Petition for Writ of Certiorari — Deaton v. United States Department of Agriculture

EIDED

92-1 010° : see 34 oe

IN THE SUPREME COURT OF THE UNITED ST

OCTOBER TERM, 1992) DAKE OF iE Pn

No.

JAMES W. DEATON

PETITIONER

,

U.S. DEPARTMENT OF AGRICULTURE

—

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

James W. ‘Deaton

Box 721 ©

Starkville, Mississippi 39759

(601) 323-2304

Pro Se

ie

QUESTIONS

An agency employee testified under oath that it is an acceptable risk

to intentionally produce and intentionally release a known human

pathogen upon an unsuspecting human population. Does a federal

agency have the right to intentionally produce and intentionally

release a known human pathogen upon an unsuspecting human

population? If so, what is the legal way that a test human population

is chosen and the legal way of selecting the perso.: r-sponsible for

the production and release of the known human pathogen upon an

unsuspecting human population?

Is it legal for a federal agency to charge an employee (federal

manager) with insubordination and punish the employee because he

will not force agency employees to work in a known human

pathogen infested area without agency safety officer assistance?

. Is it legal for a federal agency to charge an employee (federal

manager) with insubordination and punish the employee because he

will not intentionally produce and intentionally release upon an

unsuspecting human population a known human pathogen?

. When no one in a federal agency will intentionally produce and

intentionally release a known human pathogen upon an unsuspecting

human population, is it legal for the federal agency to take the

taxpayer dollars and hire someone outside the federal agency to

intentionally produce and intentionally release a known human

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pathogen upon an unsuspecting human population?

5. Is it legal for a federal agency to ignore a request for an

environmental impact statement prior to the agency releasing a

known human pathogen upon an unsuspecting human population?

6. Is it legal for a federal agency to intentionally make an employee

party to the transfer of taxpayer dollars where a human pathogen is

intentionally released upon an unsuspecting human population over

the employees objection?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .........cccceceeceecesceeeeees 1

TABLE OF AUTHORITIEG. ............::::sesesessseesrsreressnenseesssseses 3

OPINIONS BELOW. ..........:::::scecceceseeesserenseenssesesseennencesenees 3

JURISDICTION .........0scscccsccscceccsccccscscrscnscscscccasccssesoocsonees 3

STATEMENT OF THE ISSUE .........--:ssssseeeeeseeeesesseseescsessesees 4

STATEMENT OF REASONS WHY WRIT OF CERTIORARI BE

GRANTED. .....0.0-0csccsccsscccsccccsssrecccccscssscscccccccssassccossceconses 4

STATEMENT OF THE CASE...........:0:seseeeeeeersseerscsecessssessecees 5

CONCLUSION ......-2cscscscscccscscscsccecccscscsusoseccessssessoosooerees 12

TABLE OF AUTHORITIES

Whistleblower Protection Act. The Petitioner respectfully prays

for a writ of certiorari to review the judgement of the United States

Court of Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is given in the Appendix on

pages 1 thru 4. The opinion of the Administrative Judge for the Merit

Systems Protection Board is given in the Appendix on pages 5 thru 14.

IURISDICTION

The judgement of the court of Appeals, Appendix page 15, was

entered on September 25, 1992, The Petition for Rehearing was denied

on October 20, 1992, Appendix page 16. The jurisdiction of this court

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was supplied me by an information sheet from the U.S. court of

Appeals for the Federal Circuit. I am the petitioner pro se.

STATEMENT OF THE ISSUE

The written record does not support the conclusions drawn by

the United States Couri of Appeals For The Federal Circuit.

STATEMENT OF REASONS WHY WRIT OF CERTIORARI

BE_ GRANTED

I respectfully request that I be awarded my rights concerning the

Whistleblower Protection Act because in 1989 I do not believe it was

legal for a federal agency to intentionally produce and intentionally

release upon an unsuspecting human population a human pathogen that

is hospital waste and has been known to kill people since 1888. I do

not believe that it is legal for a federal agency to ignore an agency

engineer's request for safety officer assistance and that an environmental

impact study be made concerning the release of a known human

pathogen into the environment when the agency engineer is ordered by

the agency to evaluate the project. I do not believe it is legal for an

agency to punish a federal manager because he will not intentionally

produce and intentionally release into the environment and onto an

unsuspecting human population a known human pathogen and force

agency employees to work in the known human pathogen infested area

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without safety officer assistance. When no federal manager will

intentionally produce and intentionally release a known human pathogen

and a known biological warfare agent upon an unsuspecting human

population I do not believe it is legal for a federal agency to use

taxpayer dollars to hire someone outside the federal system to

intentionally produce and intentionally release a known human pathogen

upon an unsuspecting human population. I do not believe it is legal

through deception for a federal agency to make an employee party to the

transfer of federal tax dollars that are used illegally.

