________________________________________________

Glenn D Ferren, Pro Se ) C.A. 04-35870

P.O. Box 472 )

Superior, MT 59872 )

)

Plaintiff-Appellant, )

v. )

Gale A Norton, )

in her official capacity as )

Secretary and Head of the )

UNITED STATES DEPARTMENT OF )

THE INTERIOR and )

UNITED STATES BUREAU OF LAND MANAGEMENT)

Defendant-Appellee. )

__________________________________________)

________________________________________________

Glenn D Ferren, Pro Se ) C.A. 04-35870

P.O. Box 472 )

Superior, MT 59872 )

)

Plaintiff-Appellant, )

v. )

Gale A Norton, )

in her official capacity as )

Secretary and Head of the )

UNITED STATES DEPARTMENT OF )

THE INTERIOR and )

UNITED STATES BUREAU OF LAND MANAGEMENT)

Defendant-Appellee. )

__________________________________________)

The U.S. District Court Billings for the District of Montana had subject matter

jurisdiction pursuant to 5 U.S.C 7703, 42 U.S.C 2000(e), 29 U.S.C. 633(a) and others.

The Ninth Circuit Court of Appeals has jurisdiction under 28 U.S.C. 1291. ;

The Whistle Blower Protection Act of 1989 (WPA), Title VII Civil Rights Act of 1964

(CRA), Age Discrimination in Employment Act of 1967 (ADEA), and others.

________________________________________________

Glenn D Ferren, Pro Se ) USCA Docket # 04-35870

P.O. Box 472 )

Superior, MT 59872 ) Supplement to

) Informal Brief

Plaintiff, ) Requesting

v. ) Plaintiff

Gale A Norton, )

in her official capacity as )

Secretary and Head of the )

UNITED STATES DEPARTMENT OF )

THE INTERIOR and )

UNITED STATES BUREAU OF LAND MANAGEMENT)

Defendant. )

__________________________________________)

Plaintiff appeals to the U.S. Court of Appeals for the Ninth Circuit in the Judgement

Decision of Civil filing (CV 01-104-BLG-RWA), summary judgement for Defendant,

and requests the U.S. Court of Appeals for the Ninth Circuit reverse the District Court

Order and render judgement for the Plaintiff (Request for Relief) in this matter.

If the U.S. Court of Appeals for the Ninth Circuit declines to render judgement for the

Plaintiff in this Civil Complaint, Plaintiff requests the Ninth Circuit Court of Appeals

Remand this Civil Complaint to an unbiased Court, the United States District Court

Helena Montana, appoint pro bono counsel, and direct that it be set for Jury Trial without

delay. (In employment actions brought under Title VII of the Civil Rights Act of 1964,

42 U.S.C & 2000e, pro bono counsel may be appointed pursuant to section 2000e-

5(f)(1)(B).)

The Ninth Circuit Court of Appeals has previously Remanded this case back to the

U.S. Federal District Court Billings (No. 02-35341, Exhibit "EE") and it is clear that the

Billings Court does not intend to follow the Ninth Circuit Court of Appeals' direction

or of allowing Plaintiff's Pro Se case to be presented to a Jury.

The United States Federal District Court Billings Montana has committed an abuse of

discretion in Pro Se Plaintiff's Civil Complaint, by Opinion and Order, dated

September 27th, 2004;

A Judgement based on procedure rather than on the substance or merit of Plaintiff's case,

"…because the recommended outcome of the motions does not depend upon analysis of

factual issues, but on matters of procedure.", Findings and Recommendations of US

Magistrate Judge and Order dtd Aug 12, 2004;

The effect of arguments by the Defendant to prevent this Complaint from proceeding

to jury trial can be construed as a willful Obstruction of Justice;

The effect of Recommendations and Judgements by Magistrate Judge Anderson and

Senior Judge Shanstrom to prevent this Complaint from proceeding to jury trial can

be construed as a willful Obstruction of Justice; when Plaintiff filed a Motion for an entry

of Judgement in his favor January 14, 2003 and Defendant had not filed a response as of

March 18, 2003, the Motion was subject to summary ruling, but the Billings Court

declined to grant summary judgement for Plaintiff or a requested Change of Venue;

