No. 92-5413 ___________________________________________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1992 _______________________________ LEROY J. PLETTEN, PETITIONER v. DEPARTMENT OF THE ARMY, RESPONDENT. _______________________________ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR WRIT OF CERTIORARI ___________________________________________ LEROY J. PLETTEN Petitioner [7 July 1992] /s/Leroy J. Pletten 8401 18 Mile Road #29 Sterling Heights, MI 48313 (313) 739-8343 -i- QUESTIONS PRESENTED A. Should the Supreme Court now reconsider FENSR v. U.S., 444 U.S. 926 (1979) based on the experience with it whereby under it, federal practice since then (unlike private sector practice) is a policy of terminating and harassing non-smokers? B. In order to promote judicial economy, should U. S. Equal Employment Opportunity Commissions [decisions] be enforced? C. Does prolonged federal agency non-compliance with U.S. Equal Employment Opportunity Commission decisions violate due process? D. How should the Court react to repeated fraud on courts? -ii- TABLE OF CONTENTS Page   QUESTIONS PRESENTED i   TABLE OF AUTHORITIES iv   OPINIONS BELOW vii   JURISDICTION ix   CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED x   United States Constitution x   Federal Statutes x   Michigan Statute xii   Federal Regulations xii     STATEMENT OF THE CASE 1   REASONS FOR GRANTING THE WRIT 7   This Case Provides This Court An Opportunity To End the Federal Practice Of Firing and Harassing Non-smokers that Began After Federal Employees for non-Smokers' Rights (FENSR) v. United States, 444 U.S. 926 (1979) And Bring Government Practice On Smoking Into Line With Private Sector Practice On Smoking 7 -iii- This Case Presents The Important Federal Question Of Administrative EEO Review Before Judicial Review So As To Promote Judicial Economy 11   This Case Presents The Important Federal Question Of Denial Of Due Process Based On The Protracted Refusal Of Administrative Review 13   This Case Presents The Important Federal Question Of Fraud On Courts 14   CONCLUSION 17 -iv- TABLE OF AUTHORITIES Page CASES   Am. Tx. Mfrs. Int. v. Donovan, 452 U.S. 490 (1981) 4,   7   Bevan v. N. Y. St. T. R. System, 74 Misc.2d 443 (1973) 5   Bishop v. E. A. Strout Realty, 182 F.2d 503 (4th Cir. 1950) 15   Carroll v. Tennessee Valley Authority, 697 F. Supp. 508 (D.D.C., 1988) 1   Evans v. Dept. of the Navy, 22 M.S.P.R.. 651 (1984) 1   Federal Employees for Nonsmokers' Rights (FENSR) v. U.S., 444 U.S. 926 (1979) 1,   7-10   Gady v. Dept. of the Navy, 38 M.S.P.R. 118 (1988) 1   Hall v. Turnage, 946 F.2d 895 (6th Cir., 1991) 1   Hotch v. United States, 212 F.2d 280 (9th Cir. 1954) 6   In re Ryman, 394 Mich. 167 (1975) 14   In the Matter of Mills, 1 Mich. 392 (1850) 15   Int. Un. U.A.W. v. Gen. Dyn. L.S. Div., 259 U.S.App.D.C. 369, 815 F.2d 1570, cert. denied, 484 U.S. 976 (1987) 2   Matter of Grimes, 414 Mich. 483 (1982) 15 -v- Page   Nat'l. Rlty. & C. Co., Inc. v. Occ. S. & H.R. Com'n., 160 U.S. App.D.C. 133, 489 F.2d 1257 (1973) 15   Nye v. Parkway B. & T. Co., 114 Ill. App.3d 272, 448 N.E.2d 918 (1983) 16   Parker v. Dept. of the Interior, 4 MSPB 184, 4 M.S.P.R. 97 (1980) 1   Parodi v. Merit Systems Protection Board, 690 F.2d 731 (9th Cir., 1982) 1   People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1975) 4   People v. General Dynamics Land Systems, 175 Mich.App. 701 (1989), lv app den, 435 Mich. 860 (1990) 2   Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) 2   Vickers v. Veterans Adnin., 549 F.Supp. 85 (D.W.D. Wash., 1982) 1   White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978) 13   UNITED STATES CONSTITUTION   Amendment V x,   13   FEDERAL STATUTES   5 U.S.C. 552.(a)(1)(C)-(D) x,   6   5 U.S.C. 7513.(b)(1) xi, 16   5 U.S.C. 7902.(d) xi,   4,   7-10,   14 -vi- Page MICHIGAN STATUTE   M.C.L. 750.213 [MSA § 28.410] xii,   4   REGULATIONS   29 C.F.R. 1613.403 xii,   12   29 C.F.R. 1613.702(f) xiii,   4   MISCELLANEOUS REFERENCES   General Accounting Office ("GAO") Reports 11 -vii- OPINIONS BELOW The opinion (Table, 960 F.2d 156) by the Court of Appeals for the Federal Circuit is in App. A, 1a. The denial of rehearing is in App. V, 71a. Equal Employment Opportunity Commission (EEOC) orders to do administrative review are in Apps. P, 42a-57a, and E, 14a-26a. The decision by Employees' Compensation Appeals Board is at App. F, 27a-28a. Merit Systems Protection Board (MSPB) decisions are at Apps. C, 4a-5a, and D, 6a-13a. Actions by Department of the Army are in Apps. W, 72a-79a;   U, 70a;   T, 68a-69a;   S, 66a-67a;   K, 33a-34a;   and I, 31a. Notices by the --Office of Personnel Management are in Apps. N, 38a-39a; J, 32a; and G, 29a; --Office of Management and Budget, in App. M, 36a-37a and by the -viii- -- Department of Labor, in App. L, 35a. Michigan Employment Security Commission (MESC) decision is in App. Q, 58a-63a. Acceptances of Army actions claimed to have occurred (actions alleged [however falsely] by MSPB, Department of Justice, and the Solicitor General) are at Apps. R, 64a;   O, 40a-41a;   H, 30a;   and B, 2a-3a. In the absence of administrative processing and decisions wherein it would otherwise appear, background material is in Apps. X, 80a-85a;   Y, 86a-92a;   Z, 93a-96a;   AA, 97a-98a;   BB, 99a-100a;   and [CC] 101a-103a. -ix- JURISDICTION The judgment by the Court of Appeals for the Federal Circuit was filed 12 March 1992. App. A, 1a. Rehearing was denied 8 April 1992. App. V, 71a. Jurisdiction is an issue. Pursuant to the decisions at Apps. T, 68a-69a;   P, 42a-57a;   N, 38a-39a;   M, 36a-37a;   L, 35a;   K, 33a-34a;   J, 32a;   G, 29a;   and E, 14a-26a, which establish absence of the administrative actions, forum notice, pre-complaint counseling, and informed choice which are conditions precedent to case filing and jurisdiction, lackings continuing from February 1980 - present, the situation herein presented arises. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1). -x- U.S. CONSTITUTION, AMENDMENT V "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. FEDERAL STATUTORY PROVISIONS INVOLVED 5 U.S.C. 552. (a)(1)(C) - (D): "(a)(l) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public-- (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency; -xi- * * * "Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." 5 U.S.C. 7513. (b)(1): " (b) An employee against whom an action is proposed is entitled to– (1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action." 5 U.S.C. 7902.(d): "(d) The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his agency, encourage safe practices, and eliminate work hazards and health risks." -xii- MICHIGAN COMPLIED LAWS M.C.L. 750.213 [MSA § 28.410] "Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication, maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty [20] years or by a fine of not more than ten thousand [10,000] dollars." REGULATORY PROVISIONS INVOLVED 29 C.F.R. 1613.403: "An aggrieved person may initially file a mixed case complaint with an agency, pursuant to this part, or (s)he may file a mixed case appeal directly with the MSPB, pursuant to 5 CFR 1201.151, but not both. An agency shall inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination either orally or in writing, during the processing of the action, of his/her right to file a mixed case complaint, if the employee believes -xii- the action to be based, in whole or in part, on discrimination, or to file a mixed case appeal with the MSPB. The person shall be advised that (s)he may not initially file both and that whichever is filed first (the mixed case complaint or the appeal) shall be considered an election to proceed in that forum. For the purposes of this subsection, filing of a mixed case complaint occurs when the complaint is filed with an appropriate agency official, in accordance with 1613. 214(a)(3) of Subpart B of this part." 29 C.F.R. 1613.702(f): "(f) 'Qualified handicapped person' means with respect to employment a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used: (1) Meets the experience and/or education requirements (which may include passing a written test) of the position in question, (2) meets the criteria for appointment under one of the special appointing authorities for handicapped persons." (Emphasis added to pertinent clauses) -1- STATEMENT OF THE CASE Since this Court's denial of certiorari in Federal Employees for Nonsmokers' Rights FENSR) v. United States, 444 U.S. 926 (1979), federal agencies have been terminating and harassing nonsmoker federal employees, e.g., myself, who commit freedom of expression against smoking. 1/ I was a federal employee of the Department of Army ("Army”) at its Tank-Automotive Command ("TACOM"), Warren, MI. I had a good record, and am well qualified for my job. Apps. W, 72a-79a;   X, 80a-85a;   and U, 70a; and T, 68a-69a. TACOM had widespread drug use and unsafe working conditions and was injuring ________________________ 1/ Parker v. Dept. of the Interior, 4 MSPB 184, 4 M.S.P.R. 97 (1980); Vickers v. Veterans Admin., 549 F. Supp. 85 (D.W.D. Wash., 1982); Parodi v. Merit Systems Protection Board, 690 F.2d 731 (9th Cir., 1982); Evans v. Dept. of the Navy, 22 M.S.P.R. 651 (1984); Carroll v. Tennessee Valley Authority, 697 F.Supp. 508 (D.D.C., 1988); Gady v. Dept. of the Navy, 38 M.S.P.R. 118 (1988); and Hall v. Turnage, 946 F.2d 895 (6th Cir., 1991). -2- workers including female workers, and went so far as to kill a worker. 2/ On behalf of my coworkers, I committed freedom of expression against the unsafe working conditions. 3/   The drug use at issue is detailed at App. Y, 86a-92a. Typical employer and court responses to it are listed at Apps. Z, 93a-96a;   AA, 97a-98a;   BB, 99a-100a;   and CC, 101a-103a. TACOM did not follow those normal practices. TACOM violated all the rules and laws cited in this Petition. In reprisal for my whistle blowing, TACOM terminated me in Feb 1980. App. I, 31a. TACOM claimed I was disqualified to do the ________________________ 2/ TACOM's Tank Plant hazard is the issue in Int'l. Union U.A.W. v. General Dynamics Land Sys. Div., 259 U.S.App.D.C. 369, 815 F.2d 1570, cert. denied, 484 U.S. 976 (1987), and People v. General Dynamics Land Sys., 175 Mich. App. 701 (1989), lv. to appeal denied, 435 Mich. 860 (1990). 3/ Opposing mistreatment of others has been upheld by this Court since at least the time of Trafficante v. Metropolitan Life Ins Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). -3- job; in actual fact, TACOM had given me awards for doing it. App. W, 72a-79a. TACOM refused to let me appeal the termination. So I asked the U.S. Equal Employment Opportunity Commission ("EEOC") to order TACOM to let me appeal. EEOC did so order. [In doing so] EEOC said TACOM "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints" (App. P, 44a); and "made some effort to limit [my] number of complaints, [my] right to file complaints and to seek EEO counseling." (App. P, 48a). TACOM refuses to obey EEOC's order. EEOC repeated the order. App. E, 14a-26a. TACOM refuses to obey the renewed order. The continued refusal of obedience is further reprisal. TACOM officials (e.g., Edward Hoover, Col. John J. Benacquista, and Emily S. Bacon) are angry because I took my duties seriously. Others (e.g., Carma Averhart and Janet Chamberlain) are my competitors for promotion; they benefit -4- from cooperating in my being terminated. 5 U.S.C. 7902.(d) says to "encourage safe practices, and eliminate work hazards and health risks." Safety is "above all other considerations," as "Congress itself defined," Am. Tx. Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981). I blew the whistle [on violations]. 4/ Col. Benacquista demanded "All [I] 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 my anticipated testimony, or be terminated without 5 USC 7513.(b) notice. "All [I] had to do was" lie, deny coworker addicts' hazardous conduct; I'd still be at TACOM. Same is extortion. M.C.L. 750.213 [MSA § 28.410]; People v. Atcher, 65 Mich.App. 734 [238 NW2d 389] (1975). ________________________ 4/ As accommodation relates to matters in "employment," 29 C.F.R. 1613.702(f), in which smoking behavior is not, I did not label my whistleblowing an "accommodation" matter. Smoking is not in employment / is not "an accommodation" matter. -5- TACOM knew it was wrong to terminate me for blowing the whistle about TACOM's refusal to act. I refused to lie. So TACOM arranged for others to lie to make it appear that TACOM had eliminated the hazard. TACOM had persons including Edwin Braun, legal office personnel, Kenneth W. Starr, Patricia L. Petty, Terence S. Hartman, David M. Cohen, and Stuart M. Gerson lie for TACOM. I am a Crime Prevention Officer, App. U, 70a, so know how to expose their lying: I accepted each lying claim each made. Apps. R, 64a-65a;   O, 40a-41a;   H, 30a; and B, 2a-3a. My acceptances expose their lying. How? Each time I accepted, TACOM issued a denial of the very actions that it had had the named people fabricate. I repeatedly return to work pursuant to Bevan v. N.Y.St. T. R. Sys., 74 Misc.2d 443, 345 N.Y.S.2d 921 (1973) principles, as I meet / exceed all job requirements. -6- There is no 5 U.S.C. 552.(a)(1)(C)-(D) job requirement for smoking. Apps. T, 68a-69a;   M, 36a;   L, 35a;   K, 33a-34a; and J, 32a. The lack of a published requirement is "a jurisdictional point," Hotch v U.S., 212 F.2d 280, 281 (9th Cir. 1954). As I am fully qualified to do the job, the State of Michigan rejects TACOM's claims. App. Q, 58a-63a. Therefore, the Dept. of Labor agreed with the State of Michigan, and thus with me, that I have no compensable disability. App. F, 27a. I have no disability at all. App. X, 80a-85a. Therefore I should have been reinstated as requested. -7- REASONS FOR GRANTING THE WRIT 1. THIS CASE PROVIDES THE COURT AN OPPORTUNITY TO END THE FEDERAL PRACTICE OF FIRING AND HARASSING NONSMOKERS THAT BEGAN AFTER Federal Employees for Non-Smokers Rights (FENSR) v. United States, 444 U.S. 926 (1979) AND BRING GOVERNMENT PRACTICE ON SMOKING INTO LINE WITH PRIVATE SECTOR PRACTICE ON SMOKING. Safety law, 5 USC 7902(d), on federal agencies has stronger absolute unqualified wording than the private sector safety law Federal Sector Its law says "eliminate work hazards and health risks." 5 U.S.C. 7902.(d) Private Sector Its law says "to the extent 'feasible,'" Am.Tx. Mfrs. Inst., 452 U.S., 508. The private sector successfully eliminates smoking by actions ranging from smoking prohibitions to discharges of smokers. Apps. Z and AA, 93a-98a. Doing so is easy, free, and aids productivity. It is only federal agencies, despite the stronger, absolute law (with no "to the extent feasible" words), that claim to -8- have difficulty eliminating smoking. It is only federal agencies that worse than merely refusing to obey 5 USC 7902.(d), have a pattern of terminating and harassing non-smokers. P 1 above. This pattern began when this Court denied certiorari in FENSR v. U.S., 444 U.S. 926 (1979). In FENSR, some federal employees sought to eliminate the smoking hazard. The lower courts evidently favored an employee-by-employee case by case method. That is clearly erroneous. 