Appendix — Rockefeller v. Abraham

‘Q >

supreme Cout, U.S.

FILES

No.02021621 may 2 2003

OFFICE OF THE CLERK

In The

Supreme Court of the United States

Tod N. Rockefeller

Petitioner,

v.

SPENCER ABRAHAM, in his

official capacity as Secretary,

United States Department of

Energy (DOE),

Respondent.

On Appeal to the United States

Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

APPENDIX - VOLUME

Nos. 4 - 7

Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

END

C5SK

TABLE OF CONTENTS

Appendix Page

4 1-17

5 18 - 25

6 26 - 34

APPENDIX 4

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TOD N. ROCKEFELLER,

Plaintiff / Appellant, USCA No.

02-2117

vs. '

SPENCER ABRAHAM, in his official

capacity as SECRETARY, UNITED

STATES DEPARTMENT OF

ENERGY,

Defendant /Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CIVIL NUMBER 01- 0399 JP/LCS

REPLY BRIEF OF PLAINTIFF / APPELLANT

ORAL ARGUMENT IS REQUESTED

TOD N. ROCKEFELLER, Pro se

319 Sunnyview Street

Carlsbad, NM 88220

(505) 628 - 3541

~~

TABLE OF CONTENTS

PAGE

tA OF CASES ---.;..-....................- li, iii, iv

ARGUMENT --------------------=------..------..__ 1

A. CLAIMS ARISING UNDER TITLE VII --- ]

B. CLAIMS ARISING UNDER THE

ENVIRONMENTAL STATUTES --------- 5

S CLAIMS REGARDING APPELLANT’S

BO COMPLAINT -----------~............. 7

D. CONSTITUTIONAL CLAIMS ------------ 8

E. THREE MOTIONS FOR PARTIAL

JUDGMENT ------------------------_-...-- 9

F. DUE PROCESS VIOLATIONS ---------- 12

G. JUDICIAL INTEGRITY ------------------ 13

CONCLUGION --------~~--......................... is

TABLE OF CASES

PAGE

Anderson v. Liberty Lobby, Inc.,

“tr? U8. 292, 252 (1966) ———----...___....... 15

Beech Aircraft Corp. v. Rainey,

ore we. ido, 172 (1968) --—---.-.._........... 11

Bivens v. Six Unknown Fed. Narcotics A ents,

Wo U.S. 366, 389 (1971) -----.-.-..-........... 15

Brady v. Maryland,

ors U.0. 63, 66-88 (1963) --------..-......._.. 3

Carlson v. Green,

798 Um. 14 (1960) —---—-...................... 15

Celotex Corp. v. Catrett,

oe2 Va a7, sa0 (1966) ---—-.—............ L.2

Davis v. Passman,

442 U.S. 228, 234, 242 (| 1979) ---------------- 7

Davis v. Wakelle,

156 U.S. 680, 685, 689 (1895) ---------------- 10

«a.

Elkins v. United States,

364 U.S. 206, 222, 223 (1960) --------------- 14

Federal Deposit Insurance Corp. v. Meyer,

510 U.S. 471, 472 (1994) --------------------- 8

Flor v. O’Leary,

93-1342 JC/WWD (USDC-NM 1996) ------- iS

Harris v. New York,

410 U.S. 222, 226 (1971) ------ 4

Jackson v. Firestone Tire & Rubber Co. and

Goodyear Tire & Rubber Co., ET AL,

788 F.2d 1070, 1089 (5™ Cir. 1986) --------- 11

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 459 (1975) --------------------- 8

Ludwig v. Massachusetts,

427 U.S. 618, 625, 626 (1976) -------------- 15

Mapp v. Ohio,

367 U.S. 643, 659 (1961) -------------------- 14

Marbury v. Madison,

5 U.S. 137, 163, 180 (1803) ----------------- 14

Michigan v. Harvey,

494 U.S. 344, 348-351 (1990) --------- 4

Mincey v. Arizona,

437 U.S. 385, 398 (1978) -------- 4

New Jersey v. Portash,

440 U.S. 450, 459 (1979) ------ 4

Olmstead v. United States,

277 U.S. 438, 485 (1928) --- 14

Oregon v. Hass,

420 U.S. 714, 720-724 (1975) a

Pennkamp v. Florida,

328 U.S. 331, 346 (1946) -------------------- 15

Robinson v. Shell Oil Co.,

519 U.S. 337, 340-346 (1997) --------------- 2

Rose v. Hartford Underwriters Insurance Co.,

2000 Fed. App. 0053P (6™ Cir.) 11

-3.

Scheuer v. Rhodes,

416 U.S. 232, 235, 236 (1974) -------------.- 13

United States v. Abel,

469 U.S. 45, 49-53 (1984) --------------..-__. 4

United States v. Classic,

313 U.S. 299, 327 (1941) ---------------.-_._. 13

United States v. Price,

383 U.S. 787, 793 (1966) -----------------___. 13

Walder v. United States,

347 U.S. 62, 64 (1954) --------------------_._- a

Walker v. Johnson,

312 U.S. 275, 286, 287 (1941) ------------... 13

Williams v. United States,

341 U.S. 97, 99, 100 (1951) -----------..-.... 13

Appellant served his Opening Brief on

6/03/02 (henceforth “O-Brief ”) Appellee served a

Response Brief on 7/22/02 (henceforth“Response’).

Appellee addressed five issues in the Response.

Appellant will reply to each.

ARGUMENT

A. CLAIMS ARISING UNDER TITLE VII.

1. Harassing Calls

All of what Appellee claims in the Response

for this issue is irrelevant to this instant appeal due

to what had occurred in the district court discovery

process. Appellee has failed to respond to what was

pointed out within Appellant’s Opening Brief, First

Issue at 12-14. The Magistrate found that the

telephone area codes and prefixes for Request for

Production No. 4 (henceforth “Request No. 4") “are

relevant” to

yo

Appellant’s opposition to summary judgment.

Defendant IS withholding “facts essential” to

Appellant’s opposition. See Celotex, 477 U.S. at

326. “These facts certify that Appellee’s motion for

summary judgment [doc. nos. 35, 36] was indeed a

“premature” motion, . . .” O-Brief at 13

To claim the Request No. 4 would be of “no

value”, Defendant states that Appellant “did not

request any logs reflecting calls made to his unlisted

number.” See Response at 12. This claim of

Appellee is bogus and inapposite. The last

harassment telephone call that Appellant had listed

within his “Exhibit Harass” (doc. 43 at 7) was on

8/13/99. On this day [8/13/99] of the last

harassment call, Appellant changed his phone

number to an unlisted number in his attempt to

stop the harassment calis. The argument of

Appellee makes no sense.

Next, Appellee attempts to claim that there is

no “inference that the calls were made for retaliatory

reasons under Title VII . . . because

he engaged in activities protected by Title VII.” See

Response at 12 Appellee is wrong. Appellant had

been providing testimony and initiating various legal

proceedings against Appellee concerning “safety and

environmental law violations”. This was stated

within Appellant’s Equal Employment Opportunity

(“EEO”) Complaint (““EEO-V”) that was

filed. See doc. 43 at 6. The harassment calls which

Appellant had received were in close temporal

relations to the proceedings with which

he was involved in alleged retaliation of harassment

and intimidation. The Supreme Court has ruled

that under Title VII “former employees . .

