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  • the 18 April 2002 appeal to EEOC
  • the 22 October 2002 EEOC decision
  • the 26 November 2002 reconsideration request.

    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    Thomas E. White,DA Docket No.: BEAEFO0108BO150
    Secretary, Department of the Army,
    Agency.
    18 April 2002
    _________________________________/

    BRIEF IN SUPPORT OF APPEAL



















    Leroy J. Pletten
    Appellant


    TABLE OF CONTENTS
    Page
    Discovery of New Evidence 1
    Statement of Facts2
    ARGUMENT2
    1. TACOM's Ending My Employment February 1980 Violates Law and Case Law2
    2. There Was No Qualification Requirement Involved/Cited/Published3
    3. The Agency Decision Makes No Subordinate Findings of Fact5
    4. The New Incident, Col. Bishop's Material, Is A Separate One6
    5. Note the Jurisdictional Point6
    6. My Affidavit Is Undisputed7
    7. Please Order Whatever Political Relief Would Have Occurred
    But For the Agency Misleading the Political Officials
    7
    8. Please Appoint An Attorney For Me7
    9. Conclusion7



    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    Thomas E. White,
    DA Docket No.: BEAEFO0108BO150
    Secretary, Department of the Army,
    Agency.
    18 April 2002
    ____________________________________/

    BRIEF IN SUPPORT OF APPEAL


    Discovery of New Evidence

    Note that the agency has now admitted, by its Colonel Edward D. Bishop, after 21 years, that it did not inform me of my right to appeal to EEOC.

    The significance of not being notified of one’s appeal rights, is this, that I do not know what they are, at the time, in the timely manner needed to act on same. All alleged appeals and litigation that I have done (upon which, rest assured, the agency will fixate) were ‘uninformed’ choices, mere guesses, legally nullities. I deny ever waiving my right to notice and merits review like other federal employees typically receive. Wherefore I deny that any adjudicator or court had merits jurisdiction.

    Note that Col. Bishop admits the lack of notice of EEOC forum rights. Moreover, EEOC has itself already verified in its 23 February 1982 decision (which TACOM did not appeal), that TACOM had cut me off from access to EEO review by February 1980:

    “In none of the appeals pending before this Commission did the agency ever consider the merits of appellant's allegations. All of the complaints were rejected for the reasons stated in the Appendix. The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints.”–Dockets 01.80.0273, et al., 23 Feb 1982.

    That decision is res judicata in my favor; the agency failure to appeal, estops it from denying that fundamental finding.

    Re the removal, I could not make, was not allowed to make, a choice of forum, of which the agency now admits it neither notified me, nor allowed me to have access to.

    Note that the agency’s own EEO Counselor, Kathy Darius, in her “EEO Counselor Report,” admits against agency interest, that I was “Last employed February 1980 . . . “ The agency is estopped from opposing its own EEO Counselor! There was, the agency must admit, no 5 USC § 7513.(b) notice prior thereto, nor thereafter! As per law and case law, there being no prior notice, that fact “divests the [removal] of legality [so Pletten remains] on the rolls . . . entitled to his pay,” so the agency must reinstate me forthwith, Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). Please so order.

    You of course notice that the agency continues to refuse to address the merits.

    -1-


    STATEMENT OF FACTS

    I am an employee of the Army, its Tank-Automotive Command (TACOM). The agency will foreseeably claim that I am not, that it removed me! But the allegations will not be under oath, nor allowed to be cross-examined, for the simple reason that the agency knows the removal claim to be false, unable to withstand review. [Ed Note: See April-May 1982 cross-examination for examples.] And its decision does not, can not, contradict its Ms. Darius’ report, citing February 1980. The agency can show no 5 USC § 7513.(b) notice prior thereto.

    TACOM, as the agency knows, has sent me no 5 USC § 7513.(b) notice of charges, no reasons, no identification of misconduct, nor job description duties, performance requirements and standards, unmet or below standards. On the contrary, all appraisals from my supervisor, Jeremiah Kator, were consistently for above-standards work, doing better than colleagues.

    TACOM nonetheless will foreseeably claim, without specificity, to have made some decision to terminate me. At the time (February 1980) when it ended my employment, ordering me off-premises me, it did not provide me a notice of charges, nor of appeal rights. It has never done so thereafter. Instead, it has regularly denied I have any appeal rights. Pursuant to that view, it has opposed my every effort to secure review like other federal employees receive.

    The latest incident involved the agency admitting, in my political review effort, that failure to have provided me a notice of charges, and a notice of appeal rights. Col. Bishop admitted the failure to have notified me of appeal rights, but did not take action to correct the deficiency.

    I had contacted political review, as per advisory of attorneys John Kelly and J. P. Karpinski. The review process was not (as EEOC knows since 23 Feb 1982) occurring for me on merits as others receive. No efforts of mine were succeeding in normal (administrative/judicial) forums to get notice of charges, notice of forum rights, merits review as others receive it. Advice was, contact political officials.

    The assumption was, the Army would not dare mislead political leaders! And they must be told the truth, so they can take appropriate corrective action, write new laws, conduct hearings, etc. A fired employee not getting merits review in 21 years is that kind of thing. The Army could easily admit its error, and ‘give’ the official something, a correction of same, e.g., ‘yes, oops, we never gave Pletten an advance notice, nor appeal rights, so yes, we are correcting it, reinstating him,’ that sort of thing.


    ARGUMENT

    1. TACOM’s Ending My Employment February 1980 Violates Law and Case Law.

    TACOM never issued me a "statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts," Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971).

    To protect the public by protecting federal employees from unjust, discriminatory termination, Congress requires that the supervisor must state why he/she wants to terminate the worker. Congress put this 30 days advance written notice requirement in 5 USC § 7513.(d). Pursuant to it, the notice must:

    (a) comply with 5 CFR § 752.404(f) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed Cir 1983) [Ed. Note: Benacquista-Decker, OPM-Averhart, Averhart-Hoover, Hoover-Stallings, Braun-AMC];

    -2-


    (b) say more than a conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954);

    (c) enable more than "general denials," Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950);

    (d) list witnesses and say "the names . . . places . . . dates" of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being:
      (i) "lengthy and detailed," Baughman v Green, 97 US App DC 150;
      229 F2d 331 (1956);

      (ii) with "numerous examples of specific errors," Long v Air Force,
      683 F2d 301 (CA 9, 1982); and

      (iii) "item by item," Mandel v Nouse, 509 F2d 1031, 1032 (CA 6)
      cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975).

    Although the agency issues thirty days advance written notices pursuant to 5 USC § 7513.(b) to others, it never issued one to me. This difference shows discrimination, e.g., retaliation. Recall that I had filed class action cases on behalf of fellow employees, due to the regulatory violations in process at TACOM. Filing reports of violation is an employee job duty, pursuant to Army Reg 685-10.3-5a. - b.

    Recall from the 23 February 1982 EEOC Decision, Dockets 01.80.0273, et al., that TACOM’s superior, the Army Appellate Review Agency, verified my point in January 1980, whereupon TACOM ended my employment February 1980, as Ms. Darius has now admitted against agency against interest.

    Removals, suspensions, forced leaves, forced absences pre-disability-retirement, all are banned by 5 USC § 7513.(b), and a long line of case law on point, including the recognition that such forbidden action is done ex parte. Such contacts are banned, Sullivan v Dept of Navy, 720 F2d 1266 (1983).

    Actions without prior notice are banned, Woodall v FERC, 28 MSPR 192 (1985), Pittman v Army, 832 F2d 598 (1987). Agency violations of its own regulations are banned, Watson v Army, 162 F Supp 755 (1958); Piccone v U.S., 407 F2d 866, 871 (1969); Service v Dulles, 354 US 363 [77 S Ct 1152; 1 L Ed 2d 1403] (1957). [Basinger v OPM, 5 MSPB 210 (1981) says action "cannot be effected if there is a lack of compliance with departmental regulations".]

    2. There Was No Qualification Requirement Involved/Cited/Published

    TACOM will likely say that [it] got rid of me over the “smoking” issue. But no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. An alleged requirement does not exist that is "not reasonably related to the duties of the position. McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)," cited in Hill v Nettleton, 455 F Supp 514, 519 (1978). In that case, a Ph.D. was not a job requirement, notwithstanding the employer's false claim otherwise. In my case, there is nothing in any job description or BFOQ even mentioning the presence of tobacco smoke in the air, much less as a job requirement, much less, as so essential that failure to meet it, overrides everything, including qualification waivers, my many performance awards, supervisory recognitions, pay increases, etc

    "Workmen are not employed to smoke," Maloney Tank Mfg Co v Mid-Continent Petroleum Corp, 49 F2d 146 (CA 10, 1931). There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v N J Bell Telephone Co, 145 NJ Super 516, 523; 368 A2d 408, 411 (1976).

    -3-


    Even if the agency were to claim that cigarette smoke is a BFOQ, and even if it were true (it is not), "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975) . TACOM fears letting an honest investigator or EEOC AJ "examine the position descriptions," look for "legitimate job requirements," Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981). Tobacco smoke is not "in the requirements for any position," 5 USC § 2302(b)(6). No such requirement is published pursuant to law, a jurisdictional requirement by law, 5 USC § 552.(a)(1). This law is followed for others, not me.

    Airborne tobacco smoke only arises from preferences in any case; preferences have no legal standing, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 (1971) cert den 404 US 950 (1971).

    Any claim, if TACOM were to make it, that tobacco smoke is a BFOQ “suffers from a further inadequacy in that it failed to comply with 29 C.F.R. § 1607.5(b)(3), which requires that criteria used to predict job performance ‘must represent major or critical work behaviors as revealed by careful job analysis.’” Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, “Job-relatedness can only be determined where the criteria for selection are clearly identified.”

    BFOQ’s must be applied across the board, not just to one person (me, as TACOM had done, i.e., disparate treatment). BFOQ’s must be stated in advance, not fabricated retroactively, i.e., must be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v City of Chicago, 549 F2d 415, 429-434 (CA 7, 1977). TACOM knows that there are minimal medical requirements for personnel work, due to the nature of the job, and those few are on the “Health Qualification Placement Form.” Mine were use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. I meet them all. TACOM's own Dr. Francis Holt certified I met them, and never certified otherwise. EEOC review would reveal such facts in minutes.

    In Michigan especially, smoking is not a BFOQ. Cigarettes are illegal in Michigan, illegal since 1909, pursuant to Michigan’s law MCL 750.27, MSA 28.216 (which bans cigarettes in Michigan). Far from cigarette smoke being a BFOQ, it is illegal. An EEOC AJ would see that suppressing smoker conduct, even if done "'brusquely,'" is legally valid, Diefenthal v C.A.B., 681 F2d 1039, 1042 (1982); Jacobs v Mich Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979); Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923). TACOM Regulation 190-4 bans drugs from being brought on-post (nicotine is a drug). There is no ‘requirement’, no ‘BFOQ,’ for what is banned!

    5 USC § 552.(a)(l)(C) - (D) makes the publication of a qualification requirement “jurisdictional,” Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467 [106 S Ct 2022; 90 L Ed 2d 462] (1986). EEOC can take official notice that no federal employee has ever, but me, been accused of having a ‘presence of tobacco smoke’ qualification requirement. Well, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said I fail to meet the requirement! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.

    Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule violation by them. Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has a pattern of law violations); and Onweiler v U.S., 432 F Supp 1226, 1229 (D Idaho, 1977). The agency’s not obeying the law for me, is part of the agency retaliation and disparate treatment against me. Others similarly situated are not so treated.

    I repeatedly return to duty as per Bevan v N Y St T R System, 74 Misc 2d 443;345 NYS 2d 921 (1973) (the case of an employee also falsely accused of not meeting a non-existent qualification

    -4-


    requirement!). Please treat this appeal brief as yet another return to duty on my part. Note that I continue as always to work full-time, doing personnel and crime prevention duties, studying pertinent writings on the subject, prepping self for immediate actual return to duty.

    New evidence, even on TACOM’s smoking claim, has repeatedly come forth, showing TACOM fraud, misrepresentation (e.g., “smoking” ban ability), warranting reopening had at any step, TACOM allowed an EEO case on merits to be “opened,” Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238 (1944). These legal principles are obeyed for others. Of course, here, now, Col. Bishop admits my EEO case was not opened, TACOM had not even notified me of my rights!

    EEOC can take official notice of the fact that its Detroit Office has never been contacted by TACOM to set up an investigation or hearing, with respect to the “decision to terminate” me, notwithstanding what TACOM may claim to be thousands of requests by me – for such merits review to occur!

    3. The Agency Decision Makes No Subordinate Findings of Fact.

    Agency decisions must make findings on all material issues; reasons must be clearly enunciated; each disregard of its own staff writings must be explained. In re United Corporation, 249 F2d 168 (CA 3, 1957). The agency does not do this. You will agree, there is nothing to rebut Ms. Darius’ showing the decision to terminate my employment in February 1980. As you recall, EEOC’s own Detroit Examiner, Henry Perez, Jr., had confirmed likewise, in his 9 April 1980 letter (Enclosure 1), showing his awareness of the agency “decision to terminate“ me. The agency had debunked his statement!

    The agency must let you know in the decision the basis for its conclusions; there is to be no speculation; even proper reasons are not to be implied; reject the improper processing (here no hearing nor investigation) due to the unfairness. Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969).

    The absence of required findings requires reversal, even if there may allegedly or actually be evidence in the record to support proper findings. Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962).

    The Army is not allowed to put you, EEOC, the higher level agency, in the position of speculating as to the basis for the Army conclusion; you must know what it means first. Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964). Here, the agency’s own assigned Counselor, Kathy Darius, has officially put in the Report, the end of employment data, as of February 1980 – something the agency had denied until now!

    Note that Ms. Darius is from TACOM’s boss, AMC. TACOM had always feared review if any of its superiors were to examine the data; what TACOM feared, has now come to pass. The AMC impartial review shows the end of my employment to have been February 1980, long prior to any notice TACOM ever even alleged, though not under oath, to have been issued.

    My affidavit (enclosure 3) stands unrebutted, undisputed, indeed, now corroborated by AMC’s Kathy Darius. Note that her Report is not trying to do me any favors, she is not on my side, but essentially taking an ‘adversary’ position throughout. But she got the key point right, the end of my employment data, she got that right, February 1980.

    -5-


    4. The New Incident, Col. Bishop’s Material, Is A Separate One.

    The agency may argue this is rehash of the same old thing. Not so. Says EEOC,

    “Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart.”--Pletten v Army, Case No. 05820275 (4 March 1983).

    Please take note of Col. Bishop’s admitting TACOM did not notify me of my review forum rights, as per 29 CFR § 1613.403 and thereafter requirement, and as per constitutional due process requirements.

    Note that when Col. Bishop was approached as to HIS rights, he refused to sign. Note the prevalence of reprisal against whistleblowers in the federal service, cited by Thomas M. Devine and Donald G. Aplin, "Whistleblower Protection—The Gap Between the Law and Reality," 31 Howard Law Journal (#2) 223-239 (1988). Col. Bishop would rightly fear that his admitting the agency failure to notify me of my rights, could be construed as him ‘whistleblowing.’ He rightly feared retaliation.

    And note Ms. Darius’ admission against interest, of the date of my employment ending, February 1980 (a date TACOM has never admitted). Please assure that these individuals are protected from reprisal, especially crucial if and when investigation and hearing are conducted.

    Remember, TACOM Col. John Benacquista had committed felony extortion against me, as he admitted against interest:

    "All he [Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants.'" (4/23/82 Dep. p. 62)."All" Mr. Pletten "had to do was to" change his anticipated testimony, or be put on enforced leave, fired, retired, have his pay embezzled.. "All he had to do was to" lie, deny the extant hazardous conduct; he'd still be at TACOM. Same is extortion, in violation of Michigan law, MCL 750.213, and case law, People v Atcher, 65 Mich. App. 734 (1975).

    Remember also, that TACOM was unable to persuade the Michigan Employment Security Commission (MESC) of any misconduct, deficiency, etc., on my part, so it awarded me unemployment compensation. This was done pursuant to MCL § 421.28(1)(c), MSA § 17.530.28(1)(c), which precludes such award if the person is guilty of an employment offense warranting removal!

    In view of the retaliation against whistleblowers, please order protection for Col. Bishop and Ms. Darius, for their words in my favor. (Though they wrote not favorably to me in other respects, the agency is very savage against even the slightest deviation from the party line.)

    5. Note the Jurisdictional Point.

    TACOM will likely say that got rid of me over the “smoking” issue. But no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. It could not persuade MESC, in its merits review!

    EEOC is familiar with BFOQ matters, so [no] need to belabor you with that. But please make sure to note that 5 USC § 552.(a)(l)(C) - (D) makes same “jurisdictional,” Hotch v U.S., 212 F2d 280 (CA 9, 1954); Bowen v City of New York, 476 US 467 (1986). This is significant, as the agency keeps claiming courts had jurisdiction! Not by the law and facts shown here, they didn’t.

    -6-


    Also, please take official notice that no federal employee has ever, but me, been accused of having a ‘presence of tobacco smoke’ qualification requirement. Well, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said I fail to meet the requirement! Unspecified! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.

    There is no jurisdiction, by law, 5 USC § 552.(a)(l)(C) - (D), to act outside the rule of law, published law and regulation. The Office of Personnel Managment (Enclosure 2), the Army itself, all deny that smoking is a ’qualifications’ matter, a ‘BFOQ’ matter. They have published nothing making ‘smoking’ a requirement, so Army in turn can not disqualify me for failing to meet a non-requirement.

    6. My Affidavit Is Undisputed.

    As per Ceja v U.S., 710 F2d 812 (CA Fed, 1983), please accept my affidavit (enclosure 3) as undisputed, indeed, corroborated by Col. Bishop (no notice of EEO rights) and Kathy Darius (employment ending February 1980, with no prior notice having been issued).

    7. Please Order Whatever Political Relief Would Have Occurred
    But For the Agency Misleading the Political Officials.

    The agency should have honestly admitted, yes, oops, we never gave Pletten an advance notice, nor appeal rights, so yes, we are correcting it, reinstating him, that sort of thing. That is the point of having presidential and congressional oversight of federal agencies. That level cannot do their job, when agencies mislead them. Please take into account what would have happened, had the agency honestly admitted its error. Please order that to occur now.

    Additionally, at that level, those high officials could have, had they had the truth admitted to them, caused systemic change, to enable EEOC to protect federal workers from such savage abuses as have occurred here, as EEOC does protect private sector workers. They could have passed a law, or caused EEOC regulation change, to do or enable that.

    8. Please Appoint An Attorney For Me.

    The situation has gone on for 22 years. The agency idea, which has succeeded, was to punish me for winning the January 1980 Investigator Report. Punishment was to include destroying family, finances, career. Were the savagery of this agency action to be done to a private sector employee, EEOC would file suit on the employee’s behalf. Please do that in this case. Please change your regulations if need be.

