No. 89-7594 ____________________________________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1989 ____________________________ LEROY J. PLETTEN, PETITIONER vs. CONSTANCE HORNER, Director, Office of Personnel Manangement; JOHN O. MARSH, JR., Secretary, Department of the Army; and MERIT SYSTEMS PROTECTION BOARD,           RESPONDENTS ____________________________ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________ PETTION FOR WRIT OF CERTIORARI ____________________________________ -i- QUESTIONS PRESENTED A. Do district courts have jurisdiction to issue injunctions to order compliance with favorable decisions by the Equal Employment Opportunity Commission? B. When decisions ordering an agency to do administrative review are not obeyed, does that violate due process? C. Does the Court of Appeals for the Federal Circuit have jurisdiction to order administrative processing to begin? D. May a federal employee be retired based on an unpublished nonexistent qualification standard? E. May federal personnel decisions be premised upon the violation of laws, rules and processing orders? F. Is expression concerning control of gateway drug users' hazardous conduct protected by the First Amendment? -ii- G. Do courts have jurisdiction to adjudicate merits prior to administrative processing? H. May federal personnel decisions be made by non-impartial persons? I. May spurious findings of fact be utilized in a decision by a federal court? -iii- TABLE OF CONTENTS Page QUESTIONS PRESENTED .......................................... i TABLE OF AUTHORITIES ......................................... v OPINIONS BELOW .................................................... xi JURISDICTION ......................................................... xiii CONSTITUTIONAL PROVISONS, STATUTES, RULES AND REGULATIONS INVOLVED ................................... xiv STATEMENT OF THE CASE ...................................... 1 REASONS FOR GRANTING THE WRIT ............... 10 This Case Presents The Important Federal Question Of Enforceability of Decisions Of the Equal Employment Opportunity Commission ................................... 10 This Case Presents The Important Federal Question Of Denial of Due Process When Equal Employment Opportunity Commission Decisions Are Not Obeyed ................................ 14 This Case Presents The Court With An Opportunity To Clarify the Jurisdiction Of the Court of Appeals For The Federal Circuit ............................................ 16 -iv- The Decision Below Conflicts With the Holdings of This Court in Morton v Ruiz, 415 U.S. 199 (1974) and Bowen v City of New York, 476 U.S. 467 (1986) ............................................ 19 This Case Provides This Court With An Opportunity To Delineate The Boundaries Of Freedom of Expression ................................. 24 This Case Presents The Court With An Opportunity To Reiterate The Duty Of Impartiality .......................................... 27 This Case Presents The Important Federal Question Of The Use of Spurious Findings Of Fact ................................................. 30 CONCLUSION ............................................................ 36 -v- TABLE OF AUTHORITIES Page CASES Am. Tx. Mfrs. Inst. v Donovan, 452 U.S. 490 (1981) . 26 Anthony v Bowen, 270 U.S.App.D.C. 246, 848 F.2d 1278 (1988) .................................. 12 Banzhaf v F.C.C., 132 U.S.App.D.C. 14, 405 F.2d 1082), cert den., 396 U.S. 842 (1969) ............................ 26 Berends v Butz, 357 F. Supp. 143 (D. Minn. 1973) ............... 21, 22 Bevan v N. Y. St. T. R. System, 74 Misc.2d 443 (1973) ......................................... 7 Bowen v City of New York, 476 U.S. 467 (1986) .. 19, 20 1 Burr's Trial 416 (1807) ............................................. 27 Cleveland Bd. of Ed. v Loudermill, 470 U.S. 532 (1985) .............................................. 2 Glus v Brooklyn Eastern Dis. Terminal, 359 U.S. 231 (1959) .......................... 17 Hall v Postal Service, 857 F.2d 1073 (6th Cir. 1988) ...................... 19, 20 Haskins v Department of Army, 808 F.2d 1192 (6th Cir. 1988) cert den., 484 U.S. 815 (1987) ............................ 13 Hazel-Atlas Glass Co v Hartford-, Empire Co., 322 U.S. 238 (1944) ....................... 34 Hotch v United States, 212 F.2d 280 (9th Cir. 1954) .............................. 21 -vi- Page In re Ryman, 394 Mich. 167 (1975) ............................ 34 Int. Un. U.A.W. v General Dynamics Land Sys. Div., 259 U.S.App.D.C. 369, 815 F.2d 1570 (1987) cert den., 484 U.S. 976 (1987) ..................................... 3 Jones v V.A., 25 M.S.P.R. 328 (1984) ........................ 19 Matter of Grimes, 414 Mich. 483 (1982) ..................... 34 Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U.S. 287 (1941) ....................... 30, 35 Mitchell v State, 60 Ala. 26 (1877) ............................... 3 Miyai v D.O.T., 32 M.S.P.R. 15 (1986) ...................... 16 Moore v Devine, 780 F.2d 1559 (11th Cir. 1986) ........ 12 Morton v Ruiz, 415 U.S. 199 (1974) .... 19, 20, 22, 23, 27 Nadolney v E.P.A., 25 M.S.P.R. 544 (1985) .............. 19 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) ........................... 26, 34 N.F.F.E. v Cheney, 884 F.2d 603 (C.A.D.C. 1989) ........................... 25 Nestlerode v United States, 74 U.S.App.D.C. 276, 122 F.2d 56 (1941) ................ 3 New York Life Ins. Co. v Nashville Trust Co, 200 Tenn. 513 (1956) ........................ 34 -vii- Page Offutt v United States, 348 U.S. 11 (1954) ........... 28, 29 People v Atcher, 65 Mich. App. 734 (1975) ................. 5 People v General Dynamics Land Systems, 175 Mi.App. 701 (1989) ....................... 3 Piccone v United States, 186 Ct.Cl. 752, 407 F.2d 866 (1969) ................. 17 Pittman v MSPB, 832 F.2d 598 (Fed. Cir. 1987) .......... 2 Polk v Yellow Freight Sys., Inc., 801 F.2d 190 (6th Cir. 1986) ............................... 7 Ramey v Block, 738 F.2d 756 (6th Cir. 1984) ............. 19 Rankin v McPherson, 483 U.S. 378 (1987) .......... 24, 25 Roysdon v R. J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988) .............................. 33 Sabol v Snyder, 524 F.2d 1009 (10th Cir. 1975) ......... 22 S.E.C. v Chenery, 332 U.S. 194 (1947) ....................... 29 Service v Dulles, 354 U.S. 363 (1957) ......................... 17 Spann v McKenna, 615 F.2d 137 (3rd Cir. 1980) ... 5, 21 State v Massey, 20 Ala.App. 56, 100 So. 625 (1924) .... 3 Suarez v Chmn. of Bd. of Directors of FDIC, 692 F.Supp. 43 (D.P.R. 1988) ................ 17 -viii- Page Sullivan v Dep't of Navy, 720 F.2d 1266 (Fed. Cir. 1983) ............................ 8 Teamsters v United States, 431 U.S. 324 (1977) ......... 29 Tenorio v N.L.R.B., 680 F.2d 598 (9th Cir. 1982) ...... 11 Texas v Johnson, 491 U.S. ___; 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) ................. 24, 26 United States v Crisp, 435 F.2d 354 (7th Cir. 1970) ... 14 United States v Blanton, 719 F.2d 815 (6th Cir. 1983) .............................. 28 United States v Russo, 708 F.2d 209 (6th Cir. 1983) .. 14 Wangerin v State, 73 Wis.2d 427 (1976) .................... 14 W. G. Cosby Transfer & Storage Corp v Froehlke, 480 F.2d 498 (4th Cir. 1973) ............. 21 White v Mathews, 559 F.2d 852 (CA 2, 1977), cert den., 435 U.S. 908 (1978) ................ 15 UNITED STATES CONSTITUTION Amendment I ........................................................ xiv, 24 Amendment V ....................................................... xiv, 15 -ix- Page FEDERAL STATUTES 5 U.S.C. 552 (a)(1) ................................ xv, 19, 21, 23, 33 5 U.S.C. 2302(b)(6) .................................... xv, xvi, 22, 33 5 U.S.C. 7513(a) .................................................... xvi, 17 5 U.S.C. 7513(b)(1) ...................... xvi, 2, 6, 11, 17, 32, 34 5 U.S.C. 7513(b)(2) ................................................ xvi, 17 5 U.S.C. 7513(b)(4) ........................................ xvi, xvii, 17 5 U.S.C. 7902(d) ............. xvii, 4, 5, 21, 22, 25, 26, 31, 33 18 U.S.C. 1964(c) ................................................. xvii, 18 28 U.S.C. 535(b) ............................ xvii, xviii, 1, 8, 14, 18 28 U.S.C. 1331 .................................................... xviii, 18 28 U.S.C. 1391(e) ................................................ xviii, 18 29 U.S.C. 706(7)(B) ..................................... xix, 2, 20, 27 42 U.S.C. 2000e-5.f(3) .................................... xix, xx, 18 MICHIGAN STATUTES MCL 421.28(1)(c) .................................................... xx, 7 MCL 750.213 ......................................................... xxi, 5 EASTERN DISTRICT OF MICHIGAN COURT RULES Local Court Rules 14(b) ........................................ xxi, 9 Local Court Rules 24(f)(3) ................................... xxi, 9 -x- Page REGULATIONS 5 CFR 831.1204(b) (1980) ....................... xxii, 1, 3, 8, 18 5 CFR 831.1206 (1980) .......................... xxii, 2, 6, 18, 32 29 CFR 1613.403 .................................. xxiii, 6, 7, 16, 18 32 CFR 203.3 ...................................... xxiii, 4, 18, 22, 25 Army Reg. 385-10.3-5a. ................................... xxiv, 3, 4 Army Reg. 385-10.3-5.b. ........................... xxiv, xxv, 3, 4 TACOM Reg. 600-5.14-27 .................... xxv, 2, 6, 18, 33 TACOM Reg. 600-5.14-28.a ................. xxv, 2, 6, 18, 33 TACOM Reg. 600-5.14-28.d ......................... xxv, 18, 33 MISCELLANEOUS REFERENCES 29 Am.Jur.2d Evidence 278-80 (1967) ........................ 14 Annot., 20 A.L.R. 926 (1922) ....................................... 36 Annot., 20 A.L.R.3d 893 (1968) ................................... 20 Black's Law Dictionary (4th ed. 1968) ......................... 3 Comptroller General GAO Reports ...................... 10, 15 Devine and Aplin, "Whistleblower Protec- tion—The Gap Between the Law and Reality," 31 Howard Law J 223 (1988) .............. 9 Diagnostic and Statistical Manual of Mental Disorders, 3d ed., 1980, revised 1987. American Psychiatric Association, Washington, D.C. .......................... 24 -xi- OPINIONS BELOW The opinion by the Court of Appeals (Table, 891 F.2d 292) is in Appendix B beginning at page 2a. The denial of rehearing is in Appendix A, 1a. The dismissal by the district court for the Eastern District of Michigan, Southern Division, is in Appendix C, 11a. The order denying petitioner's motion to strike the motion to dismiss is in Appendix D, 12a. Its bench opinion is in Appendix E, 13a. The decisions by the Equal Employment Opportunity Commission (EEOC) ordering administrative review to begin which are sought to be enforced are in Appendix O, beginning at 40a, and L, beginning at 29a. Decisions by the Michigan Employment Security Commission are in Appendix S, beginning at 64a, and Q, beginning at 60a. -xii- Appellate decisions by the Michigan Employment Security Board of Review are in Appendix N, beginning at 38a, and M, beginning at 36a. Actions by the Department of the Army are in Appendix V, 74a; U, beginning at 72a; T, beginning at 70a; R, beginning at 62a; and P, beginning at 58a. Actions by the Office of Personnel Management are in Appendix K, beginning at 27a; J, beginning at 25a; I, 24a; H, beginning at 22a; and G, 21a. A right to sue letter from EEOC is in Appendix F, beginning at 14a, redundant to Appendices O (40a-57a) and L (29a-35a). In the absence of administrative review, background material is in appendices W, beginning at 75a; X, beginning at 80a; and Y, beginning at 82a. -xiii- JURISDICTION The trial court's orders were entered 25 October 1988. It had jurisdiction pursuant to the right to sue letters from EEOC, Appendix O beginning at 40a; L, beginning at 29a; and, redundantly, F, beginning at 14a. The opinion by the Court of Appeals for the Sixth Circuit was filed on December 14, 1989. Appendix B, beginning at 2a. A petition for rehearing was denied on February 9, 1990. Appendix A, la. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1).

-xiv- CONSTITUTIONAL PROVISIONS INVOLVED U.S. Constitution, Amendment I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." 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. (Emphasis added to pertinent clause) -xv- FEDERAL STATUTORY PROVISIONS INVOLVED 5 U.S.C. 552. (a)(l)(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; * * * "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. 2302.(b)(6): "(b) Any person who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority" -xvi- (6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or appiicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment." 5 U.S.C. 7513.(a): (a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service." 5 U.S.C. 7513. (b)(l), (2), and (4): (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; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; -xvii- (4) a written decision and the specific reasons therefor at the earliest practicable date." 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." 18 U.S.C. 1964(c): "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." 28 U.S.C. 535(b): "(b) Any information, allegation, or complaint received in a department or agency of the executive branch of the Government relating to violations of Title 18 involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, unless— -xviii- (1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or (2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, complaint." 28 U.S.C. 1331: "The district courts shall have jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. 1391(e): "(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action." -xix- 29 U.S.C. 706(7)(B): "(B) Subject to the second sentence of this subparagraph, the term 'handicapped individual' means, for purposes of subchapters IV and V of this chapter, any person who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (it) has a record of such an impairment, or (iii) is regarded as having such an impairment. For purposes of sections 793 and 794 of this title as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others." 42 U.S.C. 2000e-5.f(3): " (3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relative to such practice are maintained and administered, or in -xx- the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought." MICHIGAN STATUTORY PROVISIONS INVOLVED M.C.L. 421.28(1)(c): "(c) The individual is able and available to perform suitable full-time work of a character which the individual is qualified to perform by past experience or training, and of a character generally similar to work for which the individual has previously received wages, and the individual is available for such work, full time, either at a locality at which the individual earned wages for insured work during his or her base period or at a locality where it is found by the commission that such work is available." -xxi- M.C.L. 750.213: "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." (Emphasis added to pertinent clause) LOCAL COURT RULES INVOLVED United States District Court, Eastern District of Michigan, Local Rule 14(b): "Withdrawal of appearances may be accomplished only by leave of Court on motion of counsel." Local Rule 24(f)(3): "Not more than one counsel on the same side shall be allowed to argue any question to the Court, except by special permission of the Court." -xxii- REGULATORY PROVISIONS INVOLVED 5 C.F.R. 831.1204(b) (1980): Decision. After considering the employee's retirement file, the Associate Director either approves or disapproves the application. The Associate Director's decision shall be in writing and a copy shall be given to the employee and to the agency concerned. The decision shall set forth the Associate Director's findings and conclusions and shall inform the employee and the agency of the right to request reconsideration by the Associate Director." 