Petition for Writ of Certiorari — Rockefeller v. Abraham

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oy,

011143 Jan 2 4 2002

No. Ol -

-

OFFICE OF THE CLERK

In The

Supreme Court of the United States

Tod N. Rockefeller

Petitioner,

Vv.

TACHA, Chief Judge, BALDOCK, Circuit

Judge, BRORBY, Senior Circuit Judge,

KELLY, Circuit Judge sitting by designation

in the U.S. District Court, Dist. of NM

Respondents.

On Appeal to the United States

Court of Appeals

fer the Tenth Circuit

Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(S05) 628 - 3541

The Circuit Executive, U.S. 10" Cir.

Byron White U.S. Courthouse

1823 Stout Street

Denver, CO 80257

(303) 844 - 3157

Questions Presented

1. Whether the United States (“U.S.”) Court of

Appeals (“CoA”) for the Tenth Circuit (“10" Cir.”)

has so far departed from the accepted and usual

course of judicial proceedings, or sunctioned such a

departure by a lower court ?

2. Whether the U.S. CoA for the 10" Cir. has

decided an important federal question in a way that

conflicts with relevant decisions of this Court ?

3. Whether Petitioner has been punished by

Respondents for objecting to Defendant’s lack of

concern for safety, violating his First Amendment

right of Free Speech ?

4. Whether all of the above have resulted in a

violation of Petitioner’s Seventh Amendment right

of Trial by Jury ?

3. Whether the actions taken by Respondents

and the lower court have been in criminal collusion

and conspiracy with Defendant to deprive Petitioner

of his Constitutional rights ?

Parues Proceedi

Petitioner was plaintiff (99-1059 PK/KBM)

and subsequently Appellant to the U.S. CoA for the

10“ Cir. (00-2480 & 01-2054).

Respondents (Tacha, Baldock, Brorby, and

Kelly) are judges who dismissed the cases above.

Respondents’ contact information is: The Circuit

Executive, U.S. 10" Cir., Byron White U.S.

Courthouse, 1823 Stout Street, Denver, CO 80257.

(303) 844 - 3157

Table of Contents

Questions Presented i

Parties to Proceeding ii

Table of Authorities ili, iv

Rules /Jurisdiction iV

Constitutional Provisions at Issue 1

Statement of the Case 1

Argument 2 thru 7

Appendix 1 A-1 thru A-8

Appendix 2 A-9

Appendix 3 A-10 thru A-48

Table of Authorities

CONSTITUTIONAL PROVISIONS

U.S. Const., Amend. I

U.S. Const., Amend. V

U.S. Const., Amend. VII

STATUTES

18 U.S.C. §§ 242, 371

28 U.S.C. § 1254 (1)

31 U.S.C. § 3730 (h)

42 U.S.C. §§ 2000e-1 through 2000e-17

42 U.S.C. § 6961

42 U.S.C. §§ 12181 - 12189

CASES

Adams v. Indiana Bell Telephone Co., Inc.,

2 F.Supp. 2d 1077 (S.D. Ind. 1988)

Adikes v. S.H. Kress & Co., 398 U.S. 144, 149, 150

(1970)

Betts v. Brady, 316 U.S. 455, 462 (1942)

Brady v. Maryland, 373 U.S. 83, 86-88 (1963)

Bridges v. California, 314 U.S. 252, 263,270,275

(1941)

Davidson Oil Company Supply Inc. v. Klockner, Inc.,

908 F.2d 1238 (C.A. (Tex) 1990), on

rehearing 917 F.2d 185.

Daubert v. Merrell Dow Pharmaceuticals,

909 U.S. 579 (1993)

English v. General Electric Co., 496 U.S. 72, 73

(1990)

Fiske v. Kansas, 274 U.S. 380, 385 (1927)

Gravel v. United States, 408 U.S. 606, 627 (1972)

Hampton v. Dillard Dept. Stores, Inc.,

18 F.Supp. 2d 1256 (D.Kan. 1998)

ili

Imbler v. Pachtman, 424 U.S. 409, 429 (1976)

Jackson v. Firestone Tire and Rubber Co. & Goodyear

Tire and Rubber Co., 788 F.2d 1070, 1089,

1090 (1986)

Johnson v. Wash. Metropolitan Area Transit Auth.,

764 F.Supp. 1568 (D.D.C. 1991);

opinion amended 790 F.Sup. 1174

Mapp v. Ohio, 367 U.S. 643, 659 (1961)

Olmstead v. United States, 277 U.S. 438, 485 (1928)

O’Shea v. Littleton, 414 U.S. 488, 503 (1974)

Pennekamp v. Florida, 328 U.S. 331, 346 (1946)

Pickering v. Board of Education of Township, Will

County, 391 U.S. 563, 568 (1968)

Robinson v. Runyun,149 F.3d 507 (C.A.6 (Ohio)

1998)

R & W Technical Services Ltd.; Gregory M. Reagan

v. Commodity Futures Trading Commission,

205 F.3d 165, 177 (C.A. 5 Cir. 2000)

Scheuer v. Rhodes, 416 U.S. 232, 235, 236 (1974)

United States v. Price, 383 U.S. 787, 791, 792 (1966)

Uveges v. Pennsylvania, 335 U.S. 437 - 439 (1948)

Walker v. Johnson, 312 U.S. 275, 286, 287 (1941)

Williams v. United States, 341 U.S. 97, 99, 100

(1951)

Rules

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

Jurisdiction

The jurisdiction of this Court is invoked

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

the 10" Cir. denied Petitioner’s appeals (00-2480 &

01-2054) with an Order filed on NOV 15, 2001.

iv

Constituti...“ | Provisions at Issue

First Amendment Right of Free Speech

Firth Amendment Right of Due Process of Law

Seventh Amendment Right of Trial by Jury

Statement of the Case

This case involves retaliations taken upon

Petitioner by his former employer, the United

States Department of Energy (“DOE”). Petitioner is

a disabled individual who was employed with the

DOE as an Environmental Scientist at the Waste

Isolation Pilot Plant (“WIPP”) in Southeastern New

Mexico. The WIPP is a controversial nuclear waste

repository for the disposal of defense program

generated transuranic waste. Petitioner is an

honest man who takes seriously his professional

and moral obligations to protect people and the

environment.

When Petitioner began identifying safety

deficiencies, and contractor false claims at WIPP,

the DOE engaged in reprisals towards Petitioner.

The retaliations against Petitioner culminated in

his removal from federal service on 12 /10/97 for

putative “poor performance’.

Petitioner filed a complaint in the U.S.

District Court, District of New Mexico concerning

his removal from federal service, Case no. 99-1059

PK / KBM. This case was dismissed from the

district court with alleged knowingly false

representations and defiance of the doctrine of

stare decisis. Two appeals were then filed by

Petitioner with the U.S. CoA for the 10% Cir.

concerning 99-1059's dismissal. The 10“ Cir. has

affirmed the dismissal of Petitioner’s case with

additional alleged knowingly false representations

and defiance of the doctrine of stare decisis.

ow

Argument

Question 1. Improper suppression of

evidence, especially that which is incriminating and

demonstrates pretext, is a violation of Due Process

of law which “is a denial of fundamental fairness

shocking to the universal sense of justice .. .” See

Betts, 316 U.S. at 462. This most certainly is a

departure “from the accepted and usual course of

judicial proceedings, .. .” See S.Ct. Rule 10(a)

“Issue IV” of Petitioner’s Opening Brief, served

on 3/28/01 to Respondents, describes in detail a

design failure of the DOE’s model RH-72B nuclear

waste shipping cask. This shipping cask design

failure involves a faulty Radioactive Containment

Seal of the cask, which represents a severe danger

to public safety. Petitioner had worked himself on

the safety report for this cask and he was the one

whom had identified the design failure.

Petitioner’s discovery Request No. 10 was

concerning documents related to the approval of the

safety report of the RH-72B cask. Defendant DOE

claimed that for Request No. 10: “the information

has nothing to do with the issues in this case.” See

doc. 48 at 3. This assertion of Defendant is

obviously bogus.

Respondents supported the lower court’s

denial of Petitioner’s Motion to Compel (doc 45), and

claimed Petitioner was allowed “ample discovery”.

See Appendix (“App.”) 1 at A-4, A-5.

This evidence has been improperly suppressed by

Respondents, and this is a Due Process violation.

See Brady, 373 U.S. at 86-88; see also Walker, 312

U.S. at 286, 287. This ruling of Respondents has

departed from the accepted and usual course of

judicial proceedings.

~

Petitioner clearly demonstrated to

Respondents that this evidence, concerning the

RH-72B cask’s safety report, provides

establishment of pretext towards Petitioner’s

removal from federal service by the DOE. This is

thoroughly outlined on page A-36 of App. 3.

Improper suppression of probative evidence should

have been reversible error of the lower court. See

Jackson, 788 F.2d at 1089, 1090. Also,

Respondents’ misleading of Petitioner as to the

admissibility of the evidence is also not in

accordance with the accepted course of judicial

proceedings. See R & W Technical Services, _Ltd.,

205 F.3d at 177. The issues and facts outlined

above adequately raises the Federal

Constitutional Question in this case of a Due

Process violation. See Uveges, 335 U.S. at 438, 439.

Question 2. In addition to the improper

suppression of evidence described above,

Respondents have excluded very relevant

admissible evidence that was actually submitted by

Petitioner. See Exhibit II of Appendix 3 at A-27

thru A-30. The descriptions of each of the 25 items

of evidence, detailed on A-27 and A-28 alone, very

clearly demonstrate far more than the slightest

amount of probative worth required for these items

to be classified as relevant admissible evidence.

See Adams, 2 F.Supp. 2d 1077; Robinson, 149 F.3d

507. This action of Respondents certainly conflicts

with this Court’s ruling that the basic standard for

determining the relevance of evidence is a “liberal”

one. See Daubert, 509 U.S. 579 (1993); Hampton,

18 F.Supp. 2d 1256.

To go a very major step further, in not only

establishing the relevance of the evidence above,

but to also clearly demonstrate that Respondents

have allegedly made knowingly false claims and

eS

violated a local rule of law sec A-15 thru A-19.