. may sue... for... retaliatory post-employment

actions.” See Robinson, 519 U.S. at 337.

= o

The argument that Appellee makes

concerning Fed.R.Civ.P 56(f),that summary

judgment was appropriate because Appellant did

not file a Rule 56(f) affidavit [for Request No. 4] has

no foundation and fails. Appellant did not need to

file such an affidavit, because the Magistrate had

ruled that Appellant’s Request No. 4 documents

“are relevant to his claims” in granting the

discovery request. See doc. 55 at 2. Appellant had

been denied “relevant” discovery ruled by the

Magistrate which invokes the ruling of the Supreme

Court that “allows a summary judgment motion to

be denied, . .. , if the nonmoving party has not had

an opportursity to make full discovery.” See

Celotex, 477 U.S. at

326.

The district court judge had granted the

motion for summary judgment, during the Oral

Argumert on 3/19/02, PRIOR to when the

ruling om Appellant’s Motion to Compel discovery

was ruled upon by the Magistrate. See doc. 55 filed

on 3/20/02. Appellant had thoroughly explained

the need for discovery concerning Request No. 4

within doc. 31 at 3, 4; and doc. 39 at 4,5. The

evidence within Request No. 4 has been suppressed

by the district court judge, and

that violates Due Process. See Brady, 373 U.S. at

86-88.

Appellee makes a knowingly false

representation concerning Request No. 4 by

Stating: “the logs submitted to the court only

reflect calls made after April 1999, many

months after the alleged harassing phone calls

were made to his home.” See Response at 12

The last harassment call reported by Appellant

occurred on 8/13/99.

-6-

There were 16 harassment calls reported by

Appellant from May through August 1999 within

“Exhibit Harass”. See doc. 43 at 7 Appellant

requests that this Court impose sanctions upon

Appellee for these bogus and false representations

made above “to deter repetition of such conduct.”

See Fed.R.Civ.P. 11(c)(2).

2. Blacklisting

Appellee attempts to claim that Appellant’s

specific allegations of blacklisting at CEMRC and

FLETC are addressed by three self-serving very

general denial affidavits of Hunter, Inlow, and

O’Dowd. Appelleeis wrong. Appellee’s witnesses

above are required to be impeached due to their

demonstrated conflicting testimony, bias, and false

representations towards Appellant as thoroughly

outlined within doc. 60.

Conflicting testimony impeaches Appellee’s

witnesses above. See Michigan, 494:'U.S. at 348-

354; Oregon, 420 U.S. at 720-724; Harris, 410 U.S.

at 226; and Walder, 347 U.S. at 64. Also, admitted

“bias” is a “Permissible and established basis of

impeachment of a witness.” See United States v.

Abel, 469 U.S. at 50. Additionally, Fed.R.Civ.P.

609(a) allows impeachment of witnesses for “false

statement(s]”. See Mincey,

437 U.S. at 398; New Jersey, 440 U.S. at 459.

Appellant’s doc. 60 clearly demonstrates all of the

above concerning Appellee’s witnesses.

Since Appellee’s EEO Office refused to

investigate the specific allegations of blacklisting at

CEMRC and FLETC (doc. 38 at 2-5), with

Appellee’s witnesses and affidavits above

impeached, Appellee admits to the biacaiisting of

Appellant. Doc. 60 is far from being “MOOT” as

as the district court claims. See doc. 62.

.

In addition, concerning CEMRC [partially

funded by Appellee], Appellee’s witness details

that Appellant “was not a finalist for any position.”

Does this explain why Mr. Jeremy Staley, who had

no college degree or relevant experience, was hired

for the job “Computer Technician-II” which

Appellant had also applied for ? Appellant has a

Master of Science degree and over six years of

experience directly related to the CEMRC job.

Appellee failed to touch upon any of these

circumstances above concerning CEMRC for

obvious reasons.

B. CLAIMS ARISING UNDER THE

ENVIRONMENTAL STATUTES.

Appellee claims that the district court did

not have jurisdiction of Appellant’s claims under

the environmental statutes, and that due to

this “dismissal was proper.” Response at 17

Appellee is wrong. Appellee repeats the same

previous claim that complaints concerning

the environmental statutes involved with this case

can only be made to the U.S. Department of Labor

(“DOL”). Appellee again refuses to address the

claim of Appellant. See doc. 38 at 7, 8.

The employee protection provisions [15

U.S.C. § 2622(a); 42 U.S.C. § 9610(a); 42 U.S.C. §

300 j-9(i)] of the environmental statutes do not

eliminate applicable law concerning disabled

persons [29 C.F.R.§ 1614.302] for filing a “mixed”

complaint with Appellee’s EEO Office. A general

principle of statutory construction is outlined

within 29 C.F.R. § 1630. 1(a)(2) [Relationship to

other laws], this section states:

i.

“This part does not invalidate or limit

the remedies, rights, and procedures

of any Federal law . . . that provides

greater or equal protection of the rights

of individuals with disabilities than are

afforded by this part.”

The same is true for the environmental statutes

above. E.g.: those statutes do not “invalidate or

limit the remedies . . . of individuals with

disabilities” such as Appellant.

A “mixed” EEO complaint “may contain...

allegations that the Merit Systems Protection Board

(MSPB) has jurisdiction to address.” See 29 C.F.R. §

1614.302. An MSPB regulation describes their

jurisdiction as including taking complaints which

“evidences a violation of law . . . or substantial and

specific danger to public health”

such as the environmental statues above. Appellee

fails to explain how or why the general rule of

statutory construction queted above does

NOT apply to the environmental statutes noted

above. The district court had proper jurisdiction

over Appellant’s “mixed” EEO Complaint.

C. CLAIM REGARDING APPELLANT’S EEO

COMPLAINT.

During the processing of Appellant’s EEO

Complaint by Appellee, Appellant had alleged the

improper dismissal of a portion of the Complaint

with knowingly false representations. Appellee had

refused to investigate the legitimate allegations of

“retaliation” which “are considered to be complaints

of discrimination .. .” See 29 C.F.R. § 1614.103(a).

Appellant made the allegations of EEO law within

doc.38 at 1, 2.

_ =

E.g.: the “letter dated 2/21/00" which described

the alleged violations. Appellee failed to deny

these allegations of EEO law violations, within

the 2/21/00 letter, which rise substantially

higher than mere poor processing of a complaint

such as untimeliness. The Supreme Court has

ruled that:

“Indeed, this Court has already settled

that a cause of action may be implied

directly under the equal protection

component of the Due Process Clause

of the Fifth Amendment in favor of those who

seek to enforce this constitutional right.”

See Davis, 442 U.S. at 242.

Appellee has admitted, as described above, to

refusing to afford Appellant the “equal protection”

of EEO law, and have violated Appellant’s Fifth

Amendment constitutional right. This is

contrary to the claim of Appellee that this issue

concerns only mere poor processing of Appellant’s

EEO Complaint.

