tolling is not

available. See Scheerer v. Rose State College, 950 F.2d 661,

665 (10th Cir. 1991).

Finally, the defendants correctly point out that plaintiff

fails to allege the typical prima facie case for a Title VII claim

of discrimination with regard to the N-Division termination.

Mascheroni does not assert that a similarly situated

non-hispanic employee retained employment with the Lab or

that he was replaced by a less qualified non-hispanic. For all

of the above reasons, the Second Amended Complaint will be

dismissed with prejudice.

M-5 APPENDIX M

An order in accordance with this opinion shall be entered

John E. Conway

UNITED STATES DISTRICT JUDGE

M-6 APPENDIX M

FILED APR 15 1992

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

PEDRO LEONARDO MASCHERONI,

Plaintiff,

No. CIV 91-399 JC/RWM

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF

CALIFORNIA, et al.,

Defendants.

ENTERED ON DOCKET

ORDER

THIS MATTER came on for consideration of the defendants’

motion to treat their 12(b) defenses as a motion to dismiss.

The court, having reviewed the memoranda of the parties and

the applicable law, having heard oral argument at a hearing on

Tuesday, April 14, 1992, and being otherwise fully advised in

the premises, finds that the motion is well-taken and will be

granted.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that:

N-] APPENDIX N

l. Plaintiff's state law claims be, and hereby are,

dismissed with prejudice;

y Plaintiff's Title VII claim be, and hereby is,

dismissed;

3. Plaintiff is granted until April 27, 1992 to file an

amended complaint with respect to his Title VII claim and any

other claim not heretofore dismissed with prejudice.

John E. Conway

UNITED STATES DISTRICT JUDGE

N-2 APPENDIX N

FILED APR 27 1998

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

303 SECOND STREET, SOUTH TOWER

SAN FRANCISCO, CA 94107

DIVISION 4

PEDRO LEONARDO MASCHERONI,

Plaintiff and Appellant,

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

et al.,

A078918

Alameda County No. 6752239

BY THE COURT:

The petition for rehearing is denied.

Date: Apr 27 Poche, Acting _ PJ.

O-1 APPENDIX O

FILED AUG 12 1992

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIRST APPELLATE DISTRICT

DIVISION 4

MASCHERONI, PEDRO LEONARDO

VS.

REGENTS OF THE UNIV. OF CALIFORNIA ET AL

A054464

Alameda County No. 6752239

BY THE COURT:

The petition for rehearing is denied.

Dated: _ [AUG 12 1992]

[ANDERSON] PJ.

P-| APPENDIX P

FILED JUL 17 1992

UNITED STATES DISTRICT COURT

ALBUQUERQUE, NEW MEXICO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF

CALIFORNIA, LOS ALAMOS NATIONAL

LABORATORY,

Defendants.

No. CIV 91-399 JC/RWM

ENTERED ON DOCKET

ORDER

THIS MATTER comes on for consideration of the

plaintiffs Moticn for Amendment of Order, filed April 30,

1992. The Court, having reviewed the memoranda of the

parties and the applicable law, and being otherwise fully

advised in the premises, finds that the motion is not

well-taken and will be denied.

Q-1 APPENDIX Q

Following a hearing on the defendants’ motion to

dismiss, this Court entered its order dismissing the plaintiff's

state law tort and contract claims with prejudice on April 16,

1992. The plaintiff moves this Court to amend its order so

that the dismissal is without prejudice.

In ruling on the defendants' motion to dismiss, the

Court determined that, under New Mexico law, these

defendants are entitled to the same-immunities as are available

to New Mexico state entities. Padilla v lo of Acoma,

107 N.M. 174, 179 (1988), and Bartels.v. Hecke , No. CIV

90-125 SC (D.N.M. November 29, 1990). Therefore, the

Court concluded that the plaintiff could not state a claim in

tort or contract against these defendants. The plaintiffs tort

claims are barred by the New Mexico Tort Claims Act, §§

41-4-1 et seq. The plaintiff's contract claims are barred by the

statute of limitations applicable to contract claims against

state governmental entities. See N.M.S.A. fi 37-1-23. The

Court's decision is a ruling on the merits and the plaintiff's

state claims were therefore appropriately dismissed with

prejudice.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED

that plaintiff's Motion for Amendment of Order be, and

hereby is, denied.

DATED: July 16 1992.

UNITED STATES LMSTRICT JUDGE

Q-2 APPENDIX Q

FILED JUL 18 1991

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

PEDRO LEONARDO MASCHERONI

VS-

REGENTS OF THE UNIVERSITY OF CA.

CLERK'S NOTICE in re RULING Action No. 675223-9

In the above entitled action pending in Department 19, you

are hereby notified that plaintiff's motion to modify or

dissolve Order of Stay is denied.

Counsel notified by mail.

Date July 18, 1991

RENE C. DAVIDSON, County Clerk

By: [PHIL SEOANE]

Deputy

R-] APPENDIX R

Shi Sidintit:

FILED JUN 23 1997

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA

PEDRO LEONARDO MASCHERONI,

Plaintiff,

VS.

THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA,

Defendant.

No. 675223-9

JUDGMENT OF DISMISSAL

On April 17, 1997, this Court issued an Order

sustaining, without leave to amend, the demurrer of defendant

The Regents of the University of California as to all seven

causes of action pleaded in plaintiff's First Amended

Complaint. (A Copy of such Order is attached hereto as

Exhibit A.)

Pursuant to California Code of Civil Procedure

Section 581(f)(1), IT IS HEREBY ORDERED that this

action is DISMISSED in its entirety, with prejudice, and

defendant is awarded its costs

DATED: Jun 23 1997

Nancy A. Remmert

JUDGE OF THE SUPERIOR COURT

S-] APPENDIX §

FILED APR 17 1997

IN THE SUPERIOR COURT

OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

PEDRO MASCHERONI, _ ) No. 675223-9

Plaintiff ) ORDER AFTER

HEARING

VS )

REGENTS OF UC, et al, ) ON 4-17-97

Defendant )

This matter came on calendar on April 17, 1997 at 9:15 am in

Dept. 81. The Court, having taken the matter under

submission, now rules as follows: The tentative ruling is

affirmed. The general demurrer to the Ist cause of action is

SUSTAINED WITHOUT LEAVE TO AMEND as it is time-

barred. Demurrers to 2nd-7th causes of action SUSTAINED

WITHOUT LEAVE TO AMEND for failure to allege

exhaustion of Judicial remedies. See Swartzendruber v. City

of San Diego (1992) 3 Cal App 4th 896.

Date APR 17 1997 |

Sandra Margulies

JUDGE SANDRA MARGULIES

IT IS SOQ ORDERED.

S-2 EXHIBIT A

Special Report

The Inspector General, DOE

Dr. P. L. Mascheroni's "Q" Access Authorization

DOE Los Alamos Area Office

November 21, 1991

Table of Contents

Special Report ... bases steeeee

Determination and Recommendation __ 53

T-] APPENDIX T

Special Report

Special Report on Dr. P. L. Mascheroni's "IQ" access

authorization

On this date, November 14, 1991, the DOE IG, Ms. Elise

Ennis, requested all the dates we could remember that would

help her to do an Inspector General's review of Dr. Pedro

Leonardo Mascheroni's 'I1Q" access authorization processing.

In March 1988, 1 was requested by DOE Manager Harold

Valencia to be in charge of Mascheroni's clearance. In the

1970's I worked at DOE Headquarters Inertial Fusion Office

in the area of security. I knew that each laboratory was

pursuing a technology for fusion. For example, LLNL was

pursuing glass lasers, a low efficiency, short wavelength

technology, and LANL was pursuing gas lasers, a high

efficiency, longer-than-glass wavelength technology. All the

labs were supposed to evaluate their technology for fusion.

During the course of my investigation, I read Mascheroni's

security file which included the OPM investigation and related

documentation. The documentation was reviewed in

grievance hearings it the Lab, including job assignments and

evaluations, a determination from the New Mexico

Department of Labor/Human Rights, the report and

recommendation from the Grievance Hearing Officer, etc. In

addition, I have informally questioned a rather large number

of scientists on aspects of the case. Among those who |

interviewed are Drs. Marvin Mueller, Chuck Mansfield,

Claude Phipps, Erick Lindman, Ray Kidder, Greg Canavan,

Doug Wilson, and George York. I have also spoken with

several members of the NAS ICF review panel by phone. I

have formally questioned Mascheroni on several occasions. |

have read his grievance and LANL management's response. I

T-2 APPENDIX T

heeeencannemiaaaieanaiaiiaiii aaa

Special Report

have studied the LANL Human Resources determination. I

have read a significant portion of the testimony to Prof. David

Feller, the UC law professor who was the Hearing Officer for

the grievance. I have read the grievance filed with New

Mexico Human Rights and the determination. I have read the

Mascheroni and LANL briefs to Feller and Feller's

recommendation. I have read some pertinent parts of the

report from the 1990 National Academy Panel that reviewed

the ICF program. I have also confiscated a report by

Mascheroni submitted to the NAS Panel and referee's, and

review it. In November 1990, 1 wrote a summary memo to

Mr. J. Bellows, DOE-LAAO Manager, with my evaluation

and recommendation. I have also informally inspected the

Laboratory. [There is an appendix to this report with the

documentation used to reach my determination and

recommendation. ]

Dr. Pedro Leonardo Mascheroni began his employment with

Los Alamos National Laboratory on August 20, 1979. His

'1Q" clearance was approved in October 1979.