    9. Conclusion.

    Please take note of the above-cited facts, and my affidavit (enclosure 3). Note Col. Bishop’s admission of no notice of appeal rights; and Ms. Darius’ admission against agency interest, of end of employment, February 1980. Note the lack of a prior 5 USC § 7513.(b) notice. Please follow the case law, order remand, or better yet, to bring this matter to an end after 22 years, order the agency to follow the pertinent precedent; an absence of notice “divests the [removal] of legality [so Pletten remains] on the rolls . . . entitled to his pay,” so reinstate me forthwith, Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983).

    Respectfully,
     
    /s/Leroy J. Pletten
    Leroy J. Pletten
    Appellant
    Enclosures
    1. EEOC’s 9 Apr 1980 Letter, Corroborated by Ms. Darius
    2. OPM’s 30 Jan 1984 Qualification Denial Letter
    3. Appellant’s Affidavit, 18 April 2002


    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    First National Building Suite 600
    Detroit Michigan 48226
    Telephone 226-7636
    April 9, 1980

    IN REPLY REFER TO:
    EEO CLASS COMPLAINT OF
    Pletten, Leroy
    Charge No: 054-O8O-X0009

    Dear Mr. Pletten:

    Pursuant to your letter of April 2, 1980, you appear to be somewhat confused as to my present involvement with your complaint. Let me attempt to enlighten you on some procedural matters. On the 7th of March 1980, the agency sent this agency a letter requesting the Complaints Examiner issue a recommended decision on whether to accept, reject or cancel your complaint. Thus, at this point of the proceedings I am not concerned so much with the merits of your complaint as I have been requested to render an opinion on whether you have sufficient standing to act as the agent for the proposed class.

    You must realize that your mere request to act as class agent will not suffice without a further showing that you comply in all respects with 29 CFR § 1613.601 et seq.

    Futher be advised that I am not now in a position to interfere with or disrupt the agency's decision to terminate you. Should I find at a subsequent hearing, if and when it is held, that members of your proposed class have been discriminated against, then and only then will I be authorized to recommend corrective action.

    [Ed. Note: I filed on 'individual case' basis for review, not awaiting the 'class action' process. Agency obstruction of justice, refusing to process same, occurred, and still continues.]

    Therefore, should you remain sincere [Ed. Note: now that you've been terminated and will have your own reinstatement as your priority] in your decision to pursue a class action complaint, you should familiarize yourself with the applicable law and procedures.

    Sincerely yours,
     
    Henry Perez, Jr.
    Henry Perez, Jr.
    Compakints Examiner
    HPJ/ca
    cc:
    Mr. Kenneth R. Adler
    EEO Officer
    Department of the Army
    U.S. Army-TARCOM
    Warren, Michigan 48090

  • Encl.1


    United States
    Office of Personnel Management
    Washington, D.C. 20415

    JAN 30 1984

    In Reply Refer To:Your Reference:


    Dear Mr. Pletten:

    This is in reply to your Freedom of Information request dated December 12, 1983, and received in this office on January 23, 1984. A copy of your letter was forwarded to this office for reply to those items pertaining to qualification requirements since this office has responsibility for the development of qualifications standards.

    Specifically, you requested a copy of any and all qualification requirements issued by OPM that require smoking as a condition of Federal employment. You asked that this include qualification requirements in Handbook X-118 as well as any OPM may have issued or may be using that are not a part of the X-118 system. You also requested that if there are no such requirements that we so state.

    This office is not aware of any qualifications standards issued or in use by OPM that require the ability to smoke. As a consequence, we cannot fill your request for copies of such material.

    Sincerely,
     
    Joseph W. Howe
    Joseph W. Howe
    Assistant Director
    for Standards Development

    Encl. 2


    Before the
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    Thomas E. White,DA Docket No.: BEAEFO0108BO150
    Secretary, Department of the Army,
    Agency.
    18 April 2002
    _________________________________/

    AFFIDAVIT IN SUPPORT OF APPEAL

    STATE OF MICHIGAN)
    )SS
    COUNTY OF MACOMB)

    Appellant Leroy J. Pletten, being first duly sworn, deposes and says that his allegations in his Brief in Support of Appeal are true and correct. Here is a summary.

    I am an employee of the Army Tank-Automotive Command (TACOM). TACOM has sent me no 5 USC 7513.(b) notice of charges, no reasons, no identification of misconduct, nor job description duties, performance requirements and standards, unmet or below standards. On the contrary, all performance appraisals from my supervisor were consistently for above-standards work.

    TACOM nonetheless claims to have made some decision to terminate me. At the time (early 1980) of its claims of ordering me off-premises me, it did not provide me a notice of charges, nor of appeal rights; it has never done so thereafter. Instead, it has regularly denied I have any appeal rights. Pursuant to that view, it has opposed my every effort to secure review like other federal employees.

    Until TACOM notifies me of appeal rights, I do not know what they are. All I have done was per ‘uninformed’ choices, mere guesses. I deny ever waiving my right to notice and merits review like others typically receive, as per my years of experience with same. Wherefore I deny that any adjudicator or court had merits jurisdiction. Moreover, EEOC already verified in its 23 February 1982 decision (that TACOM did not appeal), that TACOM had cut me off from access to EEO review by February 1980. I could not make, was not allowed to make, a choice of forum, of which the agency neither notified me, nor allowed me to have access to.

    Assuming that the agency continues its refusal to file any statement under oath, this affidavit is to be accepted as undisputed, see case law, e.g., Ceja v U.S., 710 F2d 812 (CA Fed, 1983).

    Leroy J. Pletten
    This document was acknowledgedLeroy J. Pletten
    and signed by Leroy J. PlettenPersonnel Office Crime Prevention Officer/Appellant
    before me on April 18, 2002.

    Janice A. Olszewski
    Janice A. Olszewski
    Notary Public, Macomb County, MI
    My Commission Expires: 11-23-05

    Encl. 3


    Before the
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    Thomas E. White,
    DA Docket No.: BEAEFO0108BO150
    Secretary, Department of the Army,
    Agency.
    18 April 2002
    ____________________________________/

    CERTIFICATE OF SERVICE

    I hereby certify that on the date shown below, I transmitted the Brief in Support of Appeal, to

    Equal Employment Opportunity Commission
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036 (certified)

    Dir, EEOCCRA, Dept of Army,
    Attn: SAMR-SFECR, Suite 109B
    1941 Jefferson Davis Hwy,
    Arlington VA 22202-4508 (certified)

    USATACOM
    Attn: AMSTA-LA
    Ms. E. Bacon
    Warren MI 48397-5000

    Date: 18 April 2002Leroy J. Pletten
    Leroy J. Pletten
    Appellant




    Note Prior Request for Reconsideration, No Answer Received
    Leroy J. Pletten


    2 March 2002

    Subject: Request for Reconsideration of EEO Decision


    General Paul J. Kern
    Commanding General
    U.S. Army Materiel Command (HQ AMC)
    5001 Eisenhower Avenue
    Alexandria, VA 22333-0001

    Dear Sir:

    I am an employee of AMC, specifically, at TACOM, Warren, MI. I filed a discrimination complaint which was assigned to your EEO staff to process and adjudicate. It issued a decision 1 Feb 2002.

    This requests that you order reconsideration of the said 1 Feb 2002 decision by your EEO staff. It makes the same type errors as the federal Equal Employment Opportunity Commission has already called attention to in my case, e.g., decision without standard EEO investigation, testimony, formal hearing, such as others receive pursuant to 29 CFR § 1614. The decision issuance is itself discriminatory in treating me differently than others. Others receive EEO investigation, testimony, formal hearing, prior to decision.

    Please order that the decision process be done for me, the same as for others, EEO investigation, testimony, formal hearing, prior to decision. I intend to present significant evidence for the investigation, and testimony by a number of AMC employees, at the hearing.

    I look forward to returning to duty immediately.

    Respectfully,
     
    Leroy J. Pletten
    Leroy J. Pletten




    EEOC Decision 22 October 2002
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036



    Leroy J. Pletten
    Complainant,

    v.

    Thomas E. White,
    Secretary,
    Department of the Army,
    Agency.

    Appeal No. 01 A2 2322
    Agency No.: BEAEFO0108BO150

    DECISION

    Complainant filed a timely appeal with this Commission from the final agency decision dated January 25, 2002, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405.

    By letter dated April 26, 2001, complainant contacted the EEO office and alleged that he had been discriminated against in reprisal for prior EEO activity when a letter was sent from the agency to a United States Senator containing incorrect information regarding complainant's removal from federal service in January 1982.

    The agency issued a final decision dismissing complainant's complaint on January 25, 2002. The agency found that complainant was not aggrieved by this letter and dismissed the complaint for failure to state a claim.

    The regulation set forth at 29 C.F.R. § 1614.107(a)(l) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she bas been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). The Commission's federal sector case precedent bas long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

    Complainant alleges that he was subjected to reprisal when the agency sent a letter containing incorrect information about his case to his Senator. However, complainant has not alleged that he suffered any injury in fact as a resuit of the letter; he has not demonstrated, for example, that
    201A22322

    the letter was relied on in any way by the agency or the Senator's office, or that any action was taken based on the letter. Furthermore, complainant has not shown that the incident he describes was so severe as to constitute harassment. We find that complainant is not aggrieved.

    The agency's decision to dismiss the complaint for failure to state a daim was proper and is hereby AFFIRMED.

    STATEMENT 0F RIGHTS - ON APPEAL

    RECONSIDERATION (M0701)

    The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that:
    1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or

    2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.

    Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt ofanother party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party.

    Failure to file within the time period will resuit in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).

    COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

    You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
    301A22322

    you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

    RIGHT TO REOUEST COUNSEL (Z1199)

    If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

    FOR THE COMMISSION:

    /s/Carlton M. Hadden
    Carlton M. Hadden, Director Office of Federal Operations

    OCT 22 2002
    Date

    CERTIFICATE OF MAILING

    For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on:

    OCT 22 2002
    Date

    /s/R. Byrd
    Equal Opportunity Assistant

    [Ed. Note:
    Actually Mailed 23 Oct 2002;
    Received 28 Oct 2002]





    Reconsideration Request 26 Nov 2002
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    DA Docket No.: BEAEFO0108BO150
    Thomas E. White,
    Reconsideration No.: 05A30273
    Secretary, Department of the Army,
    Assoc. No. 01a22322
    Agency.
    26 November 2002 Filed 3 Dec 2002
    ____________________________________/

    PETITION FOR RECONSIDERATION







    /s/Leroy J. Pletten
    Appellant
    8401 18 Mile Road #29
    Sterling Heights, MI 48313-3042
    (586) 739-8343


    TABLE OF CONTENTS
    Page
    Statement of Facts1
     
    Argument
     
    1. Rules Are To Be Obeyed3
     
    2. Note the Agency's "Stalingrad-Type" Defense3
     
    3. Due Process Is An "Absolute" Right4
     
    4. The "Right to Work" Is Being Ignored4
     
    5. The Agency Began The Situation With Extortion5
     
    6. Discovery of New Evidence7
     
    7. Even Slaves Were Entitled To Due Process7
     
    8. No Qualification Requirement Was Involved/Cited/Published8
     
    9. Note the Jurisdictional Point of Law10
     
    10. The Agency Decision Made No Subordinate Findings of Fact11
     
    11. Assuming Arguendo Failure to Have Alleged Current Injury,
    Please Note Agency Responsibility
    12
     
    Conclusion14
     
    Enclosures
     
      1. Abortion Data15
      2. Alcoholism Data19
      3. Drug Data22
      4. Pure Air Precedents Underlying 32 CFR 203, AR 1-8, and USACARA Report26
      5. Ease of Enforcement Data41
      6. Affidavit42

    -i-

    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    DA Docket No.: BEAEFO0108BO150
    Thomas E. White,
    Reconsideration No.: 05A30273
    Secretary, Department of the Army,
    Assoc. No. 01a22322
    Agency.
    26 November 2002
    _______________________________/

    BRIEF IN SUPPORT OF PETITION FOR RECONSIDERATION

    STATEMENT OF FACTS

    32 CFR 203 (1977) and AR 1-8 (1977) came as a shock to Pentagon types used to hard drinking, being pro-abortion, aiding and abetting drug smuggling, and defying the right to pure air. As EEOC noted, Docket 03810087 (8 April 1983), p 5, the agency's "own regulations [32 CFR 203 and AR 1-8] permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others" (the standard pure air rights concept [Encl 4]). And there's much more, the tobacco link to, e.g., abortion (Encl 1), alcoholism (Encl 2), drugs (Encl. 3).

    Yes, drug smuggling, aided and abetted at the highest military levels. See Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (New York: W. W. Norton, 1987) (this Wall Street Journal investigative reporter--and biographer of Pope John Paul II--gives examples of military smuggling drugs into the U.S. and taking action against honest government agents trying to halt the smuggling. Military brass would transfer or order into combat, honest personnel working to expose the illegality. This case arises from that pervasive attitude among military brass; drug smuggling good, exposure/dealing with entry drug, bad.

    And on abortion. "As early as 1902 Ballantyne had found an increase in the abortion rate in French and Austrian women working in tobacco factories." Beulah R. Bewley, "Smoking in Pregnancy," 288 Brit Med J (#6415) 424-426 (11 Feb 1984). About "fifty-three per cent. of . . . abortions . . . are due to tobacco. . . . inhalation of [second- hand] tobacco smoke by pregnant mothers when sitting among smokers is sufficient to cause fatal poisoning of the fetus." Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 238. Wherefore, says Dr. Tidswell, tobacco, including second-hand smoke, has a record of significantly leading to abortion, p 184, terminating about 1/7 of live-births, p 177.

    -1-

    "The smoking mother is . . . 80 percent more likely than the nonsmoker to have a spontaneous abortion." Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 162.

    Re drugs: "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," said the U.S. Supreme Court in Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (25 June 1962). The government already long knew that "all" drug addicts are smokers, say Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953), p 196.

    "When we take a thorough drug history, we are forced to admit that nicotine--not alcohol or cannabis--is the drug of entry for most young people."--Emanuel Peluso and Lucy Silvay Peluso, "The Challenge of Treating Teenagers," 9 Alcoholism &p Addiction (#2) 21 (Dec 1988). And drugs, with tobacco as the starter drug, the entry point, lead to the money trail to terrorism. See Rachel Ehrenfeld, Ph.D., Director, NYC Center for the Study of Corruption & the Rule of Law, Narco-Terrorism (NY: Basic Books, 1990) and Evil Money (NY: HarperCollins, 1992).

    Along come the rules, 32 CFR 203 and AR 1-8, to break up the underpinnings of abortion, alcoholism, drugs, and other matters related to tobacco. (Those rules should be read in conjunction with Michigan's cigarette law, MCL §750.27, MSA § 28.216, which bans manufacture and sale of deleterious and adulterated cigarettes, the only kind there are!) Said rules were "designed to disrupt" nonconforming practice, as per the concept of rules' purpose cited in U. S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). "What ought to be done is fixed by a standard . . . whether it usually is complied with or not." Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903).

    At TACOM, management brass in combination with the legal office, determined to defy the rules. They would simply fire anyone trained to push for enforcement. Public safety, preventing alcoholism, being 'pro-life' on abortion, fighting terrorism at the drug-use entry, American lives at stake, none of that mattered. What counted to TACOM management and attorney personnel, was fighting, defying, the rules and laws.

    In this hostile environment, I raised the issue of 'let's start compliance.' My personnel file shows I am an excellent employee, with multiple recognitions, attendance, and performance recognitions and awards. EEOC has already verified, I won an investigation, the USACARA Report (25 Jan 1980). Note EEOC reference (Docket Nos. 01800273 et al, 23 Feb 1982, p 2), to TACOM defying what I'd won (and cutting me off from review thereafter).

    EEOC has further noted, Docket 03810087 (8 April 1983), p 5, the agency's "own regulations [32 CFR 203 and AR 1-8] permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others." With tobacco linked to alcoholism, abortion, drug abuse and thus the money trail to terrorism, all of this is discomforting, annoying, even fatal to many Americans, as the nation sadly, especially, felt 9-11-2001.

    TACOM fired me without notice, without stating any misconduct or performance deficiency, thus violating 5 USC 7513(b) notice requirement. Nor notice of all review rights.

    -2-
    ARGUMENT

    1. RULES ARE TO BE OBEYED.

    Rules are not to be made a mockery of, by pretense that enforcement is too difficult! A constitution, or regulation, is not satisfied with half-way measures and does not prefer dissimulation to straightforwardness. Duties and requirements may not be avoided on ground that it might be a lot of work to comply. Alan v County of Wayne (1972) 388 Mich 210, 200 NW2d 628, 67 ALR3d 1079, adhered to (1972) 388 Mich 626, 202 NW2d 277. In fact, controlling smoking is easy (Encl 5), as citations from multiple sources show, as TACOM knew all along:

    Here, EEOC noted (Docket 03810087) on 8 April 1983, p 5, the agency's "own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others" (the standard pure air rights concept). There is no issue of trying to get a rule established. Enforcement will be "easily" achieved if only the rule would be "recognized" that it exists. As in Schnadig, supra, p 4189, "The Company expects the employees to live within the restriction." That is what TACOM refused to do, pretending it couldn't comply, a lot of work!

    Compliance is what it would be ordered to do, if ever review begins. Then investigator, like USACARA, will again tell TACOM to admit that AR 1-8/32 CFR 205 exist (i.e., to "recognize" them). Wherefore, I again request to be treated same as others, allowed EEOC review, investigation, hearing. And that this situation be treated as per EEOC instructions issued in EEOC Request No. 05820275 (4 March 1983).

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with prior EEOC decisions, is a clearly erroneous interpretation of material fact or law. Inconsistency needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984).

    2. NOTE THE AGENCY 'STALINGRAD-TYPE' DEFENSE.

    Note a similar case decided since the 23 Oct 2002 EEOC decision, the Reilly case. "This was a case that did not have to be. The record in this case covers more than five years of activity, from filing to decision after trial . . . Two Reports and Recommendations were issued by a magistrate judge, each attesting to the seriousness of the allegations of the complaint. . . . Early on in the case, had Grayson, Daniels, or Cross, or better yet, one of their lawyers, taken a moment to reflect on what was going on, and simply taken steps to transfer Reilly out of Parnell (or at least given him the clear opportunity to reject a transfer), the result likely would have been much different. Instead, Grayson, Daniels, and Cross, or perhaps their lawyers, were determined to mount a Stalingrad-like defense, ignoring the allegation of the complaint, as well as the view of the magistrate judge. In contrast, Bolden, when alerted to issues in the case, immediately saw what needed to be done to resolve Reilly's situation and ordered him transferred out of Parnell." Reilly v Grayson, 157 F Supp 2d 762 [774] (ED MI, 2001) affirmed, Case Nos. 01-1993/2189; 2002 FED App 0397P; [310] F3d [519] (CA 6, 18 Nov 2002).

    -3-

    This parallels what TACOM did, and is doing, to me. It refused to obey the rules. Said it 'can't.' Then it defied the 25 Jan 1980 USACARA Report, which told TACOM it 'can.' TACOM defiance continued, still tirading 'can't.'