5 C.F.R 831.1206 (1980): "An agency shall retain an employee in an active duty status until it receives the initial decision of the Associate Director for Compensation on an agency application for disability retirement, except that the agency on the basis of medical evidence, may place an employee on leave with his/her consent, or without his/her consent when the circumstances are such that his/her retention in an active duty status may result in damage to Government property, or may be detrimental to the interests of the Government, or injurious to the employee, his/her fellow workers, or the general public. If the leave account of the employee is or becomes exhausted, any suspension or involuntary leave without pay shall be effected in accordance with applicable laws, Executive orders, and regulations." -xxiii- 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 the action to be based, in whole or in pact, 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 [Sec.] 1613.214 (a)(3) of Subpart B of this part." 32 C.F.R. 203.3: "203.3 Background. The Surgeon General of the United States has determined that the smoking of tobacco can constitute a hazard to health. DoD recognizes the right of individuals working or visiting in DoD occupied buildings to an environment reasonably free of contami- -xxiv- nants. DoD also recognizes the right of individuals to smoke in such buildings, provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." Army Regulation 385-10.3-5a.: "3-5. Reports of unsafe or unhealthful conditions. a. Reports of unsafe or unhealthful conditions by Army personnel are important in detecting hazards that cause accidents. Such reports will be handled at the operating level to ensure prompt, efficient processing. However, provision will be made as outlined below for personnel to bring such complaints directly to installation level, bypassing intermediate commands or supervisory elements." Army Regulation 385-10.3-5b.: "b. Commanders will publicize all channels for reporting unsafe or unhealthful conditions, emphasizing personnel responsibility for making such reports. Personnel will be directed to use the available means in this order of priority: (1) Oral reports directly to the supervisor. (2) Reports through operational channels where established. -xxv- (3) Reports through a special reporting system designated the Army Hazard Reporting System." TACOM Regulation 600-5.14-27: "14-27. Definition. A temporary non-pay status and absence from duty during regularly scheduled work hours granted/approved at the employee's request." TACOM Regulation 600-5.14-28.a: "a. Supervisors may not direct the use of leave without pay (LWOP). Leave without pay may be charged only upon an employee's request or consent. However, such consent is understood when an employee applies for and is granted another type of leave where leave balance(s) are insufficient to cover. The only exception is when the commander authorizes excused absence for reasons beyond management control and an employee is not eligible for excused absence. (See "Excused Absence," page 23)." TACOM Regulation 600-5.14-28.d: "d. Leave without pay will be granted only when there is reasonable assurance of return to duty after the absence."

-1- STATEMENT OF THE CASE Petitioner Leroy Pletten was hired as a civilian employee of the Department of the Army ("Army") at its Tank-Automotive Command ("TACOM") on 26 August 1969. He (a) won Equal Employment Opportunity Commission ("EEOC") orders (App. O, 40a-57a and L, 29a-35a) on administrative processing; (b) seeks a decision by Office of Personnel Management ("OPM") Associate Director for Compensation pursuant to 5 C.F.R. 831.1204(b) (1980); and (c) filed 28 U.S.C. 535(b) crime reports. 1 Army disobeys EEOC's processing orders; there is no decision by OPM's Associate Director for Compensation; no respondent processed the crime reports. This case seeks injunctive enforcement. ____________________________ 1Pursuant to case law at note 53, 42 U.S.C. 2000e-16, it is premature for a Court to adjudicate merits before administrative review occurs. Enforcing EEOC's orders for administrative review would promote judicial economy. -2- TACOM issued Mr. Pletten favorable ratings, awards, rapid promotions, and appreciation letters for good performance of duties.2 He took his duties seriously. Personnel officials must set a sterling example of integrity, good behavior and ____________________________ 2As administrative review has not begun, background normally in a court decision is absent. There is no mention of job qualification requirements, job duties, performance standards, number of co-workers and buildings, percentage assigned each, etc. As administrative review has not occurred, but is requested, the Court of Appeals decision on merits usurps counseling. A counselor will note that enforced leave violates TACOM Regulation 600-14, para. 27 and 28.a., and the retention duty of 5 C.F.R. 831.1206 (1980). It cites no 5 U.S.C. 7513(b)(1) notice for its claims as there was none. (This violates Cleveland Bd. of Ed. v Loudermill, 470 U.S. 532 (1985), as applied by the Pittman v MSPB, 832 F.2d 598 (Fed. Cir. 1987) line of cases). Further, Mr. Pletten, one of a few federal employees who never used sick leave so received written recognition for his perfect record, seeks halt to TACOM accommodation of drug abusers in violation of 29 U.S.C. 706(7)(B), not accommodation for himself. As TACOM cut off access to review in February 1980, administrative review has not begun. Until it begins, as EEOC twice ordered, the Court's assertions are speculative, premature, and spurious. -3- rule compliance so as to credibly deal with others' violations, and he did. Army Regulation ("AR") 385-10.3-5a. and b. has words "emphasizing personnel responsibility for making . . . reports" "of unsafe or unhealthful conditions." TACOM employees were endangered.3 ____________________________ 3TACOM'S Tank Plant is the subject of Int. Un. U.A.W. v General Dynamics Land Sys Div, 259 U.S.App.D.C. 369, 815 F.2d 1570, cert den., 484 U.S. 976 (1987), and People v General Dynamics Land Systems, 175 Mi.App. 701 (1989). "Universal malice" encompasses toxics causing "premature death" "without knowing or caring who may be the victim," Black's Law Dictionary 1110 (4th ed. 1968), citing Mitchell v State, 60 Ala. 26, 30 (1877). "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions," Nestlerode v U.S., 74 U.S.App.D.C. 276, 279, 122 F.2d 56, 59 (1941). Tobacco universal malice "is not directed to any particular individual, but is general and indiscriminate . . . putting the lives of many in jeopardy . . . without the intent to kill any particular person, but . . . likely to [kill] some one or more persons . . . 'regardless of human life, although without any preconceived purpose to deprive any particular person of life," State v Massey, 20 Ala.App. 56, 100 So. 625, 627 (1924). -4- Why? TACOM's own Dr. Francis J. Holt, when asked, admits against interest the bad TACOM ventilation system and impact: ". . . mechanical failures happen all the time." (Deposition, page 25). "And there's a hazard for all these other people. Isn't that also true? Yes. Yes. "Have you been asked— "People smoking in their vicinity is hazardous to them." (Dep., p. 42) Even 5/23/82, TACOM had not yet begun to obey 32 C.F.R. 203.3 nor 5 U.S.C. 7902(d). Addicts' universal malice hazardous conduct injured Mr. Pletten's co-worker Evelyn Bertram. She filed a workers' compensation claim (which was approved) but, avoiding reprisal, did not seek rule compliance. Taking AR 385-10.3-5a. and b. seriously, Mr. Pletten in 1979-1980, "blew the whistle" on their hazardous conduct. Army investigated TACOM and told it to comply with 32 C.F.R. 203.3, whose conditions precedent before smoking is permitted say no endangerment of others, -5- as mandated by 5 U.S.C. 7902(d) ("eliminate work hazards and health risks"). App. T, 70a, is TACOM's acceptance, mandatory pursuant to Spann v McKenna, 615 F.2d 137 (3rd Cir, 1980). In reality, TACOM did not obey. EEOC confirms at App. O, 42a. Col. Benacquista against interest admits undermining his own order: "All he had to do was to say, 'I agree that this is reasonably free of contaminants.'" (4/23/82 Dep. p. 62). "All" Mr. Pletten "had to do was