There are two LASL Employee performance evaluations for

[2] period 1979-May 1982. In 1979, Mascheroni was

assigned to design targets for the laser facility, Antares (and

ICF), using LASNEX and other codes. His first supervisor

was Dr. Erick Lindman, section leader. His group leader was

Dr. J. Kindel. Mascheroni proposed an ICF reactor target,

ARGUS, that would operate with C02 in the long pulse

multiline broad band regime. Mascheroni's memos stated that

in about 1981-1982 the C02 laser had scientific show

Stoppers and would not work for fusion applications in the

single-line, short pulse mode: but that C02 could work in the

T-3 APPENDIX T

Special Report

broad-band, multiline, long pulse mode where Antares was

going to operate.

There is document by DOE about ICF funding issued around

1981 covering FY79-FY86. C02 laser development and

experiments are projected to be funded until FY86 in this FY

82-FY 86 5-year energy program. There is also a LLNL

viewgraph: 11 Based on 19791982 efforts, LLNL judged the

potential of KrF drives to be marginal for ICF.11

In 1979-1980, Dr. Greg Canavan came from DOE and started

a KrF effort with the object of exploring the KrF laser

technology, with no plan for making a target shooter from

this laser effort.

In March 1983, Dr. George Spillman, et al, wrote the

evaluation of C02 using Helios in the single-line, short pulse

mode. Spillman, et al, recognized the show stoppers for C02

in this regime.

In July 22-28, 1983 memos, Dr. William Mead announces

that there is a KrF Working Group with the objective of

building a KrF Aurora target shooter. Mead was hired from

LLNL by Kindel and was later appointed X-1 section leader.

There is evidence that DOE was not funding this KrF effort.

At Mascheroni's grievance hearings it became clear that this

effort was unfunded, but was approved by Kindel.

In August 1983 there is a LANL report entitled “Antares

Project High Energy Gas Laser facility," which is a

DOE-LANL document with signatures of high level

management up to the Assistant Secretary for Defense

T-4 APPENDIX T

Special Report

Programs. The documeni states the reasons for pursuing high

efficiency lasers and that Antares will accomplish the

completion of the evaluation of C02 in the long pulse and

other regimes. In FY83, there was some funding for KrF

technology, i.e. just the laser source. However, there was no

funding for a KrF target shooter, i.e., after the laser is

functional, then it is prepared to shoot targets to study the

laser target interaction. The priority was clear, to complete

the evaluation of C02 with Antares in all the regimes,

including multiline long pulse. This was projected for up to

FY86. In [3] Antares, a long pulse is necessarily multiline.

Memos for August 8-12, 1983, from Dr. John Browne,

P-Division leader, who was in charge of lasers states: "In

order to facilitate the transition from a construction to the

operation phase, the Antares Transition Committee is

established," and 11 1 expect there to be one KrF project in

P-Division effective immediately. For us to be successful __ |

expect everyone in P Division to give Reed Jensen (the new

manager) full cooperation."

On September 29, 1983 there is a memo from G. Spillman,

"A Basis for an Antares Experimental Program." This memo

used the recommendation from an outside panel composed by

Profs. H. Griemm, F. Perkins, Dr. C. Longmire, etc., to

establish that the first priority was to evaluate C02 in all the

regimes with Antares.

From September 30, 1983, Dr. G..Spillman's viewgraphs to

the Antares Working Group: "A Basis for an Antares

experimental program." Spillman was-a high level manager at

LANL. This is a detailed document where it is clear what the

T-5 APPENDIX T

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goals and priorities are for LANL. First is "Complete C02

Evaluation Base." "First job is C02 evaluation." "Need to

establish predictability" (a Mascheroni goal judging from his

evaluations). Evaluate "Long Pulse Coupling". . ..Spillman

addresses the panel's responses. This was an external panel

appointed by LANL with members from The University of

Maryland, Princetown. "Pursue most promising options."

They recommended experiments in the long pulse, multiline,

broad-band regime.

On October 11, 1983 another Spillman addition where

“Complete C02 Evaluation" is first priority, with distribution

to the Antares Working Group, where Mascheroni was.

On February 16, 1984, a trip report to Distribution was filed

describing Mascheroni's visit to Argentina January 13-26,

1984. T. Hirons, Mascheroni's supervisor at the time is on this

distribution. The trip was made due to illness in Mascheroni's

family. Hirons suggested Mascheroni sick leave and that he

talk to DOE for permission. Mascheroni talked to DOE, and

was instructed that because the trip was not being paid by

DOE, no paperwork was required. It was suggested that he

might, as a courtesy--not a requirement, write a trip report

when he returned. DOE suggested he talk to Rockwood, the

ICF boss at LANL. Rockwood suggested he talk to Jensen

who had visited Argentina. The trip report is a rather detailed

5-page report with distribution to anyone who may have an

interest: IND/INT, X-Division, Associate Director for Physics

and Math, National Security Programs/Inertial Fusion, X1.,

etc. After the trip R. [4] Vroman visited Mascheroni to

discuss his report which was then classified.

T-6 APPENDIX T

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On February 13, 1984, there is a detailed job evaluation

signed by Dr. Thomas Hirons, Deputy Associate Director for

Physics and Mathematics, covering the period May 1982- Feb

1984. Mascheroni's research work was reviewed by a group

of scientists. In Feb. 1984, his evaluation was written by then

Deputy Division Leader for X-Division, Dr. Tom Hirons. This

was the first review by a group of scientists of what was to

become the proposal for a Hydrogen Fluoride Laboratory

Microfusion Facility. The review group included scientists

from LANL and Livermore. The evaluation stated that Los

Alamos should put attention toward Mascheroni's ‘work

which showed predictability for some ICF experiments and

that predictability for experiments could be significantly

improved. Because Mascheroni also worked on modeling

KrF, the review included C02 and KrF laser interactions.

Mascheroni predicted that the scientific situation for high

efficiency lasers would improve significantly in a new regime

that was (supposed) to be reached in the Antares Facility. To

make those predictions Mascheroni did not use fudge

parameters, but improved physics in the codes, a process

which he called "code validation physics."

The documentation shows that there was no DOE funding for

the KrF target shooter theory to be pursue in X-1 at that time.

DOE funding was allocated to finish the C02 evaluation with

Antares, which was what Mascheroni was doing. Mascheroni

had predicted that in the long-pulse, multiline regime the

Antares coupling physics would improve significantly. Kindel

and Forslund were of the opposite Opinion.

In March 1984, after Hirons' evaluation of Mascheroni's

work, Kindel assigned Mascheroni to work for Dr. Doug

T-7 APPENDIX T

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Wilson on a task that had nothing to do with Antares

evaluation. Wilson, a section leader in X-1 who was leaving

to join the ICF Program Office, wanted to stop Mascheroni's

work in Artares-related physics. on June 17, 1984

Mascheroni writes to Wilson: “Last Monday you informed me

that Kindel had asked you to write my evaluation for the past

year. I told you that my evaluation had been prepared by Tom

Hirons for the period up to 2/13/84, and that you should have

been my supervisor from ... The following is a brief resume of

our last meeting... (1) I requested information pertaining to

the ICF reactor target which, I presume, has been giving the

sense of direction to the program. (2) I reminded you that you

were present in two of my seminars (in 1980 and 1981) in

which I discussed my concept (Argus) for a reactor target for

C02 _. (3) 1 reminded you that in about November 1981, you

explained to a large staff audience in the Plutonium Facility

that we were not [5] afraid of hot electrons. You proceeded

to describe a target driven by 500 KeV electrons. This

blatantly disagreed with Argus [a target that could be studied

with Antares long pulse) as well as the present evaluation of

OReius

On April 1984, Dr. David Cartwright was appointed ICF

Program manager. He testified that he was the Principal

Program manager for ICF at LANL since his appointment

Dr Marvin Mueller, formerly of group P-4, in charge of ICF

experiments, testified to Feller, and it is in his memo of June

30, 1987 about ICF, that during late 1983-1986 his group

leader, Dr. Phil Goldstone, opposed completing the

evaluation for C02 and supported the KrF Aurora target

shooter effort. A fact that he made explicit in group meetings

T-8 APPENDIX T

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Dr. Chuck Mansfield, also a manager in charge of the Antares

laser system, testified that during 1984-1986, "Nearly all

attempts to make the Antares system perform to

specifications were blocked by management (Goldstone

Hauer, Jensen, Cartwright)." He also stated: "Phil Goldstone

told me “The decision was made that since Antares was

dropped on us by the NAS that we will apply only the

minimum and do only those experiments which would allow

us to make a credible argument to NAS that we had evaluated

C02 as a driver." By this statement the philosophy is revealed,

it was assumed a priori that Antares would not work and that

only a token effort would be made with experiments --This

philosophy is the antithesis of scientific integrity."