    TACOM fired me without notice, without stating a misconduct or performance deficiency. This violates 5 USC 7513(b) notice requirement. And TACOM did not notify me of my right to EEOC review (as per 29 C.F.R. 1613.403). When I asked for EEOC review anyway, TACOM refused to process my every such request. EEOC has already verified that. See EEOC Docket Nos. 01800273 et al (23 Feb 1982), p 3, on TACOM refusing me review. This refusal is still continuing. The 23 Oct 2002 EEOC [decision] is inconsistent with the 23 Feb 1982 EEOC decision, and is clearly erroneous in not saying the lack of notice, and how it arrived at such a contrary decision.

    3. DUE PROCESS IS AN "ABSOLUTE" RIGHT.

    TACOM continues refusing me due process even though due process is an "absolute" constitutional right, Carey v Piphus, 545 F2d 30 (CA 7, Ill, 1977) rev'd and remanded 435 US 247; 98 S Ct 1042; 55 L Ed 2d 252 (1978) (damages award as procedural due process is an "absolute" constitutional right). This refusal has a continuing injurious effect.

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, and ignoring the lack of due process, is a clearly erroneous interpretation of material fact or law.

    4. THE 'RIGHT TO WORK' IS BEING IGNORED.

    TACOM's duty was, and is, to protect the right to remain at work in safe conditions, as OSHA and 5 USC § 7902 provide; and as detailed by Prof. Alfred Blumrosen, et al, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 Califronia Law Rev. (#3) 702 at 707 (May 1976). The even more basic right to work (at all) has been recognized in cases such as Yick Wo v Hopkins, 118 US 356 (1886), and Truax v. Raich, 239 US 33 (1915).

    Ed. Note: Job discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses.' Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891," says Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972).

    The Federal Personnel Manual recognizes the same concept. See FPM Suppl. 752-1. S5-4c(l)(e), "in view of the objective of keeping the employee in an active duty status in his regular position whenever practicable, it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss." The installation ignores that rule, and refuses to even cooperate in efforts to eliminate the hazard, an resolve the overall situation. The duty is especially clear considering the "irreparable injury" that the installation is presently causing-career destruction, family destruction, loss of home with bankruptcy pending, etc. Present injury should be obvious on a 22 year firing: no pay check for 22 years! No benefits, all lost, as per Col. Benacquista's extortion as per legal office aiding and abetting in the felony.

    TACOM was refusing to provide reasonably safe conditions; it was refusing to provide "an environment reasonably free of contamination . . . to . . . not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights" (AR 1-8 language, as per 32 CFR 203).

    -4-

    The safety duty law 29 USC §§ 651 - 678, is "unqualified and absolute," Nat'l Realty & C. Co. v. OSHRC, 489 F2d 1257 (1973). "A workplace cannot be just 'reasonably free' of a hazard." To TACOM, the safety duty is "unreasonable," hence an "undue hardship." (The claim is false, as without "business necessity," there can be no "undue hardship.") Even if "unreasonable" as TACOM insisted, AR 1-8 (as per standard pure air principles, Encl 4) nevertheless forbids smoking when nonsmokers report "discomfort" or "unreasonable annoyance." The AR 1-8 synonym for the "unqualified and absolute" safety duty is clear. 5 USC § 7902 is stricter than the "unqualified and absolute" OSHA, if such be conceivable.

    Compare FPM Suppl. 532-1, S8-7a. When the employer ignores the law, such is a prohibited personnel practice under 5 USC § 2302; no agency shall "grant any preference or advantage not authorized by law, rule, or regulation . . . ."

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, and ignoring the right to work, is a clearly erroneous interpretation of material fact or law.

    5. THE AGENCY BEGAN THE SITUATION WITH EXTORTION.

    This case began with agency extortion. Recall 23 Feb 1982 EEOC Decision, Dockets 01.80.0273, et al., TACOM's superior, USACARA verified my position Jan 1980, whereupon TACOM ended my employment February 1980, as Ms. Darius now admits against interest.

    Please bear in mind that I filed class action cases on behalf of fellow employees, due to the regulatory violations in process at TACOM, and made clear my intent to use the USACARA Report for me, to aid others. Filing reports of violation is an employee job duty, pursuant to Army Reg 685-10.3-5a. - b. Reaction: Col. John Benacquista admitted against interest his extortion:

    "All he [Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants.'" (4/23/82 Dep. p. 62)."All" I "had to do was to" change anticipated testimony, or be put on enforced leave, fired, retired, have pay embezzled.

    "All" I had to do was to" lie, deny the extant hazardous conduct; I'd still be at TACOM. Same is extortion, in violation of Michigan law, MCL 750.213, and case law, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975).

    Removals, suspensions, forced leaves, forced absences pre-disability retirement, all are banned by 5 USC §§ 7513.(b), and a long line of case law on point, including the recognition that such forbidden action is done ex parte. Such contacts are banned, Sullivan v Dept of Navy, 720 F2d 1266 (1983). In my case, there were several ex parte contacts, among CS Benacquista - CG Decker; OPM - PO Averhart; PO Averhart - CPO Hoover; CPO Hoover - DCG Stallings; and IH Braun - AMC, for example. All these people were in the position to influence, impact, or otherwise impact action in my situation.

    Actions without prior notice are banned, Woodall v FERC, 28 MSPR 192 (1985), Pittman v Army, 832 F2d 598 (1987). Agency violations of its own regulations are banned, Watson v Army, 162 F Supp 755 (1958); Piccone v U.S., 407 F2d 866, 871 (1969); Service v Dulles, 354 US 363 (1957).

    -5-

    When I refused to alter my anticipated testimony, refuse to cease seeking enforcement of the rules, and the 25 Jan 1980 USACARA Report, TACOM fired me.

    "One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal." Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (6 Jan 1911).

    And "an act which, in itself, is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. "When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. "The most innocent and constitutionally protected of acts or omissions [as terminations are normally] may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." Aiken v Wisconsin, 195 US 194, 205-206; 25 S Ct 3, 6; 49 L Ed 154, 159 (1904).

    Note the continuing injury to me, that the agency has decided to not be truthful and responsive to Congress, e.g., my Senator. This is new harm. It arises from the initial extortion. And constitutes continued TACOM obstruction of justice in my case. The offending correspondence at issue was, of course, relied on by the agency and Senator. The agency, pursuant to that offending correspondence, concluded to take the action of committing fraud on the Senator, thus on me, by giving the false, misleading, unlawful impression (in violation of 18 USC 1001 which requires proper disclosure); and thus to renew its decision to not allow me to have notice and review such as other people receive as a matter of routine.

    Anyone with Army personnel office experience knows our policy is to treat a Senatorial or Congressional inquiry as an invitation to correct an error. We decide de novo to do so or not. That happened in my case, a de novo decision to not correct the error. The Senator relied on the agency letter, as per his staff aide David Allen so telling me. Thus a new current injury is clear.

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, and not taking into account the extortion, one of the many unlawful aspects of the situation, is a clearly erroneous interpretation of material fact or law. The inconsistency with long-standing evidence and prior decisions needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984).

    -6-

    6. DISCOVERY OF NEW EVIDENCE.

    In essence, the case of Reilly v Grayson, 157 F Supp 2d 762 (ED MI, 2001) affirmed, Case Nos. 01-1993/2189; 2002 FED App 0397P; [310] F3d [519] (CA 6, 18 Nov 2002), is a sharp parallel to my situation. As EEOC will recall, TACOM committed similar misconduct as there - a massive 'Stalingrad-like' campaign to refuse to enforce the rules, and to deny ability to do so.

    Another parallel case is that of In re Julie Anne, Case No. 97-PR-755; ___ Ohio Misc 2d ___; 2002 Ohio 4489 (Court of Common Pleas of Ohio Juvenile Division, Lake County, Judge William Chinnock, 27 Aug 2002). There the court ordered smoke-free action sua sponte. Since Army rules (the AR 1-8) and the State cigarette law, MCL § 750.27, MSA § 28.216, are to be obeyed voluntarily, this is what TACOM should have done, enforce the rules, not do a 'Stalingrad-like' defense of refusing to do so. (Note that in violation of Michigan law, TACOM sells cigarettes on-base! The 23 Oct 2002 EEOC decision is an enabler, allowing this practice to continue unabated.)

    TACOM committed massive fraud (on ability to deal with the situation, on my notice rights, etc.), as EEOC will recall, in the process of obstructing my right to notice, and review. This warrants reopening, if ever the case had been opened," Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238 (1944).

    7. EVEN SLAVES WERE ENTITLED TO DUE PROCESS.

    Due process includes the right to notice, and to reply, prior to decision. Even slaves had a right to proper notice of charges! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1860-1): The right to a properly drafted statement of charges is "a substantial right . . . and not a mere question of form or proceeding."

    TACOM never issued me a "statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts," Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971).

    To protect the public by protecting federal employees from unjust, discriminatory termination, Congress requires the agency to state why it wants to terminate the worker. It put this 30 days advance written notice requirement in 5 USC § 7513.(b). The notice must:

    (a) comply with 5 CFR 752.404(f) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed Cir 1983);

    (b) say more than a conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954);

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    (c) enable more than "general denials," Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950);

    (d) list witnesses and say "the names . . . places . . . dates" of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being:

    (i) "lengthy and detailed," Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956);

    (ii) "numerous examples of specific errors," Long v Air Force, 683 F2d 301 (CA 9, 1982);

    (iii) "item by item," Mandel v Nouse, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975).

    Although the agency issues 30 days advance written notices pursuant to 5 USC § 7513.(b) to others, it did not do so for me. This difference shows discrimination, e.g., retaliation, as per the extortion cited above. The agency never claims under oath issuance of a notice; and knows under cross-examination, nobody will testify to one. And nobody will testify that at any time, it has ever notified me of any specifics. I have asked for specifics repeatedly, never received any.

    I remain an employee as a matter of law--the status of a federal employee against whom termination is effected without 30 days advance written notice. Sullivan, 720 F2d 1274, supra. I look forward to returning to duty.

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, mumerous federal court precedents, and disregarding the record of 22 years of my efforts to get review to begin, and the lack of due process which even slaves were entitled to, is a clearly erroneous interpretation of material fact or law. It sets an outlandish precedent that an agency can violate even the most basic of rights, and get away with it. The inconsistency needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984). Please do not enable agency practice, treating long-recognized-for excellence employees below slaves.

    8. NO QUALIFICATION REQUIREMENT WAS INVOLVED/CITED/PUBLISHED

    TACOM will likely say that [it] got rid of me over the "smoking" issue. But no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. An alleged requirement that does not exist that is "not reasonably related to the duties of the position. McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)," cited in Hill v Nettleton, 455 F Supp 514, 519 (1978). In that case, a Ph.D. was not a job requirement, notwithstanding employer claim otherwise. In my case, there is nothing in any job description or BFOQ even mentioning presence of tobacco smoke in the air, much less as a job requirement, much less, as so essential that failure to meet it, overrides everything, including qualification waivers, my many performance awards, supervisory recognitions, pay increases, etc.

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    "Workmen are not employed to smoke," Maloney Tank Mfg Co v Mid-Continent Petroleum Corp, 49 F2d 146 (CA 10, 1931). There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v N J Bell Telephone Co, 145 NJ Super 516, 523; 368 A2d 408, 411 (1976).

    Even if the agency were to claim that cigarette smoke is a BFOQ, and even if it were true (it is not), "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975). TACOM fears letting an honest investigator or EEOC AJ "examine the position descriptions," look for "legitimate job requirements," Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981). Tobacco smoke is not "in the requirements for any position," 5 USC §§ 2302(b)(6). No such requirement is published pursuant to law, a jurisdictional requirement by law, 5 USC §§ 552.(a)(1). This law is followed for others, not me.

    Airborne tobacco smoke only arises from preferences in any case; preferences have no legal standing, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 (1971) cert den 404 US 950 (1971).

    Any claim, if TACOM were to make it, that tobacco smoke is a BFOQ "suffers from a further inadequacy in that it failed to comply with 29 C.F.R. §§ 1607.5(b)(3), which requires that criteria used to predict job performance "must represent major or critical work behaviors as revealed by careful job analysis." Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, "Job-relatedness can only be determined where the criteria for selection are clearly identified." No job analysis has occurred.

    BFOQ's must be applied across the board, not just to one person (me, as TACOM had done, i.e., disparate treatment). BFOQ's must be stated in advance, not fabricated retroactively, i.e., must be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v City of Chicago, 549 F2d 415, 429-434 (CA 7, 1977). TACOM knows that there are minimal medical requirements for personnel work, due to the nature of the job, and those few are on the "Health Qualification Placement Form." Mine were use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. I meet them all. TACOM's own Dr. Francis Holt certified I met them, and never certified otherwise. EEOC review would reveal such facts in minutes.

    In Michigan especially, smoking is not a BFOQ. Cigarettes are illegal in Michigan, illegal since 1909, pursuant to Michigan's law MCL 750.27, MSA 28.216 (which bans cigarettes in Michigan). Far from cigarette smoke being a BFOQ, it is illegal.

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    An EEOC AJ would see that suppressing smoker conduct, even if done "'brusquely,'" is legally valid, Diefenthal v C.A.B., 681 F2d 1039, 1042 (1982); Jacobs v Mich Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979); Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923). TACOM Regulation 190-4 bans drugs from being brought on-post (nicotine is a drug). There is no "requirement", no "BFOQ," for what is banned!

    5 USC §§ 552.(a)(l)(C) - (D) makes the publication of a qualification requirement "jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467 (1986). EEOC can take official notice that no federal employee has ever, but me, been accused of having a "presence of tobacco smoke" qualification requirement. Actually, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said afterwards that I fail to meet the requirement! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.

    Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule violation by them. Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has a pattern of law violations); and Onweiler v U.S., 432 F Supp 1226, 1229 (D Idaho, 1977). The agency's not obeying the law for me, is part of the agency retaliation and disparate treatment against me. Others similarly situated are not so treated.

    I repeatedly return to duty as per Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) (the case of an employee also falsely accused of not meeting a non-existent qualification requirement!). Please treat this reconsideration petition and brief as yet another return to duty on my part. Note that I continue as always to work fulltime, doing personnel and crime prevention duties, studying pertinent writings on the subject, prepping self for immediate actual return to duty.

    The inconsistency of the 23 Oct 2002 EEOC decision with federal precedents needs explaining. needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984). Absent explanation, it is a clearly erroneous interpretation of material fact or law.

    9. NOTE THE JURISDICTIONAL POINT OF LAW.

    Re the "smoking" issue, no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. TACOM could not persuade Michigan's Employment Security Commission (MESC), in its merits review! Granting me unemployment as fully qualified to work! - thus overruling TACOM.

    -10-

    EEOC is familiar with BFOQ matters, so [no] need to belabor you with that. But please make sure to note that 5 USC §§ 552.(a)(l)(C) - (D) makes same "jurisdictional," Hotch v U.S., 212 F2d 280 (CA 9, 1954); Bowen v City of New York, 476 US 467 (1986). This is significant, as the agency keeps claiming courts had jurisdiction! Not by the law and facts shown here, No.

    Also, please take official notice that no federal employee has ever, but me, been accused of having a "presence of tobacco smoke" qualification requirement. Actually, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said I fail to meet the requirement! Unspecified! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.

    There is no jurisdiction, by law, 5 USC §§ 552.(a)(l)(C) - (D), to act outside the rule of law, published law and regulation. The Office of Personnel Managment (Enclosure 2 with the original appeal), the Army itself, all deny that smoking is a "qualifications" matter, a "BFOQ" matter. They have published nothing making "smoking" a requirement, so Army in turn can not disqualify me for allegedly failing to meet a non-requirement.

    10. THE AGENCY DECISION MADE NO SUBORDINATE FINDINGS OF FACT.

    Agency decisions must make findings on all material issues; reasons must be clearly enunciated; each disregard of its own staff writings must be explained. In re United Corporation, 249 F2d 168 (CA 3, 1957). The agency did not. It offered nothing to rebut Ms. Darius' showing the decision to terminate my employment in February 1980. As you recall, EEOC's own Detroit Examiner, Henry Perez, Jr., had confirmed likewise, in his 9 April 1980 letter (Enclosure 1 with the original Appeal Brief), showing his awareness of the agency "decision to terminate" me.

    The agency must let you know in the decision the basis for its conclusions; there is to be no speculation; even proper reasons are not to be implied; reject the improper processing (here no hearing nor investigation) due to the unfairness. Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969).

    The absence of required findings requires reversal, even if there may allegedly or actually be evidence in the record to support proper findings. Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962).

    The Army is not allowed to put you, EEOC, the higher level agency, in the position of speculating as to the basis for the Army conclusion; you must know what it means first. Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964). Here, the agency's own assigned Counselor, Kathy Darius, has officially put in the Report, the end of employment data, as of February 1980 -- something the agency had denied until now!

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    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, is a clearly erroneous interpretation of material fact or law. See Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984). This is especially so, as EEOC is ignoring the letter by its own Henry Perez, Jr. That letter is particularly worthy of mention, as it is a document from the era, from an impartial source. The 23 Oct 2002 EEOC decision appears to have substituted its own "findings of fact" (allegations that I failed to provide data showing "current injury" for those lacking by the agency). Not only is this odd, it is inconsistent with the guidance of the precedents cited in this section.

    11. ASSUMING ARGUENDO FAILURE TO HAVE ALLEGED
    CURRENT INJURY, PLEASE NOTE AGENCY RESPONSIBILITY.

    Recall that the agency did NOT allow the Counselor to even meet with me. The Counselor thus did not obtain my situation. Counselors have a responsibility to assist complainants in articulating their complaint. This is especially applicable here, where the agency is already documented by EEOC as not recognizing its own regulations, as not complying with its own 1980 USACARA Investigator's Report, as not allowing me review like others. But nonetheless, current injury was evident to the Counselor, though evidently not recorded specifically articulated.

    Where the violations cited exist, injury is in law to be presumed; "irreparable injury should be presumed from the very fact that the statute has been violated." U.S. v Hayes Int'l Corp., 415 F2d 1038 (5th Cir. 1969). Here, the violation is of the numerous rules and laws cited herein, and the Army policy to correct errors upon Congressional or Senatorial inquiry.

    The 23 Oct 2002 decision allows the agency to make a mockery of rules, laws, and agency policy, to say that their continuing or current violation is not present injury. Present injury is in law to be presumed; "irreparable injury should be presumed from the very fact that the statute has been violated." U.S. v Hayes Int'l Corp., 415 F2d 1038 (5th Cir. 1969). Here, the agency decided to, and did provide, information to the Senator contrary to my actual notice rights. And it decided to not correct the errors. And it decided that since it had fooled the Senator, by its deceptive, misleading, fraudulent approach, to continue the pattern.

    Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, is a clearly erroneous interpretation of material fact or law. See Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984), and citations therein, on contradictions in the facts, or prior agency actions/decisions, warrant a ruling in the employee favor.

    -12-

    Here, at least remand for investigation, so the record will be complete, before the final decision is rendered. In all my career, never was an employee refused his right to have review in his chosen forum. This is unprecedented at TACOM, and undoubtedly in all agencies. Please do not reward such misconduct.