D. CONSTITUTIONAL CLAIMS.

The ruling Appellee cites, Brown v. GSA, 425

U.S. 820 (1976), coincides with 42 U.S.C. §

1981a(a)(1) which states:

“A complaining party may recover

punitive damages under this section

against a respondent (other than a

government, government agency or

political subdivision) if the complaining

party demonstrates that the respondent

engaged in a discriminatory practice . . .”

= =

However, as Appellant has pointed out several

times, the Solid Waste Disposal Act (“SWDA”)

applies to Appellee in this case. Appellee has not

denied that all of the requirements of the SWDA

apply including 42 U.S.C. § 6961(a). Section

6961(a) “waives any immunity otherwise applicable

to” Appellee. See doc. 38 at 9; and O-Brief at 21-23.

The district court ignored all of the above.

The Supreme Court has ruled that when the

immunity of a federal entity has been waived, an

aggrieved federal employee may sue with a

“constitutional tort c ” such as Appellant’s

claim (emphasis added). See Federal Deposit

Insurance Corp., 510 U.S. at 472. Therefore, the

ruling held in Johnson, 421 U.S. at 459 applies to

this instant appeal that Title VII does NOT preempt

Constitutional claims. The three 10™ Circuit cases

which Appellee cites [to support the claim, that for

Appellant, Title VII is the exclusive remedy] are

inapposite because none of those cases involve the

waiver of the SWDA’s § 6961(a).

E. THREE MOTIONS FOR PARTIAL JUDGMENT

l. First Motion.

As described above within doc. 40, Appellant

had given Judicial Notice of Adjudicative Facts.

Appellant based three admitted facts within

doc. 47 upon what was found in the Federal

Register. It was explained within doc. 43 at 3 that:

“As 44 U.S.C. § 1507 requires: “The contents of the

Federal Register shall be judicially noticed . . .™“

Appellee has failed to deny any of this and has

therefore admitted to pretext, the destruction of

evidence of a blacklisting nature about Appellant,

-l]]-

and posting blacklisting information about

Appellant over the Internet from 2/98 thru present.

See doc. 47

2. Second Motion.

Appellee claims that the failure to file a

“Response” [Brief in Opposition] to Appellant’s

Petition for Writ of Certiorari (henceforth “Petition

01-1143") in the U.S. Supreme Court does not

amount to any “admissions”. See Response at 14.

Appellee is wrong. Doc. 50 at 2, 3 thoroughly

explains that Appellee HAD taken the position,

concerning Petition 01-1143, that the right to

controvert any of the facts or law within said

Petition was waived. See Sup.Ct. Rule 15(2).

The Supreme Court has ruled that: “where a

party assumes a certain position in a legal

proceeding, .. . , he may not thereafter, . . . ,

assume a contrary position.” See Davis, 156 U.S.

at 689. Henceforth, Appellee is NOT now free,

within this instant proceeding, to controvert any of

the facts or law within Petition 01-1143 that are

detailed within doc. 50. Appellee is collaterally

estopped from doing so. Appellee has admitted to

the 14 violations outlined within doc. 50. This is

fact and well beyond dispute. What is detailed

above is fact and law and far from being “bizarre”

as Appellee claims. See Response at 13.

3. Third Motion.

Appellant’s third motion Seiees « that the

first two motions were titled incorrectly as Motions

for Partial Summary Judgement. The first motion

was actually a Motion for Judgment on the

Pleadings, and the second motion was actually a

— for Judgment as a Matter of Law. Doc. 60

at i [Memo]. This third Motion for Judgment as a

eh of Law was not responded to at all by

«3.

either the district court or Appellee.

It is detailed within this motion, with

admitted facts, how three of Appellee’s witnesses

{[Hunter, Inlow, & O’Dowd] have offered conflicting

testimony, demonstrated bias, and made false

representations concerning Appellant. doc. 60 at 2-

5 These actions of Appellee’s witnesses warrants

impeachment of their testimonies regarding

Appellant.

The district court denied the three motions

above of Appellant [doc. nos. 47, 50, 60] totaling 19

admissions of fact of Appellee concerning violations

towards Appellant. The only reason given by the

district court for the denial of the three motions,

containing admitted facts, was that the motions

were somehow “MOOT”. The.district court

abused its discretion by refusing to admit

evidence of admitted facts within doc. nos. 47, 50,

and 60. See Beech Aircraft Corp., 478 U.S. at 172.

It is also an abuse of discretion when a motion is

denied without a legitimate explanation. See Rose,

2000 Fed. App. 0053P; See also Jackson, 788 F.2d

at 1089.

Appellee makes a claim that all three of the

motions above were untimely by stating: “This

Court should also affirm the district court’s

decision because -Rockefeller’s motions were

untimely.” See Response at 24. As explained to

Appellee above, the First Motion [doc. nos. 46, 47]

was a Motion for Judgment on the Pleadings. This

motion can be served: “After the pleadings are closed

but within such time as not to delay the trial, .. .”

See Fed.R.Civ.P. 12(c). The Second and Third

Motions were Motions for Judgment as a Matter of

Law, which: “may be made at any time before

submission of the case to the jury.” See

« is

Fed.R.Civ.P. 50(a)(2). It is alleged that Appellee’s

statement that: “Rockefeller’s motions were

untimely”, is another knowingly false

representation in Appellee’s attempt to mislead

this Court.

F. DUE PROCESS VIOLATIONS

Within Appellee’s Response section about

harassment telephone calls, the admissions of fact

within two motions which Appellant had filed [doc.

nos. 47 & 50] are denied. Appellee claims that the

admitted facts within doc. 47 are based upon

Appellant’s Request for Admissions [doc. 40].

Appellee fails to note the relevant portion of doc.

40. Doc. 40 is both a Request for Admissions and

Judicial Notice of Adjudicative Facts.

Appellee claims that the Request for

Admissions was untimely. Appellee is wrong.

Appellant had prepared a Request for Admissions

to follow doc. 20, long before the expiration of

discovery, but the district court judge had ruled

doc. 20 as “premature” and denied the motion.

The district court did rule that Appellant’s doc. 20

evidence could be resubmitted at an “appropriate”

time such as in response to a “Motion”. See doc.

23.

Appellant had resubmitted his evidence,

along with doc. 38, to address a motion as the

district court ordered that Appellant could do.

Along with his evidence, Appellant had to request

[doc. 40] that Appellee admit to the authenticity of

his evidence. Appellant knew that he had to do his

best to authenticate his evidence. This was so

because the district court was likely to dispel

Appellant’s evidence if he did not do so as had

«ths

been done by this district court in Flor, 93-1342.

In the process of denying doc. 20, however,

the district court violated Appellant’s Fifth

Amendment Due Process rights. This is so

because the district court’s Order [doc. 23], on

10/11/01, came the very NEXT DAY after Appellee’s

Response filed on 10/10/01 [doc. 22].

Appellant was denied his Reply to doc. 22 before

judgment was made [doc. 23] as D.N.M.LR-Civ.

7.6(a) requires. See doc. 25 at 3 filed on 10/23/01.