On April 11, 1984, D. Cartwright writes the "guidelines for

ICF two-year plan, FY 19861987.11 From these guidelines, it

is clear that there is Antares funding to complete the

evaluation of C02 for just FY 85. “Beginning in FY 1986 the

Los Alamos ICF program will be composed of the following

three major components: .. Aurora and Polaris." but no

funding for any C02 activity for FY86

On January 18, 1985, Kindel wrote a memo to X-DO. "This

memorandum indicates my support for an interim raise of

10% for Leo Mascheroni. The issue is one of alignment and

performance ... Leo has exhibited an effort much beyond the

call of duty in his quest to understand laser target interaction

physics in a self-consistent manner. I learned that he spent the

week before the plasma meeting of the APS (October in

Boston) at work 18 hours a day in his research efforts. He

managed to carry out a difficult two-dimensional

self-consistent LASNEX calculation of a KrF target using the

T-9 APPENDIX T

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Ray Trace package in LASNEX with many of the physics

additions which Leo developed. Leo has argued that an

electromagnetic turbulence plays an important role in high

intensity under dense plasma absorption. Work, which

Forslund, [6] Mori and I have recently performed gives

credence to his suggestion. The light wave becomes

stochastic (turbulent) above some intensity in the underdense

plasma, whereas, we had previously attributed the simulation

effects as due only to Raman instabilities." Which clearly

reveals that Mascheroni was working also in KrF target

physics, and was improving the LASNEX code physics. At

the end of 1984, Kindel had decided that Mascheroni should

work directly under him.

It may be useful to note that testimony by Kindel to UC

Hearing Officer Prof. Feller, acknowledges that he misranked

Mascheroni due to a scientific conflict and that he did not

correct this. Finally, in the 1985 job assignment, Kindel

acknowledges that Mascheroni was correct in his predictions

for Antares while he (Kindel) and David Forslund were not.

Dr. Forslund was a leading computer physicist in X-Division

leading the ICF effort. Kindel backed Mascheroni and Mueller

for the continuation of the Antares experiments, because he

recognized that C02 should be evaluated in the long pulse

regime. In 1986, he participated in a meeting with Deputy

Director Warren "Pete" Miller and Mascheroni, Mansfield,

and Mueller showing his support for the evaluation of

Antares in the long pulse regime. C02 was the funded

program, but it is clear that the X-] management ranked KrF

much higher in priority than C02 during 1984-1985. The

Aurora target shooter program was as yet not funded.

T-10 APPENDIX T

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On March 28, 1985 Congressman Davis requests information

about the NAS review of ICF from NAS President Frank

Press.

On April 22, 1985 there is a response from President Press.

There we learn that the NAS panel will be at LANL on May

14-15. "As you may know the committee has thus far held

one meeting (March 4-5) that provided a very comprehensive

overview of the entire ICF program... “

On May 1, 1985 Program Director Cartwright informs LANL

staff that the NAS review is on.

The LANL ICF meeting to the NAS on May 14-15 was

repeated on June 18, 1985. The presentations were: overview

by Cartwright; capsule physics by Mead; Centurion by

Sandford; material technology by Mah; Driver Technology by

Jensen; driver-matter interaction explaining the C02 laser

plasma interaction by Goldstone: and a summary by

Cartwright. Mansfield was present the NAS meeting. On May

15, 1985, Mueller's group leader (Dr. P. Goldstone) reported

Mueller's results to the 1985 NAS ICF review panel indicating

that they were not sufficiently conclusive to merit

continuation of the Antares experiment. Mascheroni, Mueller,

Mansfield (and later many others) found [7] Goldstone's

interpretation of the experimental results to be grossly

incorrect. In late 1984, Goldstone had made it clear to

Mueller, Mansfield, and others, that management wanted the

KrF Aurora program to advance and a very low level of

work--just enough to satisfy the Academy--on C02. On the

other hand, the DOE Document (of August 1983) about the

ICF program, clearly indicates that the C02 evaluation was a

T-11 APPENDIX T

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DOE priority until FY 1986.

May 28, 1985, Cartwright gave a summary of the May 23,

1985 meeting which addressed long pulse results. "Mueller

requested a third oscillator which he feels would take 3-4

weeks off-line in order to lengthen the pulse ... Mueller

requested 12 short pulse experiments and 10 long pulse

experiments with improved pulse shape (3rd oscillator).

Mansfield says it would take 2-3 shots per day, and at least 10

days." Cartwright states: “At the next meeting (we) need to

decide which of the proposed experiments using long pulses

should be completed." The fact is that in May 1985, Dr.

Marvin Mueller and his crew obtained preliminary

experimental results that validated Mascheroni's theory.

Mueller states that much work is needed to understand the

new, time-resolved results. Mueller requests 6 weeks of

additional experiments with Antares.

On June 19, 1985 Cartwright states: "The [Antares! sy.cem

needs refurbishing. Mansfield has two detailed options for

running Antares ... Mueller has nearly finished the short pulse

experiments and when the scheduled shutdown takes place, he

will have enough data to work with X-1 and try to develop a

model of what is happening ... Antares will go for refurbishing

on Monday, June 24 and not be available until 15 September.

1985."

From May 1984 to May 1985, Kindel evaluates Mascheroni's

work. "Leo's job assignment during the past review period has

been to calculate long and short wavelength experiments

using the "Code Validation Physics" approach. This will

involve considerable code development activities in working

T-12 APPENDIX T

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with the LASNEX team...A major accomplishment ... was a

confirmation of Leo's prediction. In April 1984, D. Bach of

P-4 reported experimental results from Livermore's more

recent (at that time) 4 w[(same wavelength as KrF] shots ...

Leo had predicted in his presentation to the ECLIM meeting

in London in the fall of 1983, (60% vs 58% conversion

efficiency) described in Leo's report. Using LASNEX Leo did

calculations for a KrF laser striking a gold target. These very

time consuming 2-D calculations .... In the latter half of this

review period the ..execution of Mueller's long pulse

experiments on ANTARES capture Leo's attention/. Based on

theoretical arguments and WAVE muns Leo has predicted

different hot electron regimes depending on how far from

local [8] quasi equilibrium, the system may be. Leo has

suggested that ... For Antares Thot should go down in the

long pulse regime when compared with the short pulse

regime ... Dave Forslund and I had thought just the opposite

would occur. The first long pulse ANTARES experiments

{Mueller's} in Spring 1985 where the laser struck a small ball-

target showed Leo's predicted effect. Two papers ..were

presented at the Anomalous Absorption Conference, Banff.

Canada 6/85. This modeling was well done and received a lot

of attention at the meeting." The job assignment was written

by Kindel but signed on July 30, 1986, because Kindel forgot

to sign the evaluation on time. The important issue to note is

that Kindel and Forslund are the lead theoreticians for the

C02 effort at LANL and that they are wrong on this

important scientific issue about C02.

On June 19, 1985 Mascheroni writes a memo with a broad

distribution about “ Issues Bearing on Antares Shutdown."

The background for this memo was that Mueller

T-13 APPENDIX T

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communicated his data in detail to Mascheroni, which agreed

with Mascheroni's theory of 1983. Mueller and Mansfield had

informed Mascheroni that management wanted to shut down

Antares without completing the evaluation of C02 in the long

pulse multiline (many amplifiers) regime. Mascheroni writes

“This memo reflects a few areas of concern that may, perhaps,

be taken into account in the process of shutting down Antares

... There is a Canadian group claiming that the hot electron

production goes down-there are theoretical arguments to

explain why the turbulence would be weaker [many of

Mascheroni's reports] ..Mueller has obtained significantly

lower Thot in the long pulse regime. Jack Kephard's method

of time resolving ... shows a trend toward significantly lower

Thot in the long pulse multiline weak turbulent regime.

Indeed, I calculated a reactor target for C02 in this weak

turbulent regime ... An opinion I would volunteer is that we

will not be hurting the Aurora KrF effort by investing very

little time and money to determine that we are not neglecting

any alternative open for C02 ... for two weeks Mueller using

Antares as it is now may check the results that he has

obtained in the long pulse regime ... Mueller would then

complete the experimental studies in approximately two or

three weeks. After these experiments many of us will feel

comfortable about shutting down Antares because if

something was neglected by the "Los Alamos C02 evaluation"

pertaining to the long pulse multiline regime, we will know...

In conclusion... I was told in 1982 [by management] that the

long pulse multiline evaluation was going to be made in

Antares rather than Helios..We did not use fudge parameters

for these calculations-Our continued interest in Antares long

pulse results is to rule out the possibility that the driving could

be sufficient to allow for studies of fluid instabilities and

T-14 APPENDIX T

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details of the burn (in spherical geometry). These issues are

crucial to ICF, as well as any type of micro source at the lab

... 4 KrF Aurora shooter in spherical geometry will be here in

perhaps about seven years. This is indeed a long interval with

no experiments underway in spherical geometry." This is the

first memo from Mascheroni that clearly indicates that he is

for the completion of the evaluation of C02 in the long pulse

and against the KrF Aurora target shooter program.

On September 4, 1985, Dr. Reed Jensen writes about

the Antares Shut Down. "Effective this date, Antares will

_ Cease operation.. At the present time we have no plans to

move Antares equipment." At this time Antares was fully

refurbished. Mansfield, manager of the Antares facility,

believes that Antares--with a few improvements--could reach

a very high level of energy (similar to what the Livermore

NOVA laser can reach today).