Here again the Court committed an abuse of discretion; "the motion is unsupported by

any brief containing citations to legal authority…", and prompted the Defendant to file

a reply to Plaintiff's motion, allowing Defendant additional time for that reply;

as they are aware of the information before this Appeals Court and willfully Obstruct

Justice, Plaintiff requests that Judges Richard Anderson, 1935 S 56TH ST W BILLINGS, MT 59106-3743,

and Jack D Shanstrom, 3540 Masterson Cir Billings MT 59106 (406) 248-8855, be included as parties to

Plaintiff's injuries and void their immunity from inclusion and financial liability.

The District Court improperly granted Summary Judgement to Defendant; abused its

discretion, and failed to properly advise and instruct Pro Se Plaintiff in his pleadings

by disregarding previous Ninth Circuit Court of Appeals Order.

When Plaintiff wrote letters to the editor encouraging public participation in BLM public lands travel management planning meetings and made a written EEO investigation statement in support of his direct line supervisor Janet Edmonds, BLM managers Tim Murphy and Janet Singer retaliated against Plaintiff for those acts;

When Plaintiff made public (Whistle Blower) the information of Singer's reprisal acts against Plaintiff, detail(s), directed reassignment, suspension, an ethics violation by Murphy, and the drunken antics of the BLM Field Solicitor Gavin Frost, 1239 WICKS LN BILLINGS, MT 59105-4417, via Internet postings, (http://www.mcn.net/~gferren, at http://home.earthlink.net/~gferren, (now also http://150m/gferren, http://www.blackfoot.net/~gferren, web sites)), Plaintiff was placed on leave and removed from Federal Civil Service.

Acts by Defendant adversely affected the rights of Plaintiff and resulted in personal gain and advantage to Agents Murphy and Singer by removing a loyal supporter of Edmonds.

Reprisal acts by Defendant's Agent Singer were meant to intimidate Plaintiff to resign.

A conspiracy of effort by BLM Managers Murphy and Singer effected the constructive removal of Plaintiff; Murphy and Singer began email and telephone correspondence circa 1997 regarding Plaintiff's role in information resource management at the BLM Miles City office (Exhibit "A"), in 1998 Murphy and Singer continued this communication with Murphy's concern with Plaintiff's letters to the editor encouraging public participation in BLM travel management on public lands planning meetings, Plaintiff's attendance at those public meetings, and with Plaintiff's role as the computer systems administrator regarding web pages and computer system resources (Exhibits "B1, B2, D, E, N, P").

In October 1998, Plaintiff made a protected EEO statement in support of his direct line Supervisor, Janet Edmonds (Exhibit "C"), Edmonds being involved in an EEO complaint against manager Murphy. Plaintiff's statement was made to Chuck Sandau, 3519 Stone Brook Dr Billings MT 59101 (406) 652-4144, directly supervised by Diane Friez, a personal friend, protégé, and confidant to manager Singer.

Singer had constructive knowledge of Plaintiff's EEO statement prior to detailing Plaintiff on 12/21/1998 (Exhibits "F, G"), through this relationship with Friez, and also additionally through Plaintiff's own EEO filing and revelation of this statement to EEO counselor Kim Prill in January 1999. (Horton v Department of Navy, 66 F.3d 279, (CA Fed 1995))

Singer handpicked and directed a trio of BLM employees to produce an Administrative Review of Plaintiff and his supervisor (Exhibits "I, J, K") a review grossly flawed regarding both fact and technical issues, blatantly biased against Plaintiff, but the Administrative Review Team did report that the Plaintiff's top level performance qualified Plaintiff as "the best systems administrator" (Exhibits "L, S"). Plaintiff reported Singer's abuse of position and authority to the AR "Team".

Plaintiff was a top performer, with a consistent performance history and no discipline problems (Exhibit "H"); an observer could reasonably conclude that Singer's acts of detailing, suspending (Exhibit "R"), and reassigning Plaintiff were only pretext in support of an agenda of reprisal to remove Plaintiff and his direct supervisor Edmonds;

Transfers may not be ordered for improper purposes, (Curran V Department of Treasury,714 F.2d 913, 918 (9^th Cir 1983));

When disciplinary or corrective action occurs, it is a performance evaluation,(Frederick v Dept of Justice, 73 F.3d 349, 353-54, (Fed Cir 1996)).