    On remand, the investigator will find the agency policy of correcting errors on Congressional or Senatorial inquiry, the lack of a 30 days advance notice, etc., the latter the same as did Kathy Darius in this case, Col. Edward D. Bishop, and the others involved in the case. And an investigator will foreseeably sustain as factually correct, the findings of the prior EEOC decisions cited herein, and thus corrective action will begin, as would have been done for me so long ago, but for the agency cutting me off from Investigative Review (after having lost its case, with the Investigator doing the 25 January 1980 USACARA Report).

    Remember, the agency never claims merits review has occurred. No such claim is made under oath. No Investigator will sustain that claim, and the agency knows it, hence, its hostility to Investigation and Hearing (with cross-examination of its claims).

    Further, the 23 Oct 2002 EEOC decision will have a substantial impact on the policies, practices, or operations of the agency, in the sense that it enables continued refusal of compliance with the rule of law by this agency; and lets its management know it can defy rules, and mislead Senators, and evade corrective measures, indefinitely, with impunity.

    In addition, the 23 Oct 2002 EEOC decision sets a terrible precedent that EEOC will condone misconduct, undermining other agencies as well. Please do not give the impression that an agency can defy notice rules, prior EEOC decisions, Congressional/Senatorial inquiries, and deny a person review, successfully, forever. Has not the nation suffered enough, from the bad precedent of the agency in terrorizing federal employees so as to fear to mention the tobacco role in alcoholism, abortion, drugs, and thus the money trail to terrorism.

    The 23 Oct 2002 EEOC decision is tantamount to repeal of the laws cited herein, including the advance notice and counseling notice rules. It in essence allows a permanent exemption, the agency need never again follow advance notice rules, never again obey EEOC orders to do case processing such as EEOC issued here. It need only defy and defy, and get away with it forever.

    Is there not already too much fear by federal employees, to stand up for the rules, and promote the public interest, when need-be, against the management between them, and the top management trying so valiantly to get those in the middle to comply with the orders and rules and directives of top management?

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    CONCLUSION

    Since my case has never been heard on merits, none of the line of precedents cited herein, has ever been applied to my situation. The agency never claims that such review has occurred, and cannot, not under oath. (Attorney pleadings are not evidence).

    This case has followed the same pattern that EEOC documented over 20 years ago, Docket Nos. 01800273 et al, p 3 (23 Feb 1982), case rejection without allowing merits review, no investigation, no hearing. Nobody else, ever, in the government civil service, has been fired without review being allowed on merits in the employee's chosen forum, despite multiple efforts to obtain such review; and then the agency decides, upon deceiving the senator, it can continue to get away with this.

    This is a case with a pattern of refusing review, 22 years. Please agree to remand for investigation. With others, it is likely settlement will follow, if not, a hearing will occur as is done for others. Be assured, investigation and hearing will find plenty of current injury.

    Please do not allow the agency to be agency [allowed] to be assured that it can hereafter violate the rules in such an egregious manner, something never done before to others.

    Wherefore, please remand for investigation and hearing.

    Respectfully,
     
    /s/ Leroy J. Pletten
    Leroy J. Pletten
    Appellant
    8401 18 Mile Road #29
    Sterling Heights, MI 48313-3042
    (586) 739-8343
    Enclosures:

      1. Abortion Data
      2. Alcoholism Data
      3. Drug Data
      4. Pure Air Precedents Underlying 32 CFR 203, AR 1-8, and USACARA Report
      5. Ease of Enforcement Data
      6. Affidavit

    -14-

    [Enclosure 1]

    Memorandum on Abortion for Investigator Once Investigation Begins

    "As early as 1902 Ballantyne had found an increase in the abortion rate in French and Austrian women working in tobacco factories." Beulah R. Bewley, "Smoking in Pregnancy," 288 Brit Med J (#6415) 424-426 (11 Feb 1984).

    About "fifty-three per cent. of . . . abortions . . . are due to tobacco. . . . inhalation of [second-hand] tobacco smoke by pregnant mothers when sitting among smokers is sufficient to cause fatal poisoning of the fetus." Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 238. Wherefore, says Dr. Tidswell, tobacco, including second-hand smoke, has a record of significantly leading to abortion, p 184, terminating about 1/7 of live-births, p 177.

    "The smoking mother is . . . 80 percent more likely than the nonsmoker to have a spontaneous abortion." Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 162.

    "No reasonable doubt now remains that smoking in pregnancy has adverse effects on the developing fetus. The effects range from retardation of fetal growth [birth defects], and prematurity, and to an increased risk of perinatal death from all causes. . . . This view is supported by a report of an increased incidence of spontaneous abortion among smokers." "Smoking Hazard to the Fetus," Brit Med J (#5850) 369-370 (17 Feb 1973).

    It is known that "in female smokers menstrual disturbances are frequent and that abortion occurs often among female cigar makers." Dr. John H. Kellogg, Tobaccoism, or, How Tobacco Kills (Battle Creek, Michigan: The Modern Medicine Publishing Co, 1922), p 123.

    Even before, concern was expressed on the tobacco link to infant deaths, by Dr. Hippolyte Adé on Depierris, in La Tabac et la Famille: Il Cause la Rareté; et la Stérilite des Mariages, la Débilité; Native et la Mortalité; des Enfants, la Dépopulation des Pays (Paris: E. Dentu, 1881).

    "Dr. Herbert Tidswell of England, F. R. C. S., in observing a large number of families of smokers and nonsmokers, found that abortions were more common among the wives of smokers than among the wives of nonsmokers, even where the wives did not smoke." Daniel H. Kress, M.D., The Cigarette As A Physician Sees It (Mountain View, CA: Pacific Press Pub Ass'n, 1931), p 35.

    Tobacco's baby-killing effect is traceable back to pre-1640's medical findings, cited by John Lizars, M.D., The Use and Abuse of Tobacco (Edinburgh: 1859), p 56.

    Since then, of course, many more studies on the total subject of tobacco and abortion and infant death, have been made. Here is a partial list:

    Simpson, WJ, "A Preliminary Report on Cigarette Smoking and The Incidence of Prematurity," 73 Am J Obstet Gynecol 818-815 (1957)

    Herriot, A, Billewicz, WZ, and Hytten, FE, "Cigarette Smoking in Pregnancy," 1 Lancet 771-773 (1962)

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    Jarvinen, PA, and Osterlund, K, "Effect of Smoking During Pregnancy on The Fetus, Placenta, and Delivery," 9 Ann Paediatr Fenn 18-26 (1963)

    Yerushalmy, J, "Mother's Cigarette Smoking and Survival of Infant," 88 Am J Obstet Gynecol 505-518 (1964)

    Ravenholt, RT, Levinski, MJ, Nellist, DJ, and Takenga, M, "Effects of Smoking Upon Reproduction," 96 Am J Obstet Gynecol 267-281 (1966)

    Comstock, GW and Lundin, FE, "Parental Smoking and Perinatal Mortality," 98 Am J Obstet Gynecol 708-718 (1967)

    Butler, NR, Goldstein, H, and Ross, EM, "Cigarette Smoking in Pregnancy: Its Influence on Birth Weight and Perinatal Mortality," 2 Brit Med J 127-130 (1972)

    Kline J, Stein ZA, Susser M, and Warburton D. "Smoking: A Risk Factor for Spontaneous Abortion," 297 New Engl J Med 793-796 (1977)

    Himmelberger DF, Brown BW, Cohen EN. "Cigarette Smoking During Pregnancy and The Occurrence of Spontaneous Abortion and Congenital Abnormality," 108 Am J Epidemiol 470-479 (1978)

    Harlap, S, and Shiono, PH, "Alcohol, Smoking and Incidence of Spontaneous Abortions in the First and Second Trimester," 1 Lancet 173-176 (1980)

    Hemminki K, Mutanen P, Saloniemi I, "Smoking and the Occurrence of Congenital Malformations and Spontaneous Abortions: Multivariate Analysis."145 Am J Obstet Gynecol 61-66 (1983)

    Nelson, KB and Ellenberg, JH, "Predictors of Low and Very Low Birth Weight and The Relation of These to Cerebral Palsy," 254 J Am Med Ass'n 1473-1479 (1985)

    Anokute, C, "Epidemiology of Spontaneous Abortions: The Effects of Alcohol Consumption and Cigarette Smoking," 78 J Nat'l Med Ass'n 771-775 (1986)

    Sandahl B. "Smoking Habits and Spontaneous Abortion." 31 Eur J Obstet Gynecol Reprod Biol 23-31 (1989)

    Armstrong BG, McDonald AD, and Sloan M, "Cigarette, Alcohol, and Coffee Consumption and Spontaneous Abortion," 82 Am J Public Health 85-87 (1992)

    Windham GC, Swan SH, Fenster L, "Parental Cigarette Smoking and The Risk of Spontaneous Abortion," 135 Am J Epidemiol 1394-1403 (1992)

    Suraiya, M., et al., "Cigarette Smoking as a Risk Factor for Ectopic Pregnancy," 178 Am J Obstetrics & Gynecology 493-498 (1998) (smoking 1-5 cigarettes per day causes 1.6 times more likely to have ectopic pregnancy; smoking over 20 cigarettes per day, 3.5 times more likely; a dose-response relationship)

    -16-

    Animal studies show likewise, tobacco harm to the young and unborn. Note this experiment on rat mothers paralleling results for human smoker mothers.

    "Essenberg, Schwind, and Patras (1940) of Loyola University studied the effects of nicotine and cigarette smoke on pregnant rats and their offspring. Some of the rats were placed in a jar and subjected to the smoke from about one-third of a cigarette. This is the equivalent of a human being smoking about one package of cigarettes a day. The rats were exposed to this smoke three minutes each day for a period of weeks. Other rats were daily injected with one-half to one cubic centimeter of a solution containing 1:1000 or 1:2000 parts of chemically pure nicotine."

    "Two-thirds of the young from mother rats treated in this way were underweight at birth and continued so throughout life; many died in infancy. The experimenters observed numerous cases of temporary sterility, resorption of young before birth, and abortion among the "smoked" and injected mothers. Frequently the treated mothers showed faulty maternal behavior, which ranged all the way from neglecting to feed their young to eating them. This did not happen to the normally kept rats."

    "The experimenters found that the "smoking" of virgin rats also had marked effects on the size and mortality rate of the young produced by them later after they "quit smoking." They say that many of their observations on rats are like those made on women who smoke much or who are engaged in [jobs in] the tobacco industries." Essenberg, J. M., Justin U. Schwind, and Anne R. Patras, "The Effects of Nicotine and Cigarette Smoke on Pregnant Female Albino Rats and Their Offsprings," 25 Journal of Laboratory and Clinical Medicine 708 (1940), cited in Prof. Arthur H. Steinhaus and Florence M. Grunderman, Tobacco and Health: Some Facts About Smoking (2nd ed) (New York: Association Press, 1941), pp 42-43.

    "No evils are so manifestly visited upon the third and fourth generations as the evils which spring from the use of tobacco,"said Sir Benjamin C. Brodie (1783-1862). He was Surgeon to British King George IV, William IV, and Queen Victoria. A comparable modern position is U.S. Surgeon General. Dr. Brodie served under the British royal dynasty, the House of Hanover. The prior dynasty had been the House of Stuart. What had happened to the Stuart dynasty? Answer: The last Stuart monarch had been a snuffer. That was Queen Anne (1665-1714, reigned, 1702-1714). Anne was a snuff-user. ALL her children died. During the period 1684-1688, she had 4 miscarriages, 2 dead within hours of birth William, born 24 July 1689, died 29 July 1700 (age 11). During the period 1689-1696, Anne had 6 miscarriages, 2 dead within hours of birth.

    Since snuffer Anne was clearly not leaving a surviving heir to the throne, Britain became much concerned as to who her successor would be. In 1701, Britain passed a law, a succession act, to transfer the dynasty to the House of Hanover, so as to ensure a successor! Thus ended the House of Stuart. The dynasty change led to the current monarch, Queen Elizabeth II (1952-___).

    There is a cigarette link to promiscuity, pregnancy, SIDS, and abortion. See the Department of Health and Human Services book, Preventing Tobacco Use Among Young People: A Report of the Surgeon General (1994). Its key analysis is that
    "Tobacco use in adolescence is associated with a range of health-compromising behaviors including being involved in fights, carrying weapons, engaging in higher-risk sexual behavior . . ."

    -17-

    "Carbon monoxide is a dangerous substance. The molecule binds more strongly to the hemoglobin in the blood than does oxygen. A person breathing air that contains even a small percentage (one part in 250) of carbon monoxide may die of suffocation." Gordon P. Johnson, Bonnie B. Barr, and Michael D. Leyden, Physical Science (New York: Addison-Wesly Pub Co, Inc, 1988), pp 298-299. 1/250 = 40,000 ppm; cigarette smoke contains morE than that (42,000 ppm). Such facts depict the basis underlying abortion.

    The role of cigarettes in abortion has been cited anew by DiFranza, JR and Lew, RA, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," in 40 J Family Practice 385-394 (1995). The study's "result" is a finding that:
    "Each year, use of tobacco products is responsible for an estimated 19,000 to 141,000 tobacco-induced abortions, 32,000 to 61,000 infants born with low birthweight, and 14,000 to 26,000 infants who require admission to neonatal intensive care units . . . an estimated 1900 to 4800 infant deaths resulting from perinatal disorders, and 1200 to 2200 deaths from sudden infant death syndrome (SIDS)."

    The study's "conclusion" is that
    "Tobacco use is an important preventable cause of abortions, low birthweight, and deaths from perinatal disorders and SIDS. All pregnant women should be advised that smoking places their unborn children in danger. . . . The cigarette . . . injures or kills a sizable proportion of its users when used as intended by the manufacturer. The harm caused by the cigarette is not limited to the user, however, as unborn children and infants are . . . harmed by other people's use of tobacco."

    Such large numbers of foreseeable deaths are "natural and probable consequences" (events that "happen so frequently . . . that . . . they may be expected [intended, foreseen] to happen again"), as defined by Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1026.

    "The blood of cigarette smokers will contain from 2 to 10 percent carboxyhemoglobin . . . initial symptoms of poisoning . . . will result from exposures to 1,000 ppm for 30 minutes or 500 ppm for one hour. One hour at 1500 ppm is dangerous to life. Short exposures (one hour) should not exceed 400 ppm." See Julian B. Olishifski, P.E., C.S.P., Fundamentals of Industrial Hygiene, 2d ed (National Safety Council), pp 1039-1040.

    Michigan law, MCL §§ 750.27, MSA §§ 28.216, in essence, an abortion prevention act, bans
    "any person within the state [from action that] manufactures, sells or gives to anyone, any cigarette containing any ingredient deleterious to health or foreign to tobacco . . . ."

    Army Regulation 1-8 re which Pletten obtained the USACARA Report (Jan 1980) verified by EEOC, Docket Nos. 01800273 et al (23 Feb 1982), likewise aids in preventing abortion.

    Wherefore, Pletten's 'right to life" activism, promoting beginning enforcement and compliance at TACOM, should have been supported, not obstructed by agency management. TACOM should not have fired him without charges (stating alleged misconduct or performance deficiency), nor denied him notice of appeal rights to EEOC, nor obstructed his efforts in the EEOC system.

    -18-

    [Enclosure 2]

    Memorandum on Alcoholism for Investigator Once Investigation Begins

    Periodically the military's problem with alcoholism comes to mind. As a Personnel Official and Crime Prevention Officer, be advised that, though we do not act on it (due to the savage punishment of people such as myself who cite the material) we in the Army, in our anti-alcoholism offices, and personnel offices, know prevention data, for example:

    "Nearly all alcoholics, recovered or otherwise, are heavy smokers,"-Arthur Cain, M.D., in The Cigarette Habit: An Easy Cure (NY: Dolphin Books, 1964) p 4.

    Dr. Forest S. Tennant, Jr., a long-time Army analyst, "pointed out that in almost every case adults who have problems with alcohol are cigarette smokers." 27 Smoke Signals (#1) 1 (Jan 1981).

    "[T]he antidotal effect of tobacco makes drinking of stimulating liquors the natural consequence of smoking."--Dr. Albert L. Gihon, in The Surgeon General's Report (1881).

    "[Tobacco] is unquestionably the greatest obstacle existing to the progress of temperance; and never will this cause triumph; never will alcoholic drinks be discarded as a beverage, until tobacco ceases to be used . . ."--The Mysteries of Tobacco, by Rev. Benjamin I. Lane (New York: Wiley and Putnam, 1845), p 87.

    "It is my conviction that while the use of tobacco continues, intemperance will continue to curse the world; the use of tobacco leads to the use of intoxicating drinks. They are all of one family." Lane, supra, p 145.

    And, "smoking, even in what is called a moderate degree . . . acts as an inducement to drinking--thus becoming the source of intemperance, and all its accompanying evils. It is notorious that the practices are, almost without exception, inseparably associated. The remark has become a maxim: "Smoking induces drinking, drinking jaundice, and jaundice death."--Surgeon John Lizars, The Use and Abuse of Tobacco (Edinburgh, Scotland: 1859), pages 50-51. Wherefore Dr. Lizars in 1859 recommended a total ban on tobacco sales, to both adults and youth, see p 49. (His book was reprinted in 1883 here in America.)

    "Smoking is also said to induce an inclination to strong drinks. The ill effects of the tobacco seem to be momentarily counteracted by the alcohol, and the stimulating effects of the intoxicating liquors are moderated by the tobacco. Thus it happens that drinkers are always smokers, and thus it is also that smoking often leads to drinking."--Dr. John Hinds, The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), pp 125-126.

    "In my experience non-smokers hardly ever become drunkards, while nearly all drunkards are smokers."--Herbert H. Tidswell, M.D., The Tobacco Problem (London: J. & A. Churchill, 1912), p 41.

    -19-

    Smoking "tends to produce a huskiness of the mouth, which calls for some liquid. Water is too insipid, as the nerves of taste are in a half-palsied state, from the influence of tobacco-smoke; hence, in order to be tasted, an article of a pungent or stimulating character is resorted to, and hence the kindred habits of smoking and drinking."--Reuben D. Mussey, M.D., LL.D., Fourth President of the A.M.A., Health: Its Friends and Its Foes (Boston: Gould & Lincoln, 1862), p 104.

    "Naturally, one drug habit leads to another. It is rare to find an alcoholic who does not use tobacco in some form and often other drugs are used. There is a special reason for the association of the alcohol and tobacco habits; a physiologic reason: Alcohol is a drug antidote for tobacco. Tobacco contracts the small arteries. This is the reason for the pallor observed in young smokers and in old smokers who have smoked to excess. Alcohol produces the opposite effect. It dilates the small arteries. This is the reason for the flushed face of the beer drinker and the red nose of the whiskey toper. A man who has smoked until his arteries are contracted, feels tense, nervous, irritable, restless, in spite of the narcotic effects of the drug. His blood-pressure is high and his breath a little "short." Besides, his secretions are checked, his mouth is dry. Alcohol reverses these conditions. A cocktail or a toddy, a glass of champagne or a bottle of beer, relaxes the blood-vessels, relieves the nerve tension, restores comfort and so opens the way for more cigars."--John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, Michigan: Modern Medicine Pub Co, 1922), pp 125-126.