Appellant alleges that all of this was done for the

purpose of suppressing the incriminating

evidence that Appellant was attempting to

introduce into the record of the case [01-399

JP/LCS]. These actions by Appellee and the district

court violate Appellant’s Fifth Amendment Due

Process rights. See U.S. v. Classic; U.S. v. Price;

Scheuer; Walker; and Williams. The district court is

supposed to be forbidden to violate Appellant’s Due

Process rights. See Davis, 442 U.S. at 234.

G. JUDICIAL INTEGRITY.

The Sup.Ct. has repeatedly emphasized the

imperative of judicial integrity, especially with

regard to the Constitution. For example:

“...it is apparent that the framers of

the Constitution contemplated that

instrument as a rule for the government

of the courts, .... Why otherwise does

it direct the judges to take an oath to support

it ? This oath certainly applies

in an especial manner to their conduct

in their official character. How immoral

« 8 <

to impose it on them if they were to be

used as the instruments, and the

knowing instruments, for violating what they

Swear to support ! “

See Marbury, 5 U.S. at 180. The district court

judge has violated the oath that he had sworn to

support the Constitution, and he had certainly

“knowingly” done so. Also:

“The very essence of civil liberty certainly

consists in the right of every individual

to claim the protection of the laws

whenever he receives injury. One of

the first duties of government is to afford

that protection.” Id at 163.

Justice Brandeis (dissenting) expounded

upon the imperative of judicial integrity:

“In a government of laws, existence of

the government will be imperiled if it

fails to observe the law scrupulously.

Our Government is the potent, the

omnipresent teacher. For good or ill,

it teaches the whole people by its

example. Crime is contagious. If

Government becomes a lawbreaker,

it breeds contempt for law; it invites

every man to become a law unto himself;

it invites anarchy.”

See Olmstead, 277 U.S. at 485. In Elkins, 364 U.S.

at 222, 223, the Sup.Ct. repeats the imperative of

Justice Brandeis above concerning judicial

integrity, and again in Mapp, 367 U.S. at 659. The

Sup.Ct. also states that:

—

“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.” See Id.

Appellee and the district court have done both:

failure to observe the laws of the United States

[SWDA], AND “disregard of the” Constitution. _

See Petition 01-1143 at 1 thru 7, A-13 thru A-15, A-

45, A-46. The Sup.Ct. has emphasized that the

lack of judicial integrity not only imperils our

Government, but in addition, that there is also:

“danger to public welfare” from

“wrongful judicial conduct.”

Pennekamp, 328 U.S. at 346. See also Bivens, 403

U.S. at 389; Carlson, 446 U.S. 14; and Ludwig, 427

U.S. at 625, 626.

ONCLUSION

For the above cited reasons, Appellant prays

that this Court reverse the district court’s grant of

summary judgement, and remand the case back to

Trial Court as a Matter of Law. See Anderson, 477

U.S. at 252.

Dated: August 9", 2002

Respectfully submitted,

s/Tod_N. Rockefeller

319 Sunnyview Street

Carlsbad, NM 88220

(505) 628 - 3541

. .

; APPENDIX 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

V.

SPENCER ABRAHAN , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

THIRD MOTION FOR

PARTIAL JUDGMENT AS A MATTER OF LAW

COMES NOW Plaintiff Rockefeller and moves

this Court for the issuance of an Order granting

this instant Motion. Facts supporting the guilt of

Defendant within this Motion are set forth in

Plaintiffs Memorandum in Support of Third Motion

for Partial Judgment as a Matter of Law filed

herein.

Dated: March 18", 2002

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(S05) 628 - 3541

- 18 -

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

V.

SPENCER ABRAHAM , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

MEMORANDUM IN SUPPORT OF

THIRD MOTION YOR PARTIAL JUDGMENT

AS A MATTER OF LAW

I. BACKGROUND

3. Plaintiff filed two motions previous to this

instant motion which were titled incorrectly.

Plaintiff apologizes to the Court for any

inconvenience. The first motion was titled: Motion

for Partial Summary Judgment, served on 3/1/02

(henceforth “1*t Motion”). Plaintiffs 1** Motion was

actually a Motion for Judgment on the Pleadings

which was filed “after the pleadings” were “closed”.

See Fed.R.Civ.P. 12(c). This was also explained

within the 1* Motion at 1.

ya Plaintiffs next motion was titled: Second

Motion for Summary Judgment, served on 3/11/02

(henceforth “2™ Motion”). Plaintiffs 2° Motion was

actually a Motion for Judgment as a Matter of Law.

See Fed.R.Civ.P. 50(a)(2). This was explained

- 36.

within the 2™ Motion at 7. Facts had arisen within

Plaintiffs Petition within the Supreme Court of the

United States (henceforth “SCt.”) after the 1*

Motion was filed, which prompted and justified

filing of Plaintiffs 2" Motion.

3. So far, Plaintiff has clearly outlined a total

of 17 admissions made by Defendant of blacklisting

and retaliations taken by Defendant against

Plaintiff. This instant Motion (henceforth “3™

Motion”) adds two additional admissions of

biacklisting by Defendant.

Ii, IMPEACHMENT OF THE TESTIMONIES OF

DEFENDANT’S WITNESSES

4. Black’s Law Dictionary, 7“ ed., defines

“impeachment” as follows:

“Impeachment. 2. The act of

discrediting a witness, as by catching

the witness in a lie or by demonstrating

that the witness has been convicted of a

federal crime.”

The definition in Black’s above coincides with the

Fed.R.Civ.P. and rulings made by the Supreme

Court as will be detailed below. “

3. There are three methodologies, applicable to

this case, for impeaching the testimonies which

Defendant has filed.

6. First, the SCt. decided that voluntary

evidence obtained can “be used to impeach the

Defendant’s conflicting testimony.” See Michigan v.

Harvey, 494 U.S. 344 (1990); See also Oregon v.

Hass, 429 U.S. 714 (1975); Harris v. New York, 401

U.S. 222, 226 (1971); Walder v.United States,

i a

347 U.S. 62, 64 (1954). Defendant’s witnesses have

offered conflicting testimony as will be detailed

below.

A The second method for the impeachment of

the testimonies of Defendant’s witnesses is

concerning their demonstrated and admitted “bias”

towards Plaintiff. The SCt. has ruled that although

“the Rules do not by their terms deal with

impeachment for “bias,” . . . “We think . . . that it is

permissible to impeach a witness by showing his

bias under the Federal Rules of Evidence just as it

was permissible to do so before tlieir adoption.” See

United States v. Abel, 469 U.S. 45, 49, 51 (1984).

The bias of Defendant's witnesses towards Plaintiff

will be demonstrated below.

8. Lastly, the Fed.R.Evid. 609(a) allows

impeachment of witnesses for “crimes”,

“dishonesty”, and a “false statement.” It has been

admitted by Defendant that Defendant’s three

witnesses Ron O’Dowd, Earl Hunter, and Rush

Inlow have each previously made knowingly false

representations towards Plaintiff. These witnesses

of Defendant above have committed criminal felony

violations by making a “false statement in a

Government matter.” See the False Statements

Accountability Act of 1996 [Public Law 104-292].