5 USC 7902.(d) nowhere says to ignore it, unless and until, employee by employee, case by case, individual discharged or harassed nonsmokers ask that it be obeyed in their own individual little work area. Treating the law thusly makes a mockery of it. But that is the approach federal agencies, unlike the private sector, have taken since FENSR, 444 U.S. 926. P 1. Thirteen years experience since 1979 -9- shows that the case by case approach (PI) does not work. No federal employee destituted by termination, faced by the vast legal resources of his or her agency, has ever prevailed. The case by case method is not the method of enforcement intended by 5 USC 7902.(d). Here, the case by case method means TACOM refuses to obey 5 USC 7902.(d), and worse, has high officials lie for it and say it did eliminate smoking when both it and they know they are lying. Apps. R, 64a-65a; O, 40a-41a; H, 30a; and B, 2a-3a. FENSR, 444 U.S. 926, has been treated as a signal this Court favors discharge and harassment of non-smokers. That was not the result you intended. It is bad policy to subordinate any law, much less, safety law, to the case by case method. For a law to be unenforced except when the issue is raised by a discharged and destitute federal employee -10- is counter-productive on its face. That approach has not worked, and cannot work. The Court should take this opportunity to clarify that FENSR, 444 U.S. 926, does not mean that (a) 5 USC 7902.(d) can continue to be ignored for the foreseeable future unless and until some future harassed or terminated federal employee can somehow cause it to be enforced; and (b) nonsmokers are to be discharged or harassed. Thus, this Court should take this case so as to vindicate 5 USC 7902.(d), reject the case by case approach and thus promote judicial economy, and, for me, end the harassment against me, and direct my reinstatement. -11- B. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF ADMINISTRATIVE EEO REVIEW BEFORE JUDICIAL REVIEW SO AS TO PROMOTE JUDICIAL ECONOMY. The U.S. General Accounting Office ("GAO"), repeatedly finds widespread weaknesses in the EEO system, e.g., lack of counseling, timeliness, investigations, and follow-up system. Agencies disobey EEOC orders routinely: "The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminating Employment Discrimination," HRD-76-147 (28 Sep. 1976) "System For Processing Individual Equal Employment Opportunity Discrimination Complaints: Improvements Needed," FPCD-76-77 (8 April 1977) "Further Improvements Needed in EEOC Enforcement Activities," HRD-81-29 (9 April 1981) "Age Discrimination and Other Equal Employment Opportunity Issues in the Federal Work Force," Letter B-205303 (20 November 1981) "EEOC and State Agencies Did Not Fully Investigate Discrimination Charges," HRD-89-11 (October 1988) EEOC ordered TACOM to let me appeal in the EEOC forum. Apps. P, 42a-57a; E, -12- 6a-13a. So, as I filed to EEOC first (pursuant to 29 CFR.1613.403), MSPB denies it has jurisdiction. App. D, 7a. But TACOM (despite EEOC's double order) refuses to let me appeal in the EEOC forum I chose. Thus, as MSPB lacks jurisdiction, and as TACOM refuses to let review occur in EEOC's forum which does have jurisdiction, this is an inherently unjust result. For the purpose of vindicating EEOC orders generally (and for me in specific) and for promoting reliance on the administrative system rather than the courts, and thus to promote judicial economy, please grant this petition, to be enabled to direct such action. -13- C. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF DENIAL OF DUE PROCESS BASED ON THE PROTRACTED REFUSAL OF ADMINISTRATIVE REVIEW. On 23 Fob 1982, EEOC ordered TACOM to let me appeal in 30 days. App. P, 49a. Obeying is "mandatory." App. P, 49a. EEOC repeated the order 14 March 1991. App. E, 20a. The ongoing refusal to obey denies me due process. Amendment V. Even trying (a "glacial pace") to schedule review is not constitutionally adequate. White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978). But TACOM is not even trying. The egregious situation herein does provide this court opportunity to rule that noncompliance violates due process. Doing so will induce agencies to obey EEOC orders, reduce resort to courts, and so promote judicial economy. -14- E. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF FRAUD ON COURTS. The agency refuses to obey 5 U.S.C. 7902.(d). Instead it arranges to have high officials lie for it. A Crime Prevention Officer, I expose same. Apps. R, 64a-65a;   O, 40a-41a;   H, 30a;   and B, 2a-3a.   5/     The claims are "ante-dated [fabricated claims] to make them appear . . . genuine," as in the unprofessional conduct case of In re Ryman, 394 Mich. 167, 176 (1975). Against such antedating, tantamount to forgery, the ________________________ 5/ I need no accommodation, Apps. W, 72a-79a;   X, 80a-85a. I have no disability. App. P, 27a (by ECAB). My "supervisor," C. Averhart when asked, "Did you consider Mr. Pletten handicapped?" said, "I don't know. I don't really think of it in that sense." "You asked me if I thought of him as handicapped. [Attorney: Yes.] And I said that when I think of him I don't think, "Mr. Pletten, handicapped.'" (Dep. 73). "I'm not saying I don't think he is handicapped. You asked me if I thought of him as handicapped. I think of him as Leroy Pletten." (Dep., 74). Asked, "Well, how do you define reasonable accommodation?," she replied, "I haven't really thought about defining reasonable accommodation."   [Dep. 73]. -15- "'legal system land [Mr. Pletten] is virtually defenseless,'" Matter of Grimes, 414 Mich. 483, 494 (1982). The claims made (cited at Apps. R,   O,   H,   and B) were never true, not believed to be true when asserted, and were never intended to be true. The makers' "reputation . . . for truth and veracity . . . so notoriously bad that [each is] not to be believed under oath [in published decisions nor briefs]," as in In the Matter of Mills, 1 Mich. 392, 398 (1850). Nonetheless, "nothing in law or in reason . . . requires [me] to deal as though dealing with a liar or a scoundrel," Bishop v. E. A. Strout Realty, 182 F.2d 503, 505 (4th Cir. 1950). So I accepted what each said, as the record shows. Even had the claims been true, making them retroactively means I am "unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [I learn] the exact nature of [claims] only after [decision, here, not at all]," N. R. & C. Co., Inc. v. O. S. H. R. Com'n., 160 U.S.App. D.C. 133, 143, 489 F.2d 1257, 1267 (1973). -16- There was no 5 U.S.C. 7513.(b)(1) notice of the claims for me to reply to. Even if there had been a notice, "It strikes us as highly irregular and inequitable to expect [me] to prepare a defense against [claims] known to be untrue by the accuser," Nye v. Parkway B. & T. Co., 114 111. App.3d 272, 448 N.E.2d 918, 919, n. 2 (1983). Based on the repeated reference to actions never considered or attempted, the Court should grant this Petition so as to be enabled to promote the integrity of the judicial process which relies on all parties to tell the truth, the whole truth, and nothing but the truth. -17- CONCLUSION In this protracted situation since February 1980 when TACOM began refusing me administrative review, EEOC as recently as 14 March 199 ordered it. Respondent refuses. This case presents important constitutional and federal issues of denial of due process via refusal of normal administrative review and adherence to rules of law described herein. The case gives this Court opportunity to resolve any or all of these aspects. Therefore I respectfully request that this Court grant certiorari, and remand with directions to do the administrative review EEOC has ordered. Respectfully submitted, /s/Leroy J. Pletten 7 July 1992 LEROY J. PLETTEN Petitioner 8401 18 Mile Road #29 Sterling Heights, MI 48313 (313) 739-8343 -i- APPENDIX APPENDIX TABLE OF CONTENTS Page A. Judgment by the Court of Appeals for the Federal Circuit 12 March 1992 1a   B. Fourth Confirmation of Acceptance 27 December 1991 2a   C. Decision by Merit Systems Protection Board (MSPB) 28 August 1991 4a   D. Initial Decision by Merit Systems Protection Board (MSPB) 23 April 1991 6a   E. Decision by Equal Employment Opportunity Commission (EEOC) Ordering Case Processing 14 March 1991 14a   F. Decision by U.S. Department of Labor, Employees' Compensation Appeals Board (DoL ECAB) 22 January 1991 27a   G. Notice by Office of Personnel Management (OPM) 16 January 1991 29a   H. Confirmation of Acceptance of Actions (Alleged by Solicitor General) 7 January 1991 30a   I. Memorandum by Army Case Manager 16 November 1990 31a   J. Notice by OPM 2 June 1989 32a Appendix Table of Contents Page 2 Page K. Proclamation by Secretary of Army John O. Marsh, Jr. 17 April 1986 33a   L. Notice by Dep't. of Labor (DoL) 16 April 1986 35a   M. Notice by Office of Management and Budget (OMB) 20 March 1986 36a   N. Notice by OPM 30 January 1984 38a   O. Return to Duty 6 December 1983 40a   P. Decision by EEOC Ordering Case Processing 23 February 1982 42a   Q. Decision by Michigan Employment Security Commission 30 July 1981 58a   R. Return to Duty 7 July 1981 64a   S. Notice by TACOM 24 June 1980 66a   T. Order by TACOM Waiving Qualification Requirements 18 September 1977 68a   U. Order by TACOM Appointing Me Crime Prevention Officer 19 November 1976 70a Appendix Table of Contents Page 3 Page A. Order by the Court of Appeals Denying Petition for Rehearing 8 April 1992 71a   W. Summary of Career 1969-1980 72a   X. Medical Letters will also 80a   Y. The Drug Tobacco: A Hazard 86a   Z. Judicial Examples of Controlling Tobacco 93a   AA. Discharges of Smokers Upheld 97a   BB. A.L.R.'s on Tobacco 99a   CC. Supreme Court Tobacco Citations 101a -1a- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 91-3618 [960 F2d 156, 1992 WL 45425] MAR 12 1992 LEROY J. PLETTEN Petitioner, v. DEPARTMENT OF THE ARMY Respondent. JUDGMENT ON APPEAL from the MERIT SYSTEMS PROTECTION BOARD in CASE NO(S): CH03539110324, CH035391S0324 This CAUSE having been considered, it is ORDERED and ADJUDGED: Per Curiam: (RICH, ARCHER, and RADER, Circuit Judges): AFFIRMED: See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT Dated /s/ Francis X. Gindhart MAR 12 1992 Francis X. Gindhart, Clerk -2a- APPENDIX B Fourth Confirmation of Acceptance Reference 20 December 27 Dec 1991 1991 Brief TO E. E. Hoover, Director of Civilian Personnel FROM Leroy J. Pletten 1. This refers to the 20 December 1991 Brief, page 5, note 5, by Patricia L. Petty, Terence S. Hartman, David M. Cohen, and Stuart H. Gerson, which says inter alia that “The actions of the agency included prohibiting smoking in the entire civilian personnel division, relocating Mr. Pletten's office to improve air quality, initiating educational programs to discourage smoking, posting notices including banning smoking in commonly used areas, and conducting periodic air quality surveys of Mr. Pletten's immediate work area. Pletten v. Department of the Army, 7 M.S.P.R. at 16.” 2. I accept. 3. This will reconfirm my 7 July 1981, 6 December 1983, and 7 January 1991 acceptance of the said actions. Ed. Note: The agency had flatly opposed doing anything to even begin the compliance process with the safety laws and regulations. As soon as I began whistleblowing, the agency made the "decision to terminate" whistleblower Pletten, as EEOC's Henry Perez noted. As the basic compliance process had not even begun, see p 14, and TACOM had unseemly rushed Pletten's ouster, without 5 § USC 7513 notice, it is clear that no "accommodation" process whatsoever had even begun! much less been completed. Petty, Hartman, Cohen, and Gerson simply made up the claim because it would look good, knowing it to be blatantly false, and thus make for a fraud on the court. The making of blatant false claims is a felony, reference 18 USC § 1001 warranting up to five years in prison for the makers of the blatant false claim. I "accepted." The agency refused to reply!! The refusal to respond is conclusive that the claims were lies and known to be lies. For context of the habitual lying, inventing claims of actions never done, indeed refused to do, see, e.g, Appendix H, p 30a, and App O, pp 40a-41a, infra.] -3a- 4. I look forward to returning to duty and am eagerly awaiting hearing from you. Sincerely yours,   /s/ Leroy J. Pletten Leroy J. Pletten -4a- APPENDIX C UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ______________________________ LEROY PLETTEN )   DOCKET NUMBERS Appellant )   CH03539110324 v. )   CH03539S10324 ) DEPARTMENT OF THE ARMY )   DATE: AUG 28 1991 Agency. ) ______________________________)               [49 MSPR 642] Leroy J. Pletten, Sterling Heights, Michigan, pro se. Emily Sevald Bacon, Esquire, Warren, Michigan, for the agency. BEFORE Daniel R. Levinson, Chairman Antonio C. Amador, Vice Chairman Jessica L. Parks, Member After full consideration, we DENY appellant's petition for review of the initial decision issued on April 23, 1991, because it does not meet the criteria for review set forth at 5 C.F.R. 1201.115. This is the Board's final order in this appeal. The initial decision in -5a- this appeal is now final. 