    And, "c'est tabac qui pousse aux liqueurs fortes, comme antidote de se effets toxiques."--Dr. Hippolyte A. Depierris, Physiologie Sociale: Le Tabac(Paris: Dentu, 1876), p 367. (Tobacco leads to strong drink, as an antidote to tobacco's toxic effects).

    "Rum drinking will not cease, till tobacco chewing, and tobacco smoking, and snuff-taking, shall cease. Though all who are attached to the quid, the pipe, or the snuffbox, are not attached to the bottle; yet a vast multitude become attached to the bottle, and this attachment is continual and increased, through the poisonous, bewitching, and debasing influence of tobacco."--Rev. Orin S. Fowler, Disquisition on the Evils of Using Tobacco, and the Necessity of Immediate and Entire Reformation (Providence: S. R. Weeden, 1833), p 4.

    "One of the usual effects of smoking and chewing is thirst. This thirst cannot be allayed by water, for no sedative or even insipid liquor will be relished after the mouth and throat have been exposed to the stimulus of the smoke, or juice of Tobacco. A desire of course is excited for strong drink, and these when taken between meals soon lead to intemperance and drunkenness. One of the greatest sots I ever knew, acquired a love for ardent spirits by swallowing cuds of Tobacco, which he did, to escape detection in the use of it, for he had contracted the habit of chewing, contrary to the advice and commands of his father. He died of a Dropsy under my care in the year 1780."--Dr. Benjamin Rush, First U.S. Surgeon General, "Observations Upon the Influence of the Habitual Use of Tobacco Upon Health, Morals, and Property" (Philadelphia: T. & W. Bradford Pub, 1798), p 267.

    William A. Check, Ph.D., "The Mind-Body Connection" in Dale C. Garrell, MD, The Encyclopedia of Health: Medical Disorders and Their Treatment (New York: Chelsea House Publishers, 1990). "Pain is a prime example of the mind-body connection. . . . The sensation of pain is . . . a result of secretion of various neurotransmitters by the peripheral nerves and by the nerves in the brain," p 70.

    -20-

    Benjamin I. Lane, in The Mysteries of Tobacco (New York: Wiley and Putnam, 1845), p 88, notes smoker motive, to relieve his "wretched and miserable condition. Without any desire for ardent spirits, he first sipped a little gin and water, to allay the disagreeable sensation brought on by smoking, as water was altogether too insipid to answer the purpose. Thus he went on from year to year, increasing his stimulus from one degree to another until he lost all control over himself . . . ."

    People don't generally favor continued pain!

    "The brain also has its own chemical system for dampening pain, the endorphins and enkephalins (another group of neurotransmitters that are involved in pain reception." Check, supra, p 71. "Narcotics, such as morphine and its derivatives, are medically useful because they augment the actions of these natural pain-killing chemicals," p 72.

    When tobacco, the No. 1 cause of adverse effects, causes disease resulting in suffering, pain. The person wants relief from the pain. Pertinent medical "findings have led to the self-medication hypothesis . . . that using narcotics is an attempt to dampen . . . ." Check, supra, p 69. Smokers are suffering from tobacco effects, thus attempting, even unconsciously, to self-medicate themselves with substances including alcohol. Smoking constricts blood vessels; alcohol is an antidote and dilates them. Unfortunately for smokers, the constricting effect of nicotine is much more powerful than the dilating effect of alcohol, says Alton Ochsner, M.D., Smoking and Your Life (New York: Julian Messner Pub, 1954 rev 1964), p 58. Bottom line: We know who becomes alcoholic--smokers.

    Dr. Frank L. Wood deemed it a 100% factor, "all of those who become alcohol addicts, in the experience of this writer ([Wood] were first tobacco addicts."--Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143.

    "Addiction to tobacco, like addiction to opium, is a specific disease . . . . Its protracted course, the enormous numbers affected, and spreading infection making smoking one of our most serious diseases."--Lennox Johnston, "Cure of Tobacco-Smoking," 263 The Lancet 480, 482 (6 Sep 1952).

    Like an infectious disease, the prevalence of smoker alcoholics later came to infect nonsmokers to a small extent (about 10% of alcoholics are nowadays nonsmokers). "Smoking prevalence among active alcoholics approaches 90%."--J. T. Hayes, K. P. Offord, I. T. Croghan, D. R. Schroeder, R. D. Hurt (ASAM), D. E. Jorenby, "Alcoholism and Nicotine Dependence Treatment," 15 Journal of Addictive Diseases 135 (1996).

    The rules and laws, if enforced, would thus help prevent most alcoholism.

    -21-

    Memorandum on Drug Abuse for Investigator Once Investigation Begins

    As a Crime Prevention Officer, and Personnel official, it is my role to assist in preventing drug abuse. As per professional research data, here is a summary of data on the drug abuse process. Professional research cites the role of the starter drug nicotine, specifically, the delivery agent, cigarettes, in the drug abuse process. The term used is "gateway drug" or "starter drug."

    Professionals find that cigarettes serve as the starter drug delivery agent. Cigarettes deliver the drug nicotine. Children are being hooked on cigarettes at an early age. Nicotine has demonstrated dose-related euphoric effects similar to those of cocaine and morphine, say J. E. Henningfield, K. Miyasato, and D. R. Jasinski, "Cigarette smokers self-administer intravenous nicotine," 19 Pharmacol Biochem Behav 887-990 (1983).

    Cigarettes cause "the worst of all drug habits, the smoking of tobacco"--Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 69.

    "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," said the U.S. Supreme Court in Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (25 June 1962).

    This was repeating a fact already long known. The government already long knew that "all" drug addicts are smokers, say Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953), p 196.

    Re cigarettes as the starting point, they are delivery agent for nicotine, the gateway (starter) drug for children. The average age of onset is 12. Next in sequence, alcohol follows, average age 12.6; then marijuana, average age 14, say Raymond Fleming, Howard Levanthal, Kathleen Glynn, and Joann Ershler, "The Role of Cigarettes in The Initiation And Progression Of Early Substance Use," 14 Addictive Behaviors (#3) 261-272 (1989).

    Re the cigarette-drugs link, Dr. Frank L. Wood cites a 100% factor, "there would be no marijuana addicts . . . if people did not first learn to smoke cigarettes."--Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143.

    Wood also says, "all of those who became alcohol addicts, in the experience of this writer [Wood], were first tobacco addicts."

    "Since the first line of battle in the war against narcotic addiction is prevention, we must look to the predisposing causes and attempt to remove them. The first of these is cigarette smoking. If no one smoked at all . . . there would be no marijuana menace, for few nonsmokers can be induced to experiment with marijuana cigarettes. [So] the efforts of all . . . should be directed toward preventing [smoking beginning]," Wood, supra, p 133.

    -22-

    Analysts have also found that drug dependence does not suddenly occur overnight! A nonsmoker suddenly wants to use crack cocaine! Not so. Drug dependence develops in stages, over a period of years. People who do not use the starter drug, rarely proceed to later drugs in the sequence. Tobacco is an addiction, not a habit. --Ronald M. Davis, M.D., (a health authority during Mich. Gov. John Engler's first term), "The Language of Nicotine Addiction: Purging the Word 'Habit' From Our Lexicon," 1 Tobacco Control 163-164 (1992), opposing the tobacco lobby/media myth that smoking is merely a habit.

    "Tobacco . . . holds a special status as a 'gateway' substance in the development of other drug dependencies not only because tobacco use reliably precedes use of illicit drugs, but also because use of tobacco is more likely to escalate to dependent patterns of use of most other dependence producing drugs. . . These observations have led growing numbers of researchers and policy makers concerned with illicit drug use to consider the role of tobacco in programs aimed at preventing other forms of drug abuse."--Jack E. Henningfield, Richard Clayton, and William Pollin, "Involvement of Tobacco in Alcoholism and Illicit Drug Use," 85 British J of Addiction 279-292, especially p 283 (1990).

    Moreover, "tobacco use is associated with the initiation of use of other addicting substances, and . . . increasing levels of tobacco use are associated with increasing levels of use of other psychoactive substances. "Furthermore, factors affecting initiation, abstinence, and relapse to the use of tobacco, alcohol, and opioids are similar in nature. In addition, there are similarities in the addictive processes underlying the use of these substances."--Jack E. Henningfield, Clayton, et al., "Involvement of Tobacco in Alcoholism and Illicit Drug Use," supra, especially p 279 (1990).

    "Goode demonstrated that college students who smoke were more likely to have used every kind of abusable substance, both legal and illegal, than were their nonsmoking classmates." [Goode, E, "Cigarette smoking and drug use on a college campus," 7 Int'l J Addict 133-140 (1972).]

    The National Institute on Drug Abuse reports that daily use of marijuana is 20 times higher among high school seniors who smoke tobacco, and the daily use of other illicit drugs is 13 times higher among smokers." [Fishburne PM, Abelson HI, Cisin I, "National Survey on Drug Abuse: Main Findings, 1979" (1980)], cited by Joseph R. DiFranza, and M. P. Guerrera, "Alcoholism and Smoking," 51 Journal of Studies on Alcohol (#2) 130-135 (1990).

    In U.S. National Institute on Drug Abuse ("NIDA") Monograph 17 (1977), then Director, William Pollin, M.D., says at page vi. why NIDA gives "increased priority to" smoking. There are
    "several reasons: the increasing identification of smoking as a prototypic addiction, the status of smoking as a gateway drug to use of stronger or illicit drugs, and our focus on substance abuse as a generic phenomenon that includes tobacco."

    -23-

    William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973 - 1977), in "Teenage drug use: Opportunities for the pediatrician," 102 Journal of Pediatrics (#6) 1003-1007 (June 1983), says at pages 1004-1005:

    "all drug use is positively correlated with all other drug use, so persons who use tobacco, for example, are more likely to smoke marijuana than those who do not use tobacco . . . .

    "these relationships are quantitative: those who use large amounts of marijuana are more likely to use heroin than are those who use marijuana infrequently, whereas those who have never used marijuana virtually never use heroin at all . . . .

    "many who start with one drug do go on to other drugs. Conversely, decisions not to use a particular drug predict subsequent decisions not to use other drugs in the sequence. . . .

    "Put simply, prevention means stopping the progression of the drug-dependence process at each stage, experimentation, occasional use, regular use, and dependent use."

    Sadly, as noted by the book, Preventing Tobacco Use Among Young People: Surgeon General Report (1994), p 10, "Illegal sales of tobacco products are common." We at TACOM should not be aiding and abetting such law violations, especially not by selling cigarettes on-post.

    "Adolescents need effective drug use prevention programs . . . Support for substance abuse . . . prevention . . . must come from all sides . . . policymakers."--Drs. Bruner and Fishman of Johns Hopkins University School of Medicine, "Adolescents and Illicit Drug Use," 280 J Am Med Ass'n 597-598 (19 August 1998).

    "When we take a thorough drug history, we are forced to admit that nicotine--not alcohol or cannabis--is the drug of entry for most young people."--Emanuel Peluso and Lucy Silvay Peluso, "The Challenge of Treating Teenagers," 9 Alcoholism & Addiction (#2) 21 (Dec 1988).

    "And . . . cigarette addiction undoubtedly leads to the use of . . . other habit-forming drugs."--Daniel H. Kress, M.D., The Cigarette As A Physician Sees It (Mountain View, CA: Pacific Press Publishing Ass'n, 1931), p 68, as "cigarette addiction leads to other pernicious habits," p 72. Kress then gave examples such as morphine addiction and alcoholism.

    "Avant le . . . tabac, la folie était une maladie très rare dans l'humanité,"--Depierris, Hippolyte A., Physiologie Sociale: Le Tabac (Paris: Dentu, 1876), p 346. Before tobacco, this was rare.

    The bottom line is that tobacco is an "extremely harmful drug," says Dr. Wood, What You Should Know About Tobacco, supra, p 5.

    -24-

    Michigan has a law banning the starter drug. MCL § 750.27, MSA § 28.216, bans cigarettes, the starter-drug delivery mechanism. "A stitch in time saves nine." Eliminate the cause; the effect disappears. "Sublatâ causa, tollitur effectus: Otez la cause, l'effet disparaît."--Dr. Hippolyte A. Depierris, Physiologie Sociale (Paris: Dentu, 1876), p 328.

    This is the same solution as to end, for example, lung cancer. Ban the cause = the effects don't occur. A stitch in time PREVENTS nine. Our great-grandparents, then children, were taught cigarette toxicity a century ago.

    Ban the starter drug (do the stitch in time), there is essentially no post-starter drug problem (no need for nine stitches)! No need to spend vast amounts of tax dollars on drug control units! treatment! rehabilitation!

    The tragic result of cigarettes, the starter drug delivery agent, is post-starter-drug drug abuse: According to Hugo Black and William O. Douglas of the U.S. Supreme Court:
    "Commercial traffic in deadly mind-, soul-, and body-destroying drugs is beyond doubt one of the greatest evils of our time.

    "It cripples intellects, dwarfs bodies, paralyzes the progress of a substantial segment of our society, and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims.

    "Such consequences call for the most vigorous laws to suppress the traffic as well as the most powerful efforts to put these vigorous laws into effect." Turner v U.S., 396 US 398, 426-427; 90 S Ct 642; 24 L Ed 2d 610 (20 Jan 1969).

    So prevention is crucial, by dealing with the starter drug, its delivery agent, cigarettes. Banning cigarettes, as per Michigan's cigarette control law, like a 'controlled substances act,' = banning them all! as per the medical fact that eliminating the cause = eliminating the effects; here, eliminating the gateway drug = eliminating the post-gateway drugs. Ban the starter = the post-starter. Ban cigarettes = eliminate cancer.

    There is a significant drug abuse $$$ cost to the nation, says the government at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5114a2.htm, $144 billion.

    Drug abuse has another aspect, the money trail. The money trail involves a cycle starting typically from smokers, the population base of drug abusers. It proceeds through local to higher drug dealers, and on sequentially all the way to initial growers, in foreign nations such as Afghanistan, and can end up with indigenous terrorist groups. See background data by Rachel Ehrenfeld, Ph.D., Director (http://public-integrity.org) NYC Center for the Study of Corruption & the Rule of Law, Narco-Terrorism (NY: Basic Books, 1990) and Evil Money (NY: HarperCollins, 1992).

    -25-

    [Enclosure 4]

    Memorandum for Investigator on Right to Pure Air

    32 CFR 203 (1977); AR 1-8 (1977), and the USACARA Report (25 Jan 1980) won by Pletten, were all based on the long-standing right to fresh and pure air. The Departments of Defense and Army institutionalized that already existing right. The right is a common law right, developing since at least the year 1306. (Note EEOC reference 23 Feb 1982, Docket Nos. 01800273 et al, p 2).

    This right has a long record of judicial recognition. See Rex v White and Ward, 1 Burr 333 (KB, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air").

    "Any bad smell in the air shows that there is something in it which ought not to be there. It is a sign of danger," p 104. "It is not good to breathe in a room full of . . . smoke," p 105. William T. Smith, Ph.D., Primer of Physiology and Hygiene (New York: Ivison, Blakeman & Co, 1885).

    There is "no . . . right to pollute the air," Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), pp 264-265. Why? because it "is certainly morally wrong," says Herbert H. Tidswell, M.D., The Tobacco Habit (London: J. & A. Churchill, 1912), pp 70-71.

    "The body needs food, clothing, sunshine, bathing, and drink, but none of these wants are so pressing as pure air. Other wants may be met by occasional supply, but air must be furnished every moment or we die." Theodore F. Frech and Luther H. Higley, The Evils of Tobacco and Cigarettes (Butler, Indiana: The Higley Printing Co, 1916), p 31.

    "The greatest care should be taken by those who have buildings in charge to insure their absolute freedom from all . . . harmful, and sometimes fatal, impurities of the air. . . .When a room is properly ventilated, the air should seem odorless to one coming in from out of doors." Winfred S. Hall, Ph.D., M.D., Elementary Anatomy, Physiology and Hygiene for Higher Grammar Grades (New York: American Book Co, 1900), p 187.

    It violates "common justice [to] poison the atmosphere my neighbor is compelled to breathe," says Reuben D. Mussey, M.D., LL.D., Health: Its Friends and Its Foes (Boston: Gould & Lincoln, 1862), p 114.

    "No one has a right to have his property burn, if thereby the property of others is endangered. The right to extinguish fires . . . is a part of the police power. . . . It may be exercised not only without the consent of the owner of the property on fire, but against his will." Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471, 473; 50 Am Rep 325, 326-327 (5 Sep 1884). See also Surocco v Geary, 3 Cal 69; 58 Am Dec 385 (Jan 1853) for references, e.g., City Fire Ins Co v Corlies, 21 Wendell 367; 34 Am Dec 258 (NY, July 1839); Stone v Mayor of N. Y., 25 Wend 157, 173; 14 Common Law Rep 802 (1840); Russell v Mayor, etc., of N. Y., 2 Den 461, 475; 17 Common Law Rep 192, 197 (1845) (cases involving the 1835 New York fire wherein the Mayor had buildings blown up ahead of the advancing flames, for a fire-break to head off the fire, and was upheld in such fire-halting actions; the pertinent public safety principle covers not only fires, but also "pestilential diseases, or any other threatened and blighting evil").

    Toxic Tobacco Smoke (TTS, also referred to as ETS) of course is a matter of smokers burning property, with a "natural and probable consequence" being injuries to, and deaths of, others, a part of the tobacco holocaust.

    -26-

    Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) said: "At the common law everyone had the right to detroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . . There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall., 357, 362 [1 L Ed 174, 177 (Pa, 1788)]; see also Mouse's Case, 12 Rep. (Coke), 63 [81 Eng Rep 341 (1675)]; 15 Vin., tit. Necessity, sec. 8; Cast Plate Co. v. Meredith, 4 T.R., 794; Am. Print W. v. Lawrence, 1 Zab., 248; 3 Zab., 591 [57 Am Dec 420 (NJ, 1851)]; Stone v. Mayor of N. Y., 25 Wend., 173 [14 Common Law Rep 802 (1840)]; Russell v. Mayor, etc., of N. Y., 2 Den., 461 [17 Common Law Rep 192 (1845)]."

    Fire-setting is of course, of the essence in smoking. (Unlit cigarettes are not what the problem is about!)

    In the United States, these ancient common law rights (fresh and pure air, stopping fires) are for everyone, protected by the U.S. Constitution's Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). The most basic right is the right to life! It cannot be taken, except via 'due process of law.' Government can neither violate that right, nor allow private citizens to do so. Government aiding and abetting private individuals in violating a right is unconstitutional, i.e., when ". . . States have made available to [private] individuals the full coercive power of government to deny" other individuals their rights.-- Shelley v Kraemer, McGhee v Sipes, 334 US 1, 19; 68 S Ct 836; 92 L Ed 1161 (1948).