to" change his anticipated testimony, or be put on enforced leave, fired, retired. "All he had to do was to" lie, deny the extant hazardous conduct; he'd still be at TACOM. Same is extortion. MCL 750.213; People v Atcher, 65 Mich.App. 734 (1975). Ed. Note: Said extortion was pursuant to TACOM Legal Office misconduct notwithstanding that attorneys "could be indicted in federal court if they knowingly issued faulty legal opinions that led to criminal acts," quoted from "If Congress Doesn't, Who Will?" in Mother Jones (Jan-Feb 2009), p 59. TACOM addicts, in reaction to his job duty whistleblowing about their hazardous conduct, began a pattern of reprisal and discrimination described by EEOC. App. O, 43a and 46a. The pattern includes: -6- (a) denial of EEO counseling and refusal to process his review requests after February 1980, i.e., refusal to let administrative processing begin; and (b) placing him on retroactive leave without pay ("LWOP"). App. R, 62a-63a. TACOM Regulation 600-5.14-27 and 28.a. precludes enforced LWOP. 5 C.F.R. 831.1206 (1980) mandates retention "in active duty status until . . . the initial decision of the [OPM] Associate Director for Compensation" pursuant to 5 C.F.R. 831.1204(b) (1980). As said decision has not been issued, Mr. Pletten seeks an injunction to obtain it, and "active duty status" until then. No "30 days' advance written notice" was issued pursuant to 5 U.S.C. 7513(b). TACOM provided no information on choosing a "forum." 29 C.F.R. 1613.403. There was no EEO counseling; no counselor report; and none of the post-counseling review which others receive. -7- As Mr. Pletten remains eager, ready, willing and able to work, he sought and won unemployment compensation pursuant to Michigan's M.C.L. 421.28(1)(c). App. S, 64a. Army appeals lost. Apps. Q, 60a; N, 38a; and M, 36a.4 Treating Mr. Pletten's expression as a medical condition, E. E. Hoover, whose own behavior was at issue, applied to retire Mr. Pletten at age 34. Mr. Pletten repeatedly returned to duty paralleling Bevan v N. Y. St. T. R. System, 74 Misc.2d 443 (1973). Throughout the period, continuing to the present, he sought and seeks review in the EEO forum. His choice pursuant to 29 C.F.R. 1613.403 "shall be considered an election to proceed in that forum." ____________________________ 4When administrative review begins, Mr. Pletten will seek res judicata effect for Michigan's rulings pursuant to Polk v Yellow Freight Sys., Inc, 801 F2d 190, 192-3 (6th Cir. 1986), as would now be in effect but for TACOM fear of, and refusal to do, the EEOC-ordered review. -8- Mr. Pletten, a TACOM-appointed Crime Prevention Officer, App. V, 74a, reported crimes to all three respondents. None reacted pursuant to 28 U.S.C. 535(b). So Mr. Pletten seeks an enforcing injunction. OPM's Assistant Director for Standards Development denies a pertinent qualification requirement exists. App. K, 28a. The OPM decision (App. J, 25a) by a Claims Examiner, not Associate Director, lacks 5 C.F.R. 831.1204(b) (1980) "findings and conclusions," e.g., of qualifications by which to claim Mr. Pletten cannot work. Under the circumstances each of which "divests the [respondents' acts] of legality [Mr. Pletten remains] on the rolls of the employing agency and entitled to his pay," Sullivan v Dep't of Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983), OPM Claims Examiners could not say when Mr. Pletten's pay lawfully ceased, so their decisions vary by years on effective date (Apps. I, 24a; H, 23a; and G, 21a). -9- Mr. Pletten sought district court review to obtain orders to begin administrative review. However, respondents ". . . go well beyond merely defeating a whistleblower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . A soft-spoken, self-effacing individual will be branded a loud-mouthed ego-maniac . . . for purposes of teaching others a lesson, the more obvious the inconsistency the better . . . ." Thomas M. Devine, Donald G. Aplin, "Whistle-blower Protection—The Gap between the Law and Reality," 31 Howard Law J [#2] 223, 226 ([Winter] 1988). Hostility to whistleblowers is so great as to oppose even drug-related whistleblowing. Both MSPB and agency attorneys double-filed motions in their haste to prevent Mr. Pletten's effort to begin administrative review in the "forum" wanted. Local Court Rules 14(b) and 24(f)(3) preclude double filings. Actual issues raised were ignored. The most outrageous, spurious claim is that Mr. Pletten, not E. E. Hoover, filed the application. App. J, 25a, shows otherwise. -10- REASONS FOR GRANTING THE WRIT A. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF ENFORCEABILITY OF DECISIONS OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION This opportunity to define enforceability of EEOC decisions should be taken based on the widespread inadequacy of the federal EEO system. In multiple reports, the Comptroller General, General Accounting Office ("GAO"), cites inadequacies: e.g., lack of counseling, lack of timeliness, lack of solid investigations, and lack of an EEOC follow-up system to assure that agencies do obey EEOC orders when an employee has such a good case as to overcome the obstacles and obtain a favorable EEOC ruling. GAO says EEOC even fails to act timely, if at all, on previous GAO findings. The GAO Reports include: "The Equal Employment Opportunity Commission Has Made Limited Progress In Eliminating Employment Discrimination," HRD-76-147 (28 September 1976) -11- "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) This case stems from that context. EEOC twice ordered administrative review. App. O, 47a-48a, and L, 33a-34a. Army refuses to obey. Without 5 U.S.C. 7513(b)(1) notice, to punish Mr. Pletten for his pro-rule expression, TACOM put him on enforced leave, fired him, and retired him, each act predicated upon the prior act.5 ____________________________ 5Discharge, "the most serious sanction an employer can impose," requires "special care in handling" review, Tenorio v N.L.R.B., 680 F.2d 598, 602 (9th Cir., 1982). Access to review was cut off in Feb. 1980 (App. O, 43a), immediately followed by the enforced leave, a reckless and arbitrary disregard for the rule of law, not a rational decision making process. -12- Compounding system inadequacies, EEOC (App. F, 14a-20a) ignores its own prior decisions; and the courts deny jurisdiction to enforce them. They reason in a circle: review orders were disobeyed, Mr. Pletten is gone, the only issue is the date, thus review of what led to that is denied. The Court went so far as to rule on merits, clearly a premature act. Others recognize that district courts have jurisdiction to enforce EEOC orders. For example, the Eleventh Circuit says: "the applicable federal regulations and case law . . . require that the district courts enforce final EEOC decisions favorable to federal employees when requested to do so." Moore v Devine, 780 F.2d 1559, 1560 (CA 11, 1986). The District of Columbia Circuit Court of Appeals allows coming "to court seeking interlocutory supervision of the administrative processing of his discrimination claims . . . to force investigation." Anthony v Bowen, 270 U.S.App.D.C. 246, 250, 848 F.2d 1278, 1282 (1988). -13- The Sixth Circuit itself admits that "a federal employee can request a federal court to enforce a favorable EEOC order. Haskins v Department of Army, 808 F.2d 1192, 1199 (CA 6), cert den. 484 U.S. 815 (1987). The EEOC decisions use a stronger word than "request." They use the word "mandatory" to describe the "compliance" obligation. App. O, 48a; and L, 34a. As the Sixth Circuit's different wording from EEOC's and said other circuits shows a conflict with EEOC and/or between the circuits, it is respectfully requested that this Court grant this petition so as to be enabled to resolve this important nationwide issue on the enforceablility of EEOC decisions. -14- B. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF DENIAL OF DUE PROCESS WHEN EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DECISIONS ARE NOT OBEYED TACOM refusal to obey EEOC's two orders to begin review is depriving him of timely review of the circumstances causing the acts cited by the Court of Appeals; timely review would have prevented them.6 TACOM has not tried to schedule compliance with the EEOC orders. ____________________________ 6Wangerin v. State, 73 Wis.2d 427, 243 N.W.2d 448, 453 (1976), says "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)." Ed. Note: See the long line of such cases, 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." 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." Why TACOM refuses to do administrative processing is clear: to prevent investigation of the underlying crimes Mr. Pletten reported pursuant to 28 U.S.C. 535(b). Extortioners indeed refuse "to process grievances." United States v. Russo, 708 F.2d 209, 212 (6th Cir. 1983). The very refusal of, flight from, review, supports him. Flight from review shows fear that review will confirm criminal misconduct. -15- White v. Mathews, 559 F.2d 852 (CA 2, 1977), cert. den., 435 U.S. 908 (1978), shows that mere trying (a "glacial pace") to schedule review is not constitutionally adequate. GAO Reports show (pages 10-11) widespread delays, and how hard it is to win one favorable decision, much less two. The decisions set time limits: 30 days. App. O, 48a, and L, 34a. Refusal of compliance (administrative review) (1) undermines the system and (2) deprives Mr. Pletten of due process. Amend. V. This is surely one of the more egregious examples of noncompliance. Thus, it provides this Court opportunity to rule that noncompliance violates due process, and compliance must be done as of the date it would have been done but for the non-compliance. This will induce agencies to voluntarily obey EEOC orders, reduce need for resort to court enforcement requests, and so promote judicial economy. -16- C. THIS CASE PROVIDES THIS COURT WITH AN OPPORTUNITY TO CLARIFY THE JURISDICTION OF THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT. 29 C.F.R. 1613.403 tells agencies to "inform every employee . . . of his/her right to . . . an election [of] forum [in which]" "to proceed."7 Also, "whichever is filed first . . . shall be considered an election to proceed in that forum." EEOC accurately says (App. O, 42a-43a): "as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints." ____________________________ 7"The agency in this case has not shown—or even alleged—that it ever notified the appellant of his right to file an appeal or of any limitations on that right . . . it evidently has maintained consistently that the appellant has no appeal rights," Miyai v. D.O.T., 32 M.S.P.R. 15, 20 (1986). Notwithstanding what an employee (e.g., Mr. Pletten) filed, or tried to file, "The Board has held . . . that [same] does not constitute an informed election under section 7121 when the agency failed to afford the employee proper notice of his potential avenues of recourse." TACOM's "complete failure to provide these [due process] procedural protections . . . constitutes harmful error." -17- "To decide the case we need look no further than the maxim that no man may take advantage of his own wrong." Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232 (1959). No respondent or court claims that there was 5 U.S.C. 7513(a) cause or (b)(l) notice, (2) reply time and (4) decision and reasons; nor any counseling.8 Review has not begun. Others receive it. Mr. Pletten is treated differently than everybody, e.g., Evelyn Bertram. Retirement cannot be based on, i.e., "accomplished through the violation of a controlling regulation," Piccone v. U.S., 186 Ct. Cl. 752, 762, 407 F.2d 866, 871 (1969), relying on Service v. Dulles, 354 U.S. 363 (1957). Violating a controlling ____________________________ 8Courts take judicial notice of counselor reports. Suarez v. Chmn. of Bd. of Directors of FDIC, 692 F.Supp. 43, 46-47 (D.P.R. 1988). Not citing any corroborates that counseling has not occurred. Merely saying I "appealed . . . to both" MSPB and EEOC evades the matter. EEOC's processing orders were ignored; enforcement is sought. -18- regulation and EEOC orders to do review in the chosen "forum" and premising retirement of a healthy individual on the violations takes advantage of their own wrong. Federal Circuit Court of Appeals has no jurisdiction to issue an injunction to order advance notice; 29 C.F.R. 1613.403 informing; nor to enforce EEOC decisions. App. O, 40a-57a, and L, 29a-35a. Securing an injunction to enforce EEOC decisions; 5 C.F.R. 831.1204(b) and 1206, 32 C.F.R. 203, TACOM Regulation 600-5, Secs. 14-27 and 28.a and d., and 28 U.S.C. 535(b) is done in District Courts. 28 U.S.C. 1331, 28 U.S.C. 1391(e), and 42 U.S.C. 2000e-5.f(3). Securing damages for the injury is done in District Courts. 18 U.S.C. 1964(c). None is done in the Federal Circuit. That is not its role. You are respectfully requested to take this opportunity to clarify the Federal Circuit Court of Appeals jurisdiction. -19- D. THE DECISION BELOW CONFLICTS WITH THE HOLDINGS OF THIS COURT IN Morton v. Ruiz, 415 U.S. 199 (1974) AND Bowen v. City of New York, 476 U.S. 467 (1986). In Bowen v. City of New York, 476 U.S. 467 (1986), this Court rejects secret eligibility rules. Morton v. Ruiz, 415 U.S. 199 (1974) uses 5 U.S.C. 552.(a)(l) to invalidate an unpublished qualification standard. Here, the sua sponte decision on merits by the Court of Appeals is premised on a tobacco qualification standard which the federal requirements writing agency, OPM, denies exists (App. K, 28a), and which Mr. Pletten need not meet if it did. App. U, 72a-73a.9 ____________________________ 9It ignores its own Ramey v. Block, 736 F.2d 756, 762 (1984), saying "the Secretary must generate specific standards . . and apply them in a uniform fashion . . . 'determination of eligibility cannot be made on an ad hoc basis. Its Hall v. Postal Service, 857 F.2d 1073, 1078-9 (1988), requires a job description link, as do administrative cases, e.g., Jones v. V.A., 25 M.S.P.R. 328 (1984) and Nadolney v. E.P.A., 25 M.S.P.R. 544 (1985). -20- Failing to defer to OPM's denial of a requirement, the decisions to do enforced leave, removal and retirement premised on an unpublished (i.e., nonexistent) tobacco qualification standard are invalid. Disregard of Morton and Bowen is especially striking as a matter of law, as there can be no tobacco qualification for the "employment" matters herein. Smoking is not in employment. Annot., 20 A.L.R.3d 893 (1968). So it cannot be used to measure job performance, handicap or accommodation all of which "relate to employment." 29 U.S.C. 706 (7)(B). Tobacco smoke is not job "essential functions." Once "individualized inquiry" on job description requirements begins pursuant to Hall, 857 F.2d at 1078-9, smoking will not be found in any job description. Your Morton and Bowen show that both existence and publication are conditions precedent to an alleged disqualification. -21- There is no tobacco qualification requirement to "relate to employment" by which to disqualify Mr. Pletten.10 Even if there were a tobacco qualification standard for nonsmokers, which ____________________________ 10Absence of either existence or publication is "a jurisdictional point," Hotch v. U.S., 212 F.2d 280, 281 (9th Cir. 1954). So no enforced leave, thus no retirement, thus no effective date, can be set. It is premature to uphold one. Administrative review ordered by EEOC has not occurred (App. O, 47a; and L, 34a). Once administrative review occurs, both the enforced leave and forced retirement premised on it will be reversed, mooting the date issue in its entirety. Administrative review will find that Col. Benacquista disagrees with applicable rules (Dep., p. 25). Berends v. Butz, 357 F.Supp. 143, 156 (D.Minn. 1973) says "an administrator should not engage in such a practice. . . . it is the function of the Administrator to enforce and effectuate the laws passed by Congress." Here, he should have obeyed 5 U.S.C. 7902(d) to "eliminate work hazards and health risks," instead of undermining his own order (App. T, 70a) to obey the 1/25/80 USACARA Report, mandatory pursuant to Spann, 615 F.2d 137. Ed. Note: The USACARA Report and EEOC decisions are entitled to consideration, as "they constitute a part of the record we review. See Universal Camera, 340 U.S. at 492-497, 71 S.Ct. at 467-69; Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1076 (9th Cir.1977)," Curran v. Depart of Treasury, 714 F2d 913, 915 (CA 9, 1983). And, "consideration of the ALJ's findings will require a more searching scrutiny of the record. See Doug Hartley, Inc. v. NLRB, 669 F.2d 579, 581 (9th Cir.1982); Penasquitos Village, 565 F.2d at 1078," Curran, 714 F2d at 915. "A finding of the full board that rests solely on testimony discredited by the ALJ [e.g., TACOM claims to lack authority] is not supported by substantial evidence and cannot be sustained. See Kallmann v. NLRB, 640 F.2d 1094, 1098 n. 7 (9th Cir.1981); Loomis Courier Service, Inc v. NLLRB, 595 F.2d 491, 496 (9th Cir.1979)," Curran, 714 F2d at 918. This is not Army's first offense of non-compliance with 5 U.S.C. 552.