Respondents have knowingly improperly excluded

relevant admissible evidence, which again, conflicts

with relevant decisions of this Court. See Walker,

312 U.S. at 286, 287; Brady, 373 U.S. at 86-88.

Respondents have dismissed Petitioner’s appeals

without allowing placement and consideration of

relevant, admissible, and incriminating evidence

into the record of this case. See Scheuer, 416 U.S.

at 235, 236.

Petitioner very thoroughly described the

relevance of his evidence above at A-31 thru A-46.

The DOE, lower court, and Respondents have all

failed to controvert the facts detailed within A-31

thru A-46. Therefore, the issues and facts above

adequately raises, again, the Federal

Constitutional Question in this case of another

Due Process violation. See Uveges, 335 U.S. at 438,

439.

Question 3. Petitioner had attempted to

identify and correct several serious safety

deficiencies at the WIPP while he worked there. One

of these safety issues concerning the DOE’s RH-72B

nuclear waste shipping cask was mentioned above.

Petitioner had issued a report dated 4/18/96

outlining several dangers with this cask. The DOE

had rewarded Petitioner with a failing annual

performance appraisal that rating period. All of this

had been explained to Respondents. See A-37

Other safety deficiencies which Petitioner had

attempted to correct included flawed air monitoring

of radionuclide aerosols in and about the WIPP Site.

Another safety issue that Petitioner wrote up in a

report of his concerned inadequate fire protection

controls underground within the WIPP repository.

wii

Petitioner’s reports were attached to a

9/1/98 sworn declaration of his that was sent to

the New Mexico Environment Department (“NMED”)

and the New Mexico Attorney General’s office.

These materials were within “Exhibit ADA-25"

which Petitioner had attempted to make,

unsuccessfully, part of the record of case 99-1059

in the district court. See A-28 The reprisals

towards Petitioner in close temporal relation to his

activities, described above, included two failing

annual performance appraisals and two transfers.

The district court and Respondents excluded and

ignored all of Petitioner’s evidence of what occurred

above.

Respondents have punished Petitioner for

objecting to the DOE’s lack of concern about safety

violating Petitioner’s First Amendment right of Free

Speech, “a prized American privilege.” See Bridges,

314 U.S. at 270 “Free discussion of the problems

of society is a cardinal principle of Americanism - a

principle which all are zealous to preserve.” Also,

there is “danger to public welfare of supposedly

wrongful judicial conduct.” See Pennekamp, 328

U.S. at 346 Respondents have decided another -

important Federal Constitutional Question in a way

that conflicts with relevant decisions of this Court.

Question 4. All of what Respondents have

done, as described above, have been for one

purpose essential to the DOE. This effort has had

the objective of keeping Petitioner from reaching a

trial by jury. The DOE does not want a jury to be

exposed to evidence of the agency’s wrongdoing.

The DOE is guilty of decades of wrongdoing that

has been covered-up until fairly recently. E.g.:

former Energy Secretary Richardson’s 1/00

admission of the agency’s responsibility for

contaminating 3,000 workers.

es

There is an important danger to our technical

society concerning the punishment of scientists,

such as Petitioner, who try to speak up to resolve

safety issues. If this kind of practice continues...

scientists will be afraid to speak up and will remain

silent. The “prized American privilege” of Free

Speech will exist no longer.

Question 5. The methodology by which the district

court and Respondents have dismissed Petitioner’s

False Claims Act (“FCA”) allegations is comprised of

knowingly false representat.ons, ignoring Congress,

and defying the doctrine of stare decisis. These

actions of both courts have allegedly been in

criminal collusion and conspiracy with the DOE to

violate Petitioner’s Constitutional rights as

described above and will be additionally detailed

below. Both courts have allegedly violated 18 U.S.C.

§§ 242, 371.

Defendant DOE had claimed that the FCA’s

civil remedy provided within 31 U.S.C. § 3730(h)

does not apply to federal employees. The DOE also

claimed that the federal employee’s exclusive

remedy for whistleblowing is the Civil Service

Reform Act (“CSRA”). Both courts simply “epeated

the DOE’s claims. See, for example, pages A-5 and

A-6. Both courts completely ignored Plaintiff's

response to these claims. Within Plaintiff's

Response to Defendant’s Motion to Dismiss

Plaintiff's Retaliation Claim Arising under the FCA

(doc 42) Petitioner stated the following:

“When the Whistleblower Protection Act

(“WPA”) of 1989 was enacted (which amended

section 2303(b)(8) of the CSRA),

Congress indicated that it [CSRA] is NOT

to be the exclusive remedy for

whistleblowers. See 5 U.S.C. § 1222,

othe

Joint Explanatory Statement, 135 Cong.

Rec. 4,514; 5,035 (1989).”

See doc 42 at 1 Also within doc 42 was:

“Moore v. Department of Energy,

1999-CAA-15 (Jun 14, 1999 Order

of DOL ALJ Larry W. Price), stating:

The Secretary has rejected similar

arguments that the CSRA provides

a presumptive and exclusive remedy

for federal employee whistleblowers

in Conley v.McClellan Air Force Base,

84-WPC-1 (Sec’y Sept. 7, 1993);

Pogue v. U.S. Dept. of Labor, 940 F.

2d 1287 (9" Cir. 1987). Therefore, I

deny Respondent’s Motion to Dismiss

the Complaint based on sovereign

immunity and the exclusive remedy

is under CSRA.”

It seems quite apparent that the district

court and Respondents have criminally violated

Petitioner’s 1*, 5" , and 7“ Amendment rights,

which also violates 18 U.S.C. §§ 242, 371. See

Adikes, 398 U.S. at 149, 150. As noted within

Mapp, 367 U.S. at 659: “Nothing can destroy a

government more quickly than its failure to observe

its own laws, or worse, its disregard of the charter

of its own existence.”

APPENDIX 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TOD N. ROCKEFELLER,

Plaintiff-Appellant,

v. Nos. 00-2480 &

01-2054

SPENCER ABRAHAM, in his (D.C. No. 99-1059

official capacity as Secretary, PJK/KBM)

United States Department of (D.N.M.)

Energy (DOE), *

Defendant-Appellee.

ORDER AND JUDGMENT **

Before TACHA, Chief Judge, BALDOCK, Circuit

Judge, and BRORDBY, Senior Circuit Judge.

After examining the briefs and appellate

record, this panel has determined unanimously that

oral argument would not materially assist the

determination of these appeals. See Fed.R.App.P

34(a)(2); 10" Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

Plaintiff Tod N. Rockefeller, appearing pro se,

appeals the district court’s grant of summary

judgement to his former employer, the DOE, on his

consolidated complaints alleging disability

discrimination and retaliation in violation of Title VII

and the False Claims Act. *** We review the grant

of summary judgement de novo, using the

© Spencer Abraham is substituted for his predecessor,

Bill Richardson, as Secretary of Energy. See Fed.R.App.P.

43(c)(2).

os This order and judgement is not binding

precedent, except under the doctrines of law of the case, res

judicata, and collateral estoppel.

A-1

same standard as the district court. Watson ex rel.

Watson v. Beckel, 242 F.3d 1237, 1239 (10™ Cir.

2001). Summary judgement is appropriate “if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to

any material fact and that the moving party is

entitled to a judgement as a matter of law.”

Fed.R.Civ.P. 56(c). We affirm.

I. Background

Plaintiff was an environmental specialist

with the DOE when, in September 1997, the

Department notified him that it proposed to remove

him from that position because of poor

performance. He filed a claim with the Merit

Systems Protection Board (MSPB) claiming the

proposed termination was in retaliation for alleged

whistle-blowing activities. An MSPB administrative

judge issued an initial decision in November 1997

finding that defendant had not engaged in whistle-

blowing activities. Plaintiff filed a petition for

review with the MSPB.

The Department terminated plaintiff in

December 1997 and he filed another claim with the

MSPB, claiming he was fired because of alleged

disabilities, in retaliation for protected activity

one Plaintiff filed a notice of appeal (No. 00-2480)

form the district court’s September 28, 2000 order dismissing

his retaliation claim under the False Claims Act. This court

issued an order to show cause as to why that appeal should

not be dismissed for lack of a final order adjudicating all

claims. The district court subsequently entered a final order on

December 20, 2000 dismissing all of plaintiff's remaining

claims, from which plaintiff has also appealed (No. 01-2054).

We will treat plaintiff's appeal in No. 00-2480 as a premature

notice of appeal which became effective upon the district

court’s final order. See Lewis v. B.F. Goodrich Co., 850 F.2d

641, 645 (10™ Cir. 1988)(en banc). Accordingly, we have

jurisdiction over both appeals, which have been consolidated.

A-2

under Title VII and in retaliation for alleged whistle-

blowing activities. Following an administrative

hearing, an MSPB administrative judge found that

the Department had sustained its burden of

demonstrating that plaintiff's performance was

unacceptable. The administrative judge further

found that plaintiff had failed to demonstrate that

he had engaged in protected whistle-blowing

activities, that his termination was related to his

claimed whistle-blowing activities or employment

discrimination activities, tliat he was disabled or

that his termination was related to his alleged

disability. Plaintiff filed a petition for review with

the MSPB. He also filed a claim with the

Department of Labor, raising the same claims as

raised before the MSPB.

Plaintiff then filed a motion with the MSPB

requesting it dismiss both his pending petitions for

review. The MSPB granted his motion, but informed

plaintiff of his deadline for filing any request to re-

file his petitions. Plaintiff later filed an untimely

motion with the MSPB seeking to re-file his petitions

for review. The MSPB denied his motion, finding

that the petitions were untimely filed without good

cause. The MSPB informed plaintiff that his only

right of review was to the Federal Circuit Court of

Appeals. Plaintiff did not file an appeal of the

MSPB’s order, but instead filed a motion for

reconsideration with the Equal Employment

Opportunity Commission (EEOC), which denied the

motion for lack of jurisdiction to review the MSPB’s

order.