    These rights (to pure air, to put out fires, etc.) are part of the "common law." The "common law" is mandated recognition by the Seventh Amendment in the Bill of Rights of the U.S. Constitution.

    Tobacco smoke contains and emits large quantities of toxic chemicals, is poisonous, and is therefore "odious," i.e., "hurtful." The first U.S. Surgeon General, Dr. Benjamin Rush (1746-1813) said tobacco "is generally offensive to people who do not use it."

    Therefore, the "right to fresh and pure air" has been regularly upheld for everyone. A case list and analysis is found Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920), examples below.

    The "right to pure and fresh air" has been applied on TTS. Such cases began as long ago as State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890), detailed below. A recent example is the case of Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976) (a court order banning on-the-job smoking, thus rendering plaintiff "able to breathe the air in its clear and natural state").

    Pertinent legal terms and concepts include smoke or smoking as a nuisance; as trespassing; as garbage; as ultrahazardous conduct in motion coming to the injured person; and the "pesthouse" concept due to its transmitting/causing disease.

    This is the same common law right as protects us and our property from others' discomforting noise, disease-causing plants, and dangerous or mad dogs. These common law rights to life are of course, also protected by the Constitution's Ninth Amendment (and the Eighth Amendment too, banning 'cruel and unusual punishment' which TTS inherently is, killing people without due process of law).

    These Eighth and Ninth Amendment rights make sense. "When you can't breath, nothing else matters" the American Lung Association slogan. It takes the "right to life" to have the other rights! Here are two quotations from the common law: "Sic utere tuo ut alienum non lædas" (everyone must so use his own property as not to injure that of his neighbor); and, "salus populi suprema lex" (the safety of the people is the supreme law).

    -27-

    Some Case Law Precedents Listed in Annotation: Nuisance Resulting from
    Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920)

    Sampson v Smith, 8 Sim 272; 59 Eng Rep 108; 7 L J Ch N S 260; 2 Jur 563 (England, 1838) (case framed to cite "particular damage and injury to the Plaintiff's property, and to his health and comfort . . .")

    Cartwright v Gray, 12 Grant, Ch (UC) 400 (Canada, 1866) ("a much quoted case" saying that "I consider it to be established by numerous decisions that smoke unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property; that if they do so, substantial damages may be recovered at law, and that this court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered at law.")

    Crump v Lambert, L R 3 Eq 409; 15 Weekly Rep 417 (England, 1867) ("With respect to the question of law, I consider it to be established, by numerous decisions, that smoke unaccompanied by noise or noxious vapors, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property . . . this court . . . will restrain the continuance of the nuisance by injunction. . . .")

    Galbraith v Oliver, 3 Pittsb 78, 79; 14 PLJ 565 (Pennsylvania, 1867) (banned smoke and soot moving onto plaintiff's premises)

    Ross v Butler, 19 NJ Eq 294, 302; 97 Am Dec 654, 660-661 (New Jersey, 1868) ("The law . . . must be regarded as settled, that when the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable, by the smoke and cinders, or noise or offensive odors produced by such business, although not in any degree injurious to health, and it will be restrained by injunction. . . . This court will not determine that a family shall have their dwelling house made uncomfortable to live in for twelve hours, once in two weeks . . . It is surely no justification to a wrong doer, that he takes away only one-twenty-eighth of his neighbor's property, comfort, or life."

    Bareham v Hall, 22 LTNS 116 (Eng, 1870) (ban smoke movement injuring complainant's house)

    Saville v Kilner, 26 LTNS 277 (Eng, 1872) (banned smoke entering complainant's property)

    Hyatt v Myers, 71 NC 271 (NC, 1874) (banned constant recurrence)

    Hutchins v Smith, 63 Barb Sup Ct Rep 252 (NY, 1872) (banned smoke causing discoloration of property and nausea and other deleterious effects on people, violating right to enjoy one's premises free from such smoke)

    Daniels v Keokuk Waterworks, 61 Iowa 549; 16 NW 705 (Iowa, 1883) (ban the activity unless using a device "to prevent smoke, soot, etc., from escaping therefrom")

    Rouse v Martin, 75 Alabama 510; 51 Am Rep 463 (Ala, 1883) (smoke may "constitute a nuisance so imperiling the comfort of one's existence, his health, or the safety of his property, as to call for injunctive relief at the hands of a court of equity" in a case involving added issues including increased fire hazard, noise, and cotton lint particles causing impure and unwholesome air)

    Beir v Cooke, 44 NY Sup Ct Rep (37 Hun) 38 (NY, June 1885) (banning soot and dust coming into the yard, onto windows and entering rooms in the house)

    McKinney v McCullough, 17 Phila 395; 42 Phila Leg Int 414 (Pa, 1885) (banned filling plaintiff's room with smoke and heat)

    Cogswell v New York, N. H. & H. R. Co, 103 NY 10; 8 NE 537; 57 Am Rep 701 (NY, 1886) ("smoke, soot, cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy" constituting "a taking of the plaintiff's property within the Constitution" [which bans doing that].)

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    Abendroth v Manhattan R Co, 19 Abb N C 247; 7 NYSR 43 (1887) aff'd 122 NY 1; 25 NE 496; 19 Am St Rep 461; 11 LRA 634 (NY, 1890) (banned RR smoke, cinders, and soot entering plaintiff's premises causing great injury)

    Catlin v Patterson, 10 NYSR 724 (NY, 1887) (banned smoke entering store corrupting the atmosphere and depositing soot on property)

    Sullivan v Royer, 72 Cal 248; 1 Am St Rep 51; 13 P 655 (Cal, 1887) (banned smoke entering through windows of house causing disturbance, annoyance, and damage)

    McMorran v Fitzgerald, 106 Mich 649, 651-653; 64 NW 569-570; 58 Am St Rep 511, 512 (1895) (affirming injunction banning "smoke, laden with cinders, soot, and disagreeable odors, which penetrated the houses, rendering them unclean, uncomfortable, and to a material extent unwholesome [which] destroyed the comfortable, peaceful, and quiet occupation of the complainants' homesteads." Everyone "must so use his property as not to cause injury to the property or rights of [others]." People are generally "entitled to freedom from smoke, soot, noise, and noxious odors in his home . . . . Authorities are numerous in support of this doctrine.")

    McClung v North Bend Coal & Coke Co, 9 Ohio CC 259; 6 Ohio C D 243 (Ohio, 1895) ("the health of the plaintiff herself has been seriously and injuriously affected, and the comfort and enjoyment . . . have been greatly lessened and interfered with by the smoke and noxious gases")

    McCarty v Natural Carbonic Gas Co, 189 NY 40, 50; 81 NE 549, 551; 12 Ann Cas 840, 842; 13 LRA (NS) 465, 469 (NY, 4 June 1907) ("smoke . . . so unusual and excessive as to materially interfere with the ordinary comforts of human existence")

    Melvin v E. B. & A. L. Stone Co, 7 Cal App 327; 94 P 390 (Cal App, 1908) (banned continuous smoke making plaintiff's home untenantable)

    Judson v Los Angeles Suburban Gas Co, 157 Cal 168; 106 P 581; 21 Ann Cas 1247; 26 LRA (NS) 183 (Cal, 1910) (ban defendant "from conducting and operating the gas works and manufactory . . . in such a manner as to cause or permit smoke, gases, or offensive smells or fumes to be emitted therefore, or to be precipitated therefrom onto the property of the plaintiff" pursuant to the ancient rule sic utere tuo ut alienum non lædas")

    Bourne v Wilson-Case Lumber Co, 58 Oregon 48; 113 P 52; Ann Cas 1913A, 245 (Or, 1911) (banned smoke, ashes, and cinders being deposited on plaintiff's property, house, fruit and shade trees, continually obstructing enjoyment of one's property)

    Lavner v Independent Light & Water Co, 74 Wash 373; 133 P 592 (Wash, 1913) (banned smoke, soot, and lamp black entering complainant's property, entering his house, destroying use for occupancy)

    Face v Cherry, 117 Va 41; 84 SE 10; Ann Cas 1917E, 418 (Va, 1915) (banned causing dense smoke and soot falling on plaintiff's property, and use of any other than smokeless fuel)

    Holman v Athens Empire Laundry, 149 Ga 345; 100 SE 207, 214; 6 ALR 1564, 1574-5 (Ga, 1919) ("Neither the opposite party nor the public has the right, legal or equitable, to invade the clear legal rights of another.")

    Other Cases Against Smoke

    Rex v White and Ward, 1 Burr 333 (KB, 1757) (indictment for causing "a noisome, offensive, and stinking smoke," "rendering the property of other persons incommodious and uncomfortable to them," punishable for that alone, as Judge William Murray, Lord Mansfield explained, "it is not necessary that the smell should be unwholesome; it is enough, if it renders the enjoyment of life and property uncomfortable," though in this case "the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches." The solution included a fine and "the nuisance was absolutely removed; (the works being demolished, and the materials, utensils, and instruments, all sold and parted with" a good solution for disposing of tobacco farms, factories, and stores!)

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    Catlin v Valentine, 9 Paige 575, 576; 4 N Y Chancery Rep 821, 822; 38 Am Dec 567 (NY, May 1842) ("To constitute a nuisance it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable: Rex v Neil, 2 Car & P. 485 [1826]; Rex v White, 1 Burr [333,] 337 [1757]."

    Fish v Dodge, 38 N Y Common Law Rep (4 Denio) 311, 316; 47 Am Dec 254, 255 (NY, May 1847) ("It is a rule of the common law that a man should so so use his own as not to hurt another. . . . There are many cases in the books where this doctrine has been applied . . . It is not necessary . . . that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable," citing with approval, Rex v White, 1 Burr 333, 337 [KB, 1757]).

    Peck v Elder, 5 NYSCR (3 Sandf) 126 (Sep 1849) (no need to wait until discomfort occurs; one can file in advance to have anticipated action banned).

    Howard v Lee, 5 NYSCR (3 Sandf) 281, 282-3 (Oct 1849) ("this business is not only noisome and offensive to the neighborhood, making the enjoyment of life and property uncomfortable; but is also injurious to health. . . . The jurisdiction [authority] . . . has long been established . . . to restrain the continuance of nuisances. . . . This is on the principle of law, that every man must so use his own property as not to injure the rights of his neighbors. It is well settled . . . that it is not necessary a trade should be so injurious to health as to constitute a public nuisance, in order to have it restrained. Although not injurious to health, and merely offensive to the senses, making the enjoyment of life uncomfortable, it might destroy a vast amount of property in its neighborhood. No man can exercise his own rights of property, to the injury of others. We have no hesitation in saying that the [prohibitory] injunction must be sustained.")

    Walter v Selfe, 4 De Gex & Smale 315 (Eng, Chancery, 1851) (people are entitled to have an unpolluted and untainted atmosphere, "meaning by 'unpolluted' and 'untainted,' not necessarily air as fresh, free, and pure as at the time of building his house the atmosphere then was, but air not rendered to an important degree less comfortable, or at least not rendered incompatible with the physical comfort of human existence")

    Davidson v Isham, 9 NJ Eq (1 Stockt) 186, 188-190 (NJ, Oct 1852) (Don't "endanger life, or render its enjoyment uncomfortable to those who reside in [the] neighborhood." "'It is not necessary that the smell should be unwholesome; it is enough that it renders the enjoyment of life and property uncomfortable;' and this rule has, by modern case, been adopted with much uniformity. . . . A man cannot destroy the comfort of another man's dwelling . . . so near to his premises as to annoy him by the smoke and stench. The court has frequently protected a man in such cases, in the enjoyment of his property, and will enforce the maxim sic utere tuo ut alienum non lædas . . . . The authorities are abundant to sustain the position that an individual cannot . . . render living in the neighborhood uncomfortable, either on account of . . . noise . . . or of [his] smoke and offensive smells")

    Wolcott v Melick, 11 NJ Eq (3 Stockt) 207; 66 Am Dec 790 (NJ, May 1856) ("the court will interpose to prevent the prosecution of a legal trade where it is carried on in such a manner as to injure an adjoining tenant, or to affect the air with noisome smells, gases, or smokes, injurious to health, or rendering the enjoyment of life within a neighboring dwelling-house uncomfortable," case cited with approval in Ross v Butler, 19 NJ Eq 294, 301; 97 Am Dec 654, 660 (NJ, 1868)

    Bamford v Turnley, 3 Best & Smith 65-86 (QB, 12 July 1862) (offensive smoke from lime kiln, causing diminuition in comfortable enjoyment of adjoining premises; p 84 says follow the norm in law not exception)

    Barnes v Hathorn, 54 Me 124, 125; 7 Am Law Reg (NS) 81 (Maine, 1866) (citing the "well-established and exceedingly comprehensive rule of the common law 'sic utere tuo, ut alienum non lædas' which is the legal application of the gospel rule of doing unto others as we would that they should do unto us.")

    Wesson v The Washburn Iron Co, 95 Mass (13 Allen) 95, 104; 90 Am Dec 181, 186-187 (Oct 1866) ("The rule of law is well-settled and familiar that every man is bound to use his own property in such manner as not to injure the property [or person] of another, or the reasonable and proper enjoyment of it; and that the carrying on of an offensive trade or business, which creates noisome smells and noxious vapors, or causes great and disturbing noises, or which otherwise renders the occupation of property in the vicinity inconvenient and uncomfortable, is a nuisance. . . .")
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    Robinson v Baugh, 31 Mich 290, 294-295 (29 Jan 1875) (The nuisance creator said others were doing the same. The court answered: "[he] specifies several . . . in the vicinity . . . claimed to be as detrimental. . . . But this, if true, cannot aid him. If others . . . are maintaining nuisances . . . it is no reason for refusing to stop one maintained by him. . . . When nuisances . . . exist in separate hands, they must be proceeded against separately, and it is a matter of no legal moment which is taken first. . . . The general principle is that every person must so use his own as not to cause injury to his neighbors.")

    State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890). This TTS case was in New Orleans, due to second-hand smoke effects (being then complained of), banned smoking on street-cars (by Ordinance No. 4). ("Whereas the custom of permitting in the street-cars of this city is a most vile and objectionable one to the majority of our citizens . . . and whereas, this alone, of all the cities of the Union, allows such a discomfort to those of its citizens who ride in the public cars: Be it resolved that . . . smoking in any street-car of this city is hereby prohibited . . . and any one so offending . . . shall be fined . . . or imprisoned not less than five days, or more than thirty days. A smoker challenged the ban. The appeals court upheld it, using classic pure air terminology: "A nuisance belongs to 'that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property . . . or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage' . . . . There is no doubt that smoking . . . caused to a great majority of the people . . . material annoyance, inconvenience, and discomfort. . . . There is not only discomfort, but positive danger to health, from the contaminated air . . . ." "The city council . . . had authority . . . to provide for the public health. It can therefore require . . . that there shall be ventilation for a supply of fresh air . . . and, in pursuance of the same power, it can, in order to preserve pure and fresh air . . . prohibit smoking . . . It is essential to health and to comfort to have pure air . . . .")

    State v C. C. Taft Co, 183 Iowa 548; 167 NW 467; 9 ALR 390 (7 May 1918) app dism 252 US 569; 40 S Ct 345; 64 L Ed 720 (15 March 1920) (upholding seizure of illegal cigarettes of many brands, Camels, Omars, Murads, etc., pursuant to Iowa law institutionalizing the right to fresh and pure air via an 1897 cigarette ban)

    Amico's Inc v Thomas Mattos, 789 A2d 899 (RI, 15 Feb 2002) (upholding city restaurant smoking ban as per cities' and towns' broad powers to protect the "health, safety and welfare" of restaurant patrons)

    Johnita M.D. v. David D.D. (Case No. D-37432, Utica, NY, Judge Robert F. Julian, March 2002) (parental smoking case)

    Julie Anne [Case No. 97-PR-755; 2 Ohio Misc 2d 1; 2002 Ohio 4489] (Ohio Judge William Chinnock, 13 Sep 2002) (child protection case)

    "As early as 1306 a royal proclamation was issued, forbidding the use of coal in London, followed by a commission to punish miscreants 'for the first offence with great fines and ransoms, and upon the second offence to destroy their furnaces.'" Margaret White Fishenden, Mechanical Engineering Dep't, Imperial College of Science and Technology, Univ of London, "Smoke and Smoke Prevention," Encyclopædia Britannica, Vol 20, pp 840-842 (Law §, p 841) (1963).

    "The first person recorded to have suffered from medieval pollution was a Queen of England, Eleanor, who was driven from Nottingham Castle in 1257 by the unpleasant fumes of the sea coal burned in the industrial city below." "By the last decades of the thirteenth century, London had the sad privilege of becoming the first city in the world to suffer man-made atmospheric pollution. In 1285 and 1288 complaints were recorded concerning the infection and corruption of the city's air by coal fumes from the limekilns. Commissioners of Inquiry were appointed, and in 1307 a royal proclamation was made in Southwark, Wapping, and Easth Smithfield forbidding the use of sea coal in kilns under pain of heavy forfeiture." Jean Gimpel, The Medieval Machine (New York: Holt, Rinehart & Winston, 1976), p 82.

    The 'right to pure air' is a derivative/corollary of the English Magna Carta, our right to not be killed except after due process (charges, jury trial, appeal, etc.). As the U.S. colonies were under England, our system of law derived from England, and in the Constitution, retains many of our old English-inheritance rights. One of these ancient rights, is the 'right to pure air.'

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    Pertinent Cases Applying the Balancing Concept

    The right to pure air, protects our modern right to 'due process.' 'Due process' is a right protected by the U.S. Constitution. "Balancing the equities" is a term you may hear. Laymen claim that smokers and nonsmokers' rights must be "balanced." Such assertions are almost invariably out of legal context, (a) disregarding the definition, and disregarding (b) pertinent legal principles, thus accessory to the "universal malice." There are many pertinent court precedents of which the following are examples:

    The basic concept on balancing is that the right to purity is "absolute." "'Where there is a large number of persons mining on a small stream [here, putting TTS in the air], if each should deteriorate the water [air] a little, although the injury from the act of one might be small, the combined result of the acts of all might render the water [air] utterly unfit for further use; and, if each could successfully defend an action on the ground that his act alone did not materially affect the water [air], the prior appropriator might be deprived of its use, and at the same time be without a remedy' [an unlawful result],' Hill v Smith, 32 Cal 166 [Jan 1867]; Woodyear v Schaefer, [57 Md 1;] 40 Am Rep 419 [30 June 1881]; Sherman v Iron-Works Co, 87 Mass 213 [Oct 1862]; Mayor, etc, of Baltimore v Warren Mfg Co, 59 Md 96 [13 July 1882]; Crossley v Lightowler, L R 3 Eq 379, 2 Ch App 478; Pennington v Coal Co, 5 Ch Div 769, 772," all cited in Strobel v Kerr Salt Co, 164 NY 303, 322; 58 NE 142, 148 (2 Oct 1900).