STATEMENT OF THE CASE

The record shows that as stated in the January 8, 1991 memo

from M. E. Carter and the April 9, 1991 memo from R. D. Plowman I

was charged with insubordination (R. R. Oltjen sworn statement) and

removed as Research Leader because I would not intentionally produce

and intentionally release upon an unsuspecting human population

namely the students of Mississippi State University and the residents of

Oktibbeha County Mississippi the human pathogen Salmonella

enteritidis.

The record shows that Salmonella enteritidis is a paratyphoid

which can produce an illness characteristic of typhoid fever and has

been used as biological warfare agents. The record shows the agency

wanted me to produce as much as 200 pounds of the human pathogen

daily and demanded that the human pathogen be released into the

environment. The record also shows the human pathogen the agency

releases into the environment is medical waste the comes from a dead or

sick man, woman, or child and has been known to kill people and make

people sick since 1888. The record clearly shows that the idea of

releasing the human pathogen into the environment was introduced

during the April, 1989 visit by A. B. is*ermann and Charles Beard. I

promptly told Thiermann I was not planning to release the human

pathogen on the residents of Starkville, Mississippi. And the record

clearly shows that Thiermann testified under oath that he did not plan to

contain the human pathogen to the work area and that Thiermann stated

under oath that he did not have the expertise to make the determination

of containing the human pathogen to the work area. Thiermann also

testified that he is no engineer. The record shows that an agency

engineer (Mr. Allen) was assigned to the project by P. A. Putnam and

that the agency engineer recommended safety considerations for the

workers and that an Environmental Impact Study be made for this

project. The recommendations by the agency engineer were ignored and

I believe this man lost his job also after his office was first moved to a

greenhouse. The record then shows that following the agency engineers

report, I was told by Putnam to build a facade and act like I am

containing the human pathogen to the work area when I knew I was not.

I would not do that so I was ordered to be in Knipling's office bright

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and early the next morning where I was greeted with the statement "I

don't want to know the facts". The record shows I carried the facts to

Knipling. The timing when the agency wanted me to produce and

release the human pathogen on an unsuspecting human population was

interesting also, because I had just returned to work from a

spleenectomy following a leukemia diagnosis and the agency knew that

I desperately needed the health insurance.

From a safety standpoint, the record shows that I asked for

safety assistance, Mr. Allen asked P. A. Putnam for safety assistance

and Mississippi State University asked that the protocol for the human

pathogen project be passed through their Biosafety Committee. As the

record states, the agency responded by not allowing the agency safety

officers to become involved and searched this country until they found

someone who was not concerned with the health and welfare of the

employees and the general public (Oltjen sworn statement). Even

though the agency had open flock facilities outside the pathogen

contained compounds in Athens, Georgia where Charles Beard is

located, as well as College Station, Texas, Georgetown, Delaware and

finally Beltsville, Maryland where R. R. Oltjen and E. B. Knipling are

located, the record shows the agency did not try to force anyone within

the agency other than me to produce and release the human pathogen

upon an unsuspecting human population.

The record also shows that both Beard and Thiermann were

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members of a 1988 Salmonella enteritidis Agency Task Force who

wrote the agency report which showed that in the 1970's and 1980's

that employees were at risk from Salmonella enteritidis while working

with turkeys infected with Salmonella enteritidis and the invasive

pathogenic properties of Salmonella enteritidis for humans were

discussed in 1988. This 1988 Salmonella enteritidis Agency Task Force

also showed that Salmonella enteritidis in an ambient environment of

21-24 degrees centigrade will survive 730 days in a dusty feed

environment and 750 days (maximum observation period) in meat:

Both Thiermann and Beard were members of this agency task force and

the report published in 1988-before the agency wanted me to produce

and release the human pathogen on ar unsuspecting human population

and force agency employees to work i" "x «.uman pathogen infested

area in 1989. Beard also supervised the agency employee who wrote

the chapter of the 1965, 1972 and 1978 editions of the textbook which

shows that the survivability of the human pathogen once placed in the

environment has a long life span and is dangerous for the employees

and their families. The record shows that the human pathogen as

stipulated in these textbooks can survive in flies for four weeks, can be

transmitted by flies as much as three miles, and can survive for several

weeks on vegetables kept at room temperature. The record shows there

are a supermarket, student apartments, restaurants and sororities just

across the street from where the agency demanded I produce 200

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pounds daily of the human pathogen and release the human pathogen

into the environment. The record shows that Knipling acknowledged

the fact that he was aware of the literature concerning employee safety

and human health implications from my May, 1989 meeting with him.

The record also shows that Beard stated during his April, 1989

visit that he did not know the implications of forcing employees to work

in a human pathogen infested area. Beard only had 40 chickens infected

with Salmonella enteritidis and the agency wanted me to infect 3000

chickens then force employees to work in the human pathogen infested

area and with no safety officer assistance. The record shows that as

with any pathogenic organism, the human pathogen must first be

introduced into an area before sickness and death can occur.