5 C.F.R. 1201.113(b). NOTICE TO APPELLANT You have the right to request the United States Court of Appeals for the Federal Circuit to review the Board's final decision in your appeal if the court has jurisdiction. See 5 U.S.C. 7703(a)(1). You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 The court must receive your request for review no later than thirty (30) days after receipt of this order by your representative, if you have one, or receipt by you personally, whichever receipt comes first. See 5 U.S.C. 7703(b)(1). FOR THE BOARD: /s/Robert E. Taylor Robert E. Taylor Clerk of the Board Washington, D.C. -6a- APPENDIX D UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHICAGO REGIONAL OFFICE ______________________________ LEROY PLETTEN )   DOCKET NUMBERS Appellant )   CH03539110324 v. )   CH03539S10324 ) DEPARTMENT OF THE ARMY )   DATE: April 23 1991 Agency. ) ______________________________) Leroy J. Pletten, pro se. Emily Sevald Bacon, Esquire, Warren, Michigan, for the agency. BEFORE Victor W. Russell, Administrative Judge INITIAL DECISION INTRODUCTION This initial decision addresses the appellant's February 25, 1991 appeal of the Department of the Army's continuing refusal to reinstate him to his former position as a Position Classification Specialist at the United States Army Tank-Automotive Command, Warren, Michigan, and it addresses his April, 1991 stay request. -7a- The appellant was [supposedly] separated from his Position Classification specialist position on January 22, 1982 based upon a [supposed] finding that he was medically disqualified to hold that position. [Ed. Note: The condition precedent for a "separation," a 5 USC § 7513 notice stating charges such as of misconduct and/or malperformance, was never issued. The alleged separation was outside the rule of law. Federal law 5 USC § 552 bans such action, e.g., government actions apart from actual published qualifications of record, apart from "employment." Note corroborative evidence, actual superb work record. No medical qualification requirement was ever cited, to be allegedly "disqualified" from. This means, the "separation" is purported to exist without citing the alleged unmet medical qualification!! Without notice of what qualification a person is supposedly unable to meet, denies due process of law. Victor W. Russell, the same adjudicator, contemptuous of the rule of law, is here adjudicating again! supporting his own contemptuous views.] I denied the appellant's request for a hearing concerning the issues he raised in this appeal. The appellant [supposedly] failed to raise sufficient facts which, if true, would warrant a hearing on whether the Board has jurisdiction over this appeal. See Rose v. Department of Health and Human Services, 721 F2d 355, 357 (Fed Cir 1983). [Ed. Note: Truthfulness is not an MSPB trait. Appellant provides voluminous evidence!! in repeated appeals, but no amount of evidence by the whistleblower was ever considered "sufficient." Even the Army's own Capt. Cooper recognized MSPB was wrong!! He wrote: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)." See Cooper's "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Rev 143, p 35 of 39, n 206 (Fall 1987).] Russell and Army lawyer Emily Bacon were relying on what they long knew to be "no longer good law." JURISDICTION The appellant has not shown that the Board has jurisdiction over this appeal. [Ed. Note: See above note for Army's own Captain Scott D. Cooper's analysis of MSPB wrongful denial of own jurisdiction! The federal Equal Employment Opportunity Commission had agreed with the whistleblower, and challenged MSPB's refusal of jurisidction. See EEOC's 8 April 1983 decision. MSPB, filled with universal malice hatred of whistleblowers, had contemputously spurned the EEOC order, and refused to ever allow Pletten to have the review that the Constitution, federal law and regulations provide. Only those actions for which a right of appeal is granted by law, rule, or regulation may be appealed to the Merit Systems Protection Board. 5 U.S.C.A. 7701(a) (West 1980). The Board held in Spiegel v. Department of the Army, 6 M.S.P.R. 31, 33 -8a- (1981) that an appellant has the burden of proving Board jurisdiction. [Ed. Note: As Army Captain Scott D. Cooper's analysis and the EEOC's decision each separately show, MSPB wrongfully refused to acknowledge its jurisdiction no matter how matter how much overwhelming amount of proof the whistleblower provided, including support by an amicus curiae brief, pursuant to universal malice hatred of whistleblowers. I find that Judge Gregory J. Miksa's decision issued on October 23, 1989 (and which became the Board's final decision on November 27, 1989), MSPB Docket No. CH035358910552, addressed the same matters that the appellant is appealing here. Judge Miksa found that, absent a showing that the Office of Workers' Compensation Programs (OWCP) granted the appellant compensation for his medical condition at the time of his removal, the appellant has no right of restoration and the Board has no jurisdiction over the agency's failure to reinstate him. The only pertinent events that have occurred subsequent to Judge Miksa's 1989 decision are (1) OWCP's decision on January 22, 1991 upholding its prior finding that the appellant's claim is not compensable and (2) the agency's notice of Feb- -9a- ruary 5, 1991 denying the appellant's request for reinstatement under 5 U.S.C. 8151(b)(1). OWCP's January 22, 1991 decision reinforces Judge Miksa's prior find-inq that the Board lacks jurisdiction over the agency's failure to reinstate him because he was denied workers' compensation—a condition precedent under 5 U.S.C. 8151 for entitlement to restoration to duty. [Ed. Note: MSPB refused to mention other written evidence from OWCP. Note that MSPB knows the legal term "condition precedent," but maliciously, criminally, refuses to apply it for the whistle blower in terms of pro-whistleblower conditions precedents, e.g., those for BFOQ's, "employment," advance notice of charges, agency obeying own rules, etc.] In view of the foregoing, I find that this appeal does not come within the purview of the Board's appellate jurisdiction. [Ed. Note: To put this case in context, it came after the bribery of, and criminal mail fraud by, adjudicators surfaced in late 1989. This was to pretend that the whistleblower Pletten, had filed an application to retire himself on disability!! And that he did so contrary to specific letters and findings from the government retirement office!! On receipt of said evident bribery-induced claim constituting criminal falsification and mail fraud, Pletten contacted the Military Police. Officer Scott Szekely began investigation, verified no such application existed in court house files. His next step was to interview the judges. However, Army aided and abetted by the Department of Justice (FBI and US Attorney) summarily obstructed justice, stopped the investigation, tantoumount to a "flight from review" due to fear of the truth coming out about the government agency's crimes that review would verify. The "flight from review" doctrine is shown in a long line of precedents, e.g., Bowles v State, 58 Ala 335, 339 (Dec 1877) saying "All evasions, or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts." Wangerin v. State, 73 Wis.2d 427, 243 N.W.2d 448, 453 (1976), saying "flight [from review] has probative value to guilt . . . United States v. Crisp (7th Cir. 1970), 435 F.2d 354. This is the general rule followed in the criminal law. 29 Am. Jur. 2d Evidence secs. 278-80 (1967)." People v Luster, 2003 WL 21509182 (Cal App, 2003) saying "By his flight to a foreign country, the inference is compelling that, but for his capture, he would be a fugitive to this day." Naturally in this context of habitual crime (bribery, criminal falsification, mail fraud), Russell could be assured that any claims he made, no made how blatantly false, would be unprosecuted. THE APPELLANT'S REQUEST FOR A STAY The appellant has not shown that the Board has jurisdiction over his request for a stay. [Ed. Note: Somehow the performance-award-winning whistle blower who had successfully processed many such cases involving others, is never able to show adequate evidence in his own case!! The appellant filed a motion on March 25, 1991 asking the Board for a "stay" that orders the agency to reinstate him to his former position. [Ed. Note: This is to attempt to begin the review process, e.g., noting the lack of the "condition precedents" for having begun the removal. Note MSPB policy and practice to cite "conditions precedent" only against the whistleblower maliciously, criminally, refuse to apply "conditions precedent" for the whistleblower in terms of, e.g., BFOQ's, "employment," notice, etc.. Per Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965), "The rule has been firmly established in pay cases 'that lawful administrative action depriving claimant of a procedural right voids the action and leaves the plaintiff to his money otherwise due, until (at the least) proper procedural steps are completed [citations omitted] . . . . These references [cited by the agency] do not mean that the agency's action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission suspends the final operative effect of the initial decision. It follows that an employee who has been deprived of a procedural right by the Commission [board] must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due." Any other federal employee ousted without notice, without due process of law, remains “on the rolls.” Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983). Only this whistleblower is denied the benfit of laws enforced for everyone else.] I rejected this motion on March 27, 1991 but offered the appellant an opportunity to refile a per- -10a- perfected motion. The appellant filed an undated motion that I received on Apri1 17, 1991. I find that the appellant's request for a stay cannot be granted. The appellant still has not met all of the [condition precedent] filing requirements found at 5 C.F.R. 1209.9 (1991), including the requirement to serve his request on the agency's designated representative. [Ed. Note: For a moral analysis on attorney of interest, see US v John Gotti, et al., 771 F Supp 552; 1991 US Dist LEXIS 10632 (ED NY, 1 Aug 1991). Reference U.S. v. Locascio and Gotti, 6 F3d 924; 1993 US App. LEXIS 26472; 37 Fed R Evid Serv (Callaghan) 1148; 127 A.L.R. Fed. 599 (CA 2, 8 October 1993) cert den 1994 U.S. LEXIS 3353 (2 May 1994). Even assuming he had met those requirements, I find that his request was not filed in connection with a matter otherwise appealable to the Board and, on that basis, cannot be granted. I further find that because 120 days have not elapsed since the appellant sought action from the Office of Special Counsel, the Board cannot take jurisdiction over the stay request at this time. See Weber v. Department of the Army, MSPB Docket No. SL075290S0265 (February 13, 1991). [Ed. Note: Reference Capt. Cooper's analysis, verifying the whistleblower's experience that MSPB is not famous for truthfulness, integrity, and adherence to the rule of law.] -11a- DECISION The appeal and the request for a stay are DENIED. FOR THE BOARD: /s/Victor W. Russell Victor W. Russell Administrative Judge [Ed. Note: In essence, MSPB lies. "Not only does the use of cigarettes produce a criminal tendency in many [people] but it also produces what might be termed criminal insanity--a condition in which lying, thieving, and murder become as natural as eating and drinking," says Prof. Bernarr A. Macfadden, The Truth About Tobacco: How to Break the Tobacco Habit (New York: Physical Culture Corp, 1924), p 87. Experience with MSPB shows that crime such as "lying" is "natural" there. "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Rev 143, p 35 of 39, n 206 (Fall 1987). MSPB officials "seemed feeble-minded," "like cattle," unable to follow the rule of law unless told what to do next. Reference Dr. Lyle Tussing, Psychology for Better Living (New York: John Wiley, 5th ed., 1965), pp 361-2 observing, “The vast majority of mental-hospital patients . . . are more like cattle, sitting around until someone tells them what to do next."--Quoted from Legal Brief to EEOC (15 April 1983), p 199; Legal Brief to EEOC (27 July 1983), p 357; and Legal Brief to OPM, 2 Jan 1985, p 29 and p 31. Note judicial guidance on person(s) deemed insane within meaning of law, as unable “to appreciate the wrongfulness of his [their] conduct,” and “to conform his [their] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982). Matulonis is a case involving physical deterioration of the brain due to typical smoker aspects, alcoholism and drug abuse, in context of determining whether the person is insane within the meaning of the law (for criminal responsibility purposes). For laws involved, click here. For disqualification details and context, click here and here.] NOTICE TO APPELLANT This initial decision will become final on MAY 28 1991, unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is the last day on which you can file a petition for review with the Board. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions [stating "conditions precedent"] are important because if you wish to file a petition, you must file it within the proper time -12a- period. BOARD REVIEW You may request Board review of this initial decision by filing a petition for review. Your petition for review must state your objections to the initial decision, supported by references to applicable laws, regulations, and the record. You must file your petition with: The Clerk of the Board Merit Systems Protection Board 1120 Vermont Avenue, NW., Suite 802 Washington, DC 20419 Your petition must be postmarked or hand-delivered no later than the date this initial decision becomes final. If you fail to provide a statement with your petition that you have either mailed or hand-delivered a copy of your petition to the agency, your petition will be rejected and returned to you. JUDICIAL REVIEW If you are dissatisfied with the -13a- Board's final decision, you may file a petition with The United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than thirty calendar days after the date this initial decision becomes final. NOTICE TO AGENCY/INTERVENORS The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations. -14a- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 WASHINGTON, D.C. 20506 Leroy J. Pletten, ) Appellant ) ) v. ) Request No. 01910498 ) Agency No. 90-09-0062 ) Michael P. W. Stone, ) Secretary, ) Department of the Army, ) Agency ) ) DECISION Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination. The final agency decision was received by appellant on October 27, 1990. The appeal was postmarked November 15, 1990. Accordingly, the appeal is timely (see, 29 C.F.R. 1613.233(a)), and is accepted in accordance with EEOC Order No. 960, as amended. The issue on appeal is whether the -15a- agency properly cancelled appellant's complaint for failure to prosecute. An agency may cancel an allegation or complaint for failure to prosecute only as provided in 29 C.F.R. 1613.215(a)(6). The agency must provide appellant with a notice of proposed cancellation that requests appellant to either submit certain information or otherwise proceed with the complaint. When appellant fails to satisfy the agency's request within fifteen (15) calendar days of receiving the notice, the agency may cancel the allegation or complaint. However, instead of canceling for failure to prosecute, the agency may adjudicate the allegation or complaint if the record contains sufficient information to do so. Appellant did not fail to prosecute his complaint. Specifically, the agency did not specify with certainty the nature of the information it sought in its letter -16a- of September 19, 1990, warning appellant of the possibility of the cancellation of his complaint for failure to provide specific information within fifteen (15) days of receipt of the letter. Rather, the agency referred back to its letter of August 15, 1990, as specifying the exact information which it continued to seek. According to the record, the agency did not enclose a copy of the earlier letter to appellant accompanying its letter of September 19, 1990. The agency bases its cancellation of appellant's complaint on appellant's [alleged] failure to provide the information requested in its letter of September 19, 1990. We find that the agency's request for more specific information pursuant to 1613.215(a)(6) was procedurally detective. The agency did not make clear, at the time of the notice of proposed cancellation letter of September 19, 1990, the nature of the -17a- specific information which it sought. Section 1613.215(a)(6) contemplates that the notice of proposed cancellation and the request for specific information should be made simultaneously. Here, the agency's