(a)(1). W. G. Cosby Transfer & Storage Corp. v. Froehlke, 480 F.2d 498 (4th Cir. 1973). -22- there is not, this court in Morton, 415 U.S. at 231, says: "the agency must, at a minimum, let the standard be generally known so as to assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial."11 ____________________________ 11Administrative review will find that tobacco smoking behavior is not in "the requirements for any position," 5 U.S.C. 2302(b)(6). An ad hoc standard was fabricated (applied to Mr. Pletten, not Evelyn Bertram.) Army assigns employees, e.g., Mr. Pletten, job requirements writing duties, so knows "job requirements and qualifications had never been formally changed," Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir. 1975). Col. Benacquista admits "personal habits," not requirements (Dep. p. 25). Smoking behavior is neither listed in job descriptions, nor required. Law, e.g., 5 U.S.C. 7902(d), and agency rules, 32 C.F.R. 203-3, forbid hazardous conduct; they do not require it. Administrative review will find glaring inconsistency. Army repeatedly gave Mr. Pletten awards for superb performance of duties on the same job for which it both (a) issued him a qualifications waiver (App. U, 73a) of actual requirements and (b) disqualified him in relation to a non-requirement (App. P, 59a). "The command of the Administrative Procedure Act [5 USC § 500 et seq. (1946)] is not a mere formality. [People] are entitled to have notice of the standards." Berends, 357 F.Supp. at 155. -23- In Morton, you say at 232: "determination of eligibility cannot be made on an ad hoc basis." And you say why at 232: "to avoid the inherently arbitrary nature of unpublished ad hoc determinations. See generally S. Rep. No. 752, 79th Cong., 1 Sess., 12-13 (1945); H. R. Rep. No. 1980, 79th Cong., 2d Sess. 21-23 (1946)." You say at 235: "The Secretary has presented no reason why the requirements of the Administrative Procedure Act [5 USC § 500 et seq. (1946)] could not or should not have been met." The bottom line is, disregard of the Administrative Procedure Act, 5 U.S.C. 552 (a)(l), is recurring despite your rulings. A pattern of agency disrespect for basic principles in the glaring manner shown, provides you opportunity to reaffirm the law. You are respectfully requested to grant this petition to be enabled to try to put a stop to the pattern of disregard. -24- E. THIS CASE PROVIDES THIS COURT WITH AN OPPORTUNITY TO DELINEATE THE BOUNDARIES OF FREEDOM OF EXPRESSION. The First Amendment protects flag burning, Texas v. Johnson, 491 U.S. ____, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), and pro-assassination talk. Rankin v. McPherson, 483 U.S. 378 [107 S Ct 2891; 97 L Ed 2d 315] (1987). This case raises the question whether it protects expression on control of drug users' hazardous conduct pursuant to job duty support of rules of law.12 ____________________________ 12Absent administrative processing, no EEO counselor report exists, so Apps. W, X, and Y substitute to highlight Mr. Pletten's inoffensive expression treated as offensive by non-impartial addicts. Good personnel officials maintain awareness of relevant professional writings. Briefly, he says smoking is listed in the Diagnostic and Statistical Manual of Mental Disorders, 3d. ed., 1980, pages 159-160, 176-178; revised 1987, pages 150-151, 181-182. He cites the literature on smoking as a gateway drug to other drug use, and its relationship to and role in alcoholism, discipline and drug abuse problems. Keeping current on personnel issues is what personnel officials of his grade are supposed to do. -25- Mr. Pletten is a personnel official, part of management. Rankin, 483 U.S. at 384 balances interest in freedom of speech and employee interest in maintaining efficiency and discipline. Mr. Pletten and the employer have an identity of interest. He does what personnel officials are to do: quote, express, support the employer's own writings and rules (even if offenders disagree).13 ____________________________ 13In N.F.F.E. v. Cheney [280 US App DC 164], 884 F.2d 603 (C.A.D.C. 1989) [cert den 493 US 1056; 110 S Ct 864; 107 L Ed 2d 948 (1990)], "The Army argued that compulsory [drug] testing was justified by compelling governmental interests in the safety, security, and integrity of its workforce" (607). "The Army's compelling interest in preventing drug use . . . carries a collateral interest in ensuring effective detection." (614). Drug users' views (typical of TACOMers doing the enforced leave, removal, and retirement) are reported at 608, n. 7, as opposing use of Supreme Court precedent on the grounds it lacks "'reasonableness,'" the same objection nade to Mr. Pletten's reliance on 5 U.S.C. 7902(d) and 32 C.F.R. 203.3 incorporation of safety as a condition precedent. The drug problem, a smoker problem to which nonsmokers are virtually immune, is compounded when expression of data from professional writings results in enforced leave, removal and retirement. -26- Texas, 491 U.S. ____, 109 S.Ct., 2545, 105 L.Ed.2d, 360, again rejects acts to "prescribe what shall be orthodox." At TACOM, it is not "orthodox" to express the hazard and smoking's role in discipline, alcoholism, and drug-abuse problems. Col. Benacquista gives the addict view of law: "It doesn't make sense to have a Command getting involved in the personal habits of its employees" (Dep. p. 25) Addicts feel compliance is unreasonable.14 ____________________________ 14Safety is "above all other considerations," as "Congress itself defined," Am.Tx. Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981). This court rejected duplicative balancing. 5 U.S.C. 7902(d) does not have limiting words as did the law there. "A workplace cannot be just 'reasonably free' of a hazard.'" Nat'l. Rlty. & C. Co., Inc. v. Occ. S. & H. R. Com'n., 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973). Addicts usurp the role of medicine to label expression (quoting rules and courts) a "medical condition" though "The danger cigarettes . . . pose . . . threatens a substantial body of the population, not merely a peculiarly susceptible fringe group." Banzhaf v. F.C.C., 132 U.S.App.D.C. 14, 29, 405 F.2d 1082, 1097 (1968). [Pursuant to their deleterious ingredients, they are illegal under Michigan law MCL 750.27, MSA 28.216.] Deciding a "medical condition" is a medical function. Medicine has not defined [freedom of] expression on rules as a "medical condition." -27- F. THIS CASE PROVIDES THIS COURT WITH AN OPPORTUNITY TO REITERATE THE DUTY OF IMPARTIALITY. Addicts misrepresent Mr. Pletten's pro-rule expression as asking accommodation for himself, not halt of their unlawfully granted accommodation. 