In 1989, the agency was well aware that federal managers can be

criminally prosecuted for violating environmental laws. The federal

managers that were prosecuted killed fish. The organism the agency

wanted me to release into the environment kiils people. The record

shows that in March, 1988 the agency stated that we must abide by the

National Institutes of Health, 1985 regulations which states that air

locks, negative air pressure and air filters are secondary barriers

designed to protect against the accidental release outside the facility. In

1989 the agency would not let me follow these regulations.

The record shows that in June, 1989 the salmonella enteritidis

project was cancelled at the agency lab where I worked. However, in

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July, 1989 the project was assigned to me and as late as October 30,

1989 the project was still assigned to me. The record also shows that

the agency sent the paperwork to the agency Administrative Office at

Mississippi State for the Pennsylvania project with instructions to not let

me know this, obviously with intent to deceive.

In a taped recording by the Administrative Judge, R. R. Oltjen

discusses a project concerned with Salmonella enteritidis that was being

conducted in Maryland. The record shows that a Maryland Assistant

Secretary notes that 500 people became sick and 11 people died during

that time frame when the agency was releasing or condoning the release

of the human pathogen in Maryland. This Maryland Assistant Secretary

as the record shows, reported that the human pathogen was recovered

from dust samplings. Mr. Michael B. Robinson, a 20 year veteran

animal caretaker, testified that dust from within the chicken house is

deposited outside the chicken house. The record shows that I made

certain in May, 1989, that E. B. Knipling was aware that the dust from

within the chicken house could spread throughout the area. Knipling

stated, "We originally assigned the research to Mississippi on the basis

that such rigorous health and safety precautions would not be required".

In 1989, in addition to people other than the poultry industry and

Mississippi State University Officials asking the agency not to release

the human pathogen into the environment, the record shows that the

City of Starkville, Mississippi sanitation engineers did not want the

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pathogen released into the environment.

The record shows that in 1989, P. A. Putnam and/or E. B.

Knipling discussed the situation with both Mississippi State University

Officials and the poultry industry and neither wanted the human

pathogen released into the environment. The record then shows that the

agency found someone outside the federal system to intentionally

produce and intentionally release the human pathogen into the

environment.

The record also shows that Charles Beard neither testified nor

submitted a sworn statement for the record, therefore how could an

Administrative Judge rely entirely on employee safety implications with

a known human pathogen and a known biological warfare agent, which

is clearly stated in the record when the man did not even testify? The

record also clearly shows by Thiermanns own testimony before the

Administrative Judge, that Thiermann knew in April, 1989, that he was

going to work for the group of people in the agency that obtains

taxpayer dollars to clean up the human pathogen once someone releases

the human pathogen into the environment. The record shows that R. D.

Plowman, E. B. Knipling or F. A. Putnam stated their intentions such

as, quotes, "tracking Salmonella through large flocks and into the

environment", “we had only allocated enough money to do it in an

existing chicken house", "what I heard was the reason Dr. Deaton

envisioned such expensive structural changes was that he wanted to

.'

contain the pathogen", “discussions were regarding funds available,

cost and need for HEPA filters in building 28. I told him it would take

too long to implement, would be too costly, and that is not what

headquarters and APHIS wanted", "what was wanted without

unnecessary health, safety and political concerns was a simulated flock

test on transmission of Salmonella enteritidis (SE)", and "renovation of

facilities to meet the immediate research needs would be costly;

furthermore, the high degree of containment that would be incorporated

in the renovated facilities would compromise the objectives of the

planned flock simulation study". If these people manage other

biological warfare agents, animal and plant diseases and insects in the

same manner as with this project, then it is easy to see how the

sweetpotato whitefly went from Florida to California and a continual

problem seems to exist with the Meditteranean fruit fly.

CONCLUSION

The record speaks for itself and the responsible individuals

within the agency knew precisely what they were doing in 1988 and

1989. I did nothing wrong and I did not deserve the turmoil that was

forced into my life and my family's life because I would not

intentionally produce and intentionally release upon an unsuspecting

human population a human pathogen and force agency employees to

work in the human pathogen infested area without safety officer

assistance. The fact also remains that people are becoming sick with

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some dieing and business failures are occuring in Pennsylvania resulting

from Salmonella enteritidis infection, with taxpayer dollars used in the

clean-up, which I do not believe that is the situation in Mississippi. The

record also shows that about 61 million of taxpayer dollars were used

by the agency in the Pennsylvania area about nine years ago to clean-up

avian influenza, a disease that kills only chickens, not people.

I respectfully request my rights be awarded me in this matter.

Using federal tax dollars and placing people at risk or causing human

sickness and death by intentionally having a human pathogen and

known biological warfare agent released into the environment and upon

an unsuspecting human population by individuals within a federal

agency with the intent to obtain more taxpayer dollars is surely illegal.

The human pathogen released upon the people is medical waste and is

obtained from.a hospital. Accordingly, this Petition for Certiorari

should be granted.

Dated: ) oe oy Z , 1992.

James W. Deaton

Petitioner Pro Se

.