Plaintiff then filed his complaint in New

Mexico federal dsitrict court, alleging that he was

denied reasonable accommodations for his claimed

disabilities, in violation of the Americans With

Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189,

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

A-3

and that he suffered adverse employment actions in

retaliation for complaining to the Department’s

EEO office, in violation of Title VII, 42 U.S.C. §

2000e through § 2000e-17. Plaintiff amended his

complaint to further allege that he suffered adverse

employment actions, including his termination, in

retaliation for engaging in whistle-blowing

activities, in violation of 31 U.S.C. § 3730(h) of the

False Claims Act (FCA). Plaintiff later filed another

complaint, which was consolidated with his earlier

complaint, alleging that the Department

intimidated his physicians to prevent him from

receiving treatment, in violation of the ADA and the

Rehabilitation Act.

II. Analysis

A. Discovery Motions

Plaintiff contends the district court erred in

various rulings it made concerning the discovery

process. We review discovery rulings for an abuse

of discretion. See Cole v. Ruidoso Mun. Sch., 43

F.3d 1373, 1386 (10 Cir. 1994). Plaintiff first

argues the district court erred in denying his

motion to compel production of numerous

documents, including documents relating to all of

the Department's firing decisions; the personnel

records of all employees plaintiff suspected of

having any role in his termination; records

pertaining to the Department’s search methodology

in responding to his discovery requests; and

information concerning the Department’s Waste

Isolation Pilot Program. The district court denied

plaintiff's motion to compel, finding that his

requests for production were overly broad, unduly

burdensome and unrestricted by topic and date

and that plaintiff had failed to demonstrate the

relevance or potential relevance of the requested

information. We find that the district court allowed

plaintiff ample discovery and did not abuse its

A-4

discretion in denying plaintiff's motion to compel.

See Munoz v. St. Mary-Corwin Hosp., 221 F.3d1160,

1169 (10 Cir. 2000).

Next, plaintiff argues the district court

erroneously denied his motion requesting it to

accept a 748-page binder of “self-authenticated”

documents. R. Doc. 56. The district court denied

the motion, but explained to plaintiff that he could

reference and attach any documents he viewed as

relevant in seeking or defending against summary

judgement or at trial, and that the Department

could raise any objections at that time. We find no

error in the district court’s order.

B. False Claims Act

The FCA authorizes suit by a private person

who has been discriminated against in his

employment because of his whistle-blowing

activities under the FCA. 31 U.S.C. § 3730(h). The

district court dismissed piaintiffs FCA claim,

however, because the civil remedy provided in §

3730(h) does not apply to federal employees; rather,

as a federal employee, plaintiff's exclusive remedy

for his allegation that he was discharged in

retaliation for whistle-blowing activities is under the

Civil Service Reform Act. See Le Blanc v. United

States, 50 F.3d 1025, 1029-30 (Fed. Cir. 1995); Daly

v. Dep't of Energy, 741 F.Supp. 202, 205-06 (D.Colo.

1990).

Plaintiff claims that the district court’s

dismissal of his FCA claims was in error, but he

does not take issue with its legal conclusion that §

3730(h) is inapplicable to federal employees or that

his exclusive remedy was under the CSRA.

Although plaintiff's argument is hard to follow, it

appears he is arguing that he intended this claim to

be under the Solid Waste Disposal Act, 42 U.S.C.

§ 6971 (SWDA), and that the district court

mischaracterized or disregarded his SWDA claim.

A-5

This argument is without merit. Plaintiff's

complaint clearly raised an FCA claim and he did

not assert any claim under the SWDA. Plaintiff did

attempt to amend his complaint to add claims

under the Clean Air Act and the SWDA after the

close of discovery and after the deadline imposed

by the district court for filing any amended

complaint, but the district court denied his request.

The district court did not abuse its discretion in

denying plaintiff's request for leave to amend his

complaint. See Viernow v. Euripides Dev. Corp.,

157 F.3d 785, 799 (10™ Cir. 1998) (holding that

untimeliness alone is sufficient reason to deny

leave to amend).

C. Rehabilitation Act Claim

Plaintiff amended his complaint to allege

that the Department violated the Rehabilitation Act

and the ADA by requesting medical information

from his physicians and medical providers, which

he claims the Department requested in order to

harass and intimidate his physicians. The district

court granted summary judgement in favor of the

Department, finding no evidence that the

Department’s request was a pretext for

discrimination. Plaintiff contends the district court

erred in dismissing his claim, arguing, incorrectly,

that the ADA prohibits requests for medical

information.

Under the ADA and the Rehabilitation Act,

the employer has the right to request medical

information. See Templeton v. Neodata Servs., Inc.,

162 F.3d 617, 619 (10™ Cir. 1998). The undisputed

evidence demonstrates that the Department

requested this medical information pending

assessment of plaintiff's request for accommodation

due to claimed disabilities. We agree with the

district court that the Department’s request for

medical information was reasonable and that

A-6

plaintiff presented no evidence to support his

speculative allegation that the request was

pretextual. Accordingly, the district court correctly

granted summary judgement in favor of the

Department on this claim.

D. Remaining Disability and Retaliation Claims

The district court dismissed all of plaintiff's

remaining claims that he was denied reasonable

accommodations for his claimed disabilities and

that he suffered adverse employment actions in

retaliation for complaining to the Department’s EEO

office. “[Flollowing an adverse agency decision, the

employee has the option in a “mixed case” complaint

of filing a civil action in the district court rather

than appealing to the MSPB.” Wells v. Shalala, 228

F.3d 1137, 1143 (10™ Cir. 2000); see also Austin v.

Merit Sys. Prot. Bd., 136 F.3d 782, 783 (Fed. Cir.

1998)(explaining that “mixed case” is appeal to

MSPB from adverse personnel action, coupled with

allegations that action was based on prohibited

discrimination). However, only the Federal Circuit

Court of Appeals has jurisdiction to review MSPB

jurisdictional decisions involving mixed claims. See

Wall v. United States, 871 F.2d 1540, 1542-44 (10™

Cir. 1989).

Therefore, to the extent plaintiff sought to

appeal the MSPB’s dismissal of his request for

review as untimely, the district court correctly ruled

that it lacked jurisdiction over plaintiff's claim.

Further, to the extent plaintiff sought to appeal his

mixed case complaint in New Mexico district court,

his complaint was untimely because it was filed

more than a year after the date the decision of the

MSPB’s administrative judge became final. See 5

U.S.C. § 7703(b)(2) (in mixed case, complainant

must appeal MSPB’s decision to district court within

thirty days after receiving notice of judicially

reviewable action).

A-7

On appeal, plaintiff argues that the district

court should have excused the late filing of his

complaint under a “continuing violation” theory or

the doctrine of equitable tolling. Neither theory is

applicable in this case. Because it is clear from the

record that plaintiff was aware of the basis of his

complaints at the time he filed his initial complaint

with the MSPB, he “cannot rely on a continuing

violation theory to avoid the statutory time bar.”

Burlington v. United Air Lines, Inc., 186 F.3d 1301,

1311 (10™ Cir. 1999)(holding that a “continuing

violation claim will likely fail if the plaintiff knew, or

through the exercise of reasonable diligence would

have known, [he] was being discriminated against

at the time the earlier events occurred”). Further,

the doctrine of equitable tolling is not warranted

because neither the Department nor the MSPB

deceived or misled plaintiff regarding the

procedural prerequisites to appealing his claims

nor are there any other extraordinary

circumstances that prevented plaintiff from

asserting his rights. See Mosley v. Pena, 100 F.3d

1515, 1518 (10 Cir. 1996).

The judgement of the United States District

Court for the District of New Mexico is AFFIRMED

and plaintiffs motion for remand is DENIED. The

mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha

Chief Judge

FILED

United States Court of Appeals

Tenth Circuit

NOV 15 2001

PATRICK FISHER

Clerk

A-8

APPENDIX 2

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TOD N. ROCKEFELLER,

Plaintiff-Appellant,

v. Nos. 00-2480 &

01-2054

BILL RICHARDSON, in his (D.C. No. 99-1059

official capacity as Secretary, PJK/KBM)

United States Department of (D.N.M.)

Energy (DOE),

Defendant-Appellee.

ORDER

Filed March 7, 2001

The court reserves judgement on the

jurisdictional issue raised in this court’s show cause

order of December 7, 2000. The matter will be

referred to the panel assigned to hear these appeals

on the merits.

These appeals are consolidated for purposes

of briefing, record and submission. Briefing on the

merits shall proceed in accordance with the

schedule set forth in the Tenth Circuit Rules.

Entered for the Court

PATRICK FISHER,

Clerk of the Court

by: s/Ellen Rich Reiter

Deputy Clerk/ Jurisdictional

Attorney

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APPENDIX 3

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TOD N. ROCKEFELLER,

Plaintiff-Appellant,

v. ‘Nos. 00-2480 &

01-2054

SPENCER ABRAHAM, in his (D.C. No. 99-1059

official capacity as Secretary, PJK/KBM)

United States Department of (D.N.M.)

Energy (DOE), *

Defendant-Appellee.

MOTION FOR REMAND TO TRIAL COURT

COMES NOW Appellant Rockefeller and

moves this Court for the issuance of an Order

granting remand of Appellant’s lawsuit back to Trial

Court for further proceedings to arrive at justice for

Appellee’s alleged retaliations leading to Appellant’s

removal from federal service. Appellee has claimed

that there are no genuine issues of material fact,

and was entitled to summary judgement as a

matter of law. The facts contrary to Appellee’s

claim are set forth in Appellant’s Memorandum in

Support of Motion for Remand to Trial Court filed

herein.

319 Sunnyview St.

Carlsbad, NM 88220

(SOS) 628 - 3541

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TOD N. ROCKEFELLER,

Plaintiff-Appellant,

v. Nos. 00-2480 &

01-2054

SPENCER ABRAHAM, in his (D.C. No. 99-1059

official capacity as Secretary, PJK/KBM)

United States Department of (D.N.M.)

Energy (DOE), *

Defendant-Appellee.