There are memos during January 1986 from Mueller (January

12, 1986) and Mansfield (January 9, 27, and 30) to upper

management requesting a modest extension for the shutdown ——

of Antares in order to complete the evaluation of C02 lasers

in the new regime. In his memo of June 19, 1985 and

presentations to management, Mascheroni revealed that there

were several show stoppers for the Aurora target shooter

program. Mueller and Mansfield were extremely critical of the

Aurora target shooter system and indicated to management

that it would never work satisfactorily. Mansfield writes: "My

concerns are therefore twofold. In the first place, the Lab may

have prematurely turned away from a major finding. In the

second place .... with good coupling to the target, enough

energy release may be achieved in fusion implosions to

T-15 APPENDIX T

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provide a useful TNS in the event of a test ban."

On February 6, 1986, there is a memo from Mascheroni to

Hirons, then Deputy to Associate Director Browne in charge

of ICF, about searching for modest Antares funding for a few

additional experiments.

On March 10, 1986, a review of Mascheroni's, Mueller's, and

Mansfield's recommendations for additional experiments with

Antares by the Los Alamos ICF management and staff

scientists was called by P-Division Leader, Fred Morse.

Mascheroni addressed theory, Mueller, the experiments, and

Mansfield, the laser facility. An Associate Director

(Rockwood) asked about KrF Aurora. Mascheroni indicated

that the Aurora target shooter program had several show

stoppers, the main one being the very low electrical efficiency,

hence, lack of power, another the high cost for the KrF

system. It was pointed out that a working Aurora was too far

in the future, while Antares was a functional machine ready to

fire fusion experiments not yet conducted. Mascheroni said

that the Centurion Halite data indicated the need for much

higher energies for ICF than what was currently accepted by

Livermore, that these energies were about 100 MJ witha

pulse length of about 50 nanoseconds. The abstract of the

presentation called "relevance of Antares long pulse

experiments" states: "My presentation centers on the

theoretical framework comparison with the experimental data

and consequences of much improved driving conditions in the

long pulse multiline regime for C02 lasers.. These issues are

extremely relevant for high energy high efficiency chemical

lasers (HF, DF, etc..) of interest to SDI and Fusion. No effort

was made in comparing Aurora vs Antares for direct drive

T-16 APPENDIX T

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implosion because timing discrepancy concerning when the

experiments [with Aurora] would be made and unknown

theoretical features including the influence of fluid instabilities

[still a problem with direct drive KrF] on relevant

targets..Mueller's presentation centers on the experiments,

Mansfield presentation centers on the laser system"

On March 18, 1986, a memo from Mansfield, Mascheroni,

and Mueller to LANL Management--including the

Director--summarized the main points addressed in the

presentation and explained that with minimal additional

funding LANL could complete the evaluation of C02 in the

new regime, while the KrF Aurora target shooter had show

stoppers and could be delayed. They emphasized that the

evaluation of a high efficiency laser technology was important

because of the past investment, the future potential, and

because with minimal additional investment, they could prove

the chemical laser technology.

On March 21, 1986, there is a memo from Reed Jensen, then

manager in charge of lasers for ICF at Los Alamos. Jensen

was in the March 10 presentation. Jensen, proposes an

“Integrated HF/KrF program Half MegaJoule Under Our

Noses and 100 MegaJoule on Our Doorstep. In this memo,

we suggest a merger of many aspects of KrF and HF/DF

research programs."

On March 23, 1986, Mascheroni writes to Hirons about

Antares shut down. "I think that we need to center the

decision process on the technical points-the experimental plus

the theoretical work could be an addition to the Los Alamos

evaluation of C02, which is now incomplete ... one scenario is

T-17 APPENDIX T

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that C02 could look much better than what I think.

Theoretically the Thot went down a factor of 5,

experimentally it went down a factor of 10 ... enhancing the

coupling and making the situation look too good for C02 ...

We do not want Antares to be in the news because these few

months of life... I need to comment on the Goldstone factor.

At the last Jowog meeting ... Goldstone spoke about evidence

of decoupling in Antares. This is an error as both theory and

data shows...."

On March 24, 1986 a memo from Associate Director Browne

stated that Antares must be stopped. He agreed that

Mascheroni, Mueller, and Mansfield had discovered a new

regime, which was much more promising than before, but

management had decided to put the funds into the KrF

Aurora target shooter program and the Antares building was

needed for CTR (Magnetic Fusion). He notes that the

decision was "strongly influenced by recommendations from

-the NAS, commissioned to review the ICF program."

Browne quotes the NAS, which made a recommendation

based on what LANL told them. The NAS panel members

consistently recommended finishing the C02 evaluation. After

LANL dropped C02, the NAS agreed to the decision, but

LANL made the decision, not the NAS. The March 1986

NAS report does not approve the construction of the KrF i

Aurora target shooter facility. It does approve work on

learning how to build a KrF laser, i.e., laser technology. A

target shooter is much more difficult to make, it needs a

target chamber, diagnostics, optics, etc. Browne states: "Ifa

strong technical argument had been developed which

quantitatively demonstrated the advantages of using Antares

T-18 APPENDIX T

Special Report

in the long pulse ... over Aurora ... the Lab would have

considered reallocating the necessary resources to do that

job." However, the memo of March 18, to upper management

as well as earlier memos and presentations, is explicit that

Aurora cannot be a target shooter. It should be noted that the

KrF Aurora target shooter program has been stopped at Los

Alamos due to the show stoppers; the Magnetic Fusion

(CTR) program has also been discontinued. The whole record

is consistent with the reasons why Mascheroni, Mueller, and

Mansfield were against the KrF Aurora target shooter

program. Thus, after the fact, the reasons given by Browne

for not completing the C02 Antares evaluation proved to be

wrong. ms

In late March 1986, Antares was hurriedly destroyed. Dr.

Mansfield reported that this destruction was not done in

accordance with the guidelines for the disposal of government

property, especially after being refurbished and at peak

performance level. This refurbishment took place from

June-September 1985. Mansfield, Mascheroni, and Mueller

testified that Antares never made a fusion implosion

experiment, the primary reason why it was built. The

documentation of August 1983 shows that Antares was

initially funded by DOE ard Congress to reach breakeven,

which implies fusion experiments. Antares was funded to

complete the evaluation of C02. Looking at the yearly budget,

the cost for the whole C02 ICF program was about $700M.

On April 1986, Kindel wrote Mascheroni's evaluation

covering June 1985-March 31, 1986: "..Experimentally it

appeared that the hot electron decreased by a factor 5 or 6 ...

This behavior had been predicted by Leo in an early 1983

T-19 APPENDIX T

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memorandum. .Because this experimental result disagreed

with all previous (single line) predictions and because of the

significance of the results for C02 as an implosion driver, the

analysis by the experimentalist Kephart and Mueller

proceeded slowly and cautiously. Leo worked ..meticulously

with these experimentalist ... on modeling and analyzing. In

the course of this modeling effort Leo made careful

comparisons ... he concluded at these conditions Antares

could drive interesting implosions and allow for detailed

studies.. and details of burn ... Leo's work at

short-wavelength (KrF) exhibited a new feature in the

modeling ... Lastly, in the course of these calculations Leo has

done a first rate job in helping and supporting the LASNEX

team ... Lasnex team leader John Norton, has said that Leo is

one of the people in X-1 who most help his code .team... if I

were to ever name a person in X-1 to help the Lasnex team,

John's choice ... would be Leo ... In my view what he is doing

is of considerable importance to the ICF program. His vision

of having a IMF should be important to LANL ... He has

literally, singlehanded and very effectively brought the issue of

high efficiency infrared long pulse laser drivers to the

attention of upper level management at LANL..."

May 15, 1986, a memo from Mascheroni to distribution

discusses a sketch of an HF laser source of 100 MJ energy by

the program manager for laser systems, Reed Jensen. This

was the level of energy that Mascheroni had been promoting

for ICF. Jensen was interested in HF, but due to problems

with Cartwright, his boss, Jensen left to become a Deputy to

an Associate Director.

In late May- early June 1986, Mascheroni contacted Dr.

T-20 APPENDIX T

Special Report

Claude Phipps for the first time. Mascheroni showed him a

sketch of a Hydrogen Fluoride laser at the 100 Mi level of

energy that he wanted to use for his proposal. The meeting

was in Mascheroni's office. Phipps was initially very skeptical.

As he became more involved in Mascheroni's explanations, he

understood that the ideas were doable. Phipps, a well-known

U.S. laser designer and one of the leading scientists in the

field, agreed to design the HF laser.

May 1986, Kindel, who initiated X-1's participation in the

KrF Aurora target shooter program, resigns from the

Laboratory.

May-June 1986, Mascheroni writes C02 reports as assigned

by Kindel in the job appraisal-evaluation and gives them to

Dr. Mueller. This was work in collaboration about the

Antares results for Mueller to review.

In July 1986, Doug Wilson, who was working for the ICF

Program Director, Cartwright, and a backer of the KrF

Aurora target shooter program, is appointed the new X-]

Group Leader by Division Leader M. Henderson.

Early in July 1986, Mascheroni presents the Antares work at

the "Anomalous Absorption Conference" at Lake George,

NY.