letter of September 19, 1990 requires appellant to refer to an earlier letter sent to him by the agency in order to discern what specific information is required of him. This, we find, is an unreasonable burden to place on a complainant where a copy of the referenced letter is not enclosed with the current request for information. A review of the record reveals no EEO counselor's report in a form indicating that appellant received adequate EEO counseling. In a letter from an EEO counselor [Jeffrey McLain] dated July 6, 1990, to an agency employee, whose position with the agency is unspecified, the counselor states that he has had several -18a- conversations with appellant but could not get him to meet at the agency Ed. Note: TACOM had ordered Pletten off-post! McLain pretended to misunderstand! The counselor [McLain] does not record dates of telephone conversations or dates and times for meetings proposed which appellant [Pletten] declined. Such evidence does not appear elsewhere in the file. The counselor further states in his letter: “Also, I do not feel I have the inclination to deal with (appellant) any longer. He has obviously been abusing the system for quite a long time and it is a shame that some sort of final disposition can (sic) be initiated to end this chapter.” Ed. Note: TACOM was the one abusing the system, the one abusing Pletten! McLain pretended to misunderstand! Appellant, throughout his contact with the agency wrote letters to the agency requesting counseling. The agency fails to document appellant's alleged lack of cooperation in assessing the nature of his complaint. There is no evidence that appellant met with an EEO counselor to discuss his complaint. The record fails to show that appellant is responsible for this lack of contact. Appellant requests -19a- counseling in his formal complaint dated August 6, 1990. Appellant continues on appeal to request counseling. We find the record inadequate to assure us that appellant has had an opportunity for EEO counseling. We further find the record inadequate to assure that the agency did not contribute to appellant's apparent inability to obtain EEO counseling. Therefore, we remand appellant's complaint for EEO counseling. Accordingly, the agency's decision to cancel appellant's complaint for failure to prosecute was improper and is VACATED. See, 29 C.F.R. 1613.215(a) (6). The complaint is REMANDED to the agency for further processing in accordance with this decision and applicable regulations. ORDER Accordingly, the agency's decision is VACATED and the complaint is hereby -20a- REMANDED for processing in accordance with the Order below: The complaint is REMANDED for EEO counseling with an EEO counselor to be assigned from the agency's regional EEO office. Ed. Note: The agency refused to obey this order. The agency shall process the complaint pursuant to 29 C. F. R. 1613.215-.222. A final decision shall be issued with[in] ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved within that timeframe. A copy of the relevant document finalizing the complaint must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (R990) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the -21a- completion of all ordered corrective action by writing the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. STATEMENT OF RIGHTS - ON APPEAL RIGHT TO REOUEST REOPENING This decision will become final within 30 calendar days from the date that you receive it, unless either party files a Request to Reopen within the thirty (30)-day period. The Commissioners may, in their discretion, reopen and reconsider the decision in this case if the appellant or the agency submits a written request and argument which tend to establish that: 1. New and material evidence is available that was not readily available -22a- when the previous decision was issued; or 2. The previous decision involves an erroneous interpretation of law or regulation or misapplication of established policy; or 3. The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. Requests and supporting arguments MUST be submitted to the Commission and the opposing party within the thirty (30)-day timeframe for filing a Request to Reopen. A cross Request to Reopen, or any argument in opposition to the Request to Reopen, MUST be submitted to the Commission and the opposing party within twenty (20) calendar days of receipt of the Request to Reopen. See 29 -23a- C.F.R. 1613.235. All requests and arguments must bear proof of postmark and 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 postmark, the Request to Reopen shall be deemed filed on the date it is received by the Commission. RIGHT TO FILE A CIVIL ACTION (R990) This is not a final decision by the Commission on your complaint. See 29 C.F.R. 1613.234. This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand, or -24a- after one hundred and eighty (180) calendar days from the date you filed your appeal with the Commission if there has been no final Commission decision. 29 C.F.R. 1613.281(c). As to any claim brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a (the ADEA), you may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, you may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the court in the jurisdiction in which your action is filed. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); 28 U.S.C. 2401(a). This limitations period may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. -25a- 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791.   If you file a civil action, YOU MUST STATE THE NAME AND OFFICIAL TITLE OF THE PERSON WHO IS THE OFFICIAL HEAD OF THE AGENCY NAMED IN YOUR COMPLAINT. The term “agency” means the national administrative body, and not a local office or facility. Failure to state the NAME AND OFFICIAL TITLE of the person who is the agency head may result in the dismissal of your case. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REOUEST COUNSEL (R990) 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 -26a- 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 THIRTY (30) DAYS from the date you receive the Commission's decision. FOR THE COMMISSION: MAR 14 1991 /s/Dolores L. Rozzi DATE DOLORES L. ROZZI, Director Office of Federal Operations -27a- APPENDIX F U.S. DEPARTMENT OF LABOR Employees’ Compensation Appeals Board _______________________________ In the Matter of LEROY J. PLETTEN and DEPARTMENT OF THE ARMY, ARMY TANK AUTOMOTIVE COMMAND, Warren, Mich. Docket No. 90-1266: Submitted on the Record; Issued January 22, 1991 _______________________________ DECISION and ORDER Before GEORGE E. RIVERS, DAVID S. GERSON, MICHAEL E. GROOM The issue is whether appellant's exposure to tobacco smoke in his employment resulted in disability after he stopped work on March 17, 1980. Ed. Note: Such was the knowingly false story invented by TACOM, and supported by MSPB, DOJ, and adjudicators! The Board has given careful consideration to the issues involved, the contentions of appellant on appeal, and the entire case record. The Board finds that the decision of the hearing representative of the Office of Workers' Compensation Programs dated February 2, 1990 and made final on February 7, 1990 is -28a- in accordance with the facts and the law in this case and hereby adopts the findings and conclusions of the Office hearing representative. 1 The decision of the Office of Workers’ Compensation Programs dated February 2, 1990 is affirmed. Dated, Washington, D. C. January 22, 1991 George E. Rivers Member   David S. Gerson Member   Michael E. Groom Alternate Member ________________________     1   Although the Office hearing representative found that the [pro-whistleblower] report of Dr. Ahmad constituted the weight of the medical evidence, the hearing representative did not note that Dr. Ahmad was an impartial medical specialist resolving a conflict of medical opinion. Since the opinion of an impartial medical specialist is entitled to special weight, the fact that Dr. Ahmad was such a specialist supports the Office hearing representative's finding that his [pro-whistleblower] report [affirming the pro-whistleblower's work ability] constituted the weight of the medical evidence. See Louis G. Psyras, 39 ECAB 264 (1987); James P. Roberts, 31 ECAB 1010 (1980). -29a- APPENDIX G United States Office of Personnel Management Washington, D.C. 20415 JAN 16 1991 Leroy J. Pletten 8401 18 Mile Rd. Apartment 29 Sterling Heights, Ml 48313-3042 Dear Mr. Pletten: This is in response to your letter, postmarked December 28, 1990, under the Freedom Of Information and Privacy Act. You requested a copy of any letter or correspondence sent to you by any Associate Director for Compensation or Associate Director for Retirement and Insurance, from 1980 to the present. We have searched our records and can find no letters or other correspondence to you from the Associate Directors during the above time period or any other time period. Sincerely, /s/ Sidney M. Conley Sidney M. Conley, Assistant Director for Retirement Programs Ed. Note: Pursuant to federal regulation 5 CFR § 831.1206, it is a "condition precedent" for an ouster that a decision by the Associate Director for Compensation be issued first! This is yet another "condition precedent" TACOM, MSPB, DOJ, and adjudicators brazenly disregarded. -30a- APPENDIX H Confirmation of Acceptance of Actions Reference Solicitor 7 Jan 1991 General's Brief, page 3, Dec. 1990 TO Carma J. Averhart, Supervisor FROM Leroy J. Pletten 1. This refers to the December 1990 Brief, page 3, by Hon. Kenneth W. Starr, Solicitor General, which inter alia says “the Army had made all reasonable efforts to accommodate his disability. Pletten v. Department of the Army, 6 MSPB 626 (6/18/81), Clerk's Record (C.R.) 70, No. 84-75360 (E.D.Mich.); MSPB Record, Vol. 37 at 3152-3158.” 2. I accept. 3. This will reconfirm my acceptance of the said actions "that the Army had made." 4. I look forward to returning to duty and am eagerly awaiting hearing from you. Thank you. Sincerely yours, /s/Leroy J. Pletten Leroy J. Pletten Ed. Note: The agency had flatly opposed doing anything to even begin the compliance process with the safety laws and regulations. As soon as I began whistleblowing, the agency made the "decision to terminate" whistleblower Pletten, as EEOC's Henry Perez noted 9 April 1980. As the basic compliance process had not even begun, see p 14, and TACOM had unseemly rushed Pletten's ouster, without the "condition precedent" / due process 5 § USC 7513 notice, it is clear that no "accommodation" process whatsoever had even begun! much less been completed. Starr and others simply made up the claim because it would look good in the record, , knowing it to be blatantly false, and thus constitute fraud on the court. The making of blatant false claims is a felony, reference 18 USC § 1001 warranting up to five years in prison for the makers of the blatant false claim. I “accepted” their story of "all" the wonderful things that had been done for me! The agency refused to reply!! Surprise!! The refusal to respond is conclusive that the claims were lies and known to be lies, criminally false, criminal mail fraud, antedated illegal fabrications. For context of the habitual lying, inventing claims of actions never done, indeed refused to do, see, e.g, App B, pp 2a-3a, and App O, pp 40a-41a.] -31a- APPENDIX I DEPARTMENT OF THE ARMY United States Arny Tank-Automotive Command Warren, Michigan 48397-5000 AMSTA-CQ (690-700h)                     16 Novenber 1990 MEMORANDUM FOR C, Sys & Spt Br (AMSTA-PSM) SUBJECT: EEO Complaint - Leroy J. Pletten SSN 475-56-5500 Last enployed February, 1980 Formerly a Personnel Specialist 1. The complainant requests permission to examine his complete personnel history. He was employed fron 26 Auqust 1969 to February 1980, at TACOM. 2. The complainant has alleged discrimination in the processing of his past complaints. 3. Thank you for your efforts in assistinq us. The POC for this action is the undersiqned at X48483. /s/K. R. Adler for ANNIE G. JOHNSON Case Manager -32a- APPENDIX J United States Office of Personnel Management Washington, D.C. 20415 JUN -2 1989 Mr. Leroy J. Pletten 8401 - 18 Mile Road, #29 Sterling Heights, Michigan 48078-3099 Dear Mr. Pletten: This is in reply to your Freedom of Information request dated May 26, 1989, concerning smoking requirements in the Federal work place. The Office of Personnel Management has no documents relating to your inquiry. Sincerely,   /s/ Stephen H. Perloff Stephen H. Perloff, Chief Qualification Standards Branch Staffing Policy and Operations Career Entry and Employee Development Group [Ed. Note: A “condition precedent” for a “disqualification” is that a “requirement” exist which the person does not meet!] -33a- APPENDIX K DEPARTMENT OF THE ARMY WASHINGTON, D.C. 20310-0200 17 April 1986 PROCLAMATION The readiness and well being of Total Army members and their families challenge us to deal with the problem of tobacco use. Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination, and resistance to cold weather injuries. Moreover, it increases susceptibility to disease. It has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage. Every Army member is charged to make this goal a reality. All of us have a clear responsibility in making this happen. As part of the Army Tobacco Cessation Action Plan, we will encourage smokers -34a- to quit through a program of education, information, and assistance. We will also safeguard the health of smokers and nonsmokers alike by limiting the areas in which smoking will be permitted. Finally, we will check on all forms of tobacco usage from time to time to determine progress in meeting our goal. We believe this campaign is absolutely essential to maintain the health and readiness of our Army Ours is a profession unique in many respects, requiring physical fitness and stamina to get the job done. Each of us must be ready physically to endure the strains of a crisis. Additionally, caring leadership dictates that we demonstrate a sincere, unambiguous concern for the health and safety of those entrusted to our care. /s/John A. Wickham, Jr. /s/John O. Marsh, Jr. JOHN A. WICKHAM, JR. John O. Marsh, Jr. General, United States Army Secretary of the Army Chief of Staff -35a- APPENDIX L U.S. Department of Labor Office of the Assistant Secretary for Administration and Management Washington, D.C. 20210 April 16 1986 Mr. Leroy J. Pletten 8401 18 Mile Road #29 Sterlinq Heights, MI 48078 Dear Mr. Pletten: The Secretary has asked me to reply to your Freedom o£ Information Act request of April 1, 1986. My office is unaware of any qualification standards that require the ability to smoke, tolerate smoking or avoid smoking. In addition, we are unaware of any forms asking for such information. Sincerely, /s/Larry K. Goodwin LARRY K. GOODWIN Director of Personnel Management -36a- APPENDIX M EXECUTIVE OFFICE OF THE PRESIDENT Office of Management and Budget Washington, D.C. 20503 March 20, 1986 Mr. Leroy J. Pletten 8401 18 Mile Road #29 Sterling Heights, Ml 48078 Dear Mr. Pletten: This is in response to your March 3, 1986 Freedom of Information Act request for a copy of any qualification requirements that require smoking, tolerating, or avoiding smoking as a condition of Federal employment, and any forms asking for this information from applicants or employees. The Office of Management and Budget (OMB) is unaware of any qualification standards in use that require the ability to smoke, tolerate smoking, or avoid smoking. We are also unaware of the existence of any forms that ask for this information. The Paperwork Reduction Act of 1980 requires agencies of the executive branch to submit to OMB for review all -37a- collections of information imposed on 10 or more members of the public. Information collections approved or currently under review by OMB are available for public viewing in our docket library. There are some 6,450 forms in the library. There is no compilation of these information collections that address your request. However, you are free to do a manual search of the information collection in the docket library. The docket library is located in Room 3201 of the New Executive Office Building, 17th and Pennsylvania Avenue, NW., Washington, D.C.; it is open from 9 am to 5:30 pm Monday through Friday. It is advisable to call at 202-395-6880 before you come so arrangements can be made for you to be cleared into the building. I hope this information will be of help to you. Sincerely yours,   /s/ Darrell A. Johnson Darrell A. Johnson Assistant Director for Administration -38a- APPENDIX N United States Office of Personnel Management Washington, D.C. 20415 JAN 30 1984 Mr. Leroy J. Pletten 8401 18 Mile Road #29 Sterling Heights, MI 48078 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 -39a- 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,   /s/ Joseph W. Howe Joseph W. Howe Assistant Director for Standards Development -40a- APPENDIX O Return to Duty TO Dir of Pers, Tng 6 December 1983 & Force Dev (DRSTA-A) FROM Leroy J. Pletten (DRSTA-ALS) 1. Reference 8 November 1983 Agency's Brief on Issues from the Labor and Civilian Personnel Law Office. That brief indicates that the Installation has done the following: a. “two office adjustments that would screen . . . from tobacco smoke . . . a semi-private, partially partitioned office with another non - smoking employee . . . offered . . . a semi-private, completely, enclosed office with four or five other non-smokers in an area where smoking would be totally prohibited. (p. 4) b. “air content / containment studies . . . indicated that the buildings . . . complied with Army Regulation1-8 and all relevant Occupational Safety and Health Act areas and standards.” (p. 5) c. “offered . . . a smoke - free room which would interdict the smoke of any smoker walking in or around or near that area.” (p. 6) -41a- d. “offering to provide a smoke-free environment . . . in the area where he worked.” (p. 7) e. “offered ... a smoke-free environment . . . in a separate room behind closed doors, even with four or five other non-smokers.” (p. 9) f. “all of the buildings in which . . . worked or needed to work had been posted with no-smoking signs and had safe air according to the relevant OSHA standards.’” (p. 10) g. “offered . . . to sit in a private air conditioned space.” (p. 12) 2. When these assertions are “treated most favorably” to resolution and installation good faith, I am delighted. 3. I accept. Please advise me on returning to duty. /s/ Leroy J. Pletten LEROY J. PLETTEN Pos Class Spec Ed. Note: The agency had flatly opposed doing anything to even begin the compliance process with the safety laws and regulations. As soon as I began whistleblowing, the agency made the "decision to terminate" whistleblower Pletten, as EEOC's Henry Perez noted. As the basic compliance process had not even begun, see p 14, and TACOM had unseemly rushed Pletten's ouster, without 5 § USC 7513 notice, it is clear that no "accommodation" process whatsoever had even begun! much less been completed. The Army's "Labor and Civilian Personnel Law Office" simply made up the claims because they would look good, knowing them to be blatantly false, and thus constituting a fraud on the court. The making of blatant false claims is a felony, reference 18 USC § 1001 warranting up to five years in prison for the makers of the blatant false claim. I “accepted” their story of the many wonderful things that had been done for me! The agency refused to reply!! Surprise!! The refusal to respond is conclusive that the claims were lies and known to be lies, criminally false, criminal mail fraud, antedated illegal fabrications.] For context of the habitual lying, inventing claims of actions never done, indeed refused to do, see, e.g, App B, pp 2a-3a, and App H, p 30a, supra. -42a- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON, D.C. 20506 Leroy Pletten, )      Docket Nos. Appellant ) 01800273 01810324 ) 01810321 01810555 v. ) 01810322 01810887 ) 01810323 01811012 Department of the Army, ) 01812239 Appellee. ) DECISION INTRODUCTION Leroy Pletten (hereinafter referred to as appellant) timely initiated appeals to the Equal Employment Opportunity Commission from the final decisions of the Department of Army (hereinafter referred to as agency) rendered in all the above reference appeals as indicated in the Appendix, concerning his allegations of discrimination based upon [perceived, non-job-related] physical handicap (asthma) in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq and based upon reprisal in violation of Title VII of the Civil Rights Act of 1964, as -43a- amended, 42 U.S.C. 2000e et seq. These appeals are accepted in accordance with EEOC Order No. 960, as amended. BACKGROUND Beginning in 1979, appellant filed a series of formal complaints of discrimination with the agency, alleging that actions of the agency discriminated against him on the basis of his handicapping condition [not enforcing / obeying its own pure air regulation, AR 1-8 issued pursuant to 32 CFR § 203] and in reprisal for filing EEO complaints. At the time of his first [whistleblowing to Safety Office] complaint, appellant was employed by the agency as a position classifer specialist, GS-12. [He never used sick leave.] In the summer of 1979, he was discovered to be suffering from acute asthma attacks brought on by contact with cigarette smoke. He made numerous requests of the agency to accommodate his handicap [NO, in reality, to enforce the above cited DOD and Army-incorporated pure air rules AR 1-8 and 32 CFR § 203], to include improving the [outmoded] ventilation system of his building, a smoke-free office to work in and prohibiting other employees from smoking -44a- within 25 feet of appellant. [His supervisor, Jeremiah Kator, agreed, but higher management forbad him to act.] When he [Pletten] failed to obtain the accommodations [enforcement actions] he believed to be necessary for his handicap [compliance with the above-cited rules], appellant sought EEO counseling and filed formal complaints. Simultaneously, he filed a labor grievance which was arbitrated in January, 1980 [in fact, adjudicated by the Army's own Civilian Appellate Review agency (USACARA)] with a recommendation of ways the agency had to accommodate appellant [enforce its own "pure air rights" rules]. When the agency failed to abide by the arbitration [USACARA Report], appellant filed even more EEO complaints. 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 [the "decision to terminate" time observed by EEOC's Henry Perez, Jr.], appellant was denied EEO counseling and prevented from filing further complaints. As indicated in the Appendix, the agency failed to provide this Commission with several complaint -45a- files and the only information concerning these complaints was supplied by appellant and must be accepted by this Commission as uncontradicted. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. 1613.212 and .709(a) provide for the establishment by the agency for regulations for the acceptance and processing of complaints of discrimination based upon physical handicap and reprisal. The Regulations further provide that federal agencies upon the filing of such complaints must conduct an investigation into the allegations raised in the complaint, 29 C.F.R. 1613.216, conduct a hearing on those allegations, if desired by the complain[an]t, 29 C.F.R. 1613.217(b)(i) and render a decision thereon, 29 C.F.R. 1613.221(1). A review of the record in Docket No. 01800273 establishes that appellant filed a formal complaint of discrimination -46a- alleging that in an agency's publication derogatory references were made to his physical handicap. The appellant's complaint properly alleges a basis of discrimination reocognized by the Regulations. The agency improperly rejected appellant's complaint on the basis it did not come within the purview of the Regulations. The agency, therefore, must accept the complaint for investigation and decision thereon. In all of appellant's complaints, he asserts that the agency was discriminating against him as an asthmatic nonsmoker who could not tolerate smoke in his work environment and, moreover, that the agency failed to accommodate his handicap [enforce / obey the pertinent agency and other rules]. Under the applicable EEOC Regulations 29 C.F.R. 1613.214(a)(1)(ii) an agency may accept a complaint for processing only if the complainant has brought to the attention of an EEO counselor the matter thought to -47a- be discriminatory within 30 calendar days from the date of the alleged discrimination occurred. It is a well recognized equitable principle that this time limit must be extended if appellant alleges and can show a continuing pattern of discrimination. As the court in Laffey v. Northwest Airlines, 567 F.2d 429, 13 FEP Cases 1068 (D.C. Cir. 1976) notes " . . . where, as here, discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within (the time period) of filing charges, the filing is timely." Id. , 13 FEP Cases at 1100. See also, Cedeck v. Hamiltonian Federal S&L Assn., 551 F.2d 1136, 14 FEP Cases 1571 (8th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219, 15 FEP Cases 377 (5th Cir. 1977);. and, Rich v. Martin Marietta Corp., 552 F.2d 333, 11 Fep (sic) Cases 211 (10th Cir. 1977). It is clear that appellant was alleging a continuing pattern of -48a- discrimination against him because of his [perceived] handicap. It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection. See Appendix, Docket Nos. 01810323, 01810321, 01810555 and 01810324. In view of the foregoing, this Commission must conclude the agency's rejection of all appellant's complaints were erroneous on the grounds given. In that it appears that appellant was alleging a continuing pattern of discrimination and in that some of the agency's rejection of his complaints were based on the wrong information and in that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints -49a- and seek counseling, the Commission holds that all the above references cases must be reversed and rescinded [remanded] (sic)for further processing in accordance with EEO Regulations 29 C.F.R. 1613.211 et seq. CONCLUSION Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is to reverse the final agency decisions in all the instant cases which rejected appellants' complaints for the reasons indicated and rescind (sic) said complaints for further processing in accordance with this decision. Upon reprocessing said complaints, the agency may consider the consolidation of all the instant cases. IMPLEMENTATION OF THE COMMISSION DECISION Under EEOC regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar -50a- days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant. ATTORNEY'S FEES If appellant has been represented by a member of the Bar, appellant shall be awarded attorney's fees under 29 C.F.R. § 1613.271(c). The attorney shall submit to the agency within twenty (20) days of receipt of this decision, the documentation required by 29 C.F.R. §1613. 271(c) (2). The agency shall process the claim within the time frames set forth in § 1613.271(c)(2). NOTICE OF RIGHT TO FILE A CIVIL ACTION Pursuant to 29 C.F.R. §1613.282, the appellant is hereby notified that this -51a- decision is final and that he has the right to file a civil action on the Title VII claim in the appropriate U.S. District Court within thirty (30) days of the date of receipt of this decision. APPOINTMENT OF COUNSEL If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require. NOTICE OF RIGHT TO REQUEST REOPENING The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and -52a- reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; 2. The previous decision involves an erroneous interpretation of law or regulations or misapplication of established policy; or 3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. This notice is in accord with 29 C.F.R. Section 1613.235. The agency's attention is directed to 29 C.F.R. Section 1613.235(b) for time limitations on agency -53a- requests to reopen. FOR THE COMMISSION:    FEB 23 1982 /s/Nestor Cruz Date Nestor Cruz, Director Office of Review and Appeals APPENDIX APPEALS OF LEROY PLETTEN 1. EEOC DOCKET Number: 01800273 2/ Date of Formal EEO Complaint: 11/07/79; amended 11/23/79 Date of Final Agency Decision: 12/19/79 Date of Appeal: 12/26/79 Brief Description of Complaint: "Publication of article agency's newsletter" Reason for Agency's Rejection: "Not within purview" 2. EEOC DOCKET Number: 01810321 Date of Formal EEO Complaint: 9/11/80 Date of Final Agency Decision: 11/06/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Misconduct by medical officer against appellant" -54a- Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" 3. EEOC DOCKET Number: 01810322 Date of Formal EEO Complaint: 9/17/80 Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Denial of telephone services" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" 4. EEOC DOCKET Number: 01810323 Date of Formal EEO Complaint: 9/06/80 Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Denial of medical aid in dispensary" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" 5. EEOC DOCKET Number: 01810324 Date of Formal EEO Complaint: 9/9/80 Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80 -55a- Brief Description of Complaint: "Wrong information conveyed to Merit Systems Protection Board" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/ 3/" 6. EEOC DOCKET Number: 01810555 Date of Formal EEO Complaint: 9/19/80 Date of Final Agency Decision: 12/22/80 Date of Appeal: 1/9/81 Brief Description of Complaint: "Performance appraisals" Reason for Agency's Rejection: "Untimely presented to EEO counselor 6/" 7. EEOC DOCKET Number: 01810887 Date of Formal EEO Complaint: 9/18/80 Date of Final Agency Decision: 1/16/81 Date of Appeal: 2/04/81 Brief Description of Complaint: "Appellant forced off base" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/ 8. EEOC DOCKET Number: 01811012 Date of Formal EEO Complaint: 1/15/81 Date of Final Agency Decision: 4/2/81 -56a- Date of Appeal: 4/8/81 Brief Description of Complaint: "Agency's failure to implement no smoking regulations" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/" 9. EEOC DOCKET Number: 01812239 Date of Formal EEO Complaint: 1/21/81 Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal by agency to accept complaint" Reason for Agency's Rejection: "Untimely presented to EEO counselor" 10. EEOC DOCKET Number: 018112239 1/ 2/ Date of Formal EEO Complaint: 1/20/81 Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal to provide EEO process to appellant" -57a- Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/" 11. EEOC DOCKET Number: 018112239 1/ 2/ Date of Formal EEO Complaint: 4/26/81 Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal to provide EEO Counseling" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/ "1/Complaints consolidated under this case number. 