29 U.S.C. 706(7)(B). Pursuant to Morton, 415 U.S. 199, no secret law can make pro-rule expression an accommodation request. Talking for rules is what personnel officials do; non-addicts reply with obedience; addicts reply with ad honinem attacks. Smoking is the recognized medical condition, not nonsmoking. Addicts are not impartial so misrepresent who has the "medical condition" to accommodate. "A fair trial in a fair tribunal is a basic requirement of due process. . . . Chief Justice Marshall in 1 Burr's Trial 416 (1807) [distinguishes] light impressions which may fairly be supposed to yield to the testimony [from] 'these strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; -28- which will combat that testimony and resist its force, do constitute a sufficient objection to him.'" U.S. v. Blanton, 719 F.2d 815, 830, n. 3 (6th Cir. 1983). Drug addiction is a closed mind, a formed opinion, to use a drug despite even voluminous evidence. TACOM drug users "identify offense to self with obstruction to law." Offutt v. U.S., 348 U.S.11, 13 (1954). Treating Mr. Pletten's expression as "offense to self," TACOM addicts gave no "medical condition" basis for putting him on enforced leave (retroactively). App. R, 62a. TACOM's own Dr. Holt refutes it: "Medically disqualified? We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working" (Holt Dep. p. 10). "And there's a hazard for all these other people. Isn't that also true? Yes. Yes. Have you been asked— People smoking in their vicinity is hazardous to them. Have you been asked for medical disqualification for any of those other people [named]? No." (Holt's 5/23/82 Dep. p. 42.) A counselor will find that said others -29- similarly situated were not put on LWOP nor accused in "medical condition" or accommodation terms. Non-impartiality invokes Offutt as S.E.C. v. Chenery, 332 U.S. 194, 196 (1947), says review "must judge the propriety of [agency] action solely by the grounds invoked by the agency." TACOM addicts gave no reason. Note addict view of law (Col. Benacquista Dep., p. 25) "It doesn't make sense to have a Command getting involved in the personal habits of its employees" combined with the refusal to implement the 2/15/80 order (App. T, 70a) as EEOC found (App. O, 42a) and the refusal to begin administrative review: a pattern. "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the [non-compliance] policy was in force, was made in pursuit of that policy." Teamsters v. U.S., 431 U.S. 324, 362 (1977). Addict views are strong, deep, resistant to change, not impartial, and permeate all the ad hominem decisions. -30- G. THIS CASE RAISES THE IMPORTANT FEDERAL QUESTION OF THE USE OF SPURIOUS FINDINGS OF FACT. This court does "enforce constitutional liberties even when denied through spurious findings of fact in a state court" (citation omitted). Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 299 [61 S Ct 552; 85 L Ed 836] (1941). Ed. Note: Government lying to win cases is a common pattern. "It should . . . . make you more suspicious of all legal and judicial institutions. Trust no one in power, including — especially — judges. Don't take judicial opinions at face value. Go back and check the transcript [record]. Cite-check the cases. You will be amazed how often you will find judges 'finessing' the facts and the law. Too often, legal observers take as a given judges' intellectual honesty."—Prof. Alan M. Dershowitz, Letters to a Young Lawyer (Basic Books, 2001), p 11. P 80 notes that pro-government lying is common, rampant. For more on judges lying, falsifying, so as to "reach" a pre-determined decision, see, e.g., Malcolm B. E. Smith, "Concerning Lawful Illegality," 83 Yale Law J. 1534 (1974) Malcolm B. E. Smith, "May Judges Ever Nullify the Law?," 74 Notre Dame L.R. (#5) 1657-61 (June 1999) Malcolm B. E. Smith, "Do Appellate Courts Regularly Cheat?," 16 Crim. Jus. Ethics 11-19 (2, Summer/Fall 1997) Sanford H. Kadish and Mortimer R. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford, CA.: Stanford Univ Press, 1973). A lawyer with a “reputation . . . for truth and veracity . . . so notoriously bad that [he / she is] not to be believed under oath” (so surely, in decisions) is to be disbarred, not be a lawyer anymore, says the Michigan Supreme Court, In the Matter of Mills, 1 Mich 392, 398 (1850). To conceal the foregoing pattern of misconduct, spurious findings of fact were made. (1) To conceal [divert attention off] the 1 April 1981 application by E. E. Hoover, to prevent review by a counselor that would show it as invalid ab initio, a spurious [criminally false] finding of fact, App. B, 4a, says Mr. Pletten after 24 Oct. 1984 and before Sep. 1985 "then filed an application for disability retirement." OPM had none from him on 18 Oct. 1985. That day its claims examiner asked that he "complete . . . the attached Application." App. J, 25a. Lest Mr. Pletten be accused of applying, he refused. Ed. Note: The CA 6 lie, decision p 4, constitutes criminal mail fraud as part of the agency's continuing criminal enterprise crimes. The claim was bribery- or hallucination- induced. Note criminal investigation by Officer Scott Szekely. Lawyers and judges know for verifying a document, it must (a) exist, (b) be vouched for under examination or testimony (such as via voir dire), and (c) be entered into the record as an Exhibit. As no such document as alleged exists nor existed, nor was entered into the record, as the judges well knew, none of this process had occurred. Significantly, the judges cite no exhibit number, transcript reference, or other evidence for their fabricated claim. See also the rebuttal of the CA 6 lie by Dr. Silas Cardwell, M.D. the then rule, 5 CFR § 831 now § 831.1206(a), specifying that an applicant “must submit to OPM the following forms included in Standard Form 2824 . . . 2824A . . . 2824B . . . 2824C . . . 2824D . . . 2824E,” etc., which documentation package the whistleblower refused to "submit" despite the embezzlement of pay attempting to extort him to do so psychiatric background data on mental disorder reasons false claims are made, in context of the TACOM/MSPB pattern of false claims in Pletten's case. TACOM, having successfully lied / bribed in Pletten's case, to get Pletten out, proceeded to do likewise with another employee, James McKelvey, an Iraq War veteran. With him, TACOM said he ought to get another job. See article listing on his case. TACOM got away with lying in Pletten's case, so repeat their bad behavior against Sgt. McKelvey. -31- (2) A spurious finding of fact says the Dec. 1980 enforced LWOP arose "because TACOM could not 'reasonably accommodate'" Mr. Pletten. App. B, 3a. TACOM disobeys 5 U.S.C. 7902(d) on the universal malice hazardous conduct. It accommodates smokers (a distinct issue other than accommodating Mr. Pletten). Col. Benacquista admits: "All he [Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants.'" (4/23/82 Dep. p. 62). Against interest, Mr. Pletten's supervisor Carma Averhart (4/23/82 Dep., p. 73) denies considering accommodation: “Well, I don't believe the question was what can we create but that it is what we can work with that exists here. “Well, how do you define reasonable accommodation? “I haven't really thought about defining reasonable accommodation.” “Did you consider Mr. Pletten handicapped? “I don't know. I don't really think of it in that sense.” (Dep. p. 73). That, not compliance with 5 U.S.C. 7902(d), etc., not accommodation, was -32- “the sequence leading up to, I guess, the time when the suspension came about—” (Benacquista, Dep., p. 47). (3) He says “suspension.” To evade allowing review of it, imposed without a 5 U.S.C. 7513(a) and (b)(l) advance notice, a spurious finding says enforced LWOP, not the statutory precise word "suspension." (4) The spuriousness avoids saying the Dec. 1980 LWOP notice was retroactive, not issued till 4 Aug. 1981. App. R., 63a. (5) It is a spurious finding of fact to say it was plaintiff's physician who "required that plaintiff be provided a work environment totally free from tobacco smoke." (App. B, 3a). Col. Benacquista shows that is spurious: "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [Pletten's] present work space was not reasonably free of contaminants." (Dep. p. 24). For a doctor to repeat Army's own hazard admissions is no authorization of LWOP.   5 C.F.R. 831.1206 (1980) and TACOM -33- Reg. 600-5, Secs. 14-27, 14-28.a and d. each independently preclude it. (6) Smoking