These facts will be detailed below.

9. Fed.R.Evid. 609(a)(2) requires that evidence

of such a violation above [Public Law 104-292]

“shall be admitted if it involved dishonesty or

false statement, . . .” to impeach the testimonies

of Defendant’s witnesses (emphasis added).

Ill. DEFENDANT’S FALSE REPRESENTATIONS

IN A GOVERNMENT MATTER

10. The following admissions of Defendant were

S| |

voluntary. Therefore, the reliable, probative, and

inculpatory evidence obtained by Plaintiff from

Defendant can be used for impeachment purposes.

See New Jersey v. Portash, 440 U.S. 450, 459

(1979); Mincey v. Arizona, 437 U.S. 385, 398 (1978).

11. False Representation of Ron O’Dowd: “In

fact, AOO has informed us that Appellant [Plaintiff]

has already engaged in extreme verbal harassment

of co-workers . . . see Record of Telephone

Conversation between Dawn Goldstein and Ron

O’Dowd (November 19", 1997).”

12. Plaintiff made an averment that this

statement was knowingly false within 4{ 20, 21 of

his Original captioned Complaint above. Defendant

has failed to deny this specific averment and has

therefore admitted to it. See Fed.R.Civ.P. 8(d).

13. False Representation of Earl Hunter: this is

detailed within “Averment No.8" of Plaintiffs 2"

Motion. Plaintiff will summarize below the false

representation which Defendant has admitted to.

Mr. Hunter claimed that there was no requirement

to issue an employee a Performance Improvement

Plan (“PIP”) before or after an employee receives

failing performance ratings.

14. Plaintiffs 2° Motion referenced above

specifically details that an applicable employee

performance management program of Defendant

DOES require the issue of a PIP after an employee

receives failing ratings. Mr. Hunter made this false

representation in his attempt at escaping from a

demonstration of pretext for issuing Plaintiff a PIP

that was five months late (emphasis added).

15. False Representations of Rush Inlow: Mr.

Inlow was Defendant’s removing official who

decided that Plaintiff should be removed from

federal service for putative “poor performance.”

-22-

Plaintiff clearly demonstrated three different

instances of pretext for his removal. The evidence

which Plaintiff submitted to Inlow made no

difference.

16. The three demonstrations of pretext within

Plaintiffs 2™ Motion (Averments 1, 8, & 9),that have

now been admitted to by Defendant, also prove

Inlow’s false representations that Plaintiff was a

“poor performer.”

17. The three demonstrations of pretext for

Plaintiffs removal are: (1) Plaintiffs receiving

failing performance ratings 2 % months after his

expert report identifying Defendant’s unsafe RH-

72B nuclear waste shipping cask. (2) Plaintiffs

removal six weeks prior to Defendant’s Record of

Decision (“ROD”) for “Safe Shipping Containers”

which contained the unsafe RH-72B container

which Plaintiff had reported. (3) Plaintiff was issued

a PIP, described within 4 14 above, which was five

months late, but only two days after Defendant was

contacted by Plaintiffs Equal Employment

Opportunity (“EEO”) Complaint Counselor.

IV. CONFLICTING TESTIMONIES AND

DEMONSTRATED BIAS

18. All three of Defendant’s witnesses above

have claimed that Plaintiff harasses co-workers, is a

“poor performer”, threatens the physical safety of co-

workers, and various other admitted bogus

claims in retaliation for Plaintiffs reporting of safety

issues.

19. Defendant has admitted that all of the

claims above concerning Plaintiff are false. This

clearly demonstrates bias towards Plaintiff by

O’Dowd, Hunter, and Inlow.

_ =

20. Plaintiff has demonstrated bias towards him

by Defendant’s witnesses as described above.

Defendant has admitted to this. The Supreme

Court (“SCt.”), however, has required that “the

existence of . . . bias” towards a party only be “more

probable” by averments made [not proven or

admitted to] to warrant impeachment of the

opposing party’s witness testimony. See United

States v. Abel, 469 U.S. at 52.

21. Plaintiff, as described above, has exceeded

the SCt.’s ruling concerning the application of bias

to implement impeachment of Defendant’s witness

testimonies.

22. Defendant’s witnesses had all claimed not

to have engaged in retaliations against Plaintiff

for his reporting of safety issues, which has now

been admitted to be false. Defendant’s witnesses

[O’Dowd, Hunter, & Inlow] have engaged in

retaliations, including blacklisting, against Plaintiff.

23. For this instant Complaint, Defendant’s

witnesses now offer conflicting testimony that they

have not engaged in retaliations, such as

blacklisting, against Plaintiff, as they have admitted

to have done above.

V. CONCLUSION

24. All of the above [per Fed.R.Evid. 609(a)(2)]

requires that the testimonies of Defendant’s

witnesses, concerned with the alleged blacklisting

of Plaintiff at the Carlsbad Environmental

Monitoring and Research Center (““CEMRC”) and

the Federal Law Enforcement Training Center

(“FLETC”), be impeached.

25. Since Defendant refused to investigate and

properly respond to Plaintiffs specific and factual

- 24 -

averments of blacklisting at CEMRC and FLETC,

other than the very general testimonies described

above which are required to be impeached,

Defendant has failed to deny these averments of

Plaintiff.

26. Defendant has admitted to blacklisting

Plaintiff at CEMRC and FLETC. See

Fed.R.Civ.P.8(d).

aT. Defendant, as described above, has had the

chance to be fully heard on the claims of Plaintiff.

Defendant has admitted to the averments above

which detail that Defendant HAS engaged in

blacklisting and severe retaliations against Plaintiff.

This is in addition to the blacklisting outlined in

Plaintiffs 1**t and 2° Motions.

28. The evidence in this case in Plaintiffs favor

“is so one-sided that” Plaintiff “must prevail as a

matter of law.” See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986).

Defendant was contacted and Plaintiff has

been unable to determine his position on

this Motion.

Prayer for Relief

Defendant has no evidentiary basis for a

reasonable jury to find for him on his blacklisting

and retaliations towards Plaintiff, which has been

admitted to. Plaintiff, therefore,demands a

judgment as a matter of law granting this instant

motion, with also a jury trial for the determination

of damages. |

Dated: March 18", 2002

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

— -

APPENDIX 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

Vv.

SPENCER ABRAHAM , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

SECOND MOTION FOR

PARTIAL SUMMARY JUDGMENT

COMES NOW Plaintiff Rockefeller and moves

this Court for the issuance of an Order granting

this instant Motion. Facts supporting the guilt of

Defendant within this Motion are set forth in

Plaintiffs Memorandum in Support of Second

Motion for Partial Summary Judgment filed herein.

Dated: March 11, 2002

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

- 26 -

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

V.

SPENCER ABRAHAM , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

MEMORANDUM IN SUPPORT OF

SECOND MOTION FOR

PARTIAL SUMMARY JUDGMENT

I. BACKGROUND

1. Plaintiff filed two complaints (99-1059

PK/KBM & 00-0652 PK/KBM) within the United

States District Court for the District of New Mexico

(henceforth “USDC-NM”). These complaints were

concerning Plaintiffs removal from federal service on

12/10/97 and other retaliations taken against him

by the same Defendant captioned above.