2/ No agency file ever received in this case 3/ No copy of final agency decision ever received in this case. 4/ Erroneous calculation by agency of thirty day period prior to counseling. 5/ Event giving rise to complaint occurred when agency refused to accept additional complaints from appellant. 6/ Final agency decision cites erroneous date of alleged discriminatory act on appellant's formal complaint." -58a- APPENDIX Q DEPARTMENT OF LABOR MICHIGAN EMPLOYMENT SECURITY COMMISSION REFEREE DIVISION DECISION In the Matter of the Claim of | Employer Involved | USA TACOM LEROY J. PLETTEN | Civilian Payroll Sect DRSTA EFPC 8401 18 Mile Road, Apt. 29 | 28251 Van Dyke Sterling Heights, MI 48078 | Warren, MI 48090 S.S. No. 586-67-6611 | Appeal No. B81 09032 REFEREE: MICHAEL BALDWIN [X] Claimant appealed Redetermination of May 11, 1981 on May 11, 1981 [ ] Employer Hearing(s) held on July 20, 1981, in Sterling Heights, Michigan. FINDINGS OF FACT AND REASONS The redetermination issued by the Commission on May 11, 1981, held the claimant ineligible for benefits in respect to the time period from November 30, 1980, through an "indefinite" period of time under Section 48 of the Act. An -59a- earlier determination was held affirmed. In essence, the claimant was held to be on a leave of the type recognized by Section 48 of the Act as rendering the individual not an unemployed individual within the meaning of the Michigan Employment Security Act. At the hearing held in Sterling Heights, Michigan, on July 20, 1981, the following persons appeared: Leroy Pletten, Claimant Helen Cochran, Witness Subpoenaed at the Request of the Claimant Ed. Note: TACOM, for fear of what its own people would admit, refused to allow any to testify! until a year later, in proceeding under its control. The claimant began working for the involved federal entity in August of 1969 and last performed work services for this employer on or about March 17, 1980. The application for unemployment benefits contained within the file [of] items submitted by the Commission to the Referee Division is indicated as being filed on January 2, 1981. -60a- Section 48 of the Act provides, in part, that "An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with his duly authorized bargaining agent, or in accordance with law." The claimant's literal presentation was, in part, that there is no such employment condition [per TACOM Reg. 600-5.14] as a [forced] leave of absence that was recognized by the federal agency. However, the record does indicate that a federal agency does grant employees absences [they request] from work performance, under certain circumstances, while maintaining the employment relationship and anticipating a resumption of work service performance at a reasonably specific time in the future. Ed. Note: For more on TACOM Reg. 600-5.14, click here. Not all leaves of absence will render an individual not an unemployed individual within the meaning of Section 48 of the Act. There are only three recognized -61a- forms or initiating circumstances relative to leaves of absence that are pertinent. The claimant's testimony was clear that he did not request to be placed on a leave of absence or be removed from work service performance in respect to the time period under consideration. The claimant further stated that he was not of the view that he had a union or labor organization of which he was a member for bargaining purposes with the employer but that, in any event, he had made no request to anyone to act on the claimant's behalf in requesting a leave of absence. There is no indication that any leave of absence that may apply to the claimant was in accordance with the law relative to the pertinent subsection of the state statute. In terms of Section 48 of the Act, whether or not the claimant is on a leave of absence is somewhat moot under the circumstances as established in the record -62a- in that if the claimant is on a leave of absence, it is not of the type recognized in Section 48 of the Act as rendering an individual unentitled to receive unemployment benefits, i.e., a type that would cause the claimant not to be deemed an "unemployed" individual. DECISION The redetermination issued by the Commission on May 11, 1981, is hereby reversed. The provisions within Section 48 of the Act pertaining to leaves of absence of a certain type have no application in the instant matter. Further judgments in respect to this claim are left for future Commission consideration. /s/Michael Baldwin MICHAEL BALDWIN, REFEREE Mailed at DETROIT, MICHIGAN JULY 30, 1981 -63a- IMPORTANT TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME This decision will become final unless a party takes ONE of the following actions: (1) files a written appeal to the Board of Review, OR (2) files a written request for rehearing before the Referee, OR (3) files a direct appeal to Circuit Court. The appeal or request for rehearing must be RECEIVED on or before AUG 19 1981 Ed. Note: This decision in Pletten's favor, overruled TACOM, and confirmed Pletten's unrestricted ability to work. Reason: under Michigan law MCL 421.28, a claimant who can't work, can't get unemployment. And here Pletten's claim was approved. TACOM should then have honored that decision, and returned Pletten to duty, as per the precedent of Polk v Yellow Freight Sys, Inc, 801 F2d 190, 192-3 (CA 6, 1986). -64a- APPENDIX R Return to Duty TO Dir of Pers, Tng 7 July 1981 & Force Dev (AMSTA-A) FROM Leroy J. Pletten (DRSTA-ALS) 1. Reference 18 Jun 81 Opinion and Order [6 MSPB 626, 7 MSPR 13] by the Merit Systems Protection Board. That Order indicates that the installation [TACOM] has done the following: a. “conducting an air content study of appellant's immediate work area to determine toxic substances present”; b. “prohibiting smoking in the entire Civilian Personnel Division”; c. “relocating his office to improve air quality”; d. “initiating an educational program to discourage smoking within the general workforce”; e. “posting notices banning smoking in areas such as elevator, auditoriums, appellant's office and cafeterias”; -65a- f. “conducting periodic air quality surveys of appellant's immediate work area to insure compliance with health standards; and” g. “advising fellow workers and visitors not to smoke in appellant's presence.” 2. When these assertions are “treated most favorably” to resolution and installation good faith, I am delighted. 3. Accordingly, if the installation has accepted the [6 MSPB 626, 7 MSPR 13] Opinion and Order, I will return to duty within seven (7) days of your receipt of this notice. /s/ Leroy J. Pletten Leroy J. Pletten Position Classification Specialist -66a- APPENDIX S TO Mr. FROM Industrial DATE 24 Jun 80     Kator Hygienist (AMSTA-ALS) (DMEDA-T) Mr. Braun/as/3-1691 1. References: a. Memorandum for Record, DMEDA-T, SUBJECT: Complaint of Poor Ventilation and Stagnant Air, Ms Mae L. Sweeney, DRSTA-FPM, Room 207W, Bldg 230 TARCOM, dtd 11 Jun 80. b. AR 1-8, Smoking in DA Occupied Bldgs and Facilities. 2. Several visits were made to the referenced 1a, Room 207W by this writer. Paragraph 4a indicates that ventilation is adequate in this office and is in complinace (sic) with AR 1-8. No health hazard exists at this location and this area would be satisfactory for Mr. Pletten to work in. 3. Ventilation in all office areas of -67a- building 230 is identical with that described for room 207W above. From a health and ventilation point of view therefore any office in Bldg 230 would be acceptable for Mr. Pletten to work in. /s/ Edwin P. Braun EDWIN P. BRAUN Industrial Hygienist Civ Empl Hlth Clnc CF: Medical Officer [Dr. Holt] (DMEDA-T) Legal Ofc (7-3-80) RECEIVED    OWCP JUN -4 1984 CLEVELAND     DFEC Ed. Note: On cross-examination, the real truth came out from Braun's supervisor, Dr. Francis J. Holt, and himself. Dr. Holt, verified the bad TACOM ventilation system, “. . . mechanical failures happen all the time [p 25 line 16],” resulting in “hazardous to them [TACOM employees p 42]”. Braun had in reality repeatedly recommended “over and over and over again” eliminating the extant hazard as pertinent ventilation equipment was “outmoded” so air became “stagnant” [p 17 line 25] and “hell” [p 18 line 2]. Rather than solve the hazard, as TACOM's own Braun and Holt knew, TACOM ousted Pletten in reprisal for his for having successfully reported the hazard to “all [p 42 line 14].” -68a- APPENDIX T NOTIFICATION OF PERSONNEL ACTION 1. Name: Pletten, Leroy J. Mr. 2. [blank] 3. Birth Date 22-30-57     4. SSN 586-67-6611 5. VP 1     6. Tenure Group 1 7. SCD 08-26-69     8. [blank] 9. FEGLI 3     10. Retirement 1 11. [blank] 12. Code 721 Reassignment 13. Effective Date 09-18-77 14. Civil Service or Other Legal Authority Reg. 335.102 15. From Employee Relations Specialist Job No. DA-913c 16. GS-0230 17. Grade 12 Step 04 18. Salary $22,485 19. US Army Tank Automotive Materiel Readiness Command, Warren, Michigan, Directorate for Personnel Training & Force Development, Civilian Personnel Division, Management Employee Relations Management Branch 20. To Position Classification Specialist Job No. DA-905c 21. GS-0221   22. Grade 12 Level 04 23. Salary $22,485 -69a- 24. US Army Tank Automotive Materiel Readiness Command, Warren, Michigan, Directorate for Personnel Training & Force Development, Civilian Personnel Division, Management Employee Relations Management Branch 25. Duty Station Warren, Michigan 26. Location Code 26 - 5110 - 099 27. Appropriation 2182020 6D-8030 P7200000 20113 722896.N9000 AL11978H ALS00 28. Position Occupied 1 29. [blank] 30. Req. No. AL(s)-117-77 DRSTA-ALS C/L 12-7 FLSA-Exempt Civilian Personnel Career Program Code 002-01-8-3 CFR 950-1.4-8c(4) 31. [blank] 32. [blank] 33. Code AR OO 34. /s/ Christine V. Ziolkowski CHRISTINE V. ZIOLKOWSKI Supv Pers Stfg Spec (2685) 35. Date 09-16-77 -70a- APPENDIX U DEPARTMENT OF THE ARMY U.S. Army Tank-Automotive Materiel Readiness Command Warren, Michigan 48090 DRSTA-CP 19 NOV 1976 SUBJECT: Appointment as Crime Prevention Officer Mr. Leroy J. Pletten Management-Employee Relations Division Directorate for Civilian Personnel U.S. Army Tank-Automotive Materiel Readiness Command Warren, MI 48090 1. In accordance with the 8 November 1976 directive from the Chief of Staff, you are appointed as the DCP Crime Prevention Officer. 2. The instructions on your duties in this capacity have been provided you by separate correspondence. FOR THE COMMANDER: /s/ A. C. Strong A. C. STRONG Deputy Civilian Personnel Director -71a- APPENDIX V UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 91-3618 LEROY J. PLETTEN Petitioner, v. DEPARTMENT OF THE ARMY Respondent. ORDER Before RICH, Circuit Judge, ARCHER, Circuit Judge, and RADER, Circuit Judge. A petition for rehearing having been filed in this case, UPON CONSIDERATION THEREOF, it is ORDERED that the petition for rehearing be, and the same hereby is, denied. The mandate will issue on April 15, 1992. FOR THE COURT Dated: /s/ Francis X. Gindhart April 8, 1992 Francis X. Gindhart, Clerk -72a- APPENDIX W SUMMARY OF CAREER 1969 - 1980 6/12/1967 Graduation from University of Minnesota 8/26/1969 Hired as Personnel Management Specialist, GS-7 11/6/1969 Letter of Appreciation from a serviced organization supervisor, Edward Peszko, for my having “contributed immensely in . . . job descriptions." 11/26/1969 Civilian Personnel Director Fred R. Goss forwarded this: “Although Mr. Peszko is only one employee of the Command who took the time to write the letter, I am sure he expressed the unwritten feelings of many of our employees.” 9/6/1970 Promotion to Personnel Management Specialist, GS-9 9/19/1971 Promotion to Employee Relations Specialist, GS-11 1971 TACOM began the Employee Recognition Plan for employees with low use of sick leave. -73a- 3/3/72 Letter of Appreciation on sick leave from Personnel Director Col. Benjamin Safar concerning my “excellent sick leave record” "since your appointment . . . you have used no sick leave.” 11/10/72 Letter of Appreciation from the director of a serviced organization, John H. Cyrus “for his recent work in the areas of Disability Requests, Debt Complaints and Leave of Absence Requests.” 3/5/73 Letter of Appreciation from Personnel Director Col. Donald E. Atkinson for my having "used no sick leave . . . a commendable record . . . which very few attain . . . since your appointment . . . you have used no sick leave . . . flawless record.” 6/29/1973 Supervisor Verna L. Atkinson appointed me acting supervisor of the branch. 1/28/1974 Suggestion Award ($185) 2/27/74 Letter of Appreciation from -74a- Civilian Personnel Director William S. Moyers for my having "used no sick leave . . . a commendable record . . . which very few employees attain . . . since your appointment . . you have used no sick leave . . . flawless record." 6/23/1974 Promotion to Labor Management Relations Specialist, GS-12, Job No. DA-907, responsible to do "positive advisory service to managers and supervisors on their basic responsibilities for personnel administration, identifying areas of possible supervisor weakness or other supervisor-employee relationships that tend to cause dissatisfaction" and to deal with "Personnel adverse actions [discipline], grievances and appeals, communications and employee counseling." 9/1/74 Letter of Appreciation from Andrew Cook of a serviced organization, for “courtesy and efficient help . . . bringing it to a pleasant and complete solution." -75a- 5/2/1975 Letter of Appreciation for me, addressed to Civilian Personnel Director William S. Moyers, from a serviced organization supervisor, Edward J. Leavy, for my having “provided valuable guidance [on] selection criteria [assessing employee qualifications]. “We have all, verbally and in writing, complained about the service provided by your directorate; now, here is an action of which you can be proud.” 