After Singer detailed Plaintiff's supervisor Edmonds to the Billings office, circa February 1999, through intervention on her behalf from a higher level BLM manager, Matt Millenbach, Edmonds escaped Singer's reprisal and took a position in the Wyoming office, where she continues as a top performer (Exhibits "O, T").

Both Singer and Murphy display contradictions in their sworn EEO statements regarding Plaintiff's awards for performance (Exhibits "N, P"); awards signed and approved by both Murphy and Singer, calling into question their stated intent and the integrity and honesty of the bulk of their sworn testimony regarding Plaintiff.

Janet Singer, 901 Ginger Av Billings MT 59105 (406) 248-2898, directly supervised principal participants Stoebe and Friez (Exhibits "M, Q"), both involved in Plaintiff's removal. Diane Friez, 924 GOVERNORS BLVD BILLINGS, MT 59105-2126, directly supervised Chuck Sandau, to whom Plaintiff made a protected EEO statement (Exhibit "C"), a statement in support of his direct line supervisor, Janet Edmonds (Exhibit "O"), and a statement critical of Singer's and Murphy's mistreatment of Edmonds, alluding to additional revelations.

Robin Stoebe, 4133 Audubon Wy Billings MT 59106 (406) 655-4767, was directed by Janet Singer to take action against the Plaintiff for his Internet web page posting disclosures (Exhibit "U"), esp. those disclosures regarding Singers actions against Plaintiff, an expose of the field solicitor, and Murphy's ethics violation (Exhibits "V, W").

Nexus, contributing factor, timing; Plaintiff's EEO statement in support of Edmonds (Exhibit "C") is a contributing factor in Singer's detail (Dec 1998) and subsequent reassignment of Plaintiff.

Nexus, contributing factor, timing; Plaintiff's Whistle Blower revelations, and esp. in December 1999, were a contributing factor noted in the Defendant's Agency Notice of Proposed Removal, and Plaintiff's subsequent removal from Federal Civil Service for "misconduct" (Exhibit "X"). (Marano v Department of Justice, 2F.3d 1137,1140 (Fed Cir 1993))

A reasonable person could conclude that Plaintiff's Internet disclosures in 1999 and 2000 were a contributing factor to the Agency's personnel action.

The Agency constructively discharged Plaintiff by forcing Plaintiff to work (150) miles away from home and family; by it's acts of detail(s), reassignment, and suspension, by a significant change in Plaintiff's duties, responsibilities, and working conditions, and by changing Plaintiff's system administration level duties to those of an entry-level computer intern, and by his removal. The Agency intentionally created and tolerated retaliatory working conditions that would drive a reasonable person to resign and the Plaintiff perceived it as such. (Katradis v Dav-El of Washington, 846 F.2d 1482, 1485 (D.C. Cir. 1988))

These events occurred in retaliation and reprisal for Plaintiff's efforts via (OSC, MSPB, IG, OHA, EEOC, Congressional, news media, and Internet) to make public and expose an abuse of position and authority by Singer, prohibited personnel practice(s), discrimination, and gross mismanagement in the Montana BLM.

Defendant's actions against Plaintiff included demoting Plaintiff to entry level computer duties and made working conditions intolerable, subjected Plaintiff to a hostile work environment, and Plaintiff considered resignation (Exhibit "L"), but Plaintiff endured this reprisal and harassment until January 2000.

Plaintiff can not say that Singer was not made aware of (by Diane Friez) Plaintiff's EEO statement made in October 1998 to Friez's subordinate Sandau. If Defendant's Agent Singer had only become "aware of problems in October 1998", one must question why did she approve Plaintiff's exceptional performance award in December 1998?

In the absence of performance issues, a reasonable person can logically conclude that Singer had another motivation for her actions, Plaintiff's EEO statement indicated that he would reveal information relevant to Singer and Murphy's mistreatment of Edmonds.