In July 1986, Wilson deletes Mascheroni's assignment to work

on HF (written by Kindel) and leaves for vacation. The memo

from Wilson to Robertson on April 24, 1987 shows that

Wilson started a log about his interactions with Mascheroni in

July 1986. Other dates can be obtained from this log.

T-21 APPENDIX T

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In August 1986, Mascheroni writes a Draft proposal for

building a Laboratory Microfusion Facility using a high

efficiency chemical laser, HF. [The secretary could not

arrange to type it so he did it himself]. He took the proposal

to Dr. Mike Henderson, X-Division Leader, and requested a

Division review. There were few meetings between them

during August-October 1986 Without reading the proposal,

Henderson notes that the Draft may be classified, and that he

needs some time to review it

September 1986, Mascheroni and Phipps give seminars and

presentations to scientists about the HF LMF proposal. They

also present it to Dr. Paul White, Deputy, Center for National

Security Studies. He thinks it is a good idea and suggests they

see Associate Director Rockwood. Rockwood states that he

would fund the proposal but he is leaving the Laboratory. He

suggests the scientists see Associate Director Birely. Birely

instructs Mascheroni and Phipps to give their memo broad

distribution. After Birely, the HF LMF proposal is presented

to Associate Director Pete Miller and many other scientists.

During August-September 1986, two Los Alamos National

Lab reports are issued with Mascheroni, Mueller, et al, as

authors. For the reports to be issued an LAUR number, they

had to be approved by the X-1 group management (initials

from C. Wingate), the X-Division management, and OS. The

group secretary would have a copy of the report.

On September 24, 1986, Wilson signs Mascheroni's job

assignment. Wilson's initial assignment given to Mascheroni

on July 29 about VL&C is modified because it was

scientifically unsound. Mascheroni complains about the

T-22 APPENDIX T

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language used by Wilson in the job assignment; Wilson

declines to change it. Wilson deleted the assignment from

Kindel about working on HF and Wilson wrote instead:

“Leo is interested in exploring the potential of chemical lasers

for a large iaboratory facility capable of producing DT burn.

We have no programmatic request to pursue this, nor do |

support it. I believe that working on this will only serve to

enhance Leo's reputation for doing irrelevant research."

During grievance hearings UC Prof. of Law, David Feller,

asks Wilson why he wrote insulting language in a job

assignment. The record shows that Wilson argued, but finally

admitted that it was improper to have written such language.

Mascheroni writes employee comments Stating that the issue

was about scientific competence, not personality. “Pertaining

to my reputation. The comment made here must be supported

by fact or is based on personal prejudice. This type of

comment from Wilson is not new to me since he volunteered

this opinion of me to others while he was in the program

office [working for Cartwright]. If the guidelines for the

pursuit of technical excellence set forth by the Director are to

be adhered to, then this issue must be resolved. This is not the

case where personal congeniality is the issue - the issue here is

the very basic question of technical competence."

Mascheroni implies that the ICF LANL program is off track

The record shows that the NAS later recommended against

the KrF Aurora program, which Wilson backed, and that the

Canavan panel recommended HF for funding. Wilson later

promoted HF to DOE as he acknowledged in the grievance

response on December 8, 1987.

T-23 APPENDIX T

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He implies that the ICF LANL program is off course. The

record shows that the NAS later recommended against the

KrF Aurora program.

In late September 1986, Henderson disagrees that an HF IMF

could be of use to learn weapons physics and could be useful

in the event of low threshold or comprehensive test ban.

Henderson disagrees that ICF could be used for any military

applications. Without any scientific review Henderson states

that if Mascheroni pursues the Hydrogen Fluoride LMF

proposal in his division, Mascheroni will be out of his

division. Also (see for example the OPM investigation) he

supported Wilson's insulting language in the job assignment.

Henderson was later removed from management.

Mascheroni and Phipps give a seminar in the Chemical and

Laser Sciences Division in October 1986. Wilson was at this

seminar and the record shows that Wilson thought it was a

good seminar.

On October 15, 1986, Mascheroni and Phipps presents to

Associate Director W. Pete Miller, the HF LMF proposal for

Institutional Supporting Research. Miller said that he will give

funds if an associate director will permit it. Mascheroni and

Phipps give a presentation to the newly appointed Associate

Director, Browne, after Rockwood leaves the Lab in late

October 1986.

At about that time (fall 1986) Program Director Cartwright

tells Lindman that Mascheroni has been a problem since the

Antares shutdown. Mascheroni is a loose canon, Mascheroni

wants to sell HF and he (Cartwright) is against HF and for the

T-24 APPENDIX T

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KrF Aurora program. Mascheroni is a candidate to be out.

After the Aurora Program crashed Dr. Cartwright was

removed from ICF management in the summer of 1991.

On about November 6, 1 986, Mascheroni presents an

unclassified version of his proposal to the American Physical

Society. Before doing so Mascheroni took his presentation to

the LANL classifier, Phil Lang. Lang testified that he agreed

the presentation was unclassified. After returning from the

APS meeting, Wilson takes a copy of the presentation to

Lang implying that it is classified. Lang explains that it is not.

On November 11, 1986, Mascheroni tells Barbara Thompson

an X-1 group secretary, that his presentation at the APS

(Baltimore) meeting contained fewer viewgraphs than the

copy in the group office, thus, that the group office copy

should be reviewed. The secretary did not want to correct the

copy and Wilson report the incident to Robertson on April 24,

1987 as if Mascheroni had wanted to destroy the copy.

November 26, 1986, Mascheroni submits a presentation for

HF for the "Topical Conference. .. “at Sandia in early

December. After reading the abstract, Wilson directs

Mascheroni to a specific poster session. The abstract indicates

what the level of classification should be. Wilson is a

derivative classifier. Mascheroni's abstracts go through X-1,

X-DO, and finally to Operational Security (OS-6) at LANL.

Sandia assigns the poster to the session that Wilson suggests.

On Dec. 9, 1986, Mascheroni presents his HF IMF proposal

at the Sandia meeting. Dr. Sheldon Kahalas, DOE-Director of

Inertial Fusion, is at the presentation. Kahalas suggests that

T-25 APPENDIX T

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G. Canavan review the proposal. Wilson comes in during the

presentation and tells Mascheroni to take viewgraphs out

because of the classification level. Mascheroni complies. [In

the OPM investigation, Wilson indicated that Kahalas took

Mascheroni's clearance because of this incident where

Mascheroni did nothing wrong. ]

On Dec 9, 1986, Mascheroni and Phipps are told that

Associate Director Browne has appointed a panel to review

HF. The panel consists of 8 members and Greg Canavan,

former Director of the Inertial Fusion Office at DOE, as

Chairman. Canavan's record is relevant since Kahalas

recommended that Canavan review the proposal. (When he

was at DOE, Canavan was against HF and stopped a SNL

proposal in the early 1970's because of the wavelength.

Canavan was for the short wavelength glass laser program at

Livermore. When he came to LANL he initiated the KrF laser

technology program at Los Alamos. Canavan was not for the

KrF Aurora target shooter program.) a

On Friday December 12, 1986, Mascheroni needed help with

viewgraphs for his talk to the panel on Dec 16. Della Ulibarri

had left, thus he put these unmarked unclassified viewgraphs

in an envelope inside Ulibarri's desk with a note requesting to

be finished as soon as possible. Ulibarri told the group

secretary Barbara Thompson on Dec 16, 1986 that

Mascheroni left classified material in her desk. However,

these viewgraphs were not classified, although Mascheroni's

whole talk was classified. Wilson reported to Robertson

on-April 24, 1987, that the viewgraphs were classified

although he never saw the viewgraphs.

T-26 APPENDIX T

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On December 16, 1986, Wilson attends Mascheroni's

presentation to the Canavan panel. He writes a page critical of

Mascheroni and gives it to the panel. This page, without

marking, is later submitted to security by Mascheroni and

found by Lang to be classified.

From December 16, 1986 - February 17, 1987, the Canavan

panel reviewed HF, reviewing Mascheroni and Phipps' work.

There was a panel meeting with preliminary findings on

December 18, 1986. Two committees, one for target physics

and another for laser systems, were formed. There were about

15 meetings where technical issues were discussed.

Mascheroni received many of the panel's questions from

Canavan and Lindman.

In Feb. 1987, after the HF review, Canavan recommends

funding for HF research. At the final NAS ICF review

meeting, Prof. Rosenbluth asks Canavan why he changed his

position on HF. Canavan responded that it was because of

Mascheroni's theoretical work, the Antares data, the

Centurion Halite data, and because the laser design was

feasible.

In January 1987, Bill Mead, Deputy to Wilson, opens

Mascheroni's safe and removes a classified report that is

receipted to Mascheroni. Mead does not leave a note.

Mascheroni is searching for the missing report when Mead

appears to say that he has taken the report to give it to ICF

Program Manager, Cartwright. Assistant Group Leader Gary

Lee is informed of the incident. [Grievance testimony

indicates that Mascheroni had complained that someone was

opening his safe and rearranging his desk top.]

T-27 APPENDIX T

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On about January 22, 1987, Wilson attends first DOE meeting

about an LMF. Wilson calls Mascheroni from this meeting to

tell him that he (Wilson) is promoting HF. Mascheroni

answers that he would like to be the Principal in this project.