MEMORANDUM IN SUPPORT OF

MOTION FOR REMAND TO TRIAL COURT

For the justifications and explanations which

follow below, the dismissal of Appellant’s lawsuit

was clearly an act of prejudice and bias against him.

Appellee has not and can not controvert the facts of

law below concerning the applicable Solid Waste

Disposal Act (“SWDA”).

I. Background Statement of Facts

1. On September 30, 1997, Appellant filed an

Individual Right of Action (IRA) appeal

with the Merit Systems Proitection Board (MSPB),

concerning his proposed removal from federal

service. In the IRA, Appellant alleged that he was

being fired for whistleblowing. On November 3,

1997, the MSPB issued its Initial Decision.

2. In its Initial Decision, the MSPB had failed

to investigate Appellant’s fourth Equal

Employment Opportunity (EEO) Complaint of

discrimination and reprisals by Appellee. The

MSPB had also claimed that Appellant had not

demonstrated that he was a disabled person

A-11

despite being supplied with letters from three of

Appellant’s doctors. MSPB dismissed Appellant’s

appeal claiming lack of jurisdiction.

3. In December 1997, the Department of

Energy (DOE) terminated Appellant’s employment

for alleged poor performance. (Amended

Complaint, 7 19).

4. Appellant petitioned the MSPB for full

board review of its IRA determination, and before

the Initial Decision concerning his removal became

final, he asked that the MSPB Board stay its

proceedings pending adjudication of similar claims

filed with the Department of Labor(DOL). Appellant

later filed a motion with the MSPB to dismiss his

petitions for review. The MSPB issued an Order

granting Appellant’s motion and requiring that any

petition review be re-filed on or before December

15, 1998, or within 30 days from the date of a final

decision by the DOL, whichever occurred first.

5S. On January 25", 1999, Appellant re-filed

his petitions for review with the MSPB. Appellant

acknowledged that his petitions were untimely, and

asked that the late filing be tolled due to aspects of

his disability being exacerbated by alleged activities

of Appellee.

6. On April 28", 1999, the MSPB issued its

Opinion and Order, finding that the petitions were

untimely, without good cause being shown, and

ordered the dismissal of Plaintiff's petitions.

7. Appellant had felt that it was a mistake to

ever get involved with the MSPB due to their claim

that he was not disabled, no investigation of his

EEO Complaint, no production of a transcript of

the proceedings (violation of 5 U.S.C. § 7701(a)(1))

during the 3/98 hearing, and more. See doc. 58 at

1 thru 8.

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Il. The SWDA Applies to Appellee’s Waste

Isolation Pilot Plant (WIPP) Disposal Site.

8. The WIPP Land Withdrawal Act, Public

Law 102-579, as amended by Public Law 104-201,

outlines requirements and law applicable to the

project. An excerpt of this law is attached as

Exhibit I and demonstrates the applicability of

the SWDA to the WIPP within “Sec. 9.

Compliance with Environmental Laws and

Regulations.”

9. Congress expressed a concern and intent

to regulate and control the activities of Appellee

regarding environmental compliance and safety.

The Federal Facilities Compliance Act of 1992

(FFCAct) was enacted that modified the SWDA (42

U.S.C. 6901 et. seq.). The FFCAct added specific

restrictions and waivers designed to increase the

safety of “mixed” waste (radioactive and hazardous)

that apply to Appellee. Appellee’s disposal site for

this “mixed” waste is the WIPP. Congress went to

the extent of revising the SWDA they way they did

because the Appellee’s safety record is quite

questionable. £.g.: Appellee’s 1/29/99 admission

to the New York Times of decades of worker abuses

resulting in the contamination of 3,000 workers;

Tritium contamination of the drinking water table

surrounding Brookhaven National Lab; and much

more. The Cold War is over, we can start doing a lot

better now for our nation.

~ 10. Congress, therefore, expressly waived

Appellee’s sovereign immunity and required

compliance with all laws which apply towards

management and disposal of theses wastes.

Appellee, in this instant lawsuit, is attempting to

overturn law (SWDA) enacted by the legislative

branch. See 42 U.S.C. § 6961(a) - Exhibit I.

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Ill. The SWDA Waives Appellee’s Sovereign

Immunity

11. Appellee and judge Kelly have avoided

and ignored the SWDA. The claim that: “the civil

remedy provision in the act does not apply to him

as a former government employee” (doc.64 at 3), is

incorrect due to the SWDA’s waiver. Kelly also

claims that:

“The civil remedy provided in 31 U.S.C.

§ 3730(h) does not waive the federal

government’s sovereign immunity.

Such a waiver must be unequivocally

expressed in the statutory provisions,

not implied, see Lane v. Pena 518 U.S.

187, 192 (1996), and the statute contains

not a hint of waiver.” (Doc. 53 at 3).

12. Dismissal of Appellant’s False Claims

Act (FCA) retaliation claims due to alleged lack of

waiver of the sovereign immunity of Appellee

conflicts with the requirements of the SWDA and is

grounds for reversal.

13. Due to the specific references and actual

quotes made of the SWDA requirements by

Appellant (doc.42 at 3,4 and doc. 57 at 3,4), judge

Kelly’s dismissal of this instant lawsuit for the

justifications quoted above demonstrate extreme

prejudice and bias against Appellant:

IV. The SWDA Requires That All Laws,

Concerned With WIPP’s Operation, Apply To

Appellee As They Do To “Any Person” In The

“Same Manner”.

14. The district court attempts to claim that,

only law applicable to federal employees apply to

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Appellee, in this instant lawsuit, such as those

involving the MSPB such as 5 U.S.C. § 7703(b)(2)

(doc. 64 at 6) to eliminate the application of the

equitable tolling doctrine. This assertion conflicts

with the requirements of the SWDA. See 42 U.S.C.

§ 6961 (a) - Exhibit I.

15. Appellee or the district court have not

once addressed any of the requirements of the

SWDA. Instead, Appellee only comes up with

irrelevant arguments and case law citations which

have no beaying on the requirements of the SWDA.

Judge Kelly has supported Appellee’s irrelevant

arguments which is grounds for the reversal of the

10/23/00 Order (doc. 64).

V. Judge Kelly Improperly Dispelled 748

Pages of Relevant Admissible Evidence.

16. Appellant had become aware of

another case in the same Court with the same

Defendant as this instant Complaint where evidence

was attached to the Plaintiffs response

defending against dismissal, and this evidence was

dispelled because it was not properly

authenticated. See Marlene Flor v. Hazel O'Leary,

CIV 93-1343 JC/WWD (USDC Dist. of NM). Due to

gaining this knowledge, Appellant went to great

lengths to properly authenticate his evidence which

was intended to be used to defend against his

lawsuit’s dismissal. E.g.: 35 notarized Certificates of

Acknowledgment in total were prepared in

accordance with Fed.R.Evid. 902 (8). See Exhibit IZ

for 2 of 35.

17. A motion by Appellant for the Court to

accept self-authenticated evidence into the record

was filed on 10/4/00 (doc. 56). The Court Clerk

filed this evidence (100 pages or so) and sent the

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chamber copy to the judge. On Thursday

10/19/00 the Court filed a response by Appellant

(doc. 58) to Appellee’s motion for partial s

judgement along with about 650 additional pages of

self-authenticated evidence to defend his lawsuit

against dismissal.

18. Appellee telephoned Appellant shortly

after he received this additional evidence (the same

day it was received by the Court, 10/19/00) and

asked Appellant if he had filed it with the Court.

Appellant informed Appellee that the evidence had

been properly filed with the Court. Appellant also

subsequently served upon Appellee a Request for

Admissions of the Authenticity of all of the self-

authenticated evidence (doc. 61) ( 748 pages in

total with over 500 pages (specified to each page)

where the originals were in possession of Appellee).

19. With only one work day from when the

Court in Albuquerque received the balance of the

self-authenticated evidence (Thursday 10/19/00),

judge Kelly issued an Order (doc. 59) on Monday

10/23/00 denying the motion to include this

evidence.

20. This 10/23 Order (doc. 59) claims that

Appellant was “seeking to have them (documents)

incorporated into the record under Fed.R.Evid.

1004(3).” (doc. 59 at 5) This representation is not

true. Appellant’s numerous explanations of the

relevance of this evidence within his motion above

(doc. 56) and further specific explanations of

relevance within his response to defend against the

dismissal of his lawsuit have NOT been

controverted (25 numbered examples in left

margins, see Exhibit II )(emphasis added).

21. The requirements of Fed.R.Evid. 401

and 402, therefore, apply due to uncontroverted

facts within doc.58 supporting the relevance of

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ee

Appellant’s self-authenticated evidence. Rule 402

specifies that all relevant evidence is admissible.

Judge Kelly has apparently excluded admissible

evidence for the purpose of exercising extreme bias

and prejudice against Appellant in the dismissal of

his lawsuit. This action should be reversible.

22. Judge Kelly has used a spurious claim

concerning Fed.R.Evid. 1004(3) to attempt to

override the specific explanations of the relevance of

the evidence, described above, to improperly exclude

Complainant’s self-acknowledged evidence. In

addition, judge Kelly also states within his

10/23/00 Order above (doc. 59) that:

“Mr. Rockefeller may reference and

attach documents he views as

relevant in seeking or defending |

against summary judgement... ., |

and the government can raise any

objections, including authenticity.”

See doc. 59 at 5.

This representation is knowingly false.

Appellant’s response attempting to defend “against

summary judgement” had already been filed on

10/19/00 (doc. 58) with 25 references to attached

“relevant” documents (emphasis added). This is

reversible error of law. See Exhibit II

23. Oddly enough, the Court Clerk also

returned all of the evidence above (including

the evidence that was previously filed on 10/4/00)

to Appellant on Thursday 10/19/00. This is the

same day that Defendant had telephoned

Complainant and had asked if the evidence |

had been filed with the Court. This, along with

the 10/23 Order above suggest that ex parte

communications may have been taking place

between Defendant, Court Clerk, and Kelly.