    Wheatley v Chrisman, 24 Pa St 298, 301-2 (21 May 1855) ("It is asserted that the defendant . . . has corrupted the water [here, air] and . . . diminished the volume. . . . If either of these allegations be true, the plaintiff has a right to recover. . . . The wrong must cease, no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his property. . . . The necessities of one man's business [addiction] cannot be the standard of another's rights in a thing [here, air] which belongs to both.") There the change made the stream "unfit for beasts to drink," p 303. TTS makes air unfit to breathe. The court further warned that "if one verdict be not enough to make the defendant discontinue the nuisance, a second jury will be instructed to give such damages as will cause him to wish that he had taken the warning of the first," p 302. "We are quite clear that the plaintiff had a right to the water [here, air] in its natural condition . . . pollution of material diminution of it was a wrong. . . . The claim of the plaintiff being only for compensatory damages, and not being founded on the animus, but on the acts of the other party, it can be a matter of no consequence whether or not the defendant knew the extent of the injury he was committing," p 305.

    Pottsdown Gas Co v Murphy, 39 Pa St 257, 263 (6 May 1861) (percolating smell leading to annoyance is dealt with IAW nuisance law, not negligence law. "The court was right in saying that this is not a question of negligence, but of nuisance . . . of smells. Wantonly, unnecessarily, or oppressively causing such smells as to annoy the plaintiff . . . in a special and peculiar degree beyond others in the immediate vicinity, and to create an abiding nuisance, to the particular damage of the plaintiff's property.")

    Tobacco does worse than merely "smells." "It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group." Banzhaf v F.C.C., 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968).

    "Cigar smoke puffed in a man's face by another man is assault and battery." Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), p 209

    White v Chapin, 102 Mass 138 (Sep 1869) (nuisance obstructing a drainage ditch, $100 damages)

    Grady v Walsner, 46 Ala 381, 382; 7 Am Rep 593, 594 (June 1871) ("That the action will lie is plain. Every one must use his own so as not to hurt another. . . . Any thing [including a cooking range] constructed on a person's premises which, of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance.")

    Wilson v City of New Bedford, 108 Mass 261, 266; 11 Am Rep 352, 356 (Oct 1871) (one artificially accumulating water is liable when it percolates elsewhere, for damages. "'If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.'")

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    Washburn v Gilman, 64 Me 163, 170; 18 Am Rep 246, 250 (1873) ("'I take the law to be,' observes BLACKBURN, J., in Hodgkinson v. Enna, 116 E.C.L. 229, 'as stated in Tenant v. Goldwin, 2 Ld. Raym. 1089; Salk. 21, 360; 6 Mod. 311; Holt, 500, that you must not injure the property of your neighbor, and consequently, if filth is created on any man's land, then, in the quaint language of the report in Salk. 361, "he whose dirt it is, must keep it that it may not trespass."' . . . The defendants could not directly infringe that right by any means or for any purpose. They could not pollute the air upon the plaintiff's premises (Morley v. Pragnell, Cro. Car. 510) . . . nor cast any thing upon the land (Lambert v. Bessey, Sir T. Raymond, 421). . . . For this would violate the right of eminent domain."

    Cogswell v New York, New Haven & Hartford R. R. Co, 103 NY 10; 8 NE 537; 57 Am Rep 701 (1886) ("However necessary it may be for the defendant that its engine house should be located where it is [however addicted the smoker], this constitutes no justification for the injury suffered by the plaintiff.")

    Dunsbach v Hollister, 56 NYSCR (49 Hun) 352, 354; 2 NYS 94, 95 (July 1888) ("a lawful business negligently conducted is not a lawful business lawfully conducted.")

    Bohan v Port Jervis Gas Light Co, 122 NY 18, 23; 25 NE 246, 247; 9 LRA 711 (7 Oct 1890) (The court charged the jury that the issue was "did the odor pollute the air so as to substantially render plaintiff's property unfit for comfortable enjoyment?' The jury found for the plaintiff, and the court held that the act complained of constituted a nuisance per se.)

    Sullivan v Dunham, 161 NY 290, 300; 55 NE 923; 47 LRA 715, 721; 76 Am St Rep 274, 281 (9 Jan 1900) ("The safety of property [people] generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such a use of one piece by one man as may injure all his neighbors.")

    Amsterdam Knitting Co v Dean, 162 NY 278, 280; 56 NE 757 (27 March 1900) (Even if the damages are slight [death is not], "it seems to be well settled that where the act complained of is such that by its repetition or continuance it may become the foundation or evidence of an adverse right, a court of equity will interpose by injunction, though no actual damage is shown or found.")

    Weston Paper Co v Pope, 155 Ind 394, 401-2; 57 NE 719, 721; 56 LRA 899 (22 June 1900) ("The fact that the appellant [polluter] has expended a large sum of money in its construction of its plant, and that it conducts its busienss in a careful manner and without malice, can make no difference in its rights. . . . "Before locating the plant [smoking the cigarette] the owners were bound to know that every [nonsmoker is entitled to "pure and fresh air"] riparian proprietor is entitled to have the waters of the stream that washes his land come to it without obstruction, diversion, or corruption, subject only to the reasonable use of the water . . . . They were bound also to know the character of their proposed business [smoking's TTS emissions], and to take notice of the size, course, and capacity of the stream [air] and to determine for thesmelves at their own peril whether they should be able to conduct their business [smoking] upon a stream of the size and character of Brandywine creek [the air flow] without injury to their neighbors; and the magnitude of their investment and their freedom from malice furnish no reason why they should escape the consequences of their own folly.")

    Note the two similar rights to unobstructed: (1) water-flow downstream, and (2) air-flow downstream. Note the long record of litigation to preserve unobstructed downstream water flow. The right is traceable back judicially into medieval times. An early successful case was by "the Château-Narbonnais mills . . . They won their case on June 8, 1278." Jean Gimpel, The Medieval Machine, supra), pp 18-19.

    Strobel v Kerr Salt Co, 164 NY 303, 320, 322; 58 NE 142, 147-8 (2 Oct 1900) (case involving use of water by heating it to vapor, deemed in essence destroying it; TTS involves heating and vaporizing, likewise destroying its pre-TTS nature. However, all have a right to the water (here, air) "stream substantially preserved in its natural size, flow, and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must therefore be consistent with the rights of the others, and the maxim of 'Sic utere tuo' observed by all. The rule of the ancient common law is still in force: 'Aqua currit et debet currere ut currere solebat.'" "According to the old and familiar rule, every man must so use his own property as not to injure that of his neighbor. . . . The fact that other salt manufacturers [smokers] are doing the same thing as the defendant, instead of preventing relief, may require it.")

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    Sammons v City of Gloversville, 175 NY 346; 67 NE 622 (June 1903)

    Pratt v Davis, 118 Ill App 161, 166 (1905) aff'd 224 Ill 30; 79 NE 562 (1906) (citing "the free citizen's first and greatest right which underlies all others the right to the inviolability of his person")

    Butler v Frontier Tele Co, 186 NY 486, 491-492; 79 NE 716, 718; 11 LNS 920; 116 Am St Rep 563; 9 Ann Cas 858 (Dec 1906) (ejectment would lie where a telephone wire was strung across the plaintiff's property, even though it did not touch the soil, as ". . . an owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff's land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed" (from Causby, infra).

    McCarty v Natural Carbonic Gas Co, 189 NY 40; 81 NE 549, 551-2; 12 Ann Cas 840; 13 LRA (NS) 465 (4 June 1907) ('The present use of soft coal is not a necessary use for the practical management and running of its plant.' [just as TTS is not necessary for any occupation or business]." "When [activity] not only interferes materially with the ["habitability"] physical comfort of persons in their own homes, but also causes financial injury to the owner, it constitutes a nuisance.")

    Whalen v Union Paper Bag Co, 208 NY 1, 5; 101 NE 805, 806 (25 March 1913) (case involving $1,000,000 vs $100 loss, the rights herein cited have such enormous priority that they must be enforced even in such situation. Re TTS, the issue is death. But see how the rights herein described work in such a case: "Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion, it would deprive the poor litigant of his little property by giving it to those already rich. It is always to be remembered in such cases that 'denying the injuction puts the hardship on the party in whose favor the legal right exists, instead of on the wrongdoer.' Pomeroy's Eq. Juris. vol. 5, § 530. . . . 'The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction.")

    Trowbridge v City of Lansing, 237 Mich 402, 405; 212 NW 73, 74; 50 ALR 1014 (4 Feb 1927) ("the garbage itself . . . is a nuisance per se." ) (Analysis: TTS is garbage, i.e., what smokers are throwing away as such).

    Centoni v Ingalls, 113 Cal App 192; 298 P 47 (1931) (nuisance arising "when dry disintegrated into a fine powdery substance which when disturbed created a very fine dust which floated in the air very easily." "The trial court found . . . an invasion of the rights of the plaintiffs to the quiet and peaceful enjoyment of their properties." It was not needed to identify the "exact quantity" of dust involved. The perpetrators were "enjoined . . . from permitting . . . the dust . . . to emanate, flow, or arise from their plant so that it would be blown or carried in or upon the properties of the plaintiffs.")

    Ferguson v Village of Hamburg, 272 NY 234; 5 NE2d 801 (31 Dec 1936) (case against inverse condemnations imposing servitude on land for private purpose)

    Delaney v Philhern Realty Holding Corp, 280 NY 461, 465; 21 NE2d 507 (2 June 1939) (One class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance.)

    Adams v Hamilton Carhartt Overall Co, 293 Ky 443; 169 SW2d 294 (1943) (". . . a nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use of physical occupation uncomfortable.")

    Walker v City of Hutchinson, 352 US 112; 77 S Ct 200; 1 L Ed 2d 178 (10 Dec 1956) (case against inverse condemnations imposing servitude on land for private purpose)

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    Fifth Ave Coach Lines v City of New York, 11 NY2d 342, 347; 229 NYS 2d 400, 403; 183 NE2d 684 (17 May 1962) (case against inverse condemnations imposing servitude on land for private purpose)

    State of New York v Waterloo Stock Car Raceway, Inc, 96 Misc 2d 350; 409 NYS2d 40 (1978) (applying the principles to noise)

    Kennedy v Moog Servocontrols, 21 NY2d 966; 290 NYS2d 193; 237 NE2d 356 (10 April 1968) (summarily rejecting a challenge to these concepts being applied in a mere $200 case as the legal principle is so well-established. Your life is worth more than $200!)

    Nuisance Cases

    Putnam v Payne, 13 Johns 312; 11 NY Com Law Rep 259 (August 1816) (destruction of mad dogs, "fully justified . . . upon common law principles. The dog was, generally, a dangerous and unruly animal, and his owner knew it; yet he permitted him to run at large. [This] fully justified . . . killing the dog as a nuisance. The public safety demands this rule.")

    Surocco v Geary, 3 Cal 69; 58 Am Dec 385 (Jan 1853) (outlines the common law right to destroy property to put out a fire to prevent a holocaust)

    Harper v City of Milwaukee, 30 Wis 365 (1872) (Governments generally have no more right than private persons to create and maintain nuisances.)

    Seavey v Preble, 64 Me 120, 121 (1874) (destruction of wallpaper in bedrooms of persons with small pox. "Salus populi suprema lex the safety of the people is the supreme law is the governing principle . . . Where the public health and human life are concerned, the law requires the highest degree of care. It will not allow of experiments to see if a less degree of care will not answer [suffice]. The keeper of a furious dog or a mad bull is not allowed to let them go at large to see whether they will bite or gore the neighbor's children. Nor is the dealer in nitro-glycerine allowed in the presence of his customers to see how hard a kick a can of it will bear without exploding. "Nor is the dealer in gunpowder allowed to see how near his magazine may be located to a blacksmith's forge without being blown up. Nor is one using a steam engine to see how much steam he can possibly put on without bursting the boiler. . . . The law will not tolerate such experiments. It demands the exercise of all possible care. In all cases of doubt the safest course should be pursued remebering that it is infinitely better to do too much than run the risk of doing too little.") (Re tobacco, manufacturers and smokers are not allowed to see how many fires they can light, nor how much toxic chemicals that they can spew about, without injuring and killing people people including nonsmokers. This is Army's AR 1-8 concept).

    Lowe v Prospect Hill Cemetary Ass'n, 58 Neb 94 (23 Feb 1899) (enjoining action that "will injure life or health, either by corrupting the surrounding atmosphere or the water")

    Osborne v State, 77 Ark 439; 92 SW 406; LRA 1916E, 353 (1906) ("When it is shown . . . that the [item] is being sold contrary to law, the nuisance exists . . . The proceeding is in rem. The [thing] is the offender, so to speak; it is contraband, and to be destroyed when it is being used, no matter by whom, contrary to law.")

    McFarlane v City of Niagara Falls, 247 NY 340, 343; 160 NE 391; 57 ALR 1, 3-4 (14 Feb 1928) ("One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. 21 Halisbury, Laws of England, p. 507, 845. Illustrations are abundant. One who emits noxious fumes or gases day by day . . . . McCarty v Natural Carbonic Gas Co, 189 NY 40; 81 NE 549. . . ." And, re the victim, "There is no duty to be alert for danger where none should be expected."

    Miller v Schoene, State Entomologist, 146 Va 175; 135 SE 813 (1927) aff'd 276 US 272; 48 S Ct 246; 72 L Ed 568 (20 Feb 1928) (destruction of diseased cedar trees, pursuant to Virginia law making it "unlawful for any person to 'own, plant or keep alive and standing' on his premises any red cedar tree which is or may be the source or 'host plant' of the communicable plant disease known as cedar rust, and any such tree growing within a certain radius of any apple orchard is declared to be a public nuisance, subject to destruction.") (This is an apt solution to the tobacco problem, identifying the plants as a source of or host to human disease, thus a public nuisance to be destroyed.)

    -35-

    Delaney v Philhern Realty Holding Corp, 280 NY 461, 465; 21 NE2d 507, 509; 2 June 1939) (In a case involving a compressed air pipe across a sidewalk posing a barrier, the court said that one class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance. "If no license has been issued, then an obstruction in the public way is an absolute nuisance." And, "an absolute nuisance or a nuisance per se is a nuisance based on an act which is unlawful even if performed with due care.")

    Adams v Hamilton Carhartt Overall Co, 293 Ky 449; 169 SW2d 294 (1943) ("a nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable." "'It has been held that a pack of dogs may create a nuisance, and it follows that a constituent part of a pack, to wit, one dog, if sufficiently persistent, may make as much noise as a dozen barking seriatim.'" "It is the disturbance and not the number of dogs to which the test must be applied." Note that the Surgeon general Report (1964), p 60, shows that TTS contains many chemicals above 29 CFR § 1910 limits; even one above is one too many, and thus banned.)

    Pertinent United States Supreme Court Cases

    Northwestern Fertilizing Co v Village of Hyde Park, 97 US 659, 667-670; 24 L Ed 1036 (11 Nov 1878). The Supreme Court determined that the public welfare, in which the right to fresh and pure air is subsumed, is so absolute as to disrupt even longstanding prior arrangments including even corporate charters. At 1038, it said: "The rule of construction in this class of cases is that it shall be most strongly against the Corporation [alleged violator of the right to fresh and pure air]. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakeable terms, or by an implication equally clear. Silence is negation, and doubt is fatal to the [polluter's] claim. This doctrine is vital to the public welfare." At 1039, "We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. . . . It rests upon the fundamental principle that everyone shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions." The Supreme Court then cited a case wherein a practice since May 1697 was held peremptorily banned: Coates v Mayor, etc., of New York, 7 Cow 585 [9 NY Com Law Rep 230 (Oct 1827)]. Quoting, it said, "'Every right . . . is . . . holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the [offender] is bound to know at his peril that it may become otherwise . . . and that it must yield. . . .'"

    Continuing at 1039: "In such cases, prescription, whatever the length of time, has no application. Every day's continuance is a new offense, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it. Brady v Weeks, 3 Barb., 157 [NY, 19 May 1848]."

    Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) ("At the common law everyone had the right to detroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . . There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.'")

    Ralli v Troop, 157 US 386; 15 S Ct 657; 39 L Ed 742, 746-758 (1 Apr 1895), the Supreme Court had a ship fire case. It noted "'Rule 30. No person shall smoke, or use naked lights of any description, in the hold or between decks of any vessel lying in the port . . . ,'" 157 US 390; 15 S Ct 659; 39 L Ed 745. "By our law, indeed, either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute. 2 Kent, Comm. 338, 339; Bowditch v. Boston, 101 U.S. 16; Taylor v. Plymouth, 8 Metc. ([49] Mass.) 462 [Oct 1844]; The John Perkins, 21 Law Rep. 87, 97, Fed. Cas. No. 7,360 [(CC Mass)]; The James P. Donaldson, 19 Fed. 264, 269 [(ED Mich, 1883)]. Another instance of a right founded on necessity is the case of The Gravesend Barge, or Mouse's Case, decided and reported by Lord Coke, in which it was held that in a tempest, and to save the lives of the passengers, a passenger might cast out ponderous and valuable goods, without making himself liable to an action by their owner. 12 Coke, 63, 1 Rolle, 79; 2 Bulst. 280." 157 US 405-406; 15 S Ct 664; 39 L Ed 751.

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    Camfield v United States, 167 US 518, 522-523; 17 S Ct 864; 42 L Ed 260 (D Col, 24 May 1897) ("There is no doubt of the general proposition that a man may do what he will with his own, but this right is subordinate to another, which finds expression in the familiar maxim, 'Sic utere tuo ut alienum non laedas.' His right to erect what he pleases upon his own land will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors. Ever since Aldred's Case, 9 Coke, 48 [1610], it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants. No person maintaining such a nuisance can shelter himself behind the sanctity of private property.")

    United States v Causby, 328 US 256; 66 S Ct 1062; 90 L Ed 1206 (27 May 1946) (decision deeming as an unconstitutional "taking" of one's right to one's own property, the flying of airplanes in one's close proximity. The relevance to TTS is not only that TTS is in proximity to people, it actually enters the person, foreseeably causing as a "natural and probable consequence," injury up to and including death, and in the case of abortion or "Sudden Infant Death Syndrome," SIDS, immediate death).

    Kovacs v Cooper, 336 US 77; 69 S Ct 448; 93 L Ed 513 (1949) (decision upholding power to ban "loud and raucous noices" as per "citizens [right] to comfort and convenience" - as "To enforce [perpetrators' rights] in disregard of the rights of others would be harsh and arbitrary in itself." In tobacco context, this means nonsmokers' rights have precedence. [There is no right to ingest or emit poison, no right to "consent" to this; "smokers' rights" is to a safe product].)

    Huron Cement Co v Detroit, 362 US 440; 80 S Ct 813; 4 L Ed 2d 852 (25 April 1960), again supported the pure air right, affirming a Michigan Supreme Court decision (355 Mich 227; 93 NW2d 888) on the subject (there called a "police power" matter). The case involved a polluter saying it had a federal license to operate, so could do so in a polluting manner!! The Supreme court responded, at p 447, "The mere possession of a federal license . . . does not immunize a ship from the operation of the normal incidents of local police power."