On January 26, 1987, Wilson, Mead, Wingate, and Gary Lee,

the group managers composed the group narrative memo

explaining why Mascheroni has to be RIFed. This memo

states that it is because Mascheroni did not do the job

assignments. This memo explaining the reason why

Mascheroni is RIFed, called "the RIF narrative" explain that

they RIF him because 1) on the criteria of "versatility and

transferability Leo is inflexible ... He refuses to work on

assigned tasks, He is unable to work on group projects..". 2)

On the criteria of Programmatic Impact of Termination we

see no adverse impact pf his termination. He has been

assigned to work on documenting his C02 work and on

working on laser lethality. Rather than work on these as

agreed upon,-he has chosen to pursue the HF IMF. Should

the HF receive funding in the future we have better qualified

people to do assign to the task." On 3) Job Performance and

Achievement he is consistently a far-below average

performer. He has consistently be ranked low in the

performance ranking of group members used at salary review

times...0n occasion when some report was produced [by

Mascheroni] the material was seriously flawed in both

concept and detail. On (4) Skills Knowledge and Experience,

he ranks low in the group. As mentioned before the work of

his that has been evaluated in detail has shown gross

conceptional and technical errors demonstrating and

inadequate knowledge of ..our codes.". In his grievance

document, July 20, 1987, Mascheroni attacked the memo and

T-28 APPENDIX T

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requested deletion of each of the paragraphs. Wilson et al

defended the memo in Mead and Wilson response of

December 4, 1987 to Bivins of Human Resources. They

defended their response at the hearings as the transcript

shows. However the Hearing Officer Prof. Feller found out

that this whole narrative is false, that Mascheroni did do the

job assignments, that he knows the codes in detail, that he

ranks very high in scientific skills, etc. It is also clear from his

grievance documentation, because the reports are included

showing that had the approval of the X-1 group Office, that he

did the job assignments and were reported to management

because they have the LAUR number. This narrative memo

States that if the HF proposal received funding that others in

the group are more qualified than Mascheroni to do the work.

I shall discuss Feller's determination later. In contract to this

memo the Canavan panel that review Mascheroni's work later

recommended Mascheroni's work for funding. In addition I

know that Mascheroni did the work for the Academy using

his brain and working in isolation at home with no access to -

critical material. The academy states that they review the

chemical laser technology, at the same level than others

| national labs programs. Thus the academy ranks this man

effort as equivalent to a lab effort. The Academy states that

they review a lot of material. The Academy states that it is

remarkable the amount of work at high level that they got for

little funding, but because of Mascheroni's lack of institutional

support, i.e. lack of access, they can not fund his HF program.

Also Mascheroni got only 15 working days, to review in

isolation his own work, while the lab got over a year. In

addition Mascheroni produced work critical of the KrF LANL

program for the NAS, thus of his group X-1, after the interim

report. The LANL had more than a year of work to prepare

T-29 APPENDIX T

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for the review, had about 100 people involved in the KrF

program. The fact is that the initial interim report for the NAS

was favorable to Aurora, but after Mascheroni's material sent

to the Academy in February 28, 1990, about KrF, the NAS

recommends stopping the Aurora target shooter program,

which was under the leadership of X-1, Mead Wilson et al. It

is remarkable that the X-1 group management could have

written such a RIF narrative memo with so many derogatory

statements including defamatory statements about

Mascheroni's ability as a physicist in view of its outcome.

There is no question that Prof. Feller was giving to

Mascheroni nothing, when he ordered that the RIF narrative

memo be deleted because it is false and defamatory. The real

fact is that this X-] group, named Inertial Fusion and Plasma

Theory could not defend the Inertial Fusion Aurora program

in front of the NAS, nor in front of Mascheroni.. A useful

note is that Deputy Bill Mead and Associate Group Leader C.

Wingate were taken out of management in 1988.

The Hearing Officer determined that this was false, that

Mascheroni did do his job assignments. It is also clear from

the documentation, because the reports are included, that he

did the job assignments. This memo states that if the HF

proposal received funding that others in the group are more

qualified than Mascheroni to do the work. Mascheroni did the

work for the Academy using his brain and working at home.

On January 27, 1987, the X Division Leader, Mike

Henderson, wrote a paragraph to Associate Director Browne

summarizing the RIF narrative memo and gave it to Associate

Director Browne: "Leo is inflexible and has little probability

of successfully performing work not of his choosing; he

T-30 APPENDIX T

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refuses to work on assigned tasks. He is unable to collaborate

in group projects. There is no adverse impact on our

programs by his termination." The UC Hearing Officer

ordered this memo to be deleted because it was false. The

testimony and documentation proves that he did his assigned

tasks. Further that he generated Strong support from other

scientists and non scientists producing a very strong team.

There is evidence everywhere including the media showing

that Mascheroni was a strong influence in stopping the KrF

Aurora target shooter program. This is directly the impact

that Mascheroni's RIF had on X-1, X-Division, the ICF at

LANL, and on Defense Program in general. The lab wasted

the funds spent in the Aurora target shooter program and

those funds used in the C02 program which finished without

evaluation. The IMF was a strong idea considered by the

NAS, and Mascheroni was the pioneer at LANL in this area

as recognized by Kindel. Mike Henderson was removed from

management in about 1988-1989.

It is useful to recall that the 1990 National Academy of

Sciences Review Panel basically states that they reviewed the

chemical laser technology, at the same level as the other

national lab programs. They state that they reviewed a lot of

material. The Academy states that the amount of work they

got at a high level for little funding (in fact, none) is

remarkable, but that Mascheroni did not have institutional

support, thus they cannot fund the HF program.

LANL had more than a year to prepare for the review, and

had about 100 people involved in the KrF program. The initial

interim report for the NAS was favorable to Aurora. After

Mascheroni's material about-KrF, the NAS recommended

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stopping the Aurora program. This group (X-1), named

Inertial Fusion and Plasma Theory, could not defend the

Inertial Fusion Aurora program before the NAS.

Drs. Bill Mead and C. Wingate were taken out of

management.

Feb. 3, 1987, Wilson pursued an infraction against

Mascheroni with OS for an incident which occurred on Dec 9,

1986, at the SNL Conference. OS states that it is

inappropriate to issue an infraction.

January 27, 1987, the X-Division Leader, Mike Henderson,

wrote a paragraph summarizing the RIF narrative memo and

gave it to Associate Director Browne. The UC Hearing

Officer ordered this memo deleted from the file because it was

false. At the time the Canavan review was nearly over and the

recommendation was about to be written, Dr. William Mead,

a member of Canavan panel and Deputy to Wilson helps to

write the RIF narrative memo in clear contradiction with the

Canavan panel's recommendation. The RIF narrative about

Mascheroni's work reached Browne about three weeks before

the Canavan panel's recommendation.

Feb. 2, 1987, Wilson wrote a memo to Security Division

Leader Robertson pursuing an infractior against Mascheroni

with OS for the incident which occurred on Dec 9, 1986, at

the SNL Conference. It should be noted that Wilson

suggested to Mascheroni to present HF at this meeting, knew

that Mascheroni's presentation were at a certain level not

permitted in this section, read Mascheroni's abstract where the

level is clear. Lang testified that Mascheroni was the least

T-32 APPENDIX T

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culpable in such an incident, however, Wilson basically stated

to DOE IF Director Kahalas that was Mascheroni's fault.

Later he tried to get Mascheroni an infraction from LANL

Security for this.

Feb. 4, 1987, Wilson reports a meeting with him and

Henderson where they communicated to Mascheroni that he

was RiFed. Wilson reports "Leo was very quiet. He did ask

whether John Browne knew about this and Mike responded

he did." Mascheroni also asked Henderson, what about the

HF review that is coming positive? Henderson said "What

review?"

On February 9, 1987, OS/Rc dertson states that it is

inappropriate to issue an infraction as suggested by Wilson in

his memo of Feb 2, 1987. In his response of December 8,

1987 and testimony, Wilson states he did this in case Kahalas

wanted to follow it.

On February 12, 1987 Phipps writes to Browne about "Future

of the HF LMF project”. "This note concerns the immediate

future of the HF IMF source project, and my request to you

for support of the next phase of this study, in order to achieve

maximum benefits for the Laboratory ... I believe that Leo

Mascheroni's enthusiasm, dedication, and technical

knowledge ... have been crucial to the evolution of this

concept to its present state in a very short time. I also believe

that his unique technical and intuitive attributes will continue

to be essential. The two of us have complementary

personalities and work very well together..."

On February 17, 1987 the Canavan panel issued the "technical

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review of HF-driven laser fusion" memo. "Attached is the

report on the technical review of HF laser fusion you

requested .... The important point seems to be that the

principal motivations for the proposal remained intact through

the review: the high electrical efficiency of the F laser could

make its cost an order of magnitude less than that of short

wavelength lasers, it might drive target efficiently at that

scale, and it could be simpler to build." The panel had 9

members which included Mead and Wingate from X-1, who

were for the KrF Aurora target shooter program and against

the HF proposal from the beginning. Golsdstone from P-4

was for the KrF Aurora program and against HF. In fact the

panel was composed mostly of Aurora supporters. There

were nine members: Canavan, Feiock, Goldstone, Lindman,

Mead, Saxman, Spillman, Hughes and Wingate. After

Mascheroni's work, they write:

"Summary and Recommendations”. The group discovered no

obvious show stoppers in either target or laser physics ... The

attraction of the concept remains that it could, if successfully

and effectively developed and engineered, produce laser

energies in the 100 MJ range for a cost of 10-20 times less

than for short wavelength lasers [glass and KrF] which bring

the energies that-may be required for fusion experiments

within the reach of the country, let alone the laboratory..