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VI. Judge Kelly Violated D.N.M. LR-Civ. 10.3(c)

and 41.2

24. Rather than to object to the

explanations of the relevance of the self-

authenticated evidence or attempt to controvert the

associated material facts, both Appellee and judge

Kelly chose to exert efforts to exclude this evidence

improperly. Their claim is that Appellant failed

to specifically controvert the material facts of the

movant or Appellee. They both claim that Appellant

admitted to the “uncontroverted material facts”

within Appellee’s motion described above (doc. 54)

to justify his lawsuit’s dismissal.

25. Judge Kelly claimed that: “Plaintiff has

not complied with D.N.M. LR-Civ.56.1.. .”

See doc. 64 at 2.

26. While Appellant did not provide

numerals on the left side of the pages of his

response to controvert Appellee’s alleged material

facts, he did refer by number to “4 5 of Motion for

Judgement.” Also there were “four numbered

alleged areas of “undisputed material facts”

within this referenced paragraph of Appellant’s

response addressed as “first”, “second”, “third”,

and “fourth” further down. See Exhibit II at 1, 3,

6, & 7. In addition, Appellant actually exceeded

the requirement of D.N.M. LR-Civ.56.1 in one

respect by quoting the exact words of the Appellee’s

alleged areas of “undisputed material facts” to

specifically controvert them. See again Exhibit III

at 1, 3, 6, & 7.

27. Appellant admits that the format of his

response referenced directly above (doc. 58)

is not in a convenient or standard form. It is a

“Non-Conforming” paper (D.N.M.LR-Civ10.3(c)).

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28. Judge Kelly did not have a “Notice of

deficiency and deadline for correcting the deficiency”

sent to Appellant as D.N.M. LR-Civ.10.3(c) & 41.2

require. Rather than comply with these local rules,

Kelly dismissed with prejudice Appellant’s “Non-

Conforming” papers without affording Appellant the

required 45 day period to allow corrections to be

made. Kelly went as far as violating a local

rule of law himself to apply prejudice

towards Appellant. It is alleged that this was the

only means available for Kelly to assist Appellee in

having Appellant’s’s lawsuit dismissed.

29. Please examine Exhibit III. There are

25 specific explanations of the relevance of

Appellant’s evidence presented to the Court. On the

left margin, hand written numerals within circles

are applied next to the line where each such

explanation is to be found ( 1 thru 25). This will

provide an indication of why Appellant’s evidence

had to be improperly eliminated, clearly

demonstrating prejudice to prevent the Court from

finding justice. |

30. When considering a motion for summary

judgement, the court must examine all the evidence

in the light most favorable to the non-moving party.

See Jones v. Unisys Corp., 54 F.3d

624, 628 (10 Cir. 1995); Adikes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970). Judge Kelly has

allegedly violated D.N.M. LR-Civ.10.3(c) & 41.2 to

avoid examining any of Complainant’s evidence.

VII. The Equitable To Applies

to this Lawsuit. “

31. Appellant had thoroughly detailed a well "

founded basis for the application of equitable f

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tolling with numerous specific references to

attached evidence, six applicable 10 Cir. case law

citations and one from the U.S. Supreme Court.

See doc. 58 at 9 - 12.

32. Appellee claims that Zipes v. Trans

World Airlines, Inc., 455 U.S. 385; 102 S.Ct. 1127

(1982), does not apply to this lawsuit due to

Appellant’s appeal to the MSPB. See doc. 60 at 2.

33. Appellee is mistaken due to the

applicable waivers of the SWDA which require that

all laws that are related to hazardous and mixed

waste management and disposal apply including

all employee protection provisions, not just those

that apply to federal employees.

34. Appellee is.again attempting to reply as

if the SWDA conveniently does not exist. Appeliee is

wrong. Appellee’s attempt to eliminate the

application of the equitable tolling doctrine from

this particular lawsuit is bogus. The claims which

Appellee makes would have merit possibly if the

SWDA did not apply, but that is not the case.

35. Appellant Specifically referenced nine

exhibits of relevant admissible evidence concerning

the applicability of the equitable tolling doctrine to

this lawsuit. It is alleged that this evidence was so

incriminating to Appellee, that it had to be

improperly eliminated from the record of this

lawsuit as described above.

36. What is bizarre and quite frankly

nonsense is judge Kelly’s comment or claim that

Appellant should have known, during December of

1997, that his rights were going to be violated

concerning alleged Blacklisting that would take

place during September of 1999. See doc. 64 at 7.

37. Remember that the alleged continuing

violation is concerning 1999 Blacklisting

subsequent to Appellant’s employment with

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Appellee. See doc. 58 at 10, 11. How is Appellant

supposed to be aware “of the basis of his

complaints” of Blacklisting in 1999 by “previously”

filing an “IRA” appeal during December of 1997, two

years before ? This sounds as if Judge

Kelly may have lost touch with reality. Appellant

does not possess the power to know what is

going to occur two years in the future (emphasis

added). Appellant is not some kind of spaceman.

VIII. Appellant’s Constitutional Rights Have

Been Violated.

38. All of these matters specifically described

above very seriously violate Appellant’s

U.S. Constitutional rights. It is alleged that the

circumstances above have violated Appellant’s

right of Free Speech due to his punishment for

objecting to Appellee’s disregard for safety.

E.g.: Appellant’s review and report outlining a

design failure of Appellee’s RH-72B nuclear

waste shipping cask resulting in compromise of

the cask’s Radioactive Containment Seal

representing a severe danger to public safety.

39. Complainant’s right of Due Process of

law has been violated by Kelly’s improper

exclusion of relevant admissible evidence.

40. As a result of the improper exclusion of

evidence, Complainant has been denied his right of

a Trial by Jury.

41. All of the above have denied Complainant

of his right of Equal Protection under the law.

42. These alleged actions of Kelly and

Appellee represent a very serious internal threat

to the democracy of this nation from both its

executive and judicial branches.

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43. As U.S. Supreme Court Justice

Brandeis said:

“In a government of laws the existence

of the government will be imperiled if

it fails to observe the law scrupulously.

Our government is the potent, the

omnipotent teacher. For good or ill it

se the whole — by its example:

en whbreaker it

re nen ea a Se

Appellee was contacted and opposes this

motion.

IX. Prayer for Relief

The only crime that Appellant is guilty of is

being honest and concerned for the safety of others.

Several errors of law have been made in the

dismissal of Appellant’s lawsuit as described above.

There are numerous genuine issues of material fact

that are detailed within the 748 pages of self-

authenticated evidence which were improperly

excluded from this case. This, along with possible

false representations, and equitable tolling

represent grounds for reversal of the dismissal of

this lawsuit.

Appellant prays that this Court will restore

his Constitutional rights by remanding this case

back to a Trial Court along with an Order to restore

his relevant and admissible evidence to this case’s

record. A fair jury trial is necessary to decide

where the truth lies and arrive at justice.

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In accordance with 28 U.S.C. § 1746 and

18 U.S.C. § 1001, I declare under penalties of

perjury that the above statements are true and

correct to the best of my knowledge,

information and belief.

Dated: March 3™, 2001

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

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AFFIDAVIT OF SERVICE

Tod N. Rockefeller, being duly sworn, states that he

mailed the foregoing Motion to:

Patrick Fisher, Clerk

U.S. Court of Appeals - 10" Circuit

Office of the Clerk

The Byron White U.S. Courthouse

1823 Stout Street

Denver,CO 80257

Michael Hoses, Ass't U.S. Attorney

U.S. Dept. of Justice

Office of the U.S. Attorney

District of New Mexico

P.O. Box 607

Albuquerque, NM 87103

with sufficient first class postage attached thereto

on this 3" day of March, 2001.

s/Tod N. Rockefeller

Subscribed and sworn to before me this 3™ day of

March, 2001.

s/Cathy D. Hensley

Notary Public

My commission expires: 2-24-2003

SEAL:

CATHY D. HENSLEY

NOTARY PUBLIC

STATE OF NEW MEXICO

A-24

EXHIBIT I to Appendix 3

The relevant portions of this exhibit contain

the following:

From the U.S. Code Online via GPO access

[Laws in effect as of Jan. 6, 1999]

Title 42 - The Public Health and Welfare

Chapter 82 - Solid Waste Disposal [Act]

Subchapter IV - Federal Responsibilities

Sec. 6961. Application of Federal, State, and

local law to Federal Facilities

(a) In general

Each department, agency, and

instrumentality of the executive, legislative, and

judicial branches of the Federal Government (1)

having jurisdiction over any solid waste

management facility or disposal site, or (2)

engaging in any activity resulting, or which may

result, in the disposal or management of solid waste

or hazardous waste shall be subject to, and

comply with, ALL Federal, State, interstate, and

local requirements, both substantive and

procedural (including any requirement for permits

or reporting or any provisions for injunctive relief

and such sanctions as may be imposed by a court to

enforce such relief, respecting control and

abatement of solid waste or hazardous waste

disposal and management in the same manner,

and to the same extent, as any person is subject

to such requirement... The United States

hereby expressly waives any immunity otherwise

applicable to the United States with respect to

any such substantive or procedural requirement

(including, but not limited to, any injunctive relief,

administrative order or civil or administrative

penalty or fine referred to in the preceding sentence,

or reasonable service charge).

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iia!

PUBLIC LAW 102-579

THE WASTE ISOLATION PILOT PLANT (WIPP)

LAND WITHDRAWAL ACT

as amended by Public Law 104-201

Section I. Short Title; Table of Contents

(a) Short Title - This Act may be cited as the

“WIPP Land Withdrawal Act”.

(b) Table of Contents -

Sec. 1 Short title; table of contents.

Sec. 2 Definitions.

Sec. 3 Land withdrawal and reservation for WIPP.

Sec. 9 Compliance with environmental laws and

(a) In General -

(1) Applicability - Beginning on the date

of the enactment of this Act, the Secretary (U.S.

Dept.of Energy] shall comply with respect to

WIPP, with -

(A) the regulations issued by the Administrator .. .

(B) the Clean Air Act (40 U.S.C. 7401 et esq.);

(C) the Solid Waste Disposal Act (42 U.S.C.

