# Petition for Writ of Certiorari — Rockefeller v. Abraham

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 932

## Text

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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

A-9

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

A-10

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.

A-12

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.

A-13

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

A-14

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

A-15

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

A-16

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.

A-17

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)).

A-18

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

A-19

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

A-20

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.

A-21

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.

A-22

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

A-23

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).

A-25

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.)

A-26

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

A-29

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.

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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

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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

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“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.”

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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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1151%3A1. Public record. Not legal advice.