3 The USDC-NM dismissed the two previous

complaints, described above, with an Order filed on |

12/19/00 (doc 64).

3. Plaintiff filed two appeals of the dismissal of

his Complaints above with the United States Court

of Appeals for the Tenth Circuit (henceforth “10™

Cir.”). These appeals were docketed by the

- 7.

10" Cir. as Nos. 00-2480 & 01-2054.

4. Plaintiffs 10 Cir. appeals above were

dismissed with an Order and Judgment filed on

11/15/01.

5. Plaintiff filed a timely Petition for Writ of

Certiorari (henceforth “Petition”) with the Supreme

Court of the United States (henceforth “SCt.”)

concerning the 10" Cir.’s dismissal of 00-2480 &

01-2054. Plaintiffs Petition was docketed as No.

01-1143.

6. On 2/19/02, Defendant filed a waiver of the

right to file a Brief in Opposition (henceforth*BiO”)

to Petition 01-1143 with the SCt..

Il. JUDICIAL NOTICE OF ADJUDICATIVE

FACTS

vs The adjudicative facts which Plaintiff wishes

to be judicially noticed reside within his SCt.

Petition described above.

8. This Petition meets the requirements of

Fed.R.Evid. 201(b) in that these facts are “not

subject to dispute” due to Defendant’s filing of the

waiver so as not to file a BiO. In addition, the

Petition is most certainly “capable of accurate and

ready determination by resort to sources whose

accuracy cannot be reasonably questioned [the

Supreme Court of the United States (Sct.)].

9. In further addition: “The most frequent use

of judicial notice of ascertainable facts is in noticing

the contents of court records.” Charles Allan

Wright & Kenneth W. Graham Jr., Federal Practice

and Procedure: Evidence sec. 5106, at 505 (1* ed.

1977 & supp. 1997).

10. Defendant was served with all of this

information (99-1059 PK/KBM & 00-0652

PK/KBM) well over a year ago and has a full

- 28 -

opportunity to respond.

III. REQUIREMENTS SIGNIFICANT TO

DEFENDANT’S

ADMISSIONS TO MATERIAL ALLEGATIONS

11. The SCt. pleading which Plaintiff filed is his

Petition. Defendant’s avenue for a responseto

Plaintiffs averments within the Petition was a BiO.

Defendant failed to file a BiO as described above.

12. ASCt. BiO is controlled by this Court’s Rule

15 which requires that:

“... the brief in opposition should

address any perceived misstatement of

fact or law that bears on what issues

would be before the Court if certiorari

was granted.”

Also: “Any objection to consideration of a

question presented ..., may be deemed

waived unless called to the Court’s

attention in the brief in opposition.”

13. Within his Petition, Plaintiff made thirteen

averments where each “bears on” the “issues”

“before the Court”. Black’s Law Dictionary, 7" ed.,

defines “averment” and “allegation” as follows:

“Averment - A positive declaration of

fact; esp., an assertion or allegation in

a pleading.”

“Allegation - 1. The act of declaring

something to be true. 2. Something

declared or asserted as a matter of

fact, esp. in a legal proceeding; a

party’s formal statement of a factual

matter as being true or provable,

-

without its having yet been proved.”

14. The SCt. requirements concerning a BiO,

within that Court’s Rule 15 quoted above, is the

equivalent of Fed.R.Civ.P 8(d) Effect of Failure to

Deny. Rule 8(d) requires that:

“Averments in a pleading to which a

responsive pleading is required, .. .,

are admitted when not denied in the

responsive pleading.”

Ill. DEFENDANT’S ADMISSIONS TO MATERIAL

ALLEGATIONS

LS. Averment No.1:

“When Petitioner [Plaintiff] began

identifying safety deficiencies, .. .,

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”.”

See Petition at 1 E.g.: Failing annual performance

appraisal after Plaintiffs reporting of the unsafe

RH-72B nuclear waste shipping cask. See Petition

at 2, A-37.

16. Averment No.2: Plaintiff identified a

design failure of Defendant’s RH-72B nuclear

waste shipping cask resulting in a faulty

Radioactive Containment Seal. Plaintiff

requested, through discovery [Request No. 10],

documents related to the approval of the safety

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

claimed that: “. . . the information has nothing to

do with the issues in this case.” See doc. 48 at 3"

. 0.

Plaintiff replied that: “This assertion of Defendant

is obviously bogus.” Also: “This evidence has

been improperly suppressed...” See Petition at

2. See also Averment No.8.

17. Averment No.3: Relevant admissible

evidence actually submitted [558 pages] by

Plaintiff was improperly excluded. See Petition at

3 & A-27 thru A-30.

18. Averment No.4: The DOE has failed to

controvert the facts detailed within A-31 thru A-46.

See Petition at 4. See also Averment Nos. 8 thru13.

19. Averment No.5: Plaintiff identified flawed

air monitoring of radionuclide aerosols and

inadequate underground repository fire protection

controls at Defendant’s Waste

Isolation Pilot Plant (“WIPP”).

20. Averment No.6: Retaliations from

Defendant towards Plaintiff that are in very close

temporal relation to Plaintiff's

whistleblowing, described partially above, included

two failing annual performance appraisals and two

transfers. See Petition at 5

21. Averment No.7: Defendant claimed that

the exclusive remedy for federal employee

whistleblowers is the Civil Service Reform Act

(“CSRA”). Plaintiff clearly demonstrated that this is

NOT so. See Petition at 6.

22. Averment No.8: Defendant has made

knowingly false representations. For example,

Defendant claimed: “. . ., there is no requirement

that a PIP [Performance Improvement Plan] be

issued before or after an employee gets a failing

rating.” Plaintiff replied that: “This representation

is knowingly false (emphasis added) See Exhibit

ADA-17.” The “Exhibit ADA-17" was the DOE

Albuquerque Operations Office (‘AOO”)

a.

Performance Management and Awards Programs

(dated 3/26/96 and current at the time). This AOO

Program, described above, required the following:

“8. Performance Based Actions. The final rating of

record may be used to take necessary action when

an individual’s performance is rated as “fail” . . .

, the following course(s) of action will be taken:

Issuance of PIP.” Plaintiff's PIP was five

months late, and two days after contact of

Defendant by Plaintiff's Equal Employment

Opportunity (“EEO”) Counselor. See Petition at

A-35. This demonstrates pretext.

23. Averment No.9: Plaintiffs identification of

the unsafe RH-72B shipping cask, his removal on

12/10/97, and Defendant’s issue of their “Safe

Shipping Containers” Record of Decision (“ROD”) on

1/23/98 are all related. Both Defendant’s issue

of a PIP to Plaintiff above, and the issue of their

ROD establish causation for Plaintiff's removal

from federal service and for his being

blacklisted. See Petition at A-36.

24. Averment.No.10: Defendant refused to

investigate Plaintiff's Fourth EEO Complaint

which is a violation of 29 C.F.R. Part

1614.102(c)(5). See Petition at A-39.