6901 et seq.);...

(d) Savings Provision - The authorities

provided to the Administrator and to the State

pursuant to this section are in addition to the

enforcement authorities available to the State

pursuant to State law and to the Administrator, the

State, and any other person, pursuant to the

Solid Waste Disposal Act (42 U.S.C. 6901 et seq.)

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EXHIBIT II to Appendix 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

Plaintiff,

v.

BILL RICHARDSON, in his No. 99-1059

official capacity as Secretary, PJK/KBM

United States Department of

Energy (DOE),

Defendant.

EVIDENCE OF ALLEGED UNLAWFUL REMOVAL

OF PLAINTIFF FROM FEDERAL SERVICE

ON 12/10/97

_ EXHIBITS ADA-1 THRU ADA-25

Index of Exhibits

ADA-1: Tod Rockefeller U.S. Government

Working Career.

ADA-2: Prior High Performance Ratings.

ADA-3: Chronology of Events (Reprisals) /

Congressional Inquiries to the DOE.

ADA-4: Nature of Disabilities - Narrative,

Head Injury: The Facts & Excerpts of

8/97 Neuropsychological Evaluation.

ADA-S5: Equal Employment Opportunity (EEO)

First Complaint dated 5/2/97 (EEO-I)

ADA-6: EEO-II, dated 6/4/97.

ADA-7: EEO-II, dated 8/9/97.

ADA-8: EEO-IV, dated 12/5/97.

ADA-9: EEO Investigator’s Memorandum &

Various EEO Correspondence.

ADA- 10: EEO Investigation Affidavits of DOE -

G.Dials, E.K. Hunter, R. Garcia.

A-27

ADA-11:

ADA- 12:

ADA-13:

ADA- 14:

ADA- 15:

ADA- 16:

ADA-17:

ADA- 18:

ADA- 19:

ADA-20:

ADA-21:

ADA-22:

ADA-23:

ADA-24:

ADA-25:

EEO Investigation Affidavits of

Plaintiff.

EEO Counselor’s Report.

Reasonable Accommodation Request

Denial.

Candidate Selection Record - Vacancy

Announcement, AL-03-97 - Carlsbad

Area Office Transportation Manager.

Failing 95/96 Annual Performance

Appraisal (PA).

Formal Grievance Elaboration, dated

12/13/96 (failing 95/96 PA).

A Guidebook to DOE-AL’s

Performance Management Excerpt.

Performance Improvement Plan (PIP),

dated 4/8/97.

PIP Performance Evaluation, dated

8/12/97.

96/97 Failing Annual PA & 96/97

Performance Element Synopsis, dated

6/30/97.

Notice of Proposal for Removal, dated

9/2/97.

Request for Personnel Action & Notice

of Decision to Remove, dated

12/9/97.

T. Rockefeller PIP Materials, dated

10/95 - N/G per DOE.

Plaintiffs Rebuttal of DOE 8/12/97

PIP Performance Evaluation, dated

3/17/98.

DOE / Westinghouse Environmental

Violations / WIPP RCRA Permit

Violations.

A-28

ANOW LE

Rule 902 (8)

The following 558 pages are true and correct

copies of documents which are related to Tod N.

Rockefeller’s federal working career and his

12/10/97 removal from federal service. Some of the

government documents contain underlining and

notes applied, but the original content of all of these

documents remains intact. These documents are

organized into “Exhibit ADA-1" thru “ADA-25".

s/Tod N. Rockefeller Date: 9/29/00

ACKNOWLEDGMENT

STATE OF NEW MEXICO )

\SS

COUNTY OF EDDY )

The foregoing instrument was acknowledged before

me this 29" day of September, 2000, by Tod

Rockefeller.

s/Cassandra Marshall, Notary Public

My Commission expires: March 7, 2004

Seal: CASSANDRA MARSHAL

NOTARY PUBLIC

STATE OF NEW MEXICO

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CERTIFICATE OF ACKNOWLEDGMENT

Per Rule 902 (8)

The following 18 pages are true and correct

copies of documents concerning the federal working

career of Tod N. Rockefeller which will be referred

to as “Exhibit ADA-1".

s/Tod N. Rockefeller Date: 9/29/00

ACKNOWLEDGMENT

STATE OF NEW MEXICO )

)SS

COUNTY OF EDDY )

The foregoing instrument was acknowledged before

me this 29" day of September, 2000, by Tod

Rockefeller.

s/Cassandra Marshall, Notary Public

My Commission expires: March 7, 2004

Seal: CASSANDRA MARSHAL

NOTARY PUBLIC

STATE OF NEW MEXICO

A-30

EXHIBIT III to Appendix 3

(the large bold numbers on left refer to the 25

examples of the relevance of Plaintiff's evidence)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

Plaintiff,

Vv. No.

99 -1059

BILL RICHARDSON, in his official PK/KBM

capacity as SECRETARY, UNITED

STATES DEPARTMENT OF

ENERGY (DOE),

Defendant.

me Net Ne Ne Ne ee ee ee ee

RESPONSE TO DEFENDANT'S MOTION

FOR PARTIAL SUMMARY JUDGEMENT

Defendant served, on 9/29/00, a

Motion for Partial Summary Judgement (henceforth

“Motion for Judgement”). Within the Motion for

Judgement Defendant lists four numbered alleged

areas of “undisputed material facts”. See ¢ 5 of

Motion for Judgement. Contrary to Defendant’s

claim, these findings of the Merit Systems Protection

Board (“MSPB”) have never yet been subject to

Plaintiff's challenge of their merits, but such follows

below.

The first claim that “the Department

of Energy (“DOE”) had sustained its burden of

demonstrating that Plaintiff's performance was

unacceptable” is without merit. During the 3/98

hearing, pursuant to Plaintiff's 12/29/97 appeal to

the MSPB of his termination, he read (word

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1 for word) a document which he had prepared for

this hearing dated 3/17/98. See Exhibit ADA-24

within Evidence of Alleged Unlawful Removal of

Plaintiff from Federal Service on 12/10/97

2 (henceforth “Exhibits ADA-1 thru ADA-25").

This document describes eight “Issues” which

total 52 instances or claims by Defendant of

Plaintiff's “poor performance” that are clearly

without merit. This is especially so when the

3 labeled evidence enclosed within this exhibit is

examined for each “Issue”. The DOE did not

respond with any specific rebuttals during the 3/98

hearing, but only with general representations. In

addition, numerous alleged knowingly false

statements and representations were made by

Defendant. For example, within Issue II the DOE

claimed my “poor performance” was due to a

“poorly written report” (which is demonstrated not ~

4 to be so within the attached evidence), but it

is explained that the DOE itself has provided

evidence of the contrary. The only element within

Plaintiffs 23 element Performance Improvement

Plan (“PIP”) that he received a satisfactory rating for

was “Element 21" which was: “Written

communication is clear, accurate, and concise.”

Next, for Issue IV the DOE claimed that

Plaintiff produced “goal statements” devoid of

“identifying key / critical elements for program

DEVELOPMENT and ENHANCEMENT.”

5S See Plaintiff's attached letters for this Issue IV

dated 6/12/97 and 6/18/97. The 6/18 letter

describes “three new Contract Deliverables”

Plaintiff had included within the 6/12 document to

“ENHANCE the completeness’, “and

DEVELOPMENT” of his programs. Plaintiff

concentrated for a time on this Issue during the

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3/98 hearing. Plaintiff had cross-examined his

former DOE supervisor, Mr. Kent Hunter, and had

presented copies of both documents above to him

and asked him if he recalled receiving them. Mr.

Hunter recognized the documents and responded

that “yes” he had received them. This still is

incredulous to Plaintiff that Defendant DOE had

used his own words within this particular claim of

his “poor performance” (emphasis added). The

MSPB ignored this point of Plaintiff's rebuttal of his

alleged “poor performance” and numerous others.

The MSPB had acted as the DOE’s de facto defense

attorney concerning Plaintiffs 12/29/97 appeal of

his termination. Plaintiff also forwarded: “Motion

Requesting Disqualification of Judge Seaman from

my Case”, dated 11/19/97 concerning an earlier

appeal. Plaintiff filed “this Motion in accordance

with 5 C.F.R. 1201.42 (b) & (c) due to the absence of

“Findings of fact and conclusions of law upon all of

the material issues of fact and law presented .. .” “

The MSPB judge ignored Plaintiff's Motion

(emphasis added). In addition, the MSPB did not

have a transcript made of the 3/98 hearing which is

in violation of 5 U.S.C. § 7701 (a) (1). After Plaintiff

received notice of the MSPB’s alleged findings, he

knew why no transcript was produced.

Plaintiff can not detail each of the alleged

false statements and representations made by the

DOE concerning his alleged “poor performance” due

to space limitations and their number. Plaintiff

6 requests that this Court review Exhibit ADA-

24 until it is satisfied that there are genuine

material issues of fact questioning Plaintiff's alleged

“poor performance”. There are numerous such facts

within this exhibit supported by attached

documented objective evidence to preclude

summary judgement. See Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202,

106 S.Ct. 2505 (1986); Madison v. Deseret

Livestock Co., C.A. 10", 1978, 574 F.2d 1027.

Also, a court cannot try issues of fact on a Rule 56

motion but only is empowered to determine

whether there are issues to be tried. See

Frohmader v. Wayne, C.A. 10", 1992, 958 F.2d

1024, 1027; Finlay v. Union Pac. R. R. Co., D.C.

Kan. 1946, 6 F.R.D. 284.

The second claim of the MSPB was that:

“Plaintiff failed to establish that his termination

was in retaliation for prior EEO activities.” See

Plaintiffs Amended Complaint at J 17: “Two days

after the DOE’s EEO Counselor initiated contact

with Mr. Rockefeller’s supervisor, . . .”, Plaintiff was

placed on a Performance Improvement Plan (“PIP”).

A federal employee can not be terminated normally

without first being placed on a PIP. Plaintiff was

placed on this PIP on 4/8/97 which was five ‘

months late after receiving failing ratings on

11/12/96, which will be explained below. This

extremely late PIP, and additional factors,

demonstrates pretext. The PIP was indeed

Defendant’s intent to remove Plaintiff almost

immediately after contact from his EEO Counselor.