As there was no valid reason to detail and reassign Plaintiff, Defendants actions are merely pretext and deliberate acts of retaliation, harassment, reprisal, and discrimination.

Plaintiff's reassignment was the result of retaliation for Plaintiff's Whistle Blowing and protected disclosures (reports of abuse of authority to OSC and in his EEOC complaint, reports to Congressional representatives, Internet postings, and other) and was also in part due to age and gender discrimination, Defendant's Agent Singer having been instrumentally involved in several reassignment actions against males over (40), (Exhibits "AA, CC, DD"), and Plaintiff's removal was a constructive removal.

The WPA of 1989 was created to improve protection from reprisal for federal employees who disclose government mismanagement, wrongdoing, or fraud, Whistle Blowers serve the public interest by assisting in the elimination of fraud, waste, abuse, corruption, and unnecessary government expenditures. Plaintiff, a dedicated career Civil Servant, and Whistle Blower, blew the whistle and made public evidence of abuse and corruption within the Montana BLM.

Plaintiff's protected EEO disclosure(s) and Whistle Blower Internet disclosure(s) were contributing factors to the Agency's actions against Plaintiff.

Plaintiff's protected disclosure(s) played a role in, or was a contributing factor to the personnel actions taken; a "contributing factor" is any factor which alone or in connection with other factors, tends to affect in any way the outcome of the decision.

A Whistle Blower need not demonstrate the existence of a retaliatory motive on the part of the employee taking the prohibited personnel action in order to establish that his disclosure(s) was a contributing factor to the personnel action.

Upon review, Defendant can not meet the burden of proof that it's actions in detailing and reassigning Plaintiff were justified based on the administrative review team report.

The report can at best be described as biased propaganda to suit a personal agenda; failing to meet the basic requirements for an impartial investigative report; of who, what, when, where, and why. (5USC 4302) (Exhibit "J")

This so-called Administrative Review was no independent investigation.

In fact, Singer chose to use and direct an unqualified team (Administrative Review team), when the Agency did have qualified personnel to perform an Administrative Inquiry. (Exhibit "K")

Plaintiff was an excellent computer specialist as evidenced by his ten-plus years Federal tenure and his performance ratings, with no history of disciplinary problems. (Exhibit "H")

The Agency would not have taken the same personnel actions against the Plaintiff even in the absence of his protected disclosure(s).

In the Agency's *Notice of Proposed Removal, Plaintiff's Whistle Blower Internet disclosures were listed as charges, and as such were a contributing factor to the Agency's actions (Exhibit "X"). *John Moorhouse , 123 Norris Court North , Billings MT 59105(406) 256-0345

Plaintiff routinely supplied the alleged "hacker" tools, also known as system administration and security tools, and other computer system security related information to his peers, even up to and including December 1999 (Exhibit "Z").

These computer security tools existed on other Montana BLM system sites, were used and studied by those computer specialists, even as Plaintiff was charged with "misconduct" for their possession and use.

But no other Montana BLM computer specialist was investigated or charged with "misconduct" for the possession and use of those system security tools.

Plaintiff was aware of Defendant's intent to take adverse actions against Plaintiff, even predicting Defendants' next plan of attack to fellow employee David Swogger, and then called Defendant's hand by truncating trivial log files, those log files that are routinely truncated by a computer specialist in the normal performance of his or her duties.

If Plaintiff had destroyed or damaged government computer systems or files, logically Plaintiff would have been charged under various applicable statutes, the alleged "misconduct" charge is again mere pretext in the constructive removal of Plaintiff.