25. Averment No.11: Plaintiff makes a specific

allegation of being blacklisted at the Carlsbad

Environmental Monitoring and Research Center

(“CEMRC”). Defendant fails to rebut this specific

allegation and admits to blacklisting of Plaintiff.

See Petition at A-42.

26. Averment No.12: False representations

are made by Defendant’s representative O’Dowd

to a United States Department of Labor (“DOL”)

Administrative Law Judge (“ALJ”) that Plaintiff had

made only “mere oral comments” to an agent of the

~ 39 .

United States Environmental Protection Agency

(“EPA”). Defendant admits that Plaintiff made

written comments, NOT “mere oral comments”, to

the EPA. This represents O’Dowd’s guilt in

conducting retaliations against Plaintiff to get

his DOL Complaint dismissed. See Petition at

A-43.

27. Averment No.13: Defendant violates Title

VII [42 U.S.C. § 2000e-3] with the unlawful

dismissal of & portion of Plaintiffs Fifth EEO

Complaint and the attempted restraint of Plaintiffs

effort to file the complaint. These actions are also

violations of 29 C.F.R. Part 1614 Sections 105(g) and

107. See Petition at A-44.

28. Averment No.14: Plaintiff is protected

under the Americans with Disabilities Act (ADA”).

Defendant made an unreasonable request for a

medical history from Plaintiffs doctor in violation of

the ADA to intimidate Plaintiffs medical provider.

This intimidation is also a form of blacklisting in

regard to Plaintiffs ability to obtain services from his

medical providers. See Petition at A-45 & A-46.

V. CONCLUSION

29. Defendant, as described above, has had the

chance to be fully heard on the claims of Plaintiff.

Defendant has admitted to all of the fourteen

averments above which detail that Defendant HAS

engaged in blacklisting and severe retaliations

against Plaintiff. This is in addition to the

blacklisting outlined in Plaintiffs first Motion for

Partial Summary Judgmentserved on 3/1/02.

- 33 -

Defendant was contacted and noted that

this motion is opposed.

Prayer for Relief

Defendant has no evidentiary basis for a

reasonable jury to find for him on his blacklisting

and retaliations towards Plaintiff, which has been

admitted to. Plaintiff, therefore,demands a

judgment as a matter of law granting this instant

motion, with also a jury trial for the determination

of damages.

Dated: March 11, 2002

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

- 34-

APPENDIX 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

Vv.

SPENCER ABRAHAM , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

MOTION FOR PARTIAL SUMMARY JUDGMENT

COMES NOW Plaintiff Rockefeller and moves

this Court for the issuance of an Order granting this

instant Motion. Facts supporting the guilt of

Defendant within this Motion are set forth in

Plaintiffs Memorandum in Support of Motion for

Partial Summary Judgment filed herein.

Dated: March 1*, 2002

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220 -

(505) 628 - 3541

- 8.

IN THE UNITED STATES DISTRICT COURT

_ FOR THE DISTRICT OF NEW MEXICO

TOD N. ROCKEFELLER,

former ENVIRON. SCIENTIST, Civ. No.

WIPP SITE TEAM, 01-399

CARLSBAD AREA OFFICE, JP/LCS

U. S. DOE,

Plaintiff,

V.

SPENCER ABRAHAM , in his

official capacity as SECRETARY,

UNITED STATES DEPARTMENT

OF ENERGY (DOE),

Defendant.

MEMORANDUM IN SUPPORT OF

MOTION FOR PARTIAL SUMMARY JUDGMENT

I, BACKGROUND

a. Within this instant Motion, there are NO

new facts er averments which have not been fully

briefed as of this day. Fact Nos. 1 through 3 below

have been firmly established within the record of ©

this case with impeccable evidence (from within the

Federal Register). Due to what Plaintiff had

experienced with his prior complaint (99-1059

PK/KBM), Plaintiff knew that it was necessary to

establish facts and have all of his aversions fully

briefed before attempting this Motion. For example,

Plaintiff had specifically explained what is detailed

within Fact No. 1 below (Unsafe Shipping Cask,

‘Medel RH-72B), and had attempted to include

Defendant’s Record of Decision (“ROD”)

concerning “Safe Shipping Containers” for

Transportation of Nuclear Waste as supporting

a

evidence of Defendant’s pretext for Plaintiff's

removal from federal service for his putative “poor

performance” (doc. 58 at 5). The previous Court

had improperly excluded Defendant’s ROD, with a

total of 748 pages of Plaintiffs evidence, as

. Plaintiff found this to be a shocking

and blatant violation of his Fifth Amendment right of

Due Process (emphasis added). This is why Plaintiff

had attempted to establish his self-authenticated

evidence into the record of this case with his ——

for such filed 9/26/01 (doc.20) (henceforth “First

Evidence Motion”).

b. On 2/2/02 Plaintiff served a Request for

Admissions of the Authenticity of Evidence and

Judicial Notice of Adjudicative Facts (henceforth

“Notice”) for evidence within Plaintiffs Binder of Self-

Authenticated Evidence (henceforth “Binder”). As

described within the Notice,two exhibits beneath

Tabs 6 and 10 of the Binder (“Exhibit CX-18" and

“Exhibit Destruct”) are noted within the Federal

Register and are required to be judicially noticed.

See Notice at 3 and 44 U.S.C. § 1507. Fact Nos. 1

through 3 below are established from Exhibits CX-

18 and Destruct.

a. Fact No. 1: Pretext is clearly demonstrated

by Exhibit CX-18 (Defendant’s ROD described

above) beyond any shadow of a doubt as to the

reason why Plaintiff was removed from federal

service on 12/10/97. As described within Plaintiffs

First Evidence Motion at 4 the following is noted:

“15.Tab 6: “Exhibit CX-18" - this is a

- 37 -

1/23/98 Record of Decision (“ROD”)

made by Defendant of Safe

“Transportation of Transuranic Waste

to the Waste Isolation Pilot Plant”

(“WIPP”). Plaintiff was removed from

federal service only several weeks prior

to Defendant’s ROD. Plaintiff had

reported a design failure of one of the

two nuclear waste shipping casks (Model

RH-72B), within this ROD, which results

in a faulty Radioactive Containment

Seal of the cask. This is evidence of why

Plaintiff had to be fired so that

Defendant could announce their ROD.

Again, here is strong evidence which

establishes a prima facie case of

Plaintiffs against Defendant.”

Causation is clearly established between

Plaintiffs removal on 12/10/97 and Defendant’s

ROD issued on 1/23/98 with only six weeks

between the two actions. 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). This averment of pretext

was made by Plaintiff for the first time back within

his prior suit (99-1059 PK/KBM, doc 58 at 5) on

10/17/00, again within his First Evidence Motion

on 9/26/01 as described above, and yet again for

the third time within Plaintiffs Reply to Defendant’s

Response to Plaintiffs Motion to Compel at 3, 4

served on 2/2/02. On three occasions now

- 38 -

Defendant has refused to respond to this averment

and its impeccable factual evidence. Fed.R.Civ.P.

