# Appendix — Mascheroni v. Regents of the University of California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1071

## Text

, 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

V.

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

Opinion

Order

Rule 14(i)(iii)
Order

Order

Order

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,

V.

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,
V.

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

a

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

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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

Vv

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
Vv
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
7

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

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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,
v.
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

a

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

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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
a

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

0

"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

a

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,
v.

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

ee

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
to
The Inspector General, DOE
on
Dr. P. L. Mascheroni's "Q" Access Authorization
by
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.

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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

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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.

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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

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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

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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

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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

Special Report

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 19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1221%3A2. Public record. Not legal advice.