Plaintiff is guilty of attempting to expose the corruption, mismanagement, and abuse of authority of certain BLM managers, if this can be defined as "misconduct"! (Exhibit "AA"). A climate of fear exists within Interior and the Montana BLM. (Exhibit "L")

Plaintiff's rights were violated under the WPA (5 USC 1221(e)(1) & 2302(b)(8)), Defendant's actions were prohibited personnel practice; the detail(s), reassignment, suspension, removal; (taking or failing to take…a personnel action with respect to any employee…because of

1. any disclosure of information…which the employee…reasonably believes evidences

(i) a violation of any law, rule, or regulation, or (ii)gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety…

Plaintiff reasonably believed that his disclosure(s) did/and do evidence an abuse of position and authority by Singer, Murphy, and others, and discrimination; these disclosures include a protected EEO statement in support of his supervisor Edmonds, rebuttals to Singer's allegations, an ethics violation by Murphy (See Special Rules for Ethics, 1998 CFR Title 43,Volume 1, CFR 20.401, Interests in Federal Lands), a drunken brawl by Field Solicitor Frost, etc. (Exhibit "BB") 

Plaintiff's civil right to be free from age and sex discrimination was violated by Singer.

Several of Defendant's Agents in Plaintiff's removal have benefited after assisting Singer by their participation in that removal; Diane Friez is now a GS-13 (Exhibit "FF"), Robin Stoebe now a GS-14,Tammy Watts now a GS-9, Rick Hotaling given the Butte FO manager position, for some sample examples.

Plaintiff has continued his disclosure(s) since the removal, continuing to blow the whistle on the BLM's prohibited personnel practice(s), funds diversion, and mismanagement; Involved in Murphy's ethics violation, Linda Reder, now promoted from a GS7 Secretary to a GS12 Administrative Officer, Reder also made an improper government purchase in the amount of $1300.00, and there are many other examples on Plaintiffs Internet site(s).

A principle office of the WPA is to eliminate the fear of being subjected to adverse actions for having disclosed improper government practices and to freely encourage employees to disclose what is wrong with our Government. The elements of misgovernment must be disclosed before they can be cured.

It would be an error of law in deciding that only the facts of disclosure, or in other words the whistleblower's status as a whistleblower, could be a contributing factor or of Plaintiff's meeting the burden of proof under the WPA; "whistleblowing should never be a factor that contributes in any way to an adverse personnel action", 135 Cong. Rec. 5033 (1989).

The District Court incorrectly granted Summary Judgement to Defendant and has once again abused its' discretion and exhibited bias against Plaintiff Pro Se (Exhibits "Y, EE").

The District Court has been provided with enough information and evidence regarding this complaint (2001 to 2004) and Defendant's actions of reprisal, discrimination, and constructive removal of Plaintiff, to render Summary Judgement for the Plaintiff or to question Defendant's argument and to set this matter before a Jury.

The District Court has failed to follow Ninth Circuit Order and provide the Pro Se Plaintiff with adequate guidance to correct any deficiencies in Plaintiff's submittals.

There is no valid basis for Defendant's Agent Singer's act, the detail of Plaintiff in December 1998; and Singer's actions thereafter purportedly based on the Administrative Review Report, can not be validated by a flawed and biased report created by a team with no qualifications or training to perform such an investigation or to generate a report that could be used as the basis for disciplinary actions when there are no performance or discipline issues. Plaintiff has exposed and refuted the AR Team Report. (Exhibit "J")

The District Court failed to consider the merits of Plaintiff's case, failed to adequately advise Pro Se Plaintiff, and improperly rendered summary judgement for Defendant.

The Ninth Circuit Court of Appeals should reverse the District Court and award Judgement for the Plaintiff, and relief as requested.

WHEREFORE, Plaintiff respectfully requests that the U.S. Court of Appeals for the Ninth Circuit enter a judgment for Plaintiff and award the following relief;

1. Defendant Gale Norton shall pay to Plaintiff back pay in the amount of $96,318.01(as of June, 2004), plus interest and additional back pay to be calculated as of the date of this award(based on salary rate at removal - $48,807yr);
2. Defendant Gale Norton shall reinstate Plaintiff in a non-hostile work environment at the current salary level of GS-l1 Step 10 and shall give Plaintiff retroactive credit (to March, 2000) for the lost years of service for purposes of calculating Plaintiffs retirement benefits. Until Plaintiff is formally reinstated, the BLM shall pay to Plaintiff front pay (GS-l1 Step 10) beginning , and continuing through December, 2022;
3. Defendant Gale Norton shall pay to Plaintiff $300,000 in compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses; award amount pursuant to the Civil Rights Act of 1991;
4. Defendant Gale Norton shall pay Plaintiff's reasonable attorney's fee to be determined by the Court as part of Plaintiff's costs of suit pursuant to 42 U.S.C. § 2000e-5(k)(Plaintiff incurred attorney costs during 1999);
5. An award of such other relief as the Court may deem just and proper from Defendant, and Judges Anderson and Shanstrom.