5/06/1975 Director Moyers forwarded to my supervisor the 5/2/75 praise: “Please convey my appreciation to Leroy for his assistance to Mr. Leavy. It's a pleasure to see that once in a while some kudos are received in a very difficult functional area.” 6/3/75 Certificate of Achievement from Civilian Personnel Director William S. Moyers for my “not having used any amount of sick leave . . . [and] cooperative, diligent and faithful attendance" 6/3/1975 Letter of Appreciation for my -76a- “commendable record in the accumulation of over 500 hours sick leave.” [Ed. Note: Civil service workers earn four hours sick leave each bi-weekly pay period (26 X 4 = 104 hours per year). Pletten never used any, so achieved the 500 hours in the fastest possible time.] 7/21/75 Suggestion Award ($50) 4/9/76 Letter of Appreciation from Director Moyers for my having “used no sick leave . . . since your appointment . . . you have never used sick leave . . . flawless record.” 8/12/1976 Assignment to explain the new sick leave analysis system to “All Directors/Project Managers/Office Chiefs.” 9/08/1976 Assignment to advise managers on “[their] several responsibilities in leave administration." 11/10/76 Chosen Crime Prevention Officer. 4/5/1977 Official Commendation from acting Civilian Personnel Director Arthur C. Strong for “superior performance . . . [I] performed all of [my] duties in an outstanding manner.” 4/10/77 Said award was accompanied by a quality pay increase ($681). -77a- 4/19/77 Letter of appreciation from Civilian Personnel Director Archie D. Grimmett for my having “used no sick leave . . . helping the Directorate strive to remain within the norm [Ed. Note: 61.9 hours average use per employee] . . . excellent sick leave record.” 6/3/1977 Letter of Appreciation from Marie W. Milmine for a suggestion on doing Army-initiated “Fitness for Duty Examinations.” 9/18/1977 Reassignment to Position Classification Specialist, GS-12, Job DA-905c, “Qualification requirements waived,” responsible for "civilian positions assuring accuracy and consistency with established position and pay management regulations." 12/19/1977 Letter of Appreciation James Thompson to Director Grimmett for “outstanding job [I] performed . . . follow-up to resolve each problem . . . noteworthy. Such performance has won the respect of those whom you served (supervisors and personnel alike)." -78a- 12/23/1977 Civilian Personnel Director Grimmett forwarded the 12/19/77 praise, adding "This kind of performance not only enhances your professionalism, but significantly adds to the prestige of our office." 11/20/78 Letter of Appreciation from Col. Irving Monclova of a serviced organization, saying “I greatly appreciate the assistance and cooperation provided by you . . . dedication and positive attitude. . . prompt, responsive, and understanding actions." 2/20/79 Letter of appreciation from my supervisor Jeremiah H. Kator for my “commendable record in the accumulation of [another] 500 hours sick leave [further unused] indicative of diligent and faithful attention to duty.” 2/20/79 Letter of appreciation from Personnel Director Col. Charles D. Phillips for my again having “used no sick leave . . . helping the Directorate strive to remain within the norm [Ed. Note: 61.9 hours use average per employee] established by the Department of the Army." -79a- 3/16/79 Letter of appreciation from Jon Symon, Regional Representative, Department of Defense Wage Fixing Authority, to Director Grimmett: “The Detroit Full Scale Survey conducted by your office during January is very near completion. This survey and its preliminary work proceeded more efficiently than previous surveys conducted in the Detroit area in the past several years [Ed. Note: under Pletten's higher-grade, experienced predecessor]. This was due largely to the efforts of Mr. Leroy Pletten, the local chairman, a member of your staff. “A survey the size of Detroit is very demanding, and although this was Mr. Pletten's first year as the chairman, his aggressiveness and cooperative attitude made a difficult task much easier." 3/1979 Director Grimmett forwarded it: "It is a pleasure to add my congratulations . . . Your personal efforts in this endeavor reflect great credit on this Command, our Directorate, and most especially on yourself.” 6/15/80 Pay raise ($823) issued to me by my supervisor J. H. Kator for my continuing good quality work. [Ed. Note: These are excerpts. Actual job record was significantly more extensive. See full record.] -80a- APPENDIX X MEDICAL LETTERS 01/07/80 Dr. Bruce Dubin says “We have examined Leroy Pletten this date . . . he is quite capable of returning to work . . . .” 01/17/80 TACOM Dr. Francis J. Holt says “Mr. Pletten is fit for duty.” 03/17/80 Dr. Jack Salomon says “He is a highly motivated person, and clearly ready, willing, able and eager to work . . . .” 03/24/80 Dr. Bruce Dubin says “I have examined Mr. Pletten on this date, and he expressed a great desire to return to duty at once. . . . He is a highly motivated individual and clearly ready, willing, able, and eager to work . . . . and is fit for duty in a safe work environment . . . should be returned to duty . . . quickly . . . .” 04/28/80 Dr. Jack Salomon says “this patient is able to work as previously stated.” 05/27/80 Dr. Bruce Dubin says “the employer has not complied with medical advice . . . indicative of harassment and inappropriate . . .” -81a- 06/07/80 Dr. David Schwartz says “Mr. Pletten . . . describes a ‘ lock out' on the part of the supervisory personnel . . . wants to return as soon as possible . . . is easy to follow . . . should return to work immediately . . . an asset to any company he works for because he is energetic, honest and very interested in being a good employee.” 06/24/80 TACOM Dr. Francis J. Holt says “David Schwartz, M.D. . . . recommended that Mr. Pletten be returned to duty.” 09/22/80 Dr. Jack Salomon says “In medical language and in dictionaries, ‘inadvisable' does not mean 'cannot' . . . in the context of the medical advice that has been provided concerning Leroy Pletten.” 01/07/81 Dr. Jack Salomon says: “The employer has not acted on the repeated medical advice; and the protracted nature of the situation does not arise from any medical considerations that I am aware of . . . the repeated guidance to provide a healthful environment has not contraindicated Mr. Pletten's clear ability to work . . .” [Ed. Note: Layman Col. Benacquista as part of his extortion, had overruled the medical letters in whistleblower Pletten’s favor. See Dep pp 13, 24, 25, 62.] 01/20/81 Dr. Bruce Dubin says: “There is not, and has not been any medical reason for denying Mr. Pletten’s ability to work, and for -82a- denying him an environment reasonably free of contamination.” 06/01/81 Dr. Jack Salomon says “Mr. Pletten continues to express great eagerness to return to work. I recommend that there be no delay in allowing him to return to work.” 07/08/81 Dr. Jack Salomon says “there is no medical basis for the duration of the absence. . . . He continues to express great eagerness to return to work. I again recommend that there be no delay in allowing him to return to work.” 11 Nov. 1981 Dr. Jack Salomon says “Mr. Pletten continues to be able and eager to work. . . . should be returned to duty.” 02/20/82 OWCP Dr. C. A. Lang says “There is no need for [him] to be examined by a specialist. . . . the notes of F. J. Holt 3/14/80 and 3/17/80 and 3/31/80 would indicate that he was able to return to work 3/1780.” 05/21/82 TACOM Dr. Francis J. Holt says “asthma wouldn’t disqualify him from working” [Dep. p 9]. 10/12/83 Dr. Bruce Dubin says “The June 18, 1981, statement from [MSPB’s] Mr. Ronald Wertheim gives the -83a- impression that he believes that the work site is and was, safe. . . . Mr. Pletten should have been allowed to return to duty . . . .” [Ed. Note: Wertheim, a liar and scoundrel, fabricated the doing of non-existent actions that TACOM refused to do. This liar made such claims, not as a matter of truth, but solely to look good in the record. His lies were intended to cover up form TACOM’s refusal to set a precedent of compliance, see analyses in Apps. B, 2a-3a,  H, 30A,  O, 40a-41a, and  R, 64a. Note, the "liar and scoundrel" term is from the precedent of Bishop v. E. A. Strout Realty, 182 F2d 503, 505 (CA 4, 1950).] 10/23/83 Dr. Jack Salomon says “I still believe that the installation could have prevented the situation from reaching this point.” 09/08/85 Drs. Cynthia Glines and George Bower say: “Mr. Pletten is physically able to return to work at his job as a personnel specialist.” 04/29/87 Dr. Silas Cardwell says “. . . Mr. Leroy Pletten . . . is ready, willing, able and eager to perform all the duties of his job description (DA 905e). There is nothing in the requirements of the job that he is unable to do.” “I agree with your findings of ‘consistent and clear evidence' that he was 'able to return to work' in March 1980. Mr. Pletten informs me that every reviewing doctor has said the same, but that his ability to work was overruled to pressure him to retract his request for compliance with a USACARA Report.” [Ed. Note: The March 1980 reference alludes to the extortion time frame. See Col. Benacquista’s Deposition pp 13,  24,  25,  62.] “There is no medical reason for having stopped Mr. Pletten from returning to work; he is able to do what his job requires. He has an -84a- unrestricted ability to work. Mr. Pletten should be allowed to return to duty immediately as you have said. Please help him to do so.” 05/21/87 Dr. George Bower says “Dr. Glines and I recommended that you should be returned to work . . . I wish you well in your attempt to return . . .” 06/05/87 Dr. Fazal Ahmad says: “Yes” when asked “Can the individual work eight hours a day?” 12/29/88 Dr. Jack Salomon says “I have examined Leroy Pletten and reviewed this matter, including the April 29, 1987 letter from Dr. Silas Cardwell, with which I am in complete agreement.” “I am shocked that Mr. Pletten was not returned to work as recommended. [He] is ready, willing, able and eaqer to do his job (DA 905e). There is nothing in it that he is unable to do. Let me emphasize that [he] has been 'able to return to work’ in March of1980 and thereafter. His ability to do what the job requires should not have been overruled.” [Ed. Note: This refers to the extortion as aided and abetted by the MSPB upholding it, and to the TACOM refusal to allow the EEO review on merits mandated by law.] “Since Mr. Pletten during the entire period March 1980 to the present has been and continues to be able to do what his job requires, he should long ago have been returned to duty as repeatedly recommended.” -85a- “. . . He should be allowed to return to work as you have said. This should be done immediately in accordance with the repeated recommendations.” 06/13/90 Dr. Silas Cardwell says “He could not take a leave of absence from work or file an ‘application for disability retirement' without supporting medical opinion of some 'medical condition’ preventing him from working. Neither I nor any physician ever has supported, or could or would support, the [bribe-induced] view that he has a ‘medical condition' preventing him from working. He does not. He is able to perform all his duties, and wants to do so immediately.” [Ed. Note: This rebuts the bribe-induced Sixth Circuit Court of Appeals claim / hallucination that Pletten had applied!] 06/20/90 Dr. Silas Cardwell says “Mr. Leroy Pletten continues to be ready, willing, able and eager to return to work. He should be returned to work imnediately. Please help him to do so.” 12/05/90 Dr. Silas Cardwell says “Mr. Leroy Pletten is physically able to perform all of his job duties. Mr. Pletten currently has no medical condition which has rendered him disabled and to my knowledge he has never had any such condition. I agree with the Department of Labor's findings that Mr. Pletten was able to return to work in March of 1980.” [Ed. Note: Again, this rebuts the bribe-induced claims by MSPB, DOJ, and Sixth Circuit adjudicators.] -86a- APPENDIX Y THE DRUG TOBACCO: A HAZARD “Tobacco is a narcotic . . . an addicting substance [with] fatal implications.” Lt. Col. Charles T. Brown, “Tobacco Addiction: A Suggestion as to Its Remedy,” 50 Texas State Journal of Medicine 35 (Jan. 1954). “Addiction to tobacco, like addiction to opium, is a specific disease . . . . Its protracted course, the enormous numbers affected, and spreading infection make smoking one of our most serious diseases.” Johnston, Lennox, M.B. “Cure of Tobacco-Smoking,” 263 The Lance 480, 482 (6 Sept. 1952). “Smokers show the same attitude to tobacco as addicts to their drug, and their judgment is therefore biased in giving an opinion of its effect on them.” Lennox Johnston, M.B., “Tobacco Smoking and Nicotine,” 243 The Lancet 742 (19 Dec. 1942). “Overwhelming clinical evidence supports characterizing smoking as a physical addiction, one that persists even though the addict knows it subjects him to serious risk of death. Both medical and legal authorities now recognize such a condition as a disease.” Comment, “Deducting the Cost of Smoking Cessation Programs Under Internal Revenue Code Section 213,” 81 Mich. Law Review 237, 240 (Nov. 1982) -87a- “The crucial smoking problem is addiction . . . Smoking remains the foremost preventable cause of disease, disability and death in the United States . . . The better educated Americans have been the first to decide to preserve themselves and their offspring by discontinuing smoking.” Col. Eugene C. Jacobs, “Smoking: Insidious Suicide and Personal Air Pollution,” 135 Military Medicine 678, 679-680 (August 1970). “[C]igarettes . . . are . . . wholly noxious and deleterious to health. Their use is always harmful; never beneficial. They possess no virtue, but are inherently bad, and bad only . . . widely condemned as pernicious altogether. Beyond question, their every tendency is toward the impairment of physical health and mental vigor . . . Courts are authorized to take judicial cognizance of . . . those facts, which, by human observation and experience, have become well and generally known to be true.” “It is a part of the history of the organization of the volunteer army in the United States during the present year [1897] that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and, perhaps, every other reason . . . cigarettes are wholly noxious and deleterious -88a- “. . . an unmitigated evil.” Austin v. State, 101 Tenn. 563, 566-7 (1898), aff’d sub nom. Austin v. Tennessee, 179 U.S. 343 (1900). [Cigarettes with deleterious ingredients were soon after this decision made illegal to manufacture, sell, giveaway, under Michigan law MCL § 750.27, MSA § 28.216.] THE 1964 SURGEON GENERAL REPORT It lists tobacco chemicals on page 60 at levels in excess of safe limits (years later codified at 29 C.F.R. 1910.1000.Z), examples of which include: Tobacco Chemical P.P.M. Amount Safe Limit “Acetaldehyde 3,200 200" “Acetone 1,100 200" “Acrolein 150 .5" “Ammonia 300 150" “Carbon Monoxide 42,000 100" “Formaldehyde 30 5" “Hydrogen Cyanide 1,600 10" “Hydrogen Sulfide 40 20" “Methyl Chloride 1,200 100" “Methyl ethyl ketone 500 250" “Nitrogen Dioxide 250 5" “The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, -89a- “not merely a fringe group.” Banzhaf v. F.C.C., 132 U.S. App.D.C. 14, 29, 405 F.2D 1082, 1097 (1968), cert. denied, 396 U.S. 842 (1969). William Pollin, M.D., then Director, U.S. National Institute on Drug Abuse (“NIDA”), in 1977 said why NIDA gave “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.” (Monograph 17, page vi). William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973 - 1977), in “Teenage drug use: Opportunities for the pediatrician,” 102 J. of Pediatrics (Issue 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 -90a- “likely to use heroin . . . 