    Tull v United States, 481 US 412, 420; 107 S Ct 1831, 1837; 95 L Ed 2d 365, 375, note 5 (28 April 1987) "In 18th-century English law, a public nuisance was 'an act or omission `which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects.' W. Prosser, Law of Torts 583 (4th ed. 1971) (hereinafter Prosser) [for example] the suit of the sovereign to enjoin 'offensive trades and manufactures' that polluted the environment. 4 W. Blackstone, Commentaries *167 . . . . Public nuisances included "interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, bullfights, unlicensed prize fights, or public profanity; with the publice [sic] peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.' Prosser 583-585").

    Michigan Nuisance Cases

    Pennoyer v City of Saginaw, 8 Mich 534 (13 Oct 1860) (A municipality cannot lawfully continue nuisance).

    Wilkinson v Detroit Steel & Spring Works, 73 Mich 405; 41 NW 490 (1889) (Exercise of reasonable care in the creation or maintenance of a nuisance can never be an absolute defense to an action for an injury occasioned thereby.)

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    People v Detroit White Lead Works, 82 Mich 471; 46 NW 735; 9 LRA 722 (1890) (Neither the fact that a business is carried on in a careful and prudent manner, and that nothing is done by those managing it that is not a reasonable and necessary incident of the business, nor the fact that, when the business was commenced, the lands in the vicinity were open common, will authorize the continuance of a business in the midst of a populous community, which constantly produces odors, smoke, and soot, of such a noxious character and to such an extent that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants.) (Note that lead is a tobacco ingredient).

    Skelton v Fenton Electric Light & Power Co, 100 Mich 87; 58 NW 609 (1894) (In an action for injuries . . . resulting from iron rust and soot falling froma a smoke stack on adjacent land, the fact that the stack was erected for defendant by an independent contractor, and had not been accepted at the time of the alleged injuries, does not relieve defendant from liability in the absence of evidence that the stack was improperly built.)

    Brady v Detroit Steel & Spring Co, 102 Mich 277; 60 NW 687; 26 LRA 175 (1894) (Under the Detroit city ordinance forbidding the deposit of "any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer," the nuisance does not depend upon the intent of the party causing it, and when one suffers a fluid to percolate through the soil into a sewer, and pernicious gases arise therefrom, to the damage of another, the latter may recover therefor.)]

    Kilts v U B D, 162 Mich 646, 651; 127 NW 821 (27 Sep 1908) ("a nuisance involves not, only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same.")

    Attorney General v City of Grand Rapids, 175 Mich 503; 141 NW 890; 50 LNS 473; Ann Cas 1915A, 968 (28 May 1913) (emptying sewage into river creating nuisance to lower riparian owners and the public, and quoting with approval Spokes v Board of Health, LR 1 Eq 42, "What difference can it possibly make as to the commission of an illegal act, whether a man acts on behalf of thousands or on behalf of himself only?")

    Whittemore v Baxter Laundry Co, 181 Mich 564, 565; 148 NW 437; 52 LRA (NS) 930; Ann Cas 1916C, 818 (1914) (A private nuisance is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.)

    Birchard v Board of Health of City of Lansing, 204 Mich 284; 169 NW 901 (27 Dec 1918) (enjoining a pesthouse, a "hospital for the treatment of infectious diseases" to ban placement in residential area. Other states have similar precedents.)

    Trowbridge v City of Lansing, 237 Mich 402, 405; 212 NW 73, 74; 50 ALR 1014 (4 Feb 1927) ("the garbage itself . . . is a nuisance per se. It is malodorous, and the quality is persistent.") (Analysis: TTS is garbage, i.e., what smokers are throwing away as such, and persistent, remaining lingering in the ambient air).

    Albaugh v Abbott, 253 Mich 588, 592; 235 NW 263, 264 (27 Feb 1931) ("Garbage is a nuisance per se." The judge inspected on-site!)

    Waier v Peerless Oil Co, 265 Mich 398; 251 NW 552 (1934) (Fact that other perpetrators foul air with odors does not justify introduction of another cause of discomfort to householders, but presence of other odors is circumstance bearing on degree of annoyance and scope of relief.)

    Pezo v Lester, 284 Mich 369; 279 NW 864 (1938) (A landowner has the legal right to protection against added water burdens from adjoining property. A landowner who suffered damages from water coming on his land from a flowing well located on property which was situated across highway would be entitled to have nuisance stopped and to be compensated.)

    McDonell v Brozo, 285 Mich 38, 43; 280 NW 100 (1938) (A "nuisance" involves not only a defect but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations thereto.)

    -38-

    Northwest Home Owners Ass'n v City of Detroit, 298 Mich 622, 629, 646-7; 299 NW 740, 747, 750 (2 Sep 1941) ("'Independently of other objectionable features or effects . . . the gases emitted . . . have an adverse and injurious effect on health." In determining whether there is a nuisance, the court said: "We quote the following pertinent description or definition from 46 C.J. 677: 'The question in all cases is whether the annoyance produced is such as materially to interfere with the ordinary comfort of human existence. It is not of course necessary that the annoyance and discomfort should be so great as actually to drive the person complaining thereof from his dwelling, but if the alleged injury be a plain interference with ordinary comforts and enjoyment, there is a nuisance, no matter how slight the damage, provided the inconvenience be actual and not fanciful.")

    Mitchell v Hines, 305 Mich 296, 301-2; 9 NW2d 547, 550 (18 May 1943) ("Where a board of health institutes an action on the basis that the business is detrimental to public health, that detriment must be proved. However, detriment to health need not be proved to show a 'private nuisance. Trowbridge v City of Lansing, supra.")

    Kobs v Zehnder, 326 Mich 202; 40 NW2d 120 (1949) (Injury or detriment to plaintiff's health was not required to be proved to establish that defendants' acts in dumping garbage and other matter on defendants' adjacent farm which caused nauseating odors, constituted a "private nuisance.")

    Rockenbach v Apostle, 330 Mich 338, 344, 346; 47 NW2d 636, 639-640 (14 May 1951) ("A nuisance will not be upheld solely on the ground that it has been permitted by municipal ordinance." That nuisance involved not a genuine health threat, but merely constituting a "constant reminder of death," thus having a "depressive influence," that did "deprive them [litigants] of the comfort and repose to which they are entitled.")

    Denny v Garavaglia, 333 Mich 317; 52 NW2d 521 (1952) (One class of nuisances are those which are intentional in that the creator intended to bring about the conditions which are in fact found to be a nuisance, and in actions for injuries resulting from such nuisances, which are characterized as absolute, contributory negligence of a person injured is not a defense. One class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance.)

    Awad v McCoigan, 357 Mich 386; 98 NW2d 571, 573 (1959) ("Nuisance" comprehends interference with an owner's reasonable use and enjoyment of his property by means of smoke, noise, or vibration; obstruction of private easements and rights of support, interference with public rights, such as free passage along streams and highways, enjoyment of public parks and places of recreation, and in addition, activities and structures prohibited as statutory nuisances.)

    Young v Gronendal, 10 Mich App 112; 159 NW2d 158, 159 (25 March 1968) aff'd 382 Mich 456; 169 NW2d 920, 922 (3 Sep 1969) ("A 'classic,' 'standard,' or 'absolute' nuisance . . . arises when one so uses land as to cause unreasonable interference with the use and enjoyment of the land of another." 73 ALR2d 1381)

    Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630, 636; 178 NW2d 476, 480 (1970) ("Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in the highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.")

    Ebel v Board of County Road Com'rs of Saginaw County, 386 Mich 598, 607; 194 NW2d 365, 369 (25 Feb 1972) ("No state agency is free to maintain a nuisance, and hence it cannot permit or require another person to do so." See 58 Am Jur 2d, Nuisances, §§ 229, 230, pp 833-835.)

    Rosario v City of Lansing, 403 Mich 127, 132; 268 NW2d 230 (24 July 1978) (A nuisance arises from the existence of a dangerous condition.)

    Melendres v Soales, 105 Mich App 73, 79; 306 NW2d 399, 402 (7 April 1981) (Defendant who intentionally creates condition with knowledge that it is substantially certain to interfere with plaintiff's property or person has established "intentional nuisance," a category of "nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.")
    -39-

    Martin by Martin v State, 129 Mich App 100; 341 NW2d 239, 243-244 (26 Sep 1983) app den 422 Mich 891; 368 NW2d 226 (13 May 1985) ("A nuisance arises from the existence of dangerous condition. . . . There are two categories of nuisances: nuisances per se and nuisances in fact. The latter category is further divided into intentional nuisances and negligent nuisances." "An intentional nuisance is one 'created by conduct intended to bring about conditions which, in fact, constituted a nuisance.' . . . To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant's actions.")

    Bronson v Oscoda Township, 165 Mich App 431; 419 NW2d 27 (4 Jan 1988) cause remanded 430 Mich 883; 423 NW2d 574 (1988) appeal after remand 435 Mich 852; 456 NW2d 713 (26 June 1990) on remand 188 Mich App 679; 470 NW2d 688 (6 May 1991) app for lv held in abeyance 479 NW2d 655 (31 Jan 1992) app den 440 Mich 877; 487 NW2d 441 (31 July 1992) (Omission to act, as well as commissive act, can constitute intentionally created nuisance.)

    Pesthouse Cases

    Gilford v Babies' Hospital, 21 Abb N C 159; 17 NYSR 886; 1 NYS 448; 46 LRA 241 (18 June 1888) (fears it could lead to disease in residential area)

    Mayor, etc. of Baltimore v Fairfield Improvement Co, 87 Md 353; 39 A 1081; 40 LRA 494; 67 Am St Rep 344 (1 April 1898) (enjoining a pesthouse for treating "contagious and infectious diseases" contrary to others' right "to possess and enjoy his unoffending property without the molestation of a nuisance")

    Thompson v Kimbrough, 23 Tex Civ App 350; 57 SW 328 (10 March 1904) (case of a pesthouse proposed by a school)

    Anable v Board, 34 Ind App 72; 71 NE 272; 107 Am St Rep 173 (4 June 1904)

    Cherry v Williams, 147 NC 452; 61 SE 267; 125 Am St Rep 566; 15 Ann Cas 715 (22 April 1908)

    Stotler v Rochelle, 83 Kan 86; 109 P 788; 29 LNS 49 (9 July 1910)

    Everett v Paschall, 61 Wash 47; 111 P 879; 31 LNS 827; Ann Cas 1912B, 1128 (3 Dec 1910)

    Kestner v Homeopathic Hospital, 245 Pa 326; 91 A 659; 52 LNS 1032; Ann Cas 1916A, 123 (18 May 1914)
    -40-

    [Enclosure 5]

    Memorandum for Investigator on Enforcement Ease

    32 CFR 203 (1977); AR 1-8 (1977), and the USACARA Report (25 Jan 1980) won by Pletten, were all based on the long-standing right to fresh and pure air. The Departments of Defense and Army institutionalized that already existing right. The right is a common law right, developing since at least the year 1306. (Note EEOC reference 23 Feb 1982, Docket Nos. 01800273 et al, p 2). Rules are not to be made a mockery of, by pretense that enforcement is too difficult! A constitution is not satisfied with half-way measures and does not prefer dissimulation to straightforwardness; duties and requirements may not be avoided on ground that it might be a lot of work to comply. Alan v County of Wayne (1972) 388 Mich 210, 200 NW2d 628, 67 ALR3d 1079, adhered to (1972) 388 Mich 626, 202 NW2d 277. In fact, controlling smoking is easy, as citations from multiple sources show:

    Medical sources: Chest, Vol. 84(1), pp. 95-94, July 1985, citing Internat'l Journal of the Addictions, Vol. 16, pp. 1467-1471, 1981; and Am. Lung Assoc. Bulletin, September 1979. Chest, supra, states, "The problem of enforcement is often used as an argument for not enacting legislation restricting smoking; however, there is evidence which suggests that the posting of 'no-smoking' signs does elicit compliance by most smokers, even when no penalties have been specified. In the state of Minnesota, a high level of compliance has been reported with the Clean Indoor Air Act of 1975."

    Personnel source: Personnel Administrator, Vol. 26(5), May 1981. P. 77 notes the "feasibility of no-smoking policies: we have yet to see one that has failed." P. 76 notes that "Smoke-free work environnments are clean, healthy and conducive to good working relationships."

    Ed. Note: Full citation: Weiss, W. L., "Can you afford to hire smokers?" 26 Personnel Administrator (# 5) 71-78 (May 1981).

    Law Review source: Michigan Law Review, Vol. 81(6), p. 1481, May 1983. Note 671 states, the tobacco smoke "hazard in Shimp did not result from a work process and could be remedied rather easily."

    Ed. Note: Full citation: Mark A. Rothstein, "Employee selection based on susceptibility to occupational illness," 81 Michigan Law Review (#6) 1379-1496 (May 1983).

    Court precedents: Shimp v N. J. Bell Telephone Co., 145 NJ Super 516; 368 A2d 408 (1976); Bluestein v Scoparino, 277 App. Div. 554, 100 N.Y.S.2d 577 (1950); Commonwealth v Thompson, 53 Mass (12 Metc) 251 (1847); Dickerson v Reeves, Tex. Civ App, 588 SW2d 854 (1979); Tiralongo v Stanley Works, 104 Conn. 331, 155 A. 98 (1926); Bradford's Case, 319 Mass 621; 67 NE2d 149 (1946); Commonwealth v Hughes, 468 Pa 502; 564 A2d 506 (1976); Dzikowska v Superior Steel Co, 259 Pa 578; 105 A. 551 (1918); Knecht v Castleman River R Co, 104 F2d 677 (CA 5, 1959); U.S. L. Corp. v P. L. & T. Corp, 142 F.2d 197 (CA 2, 1944); George v Bekins Van & Storage Co, 33 Cal 2d 854; 205 P.2d 1037 (1949); Bouillier v Samsan Co., 100 RI 676; 219 A.2d 133 (1966); State v Nossaman, 107 Kan 715, 193 P 547 (1920), appeal dism, 258 US 633 (1922); Keyser Canning Co v Klots Throwing Co, 94 W Va 546; 118 S.E. 521 (1925); Tanton v McKenney, 226 Mich 245, 197 NW 510 (1924), etc.

    Arbitration cases: DHEW, SSA, and AFGE, 82-1 ARB 8206 (1982); Schnadig Corp & Uphol. Int'l Union of No. Am., 83-1 ARB 8267 (1985).

    Here, EEOC noted (Docket 03810087) on 8 April 1983, p 5, the agency's "own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others" (the standard pure air rights concept). There is no issue of trying to get a rule established. Enforcement will be "easily" achieved if only the rule would be "recognized" that it exists. As in Schnadig, supra, p 4189, "The Company expects the employees to live within the restriction." That is what TACOM should do, once it is told to admit that AR 1-8/32 CFR 205 exist (i.e., to "recognize" them). To that end, this requests I be treated same as others, allowed EEOC review, investigation, hearing. And that this incident be treated as per EEOC instructions issued in EEOC Request No. 05820275 (4 March 1983).

    -41-

    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    DA Docket No.: BEAEFO0108BO150
    Thomas E. White,
    Reconsideration No.: 05A30273
    Secretary, Department of the Army,
    Assoc. No. 01a22322
    Agency.
    26 November 2002
    _______________________________/

    AFFIDAVIT IN SUPPORT OF PETITION

    STATE OF MICHIGAN)
    SS
    COUNTY OF MACOMB)

    Appellant Leroy J. Pletten, being first duly sworn, deposes and says that his allegations in his Brief in Support of Petition for Reconsideration are true and correct. Here is a summary.

    I am an employee of the Army Tank-Automotive Command (TACOM). TACOM has sent me no 5 USC 7513.(b) notice of charges, no reasons, no identification of misconduct, nor job description duties, performance requirements and standards, unmet or below standards. On the contrary, all performance appraisals from my supervisor were consistently for above-standards work. TACOM nonetheless claims to have made some decision to terminate me. Note the herein-mentioned extortion. My refusal to alter anticipated testimony, and to cease and desist pursing the substantive issues herein, was the immediate trigger for the termination.

    -42-

    At the time (early 1980) of TACOM's claims of ordering me off-premises, it did not provide me a notice of charges, nor of appeal rights; it has never done so thereafter. Instead, it has regularly denied I have any appeal rights. Pursuant to that view, it has opposed my every effort to secure review like other federal employees.

    Until TACOM notifies me of appeal rights, I do not know what they are. All I have done was per "uninformed" choices, mere guesses. I deny ever waiving my right to notice and merits review like others typically receive, as per my years of experience with same. Wherefore I deny that any adjudicator or court had merits jurisdiction.

    Moreover, EEOC already verified in its decision in Docket Nos. 01800273 et al, p 2 (23 February 1982), a decision that TACOM did not appeal, that TACOM had cut me off from access to EEO review by February 1980.

    I could not make, was not allowed to make, a choice of forum, of which the agency neither notified me, nor allowed me to have access to.

    There is new in jury in this situation. Anyone with Army personnel office experience, as I have, knows that the agency treats a Congressional or Senatorial inquiry as an invitation to correct an error. We decide de novo to do so or not. That happened in my case, a de novo decision to not correct the error. The Senator relied on the agency letter, as per his staff aide David Allen so telling me. Thus a new current injury is clear.

    Assuming that the agency continues its refusal to file any statement under oath, this affidavit is to be accepted as undisputed, see case law, e.g., Ceja v U.S., 710 F2d 812 (CA Fed, 1983).

    /s/Leroy J. Pletten
    Leroy J. Pletten
    Personnel Office Crime Prevention Officer/Appellant


          /s/Judith Strange

    Judith Strange
      NOTARY PUBLIC MACOMB CO., MI
    MY COMMISSION EXPIRES ___ __, _____

    This document was acknowledged and signed
    by Leroy J. Pletten before me on November 26, 2002.

    -43-

    Before the
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    Washington, D.C. 20036

    Leroy J. Pletten
    Appellant,
    Docket No. 01 A2 2322
    v.
    DA Docket No.: BEAEFO0108BO150
    Thomas E. White,
    Reconsideration No.: 05A30273
    Secretary, Department of the Army,
    Assoc. No. 01a22322
    Agency.
    26 November 2002
    _______________________________/

    CERTIFICATE OF SERVICE

    I hereby certify that on the date shown below, I transmitted the Petition for Reconsideration, and the Brief in Support of Petition for Reconsideration, to

    Equal Employment Opportunity Commission Dir, EEOCCRA, Dept of Army
    Office of Federal OperationsAttn: SAMR-SFECR, Suite 109B
    P. O. Box 198481941 Jefferson Davis Hwy
    Washington, D.C. 20036 (certified)Arlington VA 22202-4508 (certified)
     
    USATACOM
    Attn: AMSTA-LA
    Ms. E. Bacon
    Warren MI 48397-5000

    /s/ Leroy J. Pletten
    Date: 26 November 2002     Leroy J. Pletten

    EEOC's Denial of Reconsideration Was Issued 20 Feb 2003.
    This "right to sue" letter is effective for some 90 days thereafter.






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