Plaintiff requests judgement for Plaintiff,

Dated this 16^th day of November, 2004

Respectfully submitted;________________,Glenn D Ferren,Plaintiff

Additional evidence exists in support of Plaintiff's claims; the documentation that is submitted with this Appeal is only representative:

Document dated November 19, 1997 - "A"

Copy - email (Official Government Record Email) Murphy to Edmonds - "B"1

Copy - email (OGRE) Ferren to Murphy - "B"2

Copy - email (OGRE) Ferren to Sandau - "C"

Copy - email (OGRE) Singer to Murphy - "D"

Copy - memo (certified) Christensen to Mitchell - "E"

Copy - email (OGRE) Ferren to Singer - "F"

Copy - document/notes dated December 20, 1998, Edmonds - "G"

Copy - document(s) performance/awards, Edmonds, Singer, Murphy - "H"

Copy - email(s) (OGRE) Singer, Friez, document "notes" - "I"

Copy - AR Report, reviewed - "J"

Copy - email(s) (OGRE) Friez re AR Team requirements - "K"

Copy - email(s) (OGRE) re AR Team Report, offer to resign - "L"

Copy - sworn statement of Diane Friez - "M"

Copy - excerpt sworn statement of Janet Singer - "N"

Copy - excerpt sworn statement of Janet Edmonds - "O"

Copy - excerpt sworn statement of Timothy Murphy - "P"

Copy - sworn statement of Robin Stoebe - "Q"

Copy - response to proposed suspension - "R"

Copy - document letter to Janet Singer dated June 12, 1999 - "S"

Copy - document interest announcement (Edmonds) - "T"

Copy - email (OGRE) Singer to Stoebe, fax CC Dfriez - "U"

Copy - documents, email, Internet postings - "V"

Copy - email (OGRE) Mari - "W"

Copy - NOD, removal, Moorhouse - "X"

Copy - Informal Brief (02-35341), chronology - "Y"

Copy - document letter, Hill - "Z"

Copy - email, letter, Swogger - "AA"

Copy - memo to MSPB - "BB"

Copy - document Decision Order class complaint - "CC"

Copy - document Frost to EEOC re discrimination - "DD"

Copy - memo vacant and remand (02-35341), docketing statement - "EE"

Copy - letter(s), Burns and Rehberg, re Friez and NTE vice Singer - "FF"

Other: excerpts of Record,

Plaintiff's Answers, Responses, Motions, Objections

Related cases; No. 02-35341, No. 03-35811

Dated this 16^th day of November, 2004.

Glenn D Ferren

Plaintiff, Pro Se

This supplement/continuation of Plaintiff's informal brief is proportionately spaced,

has a typeface of 12 points or more, and the body of the argument contains 3,439 words.

Dated this 16^th Day of November, 2004.

Glenn D Ferren, Plaintiff Pro Se

PO Box 472

Superior, MT 59872

Telephone: (406)822-0795

Plaintiff, Pro Se

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

============================================================

GLENN D FERREN, ) CV 01-104-BLG-RWA

) USCA Docket # 04-35870

Plaintiff, )

) Supplement to Informal

Vs. ) Brief of Appeal

Gale A Norton, Secretary of the ) Requesting Judgement

United States Department of Interior, ) for Plaintiff

United States Bureau of Land Management )

Defendant. )

=========================================================

I HEREBY CERTIFY that a true and correct copy of the Informal Brief and

Supplement to Informal Brief of Appeal, requesting Judgement for Plaintiff, was

served upon the Defendant or Defendants attorney by placing the same in the U.S.

mail, postage fully paid thereon, addressed as follows: US Department of Justice,

United States Attorney, District of Montana, P.O. Box 3447, Great Falls, MT.

59403

____________________________________