Conclusion. Overall the next step of detailed evaluation

seems technically worthwhile. The issues are discussed above.

the resources would be 6 scientists for the rest of the year..It

is appropriate to observe that Hf is far behind glass or KrF

lasers for fusion but that need not be disqualifying. there is

little to the laser physics that could not be tested with a 10 kJ

T-34 APPENDIX T

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module, which would only be 10% the size and cost of

Aurora..If they worked a HF laser could be built faster than

other of the competitors and cheaper.. Associate Director

Browne had ordered a review of the HF program and at the

time the Canavan review was almost over and the

recommendation was about to be written. Dr. William Mead,

who was the Principal Theoretician for the KrF Aurora

program was a member of Canavan panel and also the Deputy

to Wilson. Wilson and Mead had written quite a lot during the

grievance process to justify their RIF narrative with

defamatory statements about Mascheroni. The RIF narrative

memo are in clear contradiction with Canavan panel

recommendation. The RIF narrative about Mascheroni's work

“reached Browne about three weeks before Canavan's panel

recommendation for Mascheroni research work did."

Mascheroni had stated to the panel at meeting the show

stoppers for Aurora and made calculations showing that the

coupling is not an issue for the high efficiency chemical laser

HF. This panel report indeed is for HF and against KrF

Aurora target shooter even though the panel would never

write it explicitly. It states that HF could cost 10 to 20 times

less than KrF or Glass, or competitors.

On February 18, 1987, there was a meeting between

Mascheroni and Associate Director Browne. At this time

Mascheroni did not have the RIF narrative memo ner did he

know that such a thing existed. Mascheroni had a talk

“Laboratory Microfusion Facility Project," composed of 9

viewgraphs. In addition, he gave to Brown and his assistant

Giovanielli his February 17, 1987 memo. The analysis is

rather complete. It notes the problems in LANL ICF

T-35 APPENDIX T

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management, notes that HF won the review, notes that KrF

Aurora target shooter program has show stoppers, notes the

cost advantages for HF vs glass at Livermore, notes the

Centurion Halite and Antares data, that DOE/Kahalas is not

sure if they are against HF, they said they like the ideas.

Mascheroni makes the point that a decision for KrF Aurora

target shooter and no funds for his proposal is a no win

situation for no one. Mascheroni addressed management:

"Could they be discriminating toward a staff member of a

different cultural and ethnic group and attacking his scientific

credibility .” Why Wilson attempted to have a Security

Infraction applied to me over a highly questionable issue?

What are our accomplishments in ICF? Are they from LANL

or from LLNL?... Is it because I found a good experimental

use for ANTARES and my persistence for having it

evaluated-that I have been asked to leave the lab?... Is there

any existing environment in which Mascheroni could continue

these studies? Within the Lab? Where? .. When a

Comprehensive Test Ban becomes inevitable, what do we ask

from Washington? Why does a technical person have to

become a political person to have new and well defined ideas

heard? In the memo Mascheroni writes: "I am a strong and

broad scientist who pursued an idea on its technical merits for

my benefit and the Laboratory's”. There is a tremendous

amount of courage due to the risk one takes in such an

endeavor. It is also clear that my RIF has no technical base

and is against the general policy stated by Hecker; but is a

consequence of two contradictory political opinions. Anything

that is not [low efficiency] short wavelength is not welcome at

Los Alamos, and anything new that has to do with weapons

physics at the lab, e.g., the LMF for weapons research is not

welcome at LANL. The argument for building an LMF is that

T-36 APPENDIX T

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when a CTB becomes inevitable it follows that this is one of

the things that we must ask Washington to do.."

February 19, 1987 there is a Canavan panel meeting in

Browne's office. Canavan stated to Mascheroni that he argued

for his recommendation to Browne.

On February 22, Browne said that he would review

Mascheroni's case. He said that he could not reverse the RIF

because Mascheroni had management against him.

Mascheroni presented to Browne his memo of February 22,

1987. “This memo takes a look at a possible solution that

might be considered."

On February 23, 1987, there is a memo from Wilson to

Henderson explaining and defending his insulting language

about “irrelevant research" in the 1986 job appraisal.

On February 23, 1987, there is a memo from Mead to

distribution backing the KrF Aurora target shooter and

expansion in KrF, and against any funding for HF. His

statements are in sharp disagreement with the Canavan panel's

recommendation.

On February 27, 1987, there is a memo from N-Division

Leader Hirons to Browne: "Mascheroni firmly believes that he

is one of the strongest theoretical physicists at the lab and that

his talents could be utilized in a number of different areas. He

feels he has worked extremely hard to develop scientific ideas

that have technical basis ... | really believe that Leo is an

extremely bright and innovative physicist who could make

significant contributions to the Laboratory's mission .."

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On about March 3, 1987, Frances Menlove the Lab

psychologist, called Mascheroni to ask why he was not

participating in the program for RIFed staff members. She

informed him that there was a RIF Narrative memo and that

he had the right to see this memo.

On March 3, 1987 Mascheroni requested his X-1 file and RIF

memos from Gary Lee. Wilson gave it to Mascheroni, as

stated in the Wilson to Robertson April 24, 1987, memo.

On March 4, 1987 Mascheroni, after seeing the RIF narrative

went to see Browne with his written reports about C02, and

the RIF memo. He stated that the narrative is false, that he

wrote the reports as assigned, etc. Browne stated that he did

not know who was saying the truth but he could not reverse

the RIF because Mascheroni had management against him.

On March 5, 1987, a memo from John Norton (X-7), the

LASNEX team leader to Browne states: "..I found Leo quite

pleasant to work with but also quite demanding. In my

opinion he knows a great deal about the LASNEX code and

has rarely brought up difficulties with the code that were not

true problems. Leo is extremely hard working and self-

motivated. He often works nights and weekends when he is

trying to complete a set of calculations .... In summary, Leo is

very hard working, quite knowledgeable about laser

deposition, plasma physics, and a broad range of basic physics

areas, and is very creative. He knows how to use the

LASNEX code as a more basic science tool, which is the way

he prefers to work and I have enjoyed working with him ... I

believe that Leo has important contributions to make, if he

can find the right niche for himself."

T-38 APPENDIX T

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On March 6, 1987 Mead gave to Mascheroni his termination

notice. In Wilson's April 24 memo he reports: "Mead said it

was uneventful."

On March 10, 1987, Mascheroni responds to Mead's memo of

February 23, 1987, at the request of Phipps. Mascheroni

addresses 12 points in detail. This memo gave the reasons

why an LMF is important, why the Aurora KF is of no value,

why HF is important. In this memo Mascheroni suggests a

National Academy of Sciences review to resolve the KrF

Aurora vs HF issues. This memo was classified by Wilson on

March 11. The issue is reported in Wilson's April 24 memo.

Mascheroni then went to Lang and made a few changes to

declassify it.

In a memo dated March 9, 1987, Browne writes about

“technical review of HF driven laser fusion," to the panel,

Mascheroni, Phipps and management. "Your report which is

extremely well written, defines the relevant issues for HF and

identifies a possible course of action. I assure you that we will

consider the finding of your report along with current ICF

program priorities to determine the most appropriate course

for the Laboratory.." Thus Browne is saying he will make the

decision some day in the future, depending on funding, but

not that he will not fund HF, which has a recommendation for

funding from his own appointed panel

On about March 11, 1987, Mascheroni briefed Director

Hecker, Deputy Director Birely, and Associate Director

Browne about the reasons why HF was a strong candidate for

ICF and that the KrF Aurora had show stoppers. Mascheroni

requested a reconsideration of his RIF, and that some funding

T-39 APPENDIX T

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be given to the HF technology due to the applications. Hecker

said that he understood the issues better but that Browne was

going to make the decision.

On March 17, 1987, a memo from Kindel to Browne states:

"Leo has good scientific credentials..His commitments are

deep and not easily made. In this sense he is different from

most people. But when Leo says he will do a job he does it ...

My impression has been that his loyalty to LANL has been

deep and grounded in a duty to do his very best.... In my

opinion he has good technical skills."

On March 20, 1987 Phipps informed Mascheroni that

Livermore may be interested in hearing the proposal.

Mascheroni requested the transfer of the clearance to

Livermore for March 27, 1987.

On March 27, 1987 Mascheroni and Phipps gave a well

received talk at Livermore.

During April 1987, Drs. Wilson and Mead attended a DOE

meeting about the LMF. They told Dr. Roger Bangerter,

Livermore X-Division leader (to whom Mascheroni was

applying for a job), the false information used in their RIF

memo to justify Mascheroni's RIF. Testimony by Gary Lee at

the grievance hearing supports the fact that this was against

the guidelines given to management with respect to RIFees,

management was not supposed to discuss who had been

RIFfed.

Associate Director Browne is later (1990) relieved of the

responsibility of managing the ICF and Weapons Programs.

