# Appendix — Rockefeller v. Abraham

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1540%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 928

## Text

‘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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1540%3A2. Public record. Not legal advice.