The delay of Plaintiff being placed on the PIP

during 4/97 and his removal on 12/10/97 bears

upon several factors related to the DOE’s initial

4/97 intent to remove him. There are several

issues which complicated Plaintiff's removal. First

7 is examination of Exhibit ADA-24 which

demonstrates the DOE’s difficulty in establishing a

case for Plaintiff's removal. The same reasoning is

why Defendant found it difficult to justify and

formulate his PIP. This is why the PIP was five

months late (emphasis added). Secondly, on three

separate occasions Defendant has made attempts

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to have Plaintiff subjected to mental testing.

Defendant has a history of using mental testing in

retaliations against employees in attempts to build

cases against these employees. See Mathew L.

Wald: Retribution Seen in Atom Industry - 4 Who

Cited Safety Say They Were Told to See Therapists”,

New York Times, 8/6/89 at 1. Also, the case ofa

former DOE contractor employee Sherrie Graham

Farver who was subjected to mental testing is

another example of many. The C.A. of Tennessee

ruled in Ms. Farver’s favor, Case No. E1999-01840-

COA-R3-CV, decided 6/23/00.

Thirdly, the DOE had an investigation

performed concerning Plaintiff's first three EEO

Complaints during 10/97. The DOE investigation

affidavits are filled with alleged knowingly false

statements and representations. For clear

8 documented evidence of this see Exhibit

ADA-11. Two examples of the DOE’s knowingly

false statements are representations of Plaintiffs

former supervisor, Mr. Kent Hunter, within Exhibit

9 ADA-10. First, “. . ., there is no requirement

that a PIP be issued before or after an employee gets

a failing rating.” This representation is knowingly

10 false (emphasis added). See Exhibit ADA-17.

As stated above Plaintiff's PIP was FIVE MONTHS

LATE after the 11/96 failing ratings, but issued

TWO DAYS after contact with the EEO Counselor.

Second, is the statement: “He has been a poor

performer since he first came to the Waste Isolation

Pilot Plant (“WIPP”) Project four years ago.”

11 See Exhibit ADA-2, especially the 10/13/94

letter of the DOE WIPP Deputy Manager issued

directly upon Plaintiff's specific request to this

manager (Plaintiffs complaint of average ratings for

his exceptionally high performance).

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Finally, Plaintiff was removed on 12/10/97

which was only six weeks before Defendant made a

public Record of Decision (“ROD”) on 1/23/98 that

WIPP was ready to safely transport nuclear waste to

the Site for disposal. Plaintiff clearly had to be

terminated before this ROD could be made due to

his review and identification of the unsafe WIPP

RH-72B shipping cask due to design failures that

12 his review had uncovered. See Exhibit ADA-

25a and Exhibit CX-18. The design failure and

safety issues of the RH-72B shipping cask have

never been corrected or rebutted to the best of

Plaintiffs knowledge, information, or belief.

Both the issue of Plaintiff's PIP two days after

protected EEO activity and his termination

six weeks prior to the issue of Defendant’s WIPP

Safe Transportation ROD, which was related to his

whistleblowing concerning an unsafe DOE WIPP

nuclear waste shipping cask, are clear

establishments of causation for Plaintiffs

termination. Compare Ramirez v. Oklahoma Dept.

of Mental Health, 41 F.3d 584, 596 (10 Cir. 1994)

(one and one-half month period between protected

activity and adverse action by itself, establish

causation) with Richmond v. ONEOK, Inc., 120

F.3d 205, 209 (10™ Cir. 1997) (three month period,

standing alone, is insufficient to establish

causation). Within this instant Complaint (99-

1059), there is a significant amount of additional

evidence described above besides the close

temporal relations to establish causation for the

Defendant’s adverse employment actions. See

Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10

Cir.), cert. denied, 135 L.Ed. 2d 1071, 116 S.Ct.

2552 (1996); Burrus v. United Telephone Co., 683

F.2d 339, 343 (10 Cir. 1982), cert. denied, 459

U.S. 1071, 74 L. Ed. 2d 633, 103 S.Ct. 491 (1982);

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No. 96 C 3439 (N.D. IIl.

Contreras v. Suncast Corp.,

Sept. 19, 1997); Schumacher v. Souderton Area

School District, 2000 WL 72047 (E.D. Pa. Jan. 21,

2000); Christou v. Hyatt Regency - O'Hare, No. 96 C

2493 (N.D. Ill. Mar. 3, 1998); Whitfield v.

Pathmark Stores, Inc., No. Civ. A. 96-246 MMS

(D.Del. June 22, 1998); Parker v. Sony Pictures

Entertainment, Inc., 19 F. Supp. 2d 141 (S.D. N.Y.

1998).

of the MSPB was that:

“Plaintiff failed to establish that his termination was

related to alleged whistleblowing.” Relative to

rebutting this claim is the situation with the RH-

72B shipping cask and the Defendant’s ROD

described above. In addition, within Plaintiffs

4/18/96 Review of the safety report for the RH-72B

cask are 13 unresolved safety issues which were

pointed out with expert suggested resolutions. E.g.:

resolutions concerning metallurgy.

13 See Exhibit ADA-25a, Attachment A-1. This

cask’s safety report, to be approved by the Nuclear

Regulatory Commission (“NRC”), was a WIPP

Disposal Decision Plan (“DDP”) milestone. For

Plaintiffs complicated, highly technical, and expert

review of this cask’s safety report, he received failing

performance appraisal ratings for that rating

period. This is additional evidence of Defendant’s

pretext for adverse employment actions for Plaintiff's

whistleblowing contrary to the claim above.

of the MSPB was that:

“Plaintiff failed to establish that he was a disabled

person...” Within 29 C.F.R. Appendix to Part 1630

is found guidance concerning the definition of the

term of a person with a “disability”. This guidance

applies to both Title I of the Americans with

Disabilities Act (“ADA”) and Section 504 of the

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Rehabilitation Act. Within the Appendix to Part

1630 it is stated:

“An individual is considered to have a

“disability” if that individual either (1)

has a physical or mental impairment

which substantially limits one or more

of that person’s major life activities,

(2) has a record of such an impairment,

or, (3) is regarded by the covered entity

as having such an impairment.”

Plaintiff had included complete copies of his

first four EEO Complaints within his 12/29/97

appeal of his termination to the MSPB. See

14 ~—s Exhibits ADA-5 thru ADA-8. As in

15.‘ Exhibit ADA-5, each EEO Complaint

contained a seven page “Attachment A” which

included letters from three doctors describing

Plaintiffs disabilities dating back to 1989, among

other information. Plaintiffs EEO Complaints

satisfied both of the first two parts of the regulatory

definition of a person with a “disability”. In

addition, within the sworn affidavit of Plaintiff's

former DOE supervisor, Mr. Kent Hunter, that was

part of the 10/97 Investigation of Plaintiffs first

three EEO Complaints is additional evidence. This

EEO Investigation file was part of Plaintiffs

12/29/97 appeal to the MSPB. Mr. Hunter stated

in his affidavit: “I believe he does have a severe

memory problem...” This satisfies the third part

of the regulatory definition of “disability” above.

Plaintiff was “regarded by” Defendant “as having

such an impairment”. Plaintiffs 12/97 MSPB

appeal record therefore contained evidence of his

satisfying ALL THREE elements of the definition of

being considered as disabled where satisfaction of

only ONE of these elements is required (emphasis

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added). Despite all of this evidence, the MSPB

judge ruled that Plaintiff had “failed to establish that

he was a disabled person .. .” ?

In addition, neither Defendant or the MSPB

ever performed an investigation of Plaintiffs fourth

EEO Complaint (“EEO-IV”) of discrimination and

retaliations (DOE Case No.98(022)AL). See CIV 00-

0652 JC FF 13, 14 (consolidated with 99-1059 PK/

16 KBM); and Exhibit ADA-8. The failure to

investigate EEO-IV is a violation of 29 C.F.R.

1614.102 (c)(5). This is significant additional

evidence of the allegation that the MSPB judge was

indeed acting as a de facto DOE defense attorney.

Plaintiff was deposed by Defendant on

8/24/00 and Plaintiff received the transcript of his

deposition on 9/27/00. Piaintiff has until

10/27/00 to read, make corrections, and sign this

transcript. Defendant is very well aware of this, yet

has included an excerpt of such transcript

prematurely. Plaintiff has not yet had time to review

this transcript in its entirety, but the excerpt

enclosed with the Defendant’s Motion for

Judgement does require revision concerning both

doctors Hollingsworth and Daugherty. This

transcript is premature and the excerpt and the

comments made by Defendant must be temporarily

stricken from the record for this case.

There are numerous genuine issues of

material fact which Plaintiff has clearly outlined

above with convincing documented objective

evidence of support referenced and included.

Because the impact of a successful motion for

summary judgement is so drastic, this Court

should consider taking this measure cautiously.

See Associated Press v. U.S., 1945, 65 S.Ct. 1416,

326 U.S. 1, 89 L.Ed. 2013; Yuba Goldfields, Inc., v.

U.S., C.A. Fed. 1983, 723 F.2d 884.

A-39

Plaintiff prays that this Court will be reluctant to

grant Defendant’s Motion for Judgement because

this case is far from being clearly favorable to

Defendant. See Bayou Bottling, Inc. v. Dr. Pepper

Co., D.C. La. 1982, 543 F.Supp. 1255, affirmed

C.A. 5", 1984, 725 F.2d 300, certiorari denied, 105

S.Ct. 123, 469 U.S. 833, 83 L.Ed. 2d 65.

the

Defendant makes three arguments

first is that: “This Court Lacks Jurisdiction

Because Plaintiff's Judicial Complaint is Untimely.”

Defendant also claims that the thirty day period to

file an appeal of an MSPB decision is jurisdictional.