T-40 APPENDIX T

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Associate Director Birely takes on the responsibility of

managing the Defense Programs, including ICF.

On April 2, 1987 Mascheroni submits a request to Associate

Director J. Browne that he be permitted to use the X-1 office

(in a cleared area) for 90 days, and the use of his X-1 (IBM)

computer at home for 90 days before moving to his new N-9

office outside the fence. Browne's secretary, Jeane Andrews,

states to Mascheroni that Browne's office typed a memo to

Henderson making this request. The Hearing record shows

that Wilson, Mead, and Henderson opposed the request.

Browne was supposed to make a decision.

On April 17, 1987 Wilson called Henderson and asked about

Mascheroni's continued use of his desk. According to

Wilson's log, Henderson suggested that Wilson call Security

to take care of the problem.

On April 20, 1987, Wilson calls Physical Security (OS-2) to

come to TA-35. G. Weber and D. Wilson make several

accusations of security infractions against Mascheroni and put

false information into the LANL security system about him.

It is useful to recall that a Lab report from LANL's Human

Resources, Ms. Bivins, through Foley to Browne, June 1988,

shows that Wilson agreed that he put false information into

the security system. This information can be construed to be

severely damaging to a scientist, particularly one of Argentine

origin. Wilson stated to security officer Weber that

Mascheroni went to Argentina without permission from

LANL and/or DOE in January 1984. Wilson also stated that

Mascheroni had classified information in his desk and that he

—s

T-4] APPENDIX T

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had been typing classified with his computer at home, along

with other accusations that make Mascheroni appear to be a

security risk. Wilson's and Weber's "In Confidence" memos

are in the documentation. We shall not address the issues

covered in the testimony to the Inspector General dated

August 30, 1991.

In the spring of 1988 an OPM investigation was conducted on

Mascheroni. This investigation noted that Lang discovered

that there was no classified in Mascheroni's computer at home

after reading the hard disk. This is exhibit #5 of the OPM

report. Gary Weber, the security official who listed the

materials found in Mascheroni's desk, listed unclassified

viewgraphs as classified. Weber is not a derivative classifier

and he did not take the material to a derivative classifier.

On April 21, 1987, by his report memo, Weber indicates that

Mascheroni is a security risk. Mascheroni explained to Weber

about the conflict and that Wilson was out to get him. After

Mascheroni left, Weber obtained new derogatory information

that was false from Wilson and put it into the security system.

This is clear from the memos and OPM documentation. OS

Division sent Wilson and England to brief Michael Peck,

_ security chief at DOE, the next day.

On April 21, 1987, the information of security infractions

came to DOE without following the standard guidelines at

Los Alamos National Lab. At LANL the group leader

customarily took care of the infractions himself without going

to LANL security. For DOE-LAAO this was extremely

unusual and was a clear flag against Mascheroni.

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April 27, 1987, a report from LANL to DOE states that there

were security infractions. However the OPM report,

particularly exhibit #5, and Lang's testimony shows there is no

classified material on the disk. LANL's report from Weber

lists material that was supposedly classified but, in fact, was

not. Weber's testimony to Feller indicates that Weber is not a

derivative classifier. Mascheroni stated to Weber that the

viewgraphs were not classified but were part of a classified

presentation. He said there was a conflict between KrF and

HF, group management and himself. Weber decided that

Mascheroni was hysterical, even though the facts show that

there was, indeed, a conflict. The Lab later lost the Aurora

program on the basis of the same shortcomings that

Mascheroni had told the Lab's ICF management.

April 27, 1987 Mascheroni gives his seminar at CLS-DO

about the HF LMF, using the viewgraphs he prepared the

weekend of 4/19/87.

April 27, 1987 is the date when Mascheroni starts the Lab

Grievance process by filing his intent to grieve form with Mr.

Paul Farrell in HRD-1.

May 11, 1987, a memo from Mascheroni to OS Division

Leader Charles Robertson states that there is a conflict (HF vs

KrF) and that the KrF management was after him. He

requests an investigation to clear his name from wrongdoing

and requests a meeting with Robertson. Mascheroni was

never questioned by LANL about the alleged infractions: no

one at LANL ever discussed the alleged charges with him.

LANL security guidelines of October 1987 state that the

employee should understand why a supervisor is charging him

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with infractions. In Mascheroni's case, everything was done

"In Confidence" behind his back.

Also the OPM investigation reveals that in May 1987, there

was a meeting between LANL OS Division Leader Robertson

and DOE Security Chief M. Peck about Mascheroni. I was at

DOE LAAO when this meeting took place. The meeting was

against guidelines pertaining to security infractions, and how

they are transmitted to DOE. Afterwards, a memo from

Robertson to Peck (dated May 14, 1987) states that the Lab

has put "flags" on this case. It is clear that with such

derogatory information from the Lab, the access would be

suspended. With a suspended access any RIF will mean

Mascheroni's termination.

The OPM investigation indicates that Peck requested the FBI

to investigate the issues. The OPM also reveals that the FBI

did nothing because the LANL report did not show

irregularities. For infractions the standard rule is that the

OPM investigate them, not the FBI. Thus Peck did not need

to call the FBI. He did it because of the derogatory

information from LANL, most of it verbal, as the OPM

investigation shows.

May 27, 1987, a meeting of the Internal Security Executive

Committee (ISEC) is called to discuss Mascheroni and if

Mascheroni could be a security risk. Participants include:

X-Division Leader Henderson, OS-Division Leader

Robertson, Associate Director Tiedman, Associate Director

Browne, N-Division Leader Hirons and the CIA

representative. The OPM investigation reveals that Henderson

and Robertson wanted to take Mascheroni's clearance and

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consider him a security risk. Henderson stated that he wanted

Mascheroni out of the Lab. Hirons defended Mascheroni

stating that Mascheroni was now working in the open and

that no classified work was permitted. This meeting is

described in the OPM investigations by Henderson,

Robertson, Hirons, and Browne.

On about May 30, 1987, Hirons took a memo to Mascheroni

about the infractions charged against him. Mascheroni did not

accept the infractions. Hirons advised Mascheroni to put the

issue in the grievance that he had started. The infractions

were presented to Mascheroni's supervisor in N-9. The

supervisor requested an explanation for the infractions.

Mascheroni's relationship with his new supervisor

deteriorated quickly.

The OPM investigation and documentation shows that

Browne, Henderson, Wilson, and Mead stated that the

Canavan review was not positive and did not recommend

funding. This contradicts the statement by the panel in its

report, and what was published in the media quoting Canavan.

It also contradicts what Canavan, himself. testified before the

NAS review panel. vs

The OPM investigation reveals that the CIA made an

assessment of damage about Mascheroni's case, and in May

1987 the Lab considered the issue finished.

On about July 1, 1987, Mascheroni met with Lab Deputy

Director Birely. Mascheroni noted to Birely that he had

predicted the outcome of a Halite shot. Birely informed

Mascheroni that on July 10, 1987 the results would be

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discussed at the Weapons working Group (WWG) meeting in

the Administration Building.

On July 10, 1987, Mascheroni attended the WWG meeting.

During presentation Mascheroni commented that it was clear

(before the experiment) that the LANL experiment was not

going to be successful.

On July 12, 1987, Hirons informs Mascheroni that Raymond

Hunter, Assistant X-Division Leader, called complaining

about Mascheroni's presence at the WWG meeting. Hirons

explained that it was open to anyone with a 'IQ" clearance.

Hirons' assistant had attended the meeting and reported to

Hirons what had happened.

In July 1987, Wilson communicates to N-9 Group and

Section Leaders about the security issues against Mascheroni

via an employee appraisal. This documentation indicates that

there was a security investigation on Mascheroni. At the time

no security investigation had been made by the Lab or DOE,

as the OPM investigation shows. Also Robertson stated this

to Mascheroni. (Prof. Feller ordered this job assessment by

Wilson to be stricken from the record because he found it to

be false.) Mascheroni's supervisor in N-9 became more

concerned.

July 20, 1987, Mascheroni completes filing his grievance

documentation with LANL's Human Resources Group

(HRD-1).

July 20, 1987, Mascheroni has separate meetings with

Browne and Birely to tell them that he has filed a grievance.

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He requests some determination on the funding for the HF

proposal because DOE is actively pursuing an IMF.

Mascheroni notes that HF is a stronger technology for

military and civilian applications than glass or KrF.

Mascheroni understands that DOE may be interested

in funding HF. His memo to Browne with distribution to

Birely and Hopkins states: "..a) As you know the data on

(Centurion) ICF capsules does not scale with the laser energy

proposed and hence it will be impossible to convince the NAS

about the LMF. b) LANL X-1 has not had any success

because none of our ICF capsules performed (WWG meeting

presentation on July 10, 1987 by Wingate) I had predicted

this uninteresting behavior in conversations, seminars, and

memos..my last one was my April 27, 1987 colloquium at

CLS....". The OIF which knows of my proposal has told me

that I need to produce a low level of effort at LANL for them

to be able to produce something...I am told that LANL is

pushing for a 100 kJ KrF which is a very vulnerable idea.

What can we learn from a 100 kJ KrF that Livermore would

not have l

This text is long and has been trimmed here. Open the source document for the complete record.

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