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.” So Army USAARL Report No. 86-13, “Smoking and Soldier Performance: A Literature Review” (1986), page 149, says: “[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services.” “Nowhere is the practice of smoking a more imbedded institution than in the nation's prisons and jails, where the proportion of smokers to nonsmokers is many times higher than that of society in general . . . The 1989 report of the United States Surgeon General calls for . . . a smoke-free society as an essential and life saving long-term goal.” “Smoking . . . is the single most important preventable cause of death . . . a serious risk to the health of nonsmokers.” Doughty v. Bd. of County Com'rs for County of Weld, 731 F.Supp. 423, 424 (D.Colo. 1989). -91a- Army Pamphlet 600-63-7, Fit to Win, ANTITOBACCO USE (1987), p. 14, says “1. Nicotine is a physically and psychologically addictive drug. Therefore, any kind of tobacco use may be addictive. There is no safe level of tobacco use. “2. The U.S. Surgeon General States, '"Cigarette smoking is the chief, single avoidable cause of death in our society and the most important public health issue of our time.' “3. TOBACCO USE AFFECTS EVERYONE. We all have family, friends, and coworkers who use tobacco. Also, as non-smokers, if we live or work in a smoke-filled environment, we are at higher risk for cancer, cardio-vascular and chronic obstructive lung diseases.” (emphasis in text) “We need look no further . . . than the Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health,” Grusendorf v. City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1987). Army Regulation 600-63.4-1a. (1987) summarizes Army experience on point: “Smoking tobacco harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs.” -92a- “The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales the cigarette smoke.” G. H. Miller, Ph.D., “The Filter Cigarette Controversy,” 72 Journal of the Indiana State Medical Association 903, 904 (December 1979). “[L]ittle mixing takes place, as can be seen by watching smoke plumes rise in still air. Even when the plume is disturbed, the visible core can be observed to retain homogeneity over a distance of one to three meters . . . the core with concentrations of tens to hundreds of parts per million of the powerful irritants acrolein and formaldehyde can readily contact eyes or be breathed with only slight dilution. The irritant properties of these materials may be partly inferred by their occupational limits. These are 0.1 to 0.3 ppm for acrolein and 1 to 3 ppm for formaldehyde.” Howard E. Ayer, M.S., and David W. Yeager, B.S., “Irritants in Cigarette Smoke Plumes,” 72 American Journal of Public Health 1283 (Nov. 1982). “The normal use of cigarettes is known by ordinary consumers to present grave health risks . . . 'tobacco has been used for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge,'” Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988). -93a- APPENDIX Z JUDICIAL EXAMPLES OF CONTROLLING TOBACCO 1. Austin v. State, 101 Tenn. 563, 566-7, 48 S.W. 305, 306 (1898) says that in “the organization of the volunteer army that” “examining physicians” “rejected” “applicants who were addicted to cigarettes” “on account of disabilities thus caused.” 2. Dzikowska v. Superior Steel Co., 259 Pa. 578, 583, 103 A. 351, 352 (1918) says the “foreman testified . . . he did not allow smoking inside” “the building.” 3. Canning Co. v. Throwing Co., 94 W.Va. 346, 361, 118 S.E. 521, 527 (1923) says he [the smoker employee] “smoked . . . notwithstanding repeated warnings. Why was he warned? Because defendant [employer] knew of the danger. Then, when it saw [he] disobeyed its warnings, it was its duty to stop his smoking there, and, if necessary, to discharge him . . . put him out of the building.” 4. Tiralongo v. Stanley Works, 104 Conn. 331, 332-3, 133 A. 98, 99 (1926) found that “The rules of the factory forbid smoking during working hours, and notices were posted in the lavatory and toilets of the plant reading ‘No smoking.'” -94a- 5. Allen v. Posternock, 107 Pa.Super. 332, 334, 163 A. 336 (1932) says the employer “claimed that she had given instructions . . . not to smoke.” 6. Bradford's Case, 319 Mass. 621, 622, 67 N.E.2d 149, 150 (1946) says “smoking was not permitted inside the building.” 7. In Albany Ins. Co. v. Holberg, 166 F.2d 311, 315 (8th Cir. 1948), the supervisor “in charge . . . testified that . . . he gave . . . very explicit instructions about not smoking.” 8. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 838, 205 P.2d 1037, 1041 (1949), “had a rigid rule, enforced by discharging violators, against smoking in the warehouse except in one designated area of the first floor.” 9. The Bluestein v. Scoparino, 277 App. Div. 534, 536-7, 100 N.Y.S.2d 577, 578-9 (1950), employer had “a prohibition against smoking . . . signs to such effect posted about the premises . . . discharged [employee] for smoking.” 10. De Mirjian v. I. Htg. Corp., 129 Cal. -95a- App.2d 758, 761, 278 P.2d 114, 115 (1955) found “orders prohibiting smoking on the floor of the shop.” 11. Petition of Republic of France, 171 F.Supp. 497, 508 (D.S.D.Tex. 1959) found “failure . . . to promulgate and enforce 'no smoking’ regulations . . . constituted fault and negligence.” 12. Boullier v. Samsan Co., 100 R.I. 676, 678, 219 A.2d 133, 134 (1966) found that “no smoking was permitted in the area where the thinners and the lacquers were located.” 13. Commonwealth v. Hughes, 468 Pa. 502, 507, 364 A.2d 306, 308 (1976) says “the company had repeatedly warned against smoking on the premises.” 14. Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 531, 368 A.2d 408, 416 (1976) found that “Cigarettes may not be smoked around the telephone equipment . . . extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by cigarette smoke . . . A company which has demonstrated such concern for its mechanical components should have at least as much -96a- concern for its human beings. Plaintiff asks nothing more than to be able to breathe the air in its clear and natural state.” 15. Dickerson v. Reeves, 588 S.W.2d 854, 855 (Tex.Civ.App. 1979) found the smoker “had been told not to smoke in the pouring room, and there were 'no smoking' signs in that room.” 16. Swanson v. City of Tulsa, 633 P. 2d 1256, 1257 (Okl. Cr. 1981) found that “smoking of lighted tobacco is prohibited and punishable.” 17. Smith v. W. Elec. Co., 643 S.W.2d 10, 12 (Mo.App., 1982), lists “the computer room (where smoking is prohibited).” 18. Grusendorf v. City of Oklahoma Cit, 816 F.2d 539, 540 (10th Cir. 1987) says he [the smoker employee] “took three puffs from a cigarette while on a lunch break from his job . . . was fired that afternoon.” 19. Doughty v. Bd. of County Com'rs for County of Weld, 731 F.Supp. 423 (D.Colo. 1989) found “a county-wide ban on smoking in public buildings.” -97a- APPENDIX AA DISCHARGES OF SMOKERS UPHELD Columbian Rope Co. and United Farm Equipment and Metal Workers, 7 Lab Arb (BNA) 450 (1947) Standard Oil Co. and Central States Petroleum Union, 19 Lab Arb (BNA) 795 (1952) Cit-Con Oil Corp. and Oil, Chem. & Allied Workers Int'l. Union, 30 Lab Arb (BNA) 252 (1958) U.S. Industrial Chem. Co. and Int'l. Union of Operating Engineers, 64-2 Lab Arb Awards (CCH) § 8481 (1964) Caraco Ship Supply and Amalgamated Meat Cutters and Butcher Workmen of No. Am., 64-3 Lab Arb Awards (CCH) § 8961 (1964) U.S. Powder Co., Division of Commercial Solvents Corp and Int'l. Union of Dist. 50, United Mine Workers of Am., 67-2 Lab Arb Awards (CCH) § 8454 (1967) Ward Furniture Manufacturing Co and United Furniture Workers of Am., 68-2 Lab Arb Awards (CCH) § 8702 (1968) Royce Chem. Co. and Oil, Chem. and Atomic Workers Int'l. Union, 70-1 Lab Arb Awards (CCH) § 8138 (1969) U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Div. and Int'l. Woodworkers of Am., 70-1 Lab Arb Awards (CCH) § 8340 (1970) -98a- A. E. Staley Manufacturing Co and Int'l. Un., Allied Industrial Workers of Am., 71-1 Lab Arb Awards (CCH) § 8203 (1971) Hercules Inc and Int'l. Chemical Workers, 74-2 Lab Arb Awards (CCH) § 8487 (1974) Illinois Fruit & Produce Corp and Int'l. Bro. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., 66 Lab Arb (BNA) 498 (1976) Wisconsin Steel Coal Mines of Int'l. Harvester Co and Progressive Mine Workers of Am., 76-2 Lab Arb Awards (CCH) § 8348 (1976) Gladieux Food Svc. and Int'l. Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (1978) Bostik West, Division of USM Corp. and Oil, Chemical and Atomic Workers Int'l., 78-2 Lab Arb Awards (CCH) § 8545; 71 Lab Arb (BNA) 954 (1978) Consolidation Coal Co, R. R. Mine, Jones Run Portal and United Mine Workers, 82-2 Lab Arb Awards (CCH) § 8600 (1982) Olin Corp, McIntosh Plant and Int'l. Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) § 8521; 81 Lab Arb (BNA) 644 (1983) Golden v Communication Tech. Corp, 36 E.P.D. 35,095 (ND Ga, 1985) Moore v Inmont Corp, 608 F Supp 919 (D.W.D.N.C., 1985) Grusendorf v City of Oklahoma City, 816 F2d 539 (10th Cir. 1987) -99a- APPENDIX BB A.L.R.s on Tobacco 5 ALR 1521, Workmen's Compensation: Compensation to Workmen Injured Through Smoking (1920) 13 ALR 997, Liability of Master for Damage to Person or Property Due to Servant's Smoking (1921) 20 ALR 926, Constitutionality of Anti-Cigarette Legislation (1922) 33 ALR 1180, Smoking As Ground for Expulsion or Suspension of Pupil (1924) 80 ALR 2d 681, Liability of Manufacturer or Seller of Tobacco Product for Injury Caused Thereby (1961). 20 ALR 3d 893, Master's Liability for Injury to or Death of Person, or Damage to Property, Resulting from Fire Allegedly Caused by Servant's Smoking (1968) 46 ALR3d 1342, Licenses, Validity, Construction, and Application of State Statutes Forbidding Possession, Transportation, or Sale of Unstamped or Unlicensed Cigarettes or Other Tobacco Products (1972) 12 ALR 4th 629, Leaving or Refusing Employment Because of Allergic Reaction as Affecting Right to Unemployment Compensation (1982) 14 ALR 4th 1234, Right to Unemployment Compensation As affected by Employee's Refusal to Work in Areas Where Smoking Is Permitted (1982) -100a- 37 ALR 4th 480, Right of Employee to Injunction Preventing Employer From Exposing Employee to Tobacco Smoke in Workplace (1985) 55 ALR 4th 1238, Civil Liability for Tobacco Sales to Minors (1987) 63 ALR 4th 1021, Employer's Liability to Employee for Failure to Provide Work Environment Free from Tobacco Smoke (1988) 65 ALR 4th 1205, Validity, Construction, and Application of Nonsmoking Regulations (1988) 88 ALR Fed 833, Pre-Emptive Effect of OSHA, Sect. 19[b] Injunction (1988) -101a- APPENDIX CC SUPREME COURT TOBACCO CITATIONS Lilienthal's Tobacco v. U.S., 97 US 237 (1878) Isaacs v. Jonas, 148 US 648 (1893) U.S. v. Isaacs, 148 US 654 (1893) Richmond & Alleghany Ry. Co v. Patterson Tobacco Co, 169 US 311 (1898) Gundling v. City of Chicago, 177 US 183 (9 April 1900) Austin v. Tennessee, 179 US 343 (1900) Cook v. Marshall County, 196 US 261 (1905) Hodge v. Muscatine County, 196 US 276 (1905) US v. American Tobacco Co, 221 US 106 (1911) Olson v. State, 245 US 676 (17 Oct 1917) People's Tobacco Co v. American Tobacco Co, 246 US 79 (1918) Nossaman v. State, 258 US 633; 42 S Ct 314; 66 L Ed 802 (1922) Beech-Nut Packing Co v. P. Lorillard Co, 273 US 629 (1927) Packer Corp v. State of Utah, 285 US 105 (1932) Musser v. Sheppard, 299 US 513 (1936) -102a- Townsend v. Yeomans, 301 US 441 (1937) Currin v. Wallace, 306 US 1 (1939) Mulford v. Smith, 307 US 38 (1939) American Tobacco Co v. U.S., 328 US 781 (1946) Flickinger v. Commonwealth of Pennsylvania, 340 US 843 (1950) Dalehite v. U.S., 346 US 15 (1953) Cooper v. R. J. Reynolds Tobacco Co, 358 US 875 (1958) Campbell v. Hussey, 368 US 297 (1961) U. S. v. Republic of France, 369 US 804 (1962) Lartique v. R. J. Reynolds Tobacco Co, 375 US 865 (1963) American Tobacco Co v. Green, 377 US 943 (1964) Liggett & Myers Tobacco Co v. Pritchard, 382 US 987 (1966) Liggett & Myers Tobacco Co v. Pritchard, 386 US 1009 (1967) Tobacco Institute, Inc, National Association of Broadcasters, and American Broadcasting Co v. Federal Communications Commission, 396 US 842 (1969) Green v. American Tobacco Co, 397 US 911 (1970). -103a- Capital Broadcasting Co v. Kleindienst, Attorney General, 405 US 1000 (1972) Albright v. R. J. Reynolds Tobacco Co, 416 US 951 (1974) Albright v. R. J. Reynolds Tobacco Co, 426 US 907 (1976) Gasper v. Louisiana Stadium & Exposition District, 439 US 1073 (1979) Federal Employees for Nonsmokers' Rights v. U.S., 444 US 926 (1979) Carson v. American Brands, Inc, 450 US 79 (1981) American Tobacco Co v. Patterson, 456 US 63 (1982) Diefenthal v. Civil Aeronautics Board, 459 US 1107 (1983) Brown & Williamson Tobacco Corp v. F. T. C., 465 US 1100 (1984) New Jersey v. T. L. O, 469 US 325 (1985) Chemehuevi Indian Tribe v. California Board of Equalization, 474 US 9 (1985) R. J. Reynolds Tobacco Co v. Durham County, North Carolina, 479 US 130 (1986) Cipollone v. Liggett Group, Inc, 479 US 104 (1987) Liggett Group, Inc v. Cipollone, 484 US 976 (1987)

Ed. Note: The Supreme Court decision is at 506 US 895; 113 S Ct 273; 121 L Ed 2d 201; 61 USLW 3263 (5 Oct 1992) SCB: 49 MSPR 642; 960 F2d 156. See also related Petition No. 89-7594 (1989) Petition No. 90-5961 (1990).

The book by court decision analyst Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (Cleveland, Ohio: J. Calyer, 1849), p 49, shows the U.S. Supreme Court as already then in 1849 recognized as the worst in the world as far as going outside the rule of law. Note the Supreme Court's permanent-policy purpose: to evade the actual words of the text of the U.S. Constitution (whatever words it happens to disagree with at any particular time), e.g., due process, the right to “due process of law,” e.g., notice of charges before finalized action can be taken against a person. We all know that a person cannot even be detained more than briefly at, say, the local mall, without charges being pressed, pursuant to the constitutional right of "due process" and "habeas corpus." In Tiffany's era, it was slaves being denied these constitutional rights; in World War II, it was West Coast Japanese; currently it is whistleblowers. The targets of judicial venom vary, but U.S. judicial system hostility to due process for disfavored groups remains permanent. U.S. judges impose their personal views in rulings, as distinct from applying the rule of law. U.S. judges have a record of inventing whatever story they wish, i.e., they fabricate non-existent events. Their purpose is to masquerade and conceal their imposing their personal views vs the rule of law. Truly Tiffany's analysis of the U.S. judicial system as the worst in the civilized world remains correct. Please read his p 49, and the Ed. Note references cited.