8(d) requires that: “Averments in a pleading to which

a response is required, . . ., are admitted when not

denied in the responsive pleading.” This Fact No.

lnow solidly establishes that Defendant HAS

conducted severe retaliations against Plaintiff for his

objecting to Defendant’s disregard for worker and

public safety. The foundation or prima facie case is

formed here for Defendant’s initial and continuing

retaliations against Plaintiff.

In addition, Defendant also makes knowingly

false representations concerning this averment.

Defendant claimed that: “Plaintiff fails, however, to

explain how the correspondence concerning the

shipping casks . . . is even remotely related to the

claims in this suit .. .” See Response to Plaintiffs

Motion to Compel at 4, 5 filed on 1/24/02. It is

detailed above how Plaintiff did NOT (on three

occasions) “fail” to “explain” how “the

correspondence concerning the shipping casks” is

very “related to the claims in this suit.” This

establishes Defendant’s guilt even substantially

further.

b.. Fact No. 2: Defendant has admitted within

Exhibit Destruct to the destruction of

“discoverable” evidence of a blacklisting nature

about Plaintiff prior to his 3/98 hearing with the

Merit Systems Protection Board (“MSPB”). This

averment of Plaintiff is related to a Freedom of

Information Act (“FOIA”) request which he made

concerning Defendant’s alleged complaints from

“coworkers” where Plaintiff was told by Defendant

on 7/6/97 that he was somehow “threatening their

personal safety”. Of primary importance to

- 39 -

this case, is that a court and jury are entitled to

presume that when a party destroys evidence prior

to litigation, that the evidence would be unfavorable

to that party. See Akiona v. U.S., 938 F.2d 158

(C.A.9 (Hawaii) 1991); Brown & Williamson Tobacco

Corp. v. Jacobson, 827 F.2d 1119 (C.A.7 (Ill) 1987);

Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874

(C.A.Fed. (Ind.) 1986); Coates v. Johnson &

Johnson, 756 F.2d 524 (C.A.7 (Ill.) 1985).

To escape from supplying Plaintiff with this

requested evidence, Defendant made several

knowingly false claims within the Response to

Plaintiffs First Request for the Production of

Documents dated 12/28/01 (henceforth “12/01

Response”). Defendant made the clearly bogus

claim that: “. . .it is unclear what documents

Plaintiff is seeking.” See 12/01 Response at 1

Plaintiff thoroughly dispelled Defendant’s claim

above within the Motion to Compel’s Memorandum

at 1, 2 served on 1/7/02. In Defendant’s Response

to Plaintiffs Motion to Compel (henceforth “1/02

Response”) filed on 1/24/02, additional knowingly

false representations are made. Defendant claims

that Plaintiff is “precluded from obtaining the

documents through discovery.” See 1/02 Response

at 3,4. This representation is false. Defendant’s

attorney O’Dowd admitted that these documents

are discoverable. Exhibit Destruct at document 26

(Record of Conversation dated 11/19/97) notes:

“O’Dowd believes these two memos would be

discoverable under 5 CFR 1201 in their entirety, . .

.” This is why O’Dowd later requested that

this evidence be destroyed. See Binder Tab 10,

Exhibit Destruct - doc 30 dated 12/31/97.

Defendant makes one knowingly false claim

after another to avoid supplying Plaintiff with

-40-

incriminating evidence, while failing to address the

aversion made by Plaintiff that the claim within the

“two memos” is false. Fed.R.Civ.P 8(d) again

requires that Defendant has admitted to Plaintiffs

averment by failing to deny it. In addition,

Defendant changes his accusation from

Plaintiff “threatening the personal safety” of

“coworkers” to stating that Plaintiff “... is not

threatening physical harm, but is verbally harassing

people... .”. See Binder Tab 10, Exhibit

Destruct - doc 26 dated 11/19/97. Defendant has

admitted to making false representations about

Plaintiff of a blacklisting nature. It is therefore fact

that Defendant HAS engaged in blacklisting

activities towards Plaintiff and HAS destroyed

evidence of such (emphasis added).

e. Fact No. 3: Defendant has posted on the

Internet false information about Plaintiff of a

blacklisting nature from 2/6/98 to the present day

for any inquisitive employer to see. This

information is STILL available on the Internet as of

2/28/02. All one has to do to access this

blacklisting type information about Plaintiff is to do

a search for his name with an Internet Search

Engine and this information becomes instantly

available. In addition, the excerpt of the Federal

Register, which Plaintiff has included within the

Binder Tab 10, provides direction to three

different sources where this information can be

obtained about Plaintiff. E.g.: www.oha.doe.gov.

What is found at this website is a four page Decision

and Order of Defendant, Case No.VFA-0351

concerning Plaintiffs FOIA request. On page two of

four it is stated: “In fact, AOO has informed

us that Appellant [Plaintiff] has already engaged in

oto

extreme verbal harassment of co-workers...

see Record of Telephone Conversation between

Dawn Goldstein and Ron O’Dowd (November 19,

1997),” See Exhibit I

The information quoted above that

Defendant has posted about Plaintiff on the

Internet is false, and it is of the result of

Defendant’s ex parte communication of “November

19, 1997". See the captioned Original Complaint at

4 which states:

“20. Contained within this D & O

(VFA - 0351) is evidence of ex parte

communications made between

Defendant’s AOO and OHA with

knowingly false representations

made about Plaintiff of a very public

Blacklisting nature posted on the

INTERNET.

21. The Blacklisting comments, made

by Mr. Ron O’Dowd of Defendant’s AOO,

are still available on the INTERNET to

the very day of this instant Complaint

for any inquisitive employer to see (emphasis

added).”

Fed.R.Civ.P. 8(d) applies again here. Defendant

does not respond or deny the averment above and

therefore admits to this very public blacklisting of

Plaintiff with a knowingly false representation.

Ill. CONCLUSION

Plaintiff has very solidly established, within

Fact Nos. 1 through 3 above, that Defendant has

engaged in blacklisting activities against him from

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11/97 to the present day. By fact and law,

Defendant has admitted to this without any doubt.

The Supreme Court has ruled within Sartor v.

Arkansas National Gas Corp., 321 U.S. 620, 624

(1944) that: “...a summary disposition...

should be on evidence which a jury would not be at

liberty to disbelieve, and which would require a

directed verdict for the moving party.” See also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

252 (1986). All that has been presented above has

been firmly established as fact and has been fully

briefed prior to this instant Motion. This Motion is

therefore complete and ready for judgment upon

filing.

Defendant was contacted and opposes this

Motion.

PRAYER FOR RELIEF

Plaintiff prays that this Court will afford him

his Fifth Amendment right of “equal protection of

the laws” from the discrimination by Defendant by

granting this instant Motion and issuing an Order

noting the guilt of Defendant, and for proceeding

before a Jury Trial for the determination of damages.

Justifications for granting this Motion for Partial

Summary Judgment have been thoroughly detailed

above.

Dated: March 1*, 2002

Respectfully submitted,

s/Tod N. Rockefeller

319 Sunnyview St.

Carlsbad, NM 88220

(505) 628 - 3541

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