Plaintiff will outline below alleged continuing

violations of Defendant towards Plaintiff. The

United States Supreme Court has ruled that:

“.. filing a timely charge with the Equal

Employment Opportunity Commission

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

not a jurisdictional prerequisite to suit

in federal court, but a requirement that,

like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling ...”

See Zipes v. Tr rid Airlines, Inc.,

455 U.S. 385 (1982).

The Tenth Circuit has ruled that “the

Continuing Violation theory is an equitable tolling

doctrine .. .” See Patricia Baty v. Willamette

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

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

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

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

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

1994) ).

Plaintiff filed a Petition for Review with the

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

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subsequently a motion to dismiss his petition for

Board review without prejudice until December 15,

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

decision by the DOL, whichever occurred first,

which was granted. Plaintiff re-filed his petitions

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

dismissal without prejudice (41 days late). This

untimely filing is subject to equitable tolling of the

continuing violation doctrine as outlined above.

To benefit from the continuing violation

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

related acts taken against a single individual, one or

more of which falls within the limitations period or

(2) the maintenance of company-wide policy of

discrimination both before and during the

limitations period which evidences a pervasive

institutionalized system of discrimination. See

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

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

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

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

Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10™

Cir. 1987)).

With respect to the first option above, the

Tenth Circuit has set forth several nonexclusive

considerations to help determine whether the

alleged incidents of discrimination constitute a

continuing violation or are discrete unrelated acts:

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

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

Subsequent to his removal on 12/10/97

Plaintiff had sought employment with no success.

Plaintiff knows that there is significant competition

for very few jobs in Southern New Mexico. Due to

this fact and the absence of any solid evidence,

Plaintiff had no reasonable basis for filing a

complaint against Defendant due to his rights

A-41

being violated. See Galloway v. General Motors

Service Parts Operations, 78 F.3d 1166 (7™ Cir.

1996); Hardin v. S.C. Johnson & Son, Inc., 167

F.3d 340, 344 (7 Cir. 1999); Huckabay v. Moore,

142 F.3d 233 (5™ Cir. 1998).

Up to and after the period of delay

(12/15/98 to 1/25/99) for Plaintiff to re-file his

petitions to the Board, Plaintiff had no reasonable

basis to assume that his rights were being violated

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

Plaintiff learned that the Carlsbad Environmental

Monitoring and Research Center (“CEMRC’”),

funded by the Defendant, had hired an individual

who had no college degree for a job that Plaintiff

had applied for. Plaintiff received a notice from

CEMRC that he would not be hired only a couple of

weeks before the individual with no college degree

was hired. Plaintiff had more than seven years of

experience and a graduate degree that were directly

related to the CEMRC job. Plaintiff then became

very aware that his rights were allegedly being

violated by Defendant in the same manner as when

he had been an employee of Defendant. E.g.: his

character and abilities were being attacked to effect

his employment. Plaintiff applied for many jobs,

with the vast majority of the prospective employers

not expressing any interest in hiring Plaintiff

despite his high educational level and very broad

range of experience.

Plaintiff had applied for three jobs during the

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

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

1 Blac

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

Continuing Violation satisfies the first option above

of “a series of related acts taken against a single

individual” and also satisfies the three

A-42 :

“nonexclusive considerations” set by the Tenth

Circuit noted above.

In addition to satisfying the first option

for showing continuing violation, Defendant’s

alleged violations have also satisfied the second

option of demonstrating institutional type violations

before, during, and after the period of delay. From

1/93 thru 1/96, while Plaintiff was an employee of

18 Defendant, Exhibit O’Leary enclosed at 10,

15, & 20 - 25 clearly demonstrates institutional type

violations of Defendant. During the 41 day

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

3 enclosed. Exhibit DOL-1 was received by Plaintiff

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

document dated 12/11/98 was experienced by

Plaintiffs DOL Complaint attorney Mr. Edward

Slavin, Jr.. A complaint was expressed about the

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

Plaintiff received the next document from

Defendant, Exhibit DOL-3, by Federal Express. One

example of a knowingly false representation, which

is alleged to have been passed on to DOL judge

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

Albuquerque office, was that Plaintiff had made a

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

Environmental Protection Agency (“EPA”).

Defendant has used this knowingly false

representation to eliminate jurisdiction of Plaintiff's

claims related to the Clean Air Act (“CAA”) employee

protection provision coverage. See

20 -—s Exhibit DOL-1 at 4.

Defendant admits that Plaintiff made written

comments and NOT a mere oral comment to EPA.

21 ~=See Exhibit DOL-3 at 3. This admitted

22 ~sviolation is described within Exhibit DOL-2 at

1 thru 3. Numerous individuals, part of

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Defendant’s agency, know of this false

representation made for the express purpose of

stripping Plaintiff of his civil rights and nothing has

been done to correct this violation. This argument

is an independent basis to justify the application of

the Continuing Violation Doctrine. See Parrett v.

Raytheon Co., No. 95-3146, 1996 U.S. App. LEXIS

4468, 1996 WL 108494 at *5 (10™ Cir. Feb. 29,

1996).

The institutional type Title VII violations of

Defendant continue on to this day with no end in

sight. This is clearly demonstrated within the

23 enclosed Additional Evidence of the Alleged

Unlawful Processing of Plaintiff's Fifth EEO

Complaint of Discrimination and Retaliations

(“Exhibit EEO-V Processing - II”) and the initial

24 ~—sevidence of this served on 10/3/00.

, The second argument that Defendant

makes is that: “This Court Lacks Jurisdiction to

the Extent Plaintiff is Appealing the Board’s

Dismissal of His Claims for Untimeliness.” First of

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

timely Title VII charge is not jurisdictional and

subject to equitable tolling. Plaintiff is not

appealing the Board’s dismissal of his claims for

untimeliness. What is being appealed is the

Board’s lack of review of Plaintiff's case on its

merits. The continuing violations of Defendant

should equitably toll the issue of untimeliness as

outlined above. With the untimeliness issue

equitably tolled, the United States Court of Appeals

for the Federal Circuit does not have jurisdiction to

review Plaintiff's case on it merits per 5 U.S.C. §

7703 (a) (2).

If the argument Plaintiff made in support of

this Court’s granting him equitable tolling for the

issue of untimeliness is sound, Defendant’s

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argument directly above is moot. If Defendant’s

argument here was accepted, it would make the

equitable tolling for the continuing violations

doctrine meaningless and overturn all of the case

law Plaintiff cited above. Also, when considering a

motion for summary judgement, the court must

examine all the evidence in the light most favorable

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

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

S.H. Kress & Co., 398 U.S. 144, 157 (1970).

ir ent fendan

makes is that:

“Defendant is Entitled to Summary

Judgement with Respect to Plaintiffs

Claims that the DOE Interfered with

his Right to Receive Medical Treatment.”

The Rehabilitation Act applies to some disabled

federal employees when medical qualification

requirements are justified. This is defined within 5

CFR Part 339 which is the Office of Personnel

Management’s (OPM’s) Medical Qualification

Determinations.

This regulation outlines medical

requirements that can be established for federal

employees who have positions which “involve a high

degree of responsibility toward the public or

sensitive national security concerns.” Differences

between federal employees of this sort and private

sector employees warrants a deviation in medical

requirements. Established medical requirements for

some federal series positions are outlined within

OPM’ ; | rati

However, 5 CFR 339 does make note of the

requirement that: “Actions under this part must be

consistent with . . . Equal Employment Opportunity

Commission (EEOC) regulations.”

A-45

The “Compliance with EEOC regulations”

Section 339.103 of 5 CFR clearly outlines that,

aside from federal positions with established

medical requirements, federal employees are

subject to the same rights and considerations as

private sector employees. In this regard, since

no medical requirements exist for GS 1301 -

Physical Scientists within Table III-A of the OPM

Manual cited above, I should enjoy essentially the

same rights and considerations as private sector

employees protected under the Americans with

Disabilities Act (ADA). The ADA specifies that

notification of an employee’s disability and request

for reasonable accommodation can even be made

by a “family member” to an employer.

Due to the above, therefore, the EEOC

25 Enforcement Guidance on the ADA and

Psychiatric Disabilities (“ADA Guide”) within

Exhibit ADA-13 applies to Plaintiff. This guide

notes that a request for “mental health history”

is “not a request for reasonable documentation”.

See ADA Guide at 22. The Defendant’s “Request

for Medical Documentation” (Defendant’s Exhibit

11) requests a medical “history” among several

other very difficult areas to fully assess for a

person’s brain injury. This request of Defendant

was purposely unreasonable and it does

demonstrate pretext contrary to Defendant’s

claims.

A-46

Prayer for Relief:

Plaintiff prays that this Court will recognize,

thru the very specific detailing above, that

the Continuing Violation Doctrine does indeed apply

to this instant case, grant Plaintiff equitable tolling

for untimeliriess, and deny Defendant’s Motion for

Partial Summary Judgement.

Dated: October 16", 2000

Respectfully submitted,

s/Tod N. Rockefeller

319 Sunnyview Street

Carlsbad, NM 88220

(S05) 628 - 3541

AFFIDAVIT OF SERVICE

Tod N. Rockefeller, being duly sworn, states that he

mailed the foregoing Response to Defendant’s

Motion to:

U.S. District Court, Dist. of NM

Office of the Clerk, 99-1059 PK/KBM

U.S. Courthouse

333 Lomas BLVD., NW, Suite 270

Albuquerque, NM 87102

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Michael Hoses, Ass’t U.S. Attorney

U.S. Dept. of Justice

Office of the U.S. Attorney,

District of New Mexico

P.O. Box 607

Albuquerque, NM 87103

NOTICE OF FILING to:

Paul Kelly Jr.

District Judge

U.S. Court House

‘P.O. Box 2384

Santa Fe, NM 87504-2384

with sufficient first class postage attached thereto

on this 17“ day of October, 2000.

s/Tod N. Rockefeller

Subscribed and sworn to before me this 17" day of

October, 2000.

s/Mary Jane Clinton

Notary Public

My commission expires: 07-01-2002

SEAL:

MARY JANE CLINTON

NOTARY PUBLIC

STATE OF NEW MEXICO

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