is not "environment," it is behavior, conduct; Col. Benacquista says "personal habits" (Dep. p. 25). Avoiding saying those words avoids saying it is not in "the requirements for any position," 5 U.S.C. 2302(b)(6), nor published as such, 5 U.S.C. 552(a)(l). No examining physician ever says repeating Army's admission of hazardous conduct means that Mr. Pletten should be on LWOP. (7) Doctors do not "require" workers to behave safely; Congress does. 5 U.S.C. 7902(d) says "eliminate work hazards and health risks." Smoking poses "grave health risks," Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988). Congress says "eliminate" same at "work." (8) None of the different dates of Apps. I, 24a, H, 23a, and G, 21a, match official records of TACOM Payroll Office. -34- Spurious findings are "ante-dated [fabricated claims] to make them appear as if they were genuine," as in the unprofessional conduct case of In re Ryman, 394 Mich. 167, 176 (1975). Against such antedating, tantamount to forgery of retroactive reasons, the "'legal system [and Mr. Pletten] is virtually defenseless,'" Matter of Grimes, 414 Mich. 483, 494 (1982). "An [employee] is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [he] learns the exact nature of [claims] only after the [decision]," National Rlty, 160 U.S.App.D.C., 143, 489 F.2d, 1267. Absence of a 5 U.S.C. 7513(b)(l) notice of the said claims is fraud. "'Fraud which . . . prevents [Mr. Pletten] from presenting an available defense [is] a proper ground for equitable relief against the judgment,'" New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 519 (1956). That in turn relied on Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). -35- It is bad policy for a federal court to do what Meadowmoor Dairies, 312 U.S., 299 [61 S Ct 552; 85 L Ed 836], shows unacceptable by state courts. As equitable relief would obtain, it promotes judicial economy to grant this petition, thus obviate need to seek equitable relief. Granting this petition will in turn result in a remand (a) halting the usurpation of the counselor role by (b) ordering administrative review to begin. When it begins, the counselor will see the spurious nature of App. B. claims. App. B. claims will not be repeated in administrative proceedings under oath; respondents will not testify to the spurious facts in App. B. They know that testifying to spurious facts would forthwith result in perjury charges. This Court should "enforce constitutional liberties even when denied through spurious findings of fact." Meadownoor Dairies, 312 U.S., 299. Ed. Note: See bribery - hallucination - mail fraud data, supra. (Bribery is used by tobacco pushers, see article, "Traders Offer Bribe to Stop Anti-Smoking Campaign"). And see also the case of the bribed sheriff, U.S. v Sheriff Goins, 593 F2d 88 (CA 8, 1979), bribed to not enforce cigarette law the State Bureau of Cigarette and Beverage Taxes, U. S. v Frumento, 409 F Supp 136 (ED Pa, 1976), affd 563 F2d 1083 cert den 434 US 1072; 98 S Ct 1256; 55 L Ed 2d 775 cert den 434 US 1072; 98 S Ct 1258; 55 L Ed 2d 776, wherein the agency constituted an "enterprise . . . the activities of which affect interstate or foreign commerce," within meaning of 18 USC 1962 wherein employee was bribed as part of a cigarette-smuggling conspiracy). “The U.S. government, through the CIA, disburses tens of millions of dollars each year in cash bribes. Bribery is a standard operating technique of the U.S. government, via the CIA, but it is a criminal offense for U.S. businesses,” says long-time CIA Agent John Stockwell, In Search of Enemies: A CIA Story (New York: W.W. Norton & Co, Inc., 1978), p 246. See also University of Wisconsin Professor Alfred W. McCoy, The Politics of Heroin (NY: Harper and Row, 1972), reported government (e.g., CIA, Pentagon) role in drug smuggling. Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (New York: W. W. Norton, 1987) cited, as a Wall Street Journal investigative reporter—and biographer of Pope John Paul II—examples of government officials (Pentagon military, etc.), smuggling drugs into the U.S. and taking action against those rare honest government agents who wanted to halt the drug smuggling. The U.S. Army would take investigators of drug trafficking who caught "seniors" in the military, off that duty, and put them on combat duty! Michael Levine, a retired Drug Enforcement Agency agent, in The Big White Lie (NY: Thunder's Mouth Press, 1993), cited official undermining of the war on drugs, making it an "illusion." The San Jose Mercury News (California) had a series of articles in August 1996, on CIA complicity in drug smuggling. For example, see the article by Gary Webb, "Shadowy origins of 'crack' epidemic: Role of CIA-linked agents a well-protected secret until now" (19 August 1996). Rodney Stich, Defrauding America and Drugging America: A Trojan Horse (federal inspector-investigator data on CIA, DEA, Pentagon, etc., drug smuggling) Peter Dale Scott and Jonathan Marshall, Cocaine Politics: Drugs, Armies, and the CIA in Central America (1998) (cart) (" the issue of the intelligence agency's connections to drug trafficking, initially brought to light during the Vietnam War and then again by the Iran-Contra affair. This text shows that under the cover of national security and covert operations, the US government protected major international drug traffickers.") Alexander Cockburn and Jeffrey St. Clair, Whiteout: the CIA, Drugs and the Press ( Verso Books, 1 August 1998) (a chronicle of ties to drug runners, from World War II through the Contra Wars and the Taliban in Afghanistan: "A shocking expose of the CIA's role as drug baron, White-Out surveys the violent storm provoked by a series of articles written by Gary Webb for the San Jose Mercury News which charged the agency [CIA] with smuggling cocaine into the U.S. for the purpose of undermining the youth in black urban neighborhoods.") Robert Parry, Lost History: Contras, Cocaine, the Press & 'Project Truth' (Media Consortium, 1999) (Review) (the CIA was "engaged in direct support to a band of contras characterized by drug-running, money-laundering, corruption, rape, torture, routine murders, and perhaps worse of all, total incompetence and ineffectiveness.") William L. Marcy, Ph.D., The Politics of Cocaine (Lawrence Hill Books, 2010) (" takes a hard look at the role the United States played in creating the drug industry that thrives in Central and South America. . . . the United States helped establish and strengthen the drug trade as the area's economic base. Increased militarization, destabilization of governments, uncontrollable drug trafficking, more violence, and higher death tolls resulted. Marcy explores how the counternarcotics policies of the 1970s collapsed during the 1980s when economic calamity, Andean guerrilla insurgencies, and Reagan's anti-Communist struggle with Nicaragua and Cuba became conflated as part of the War on Drugs. The book then explores how the U.S. invasion of Panama and narcotics related violence throughout Andean region during the 1990s led to the militarization of the War on Drugs as a way to confront narcotics production, narco-traffickers, and narco-guerrillas alike. Marcy brings to the reader up to the end of the Bush administration and explains why to this date the United States remains unable to control the flow of cocaine into the United States and why the War on Drugs appears to be spiraling out of control. The Politics of Cocaine fills in historical gaps and provides a new and controversial analysis of a complex and seemingly unsolvable problem.") See also related background. -36- CONCLUSION Tobacco is a gateway drug. It is bad policy to put on LWOP, fire, or retire personnel officials for their freedom of expression on rule enforcement on gateway drug users. This case is an ominous sign of what happens when a dangerous drug is [purportedly] legalized [see MCL § 750.27, MSA § 28.216]. Tobacco drug use was widely illegal; this Court upheld that. Annot, 20 A.L.R. 926 (1922); and Apps. X, 80a-81a, and Y, 82a-84a. Repeal of anti-drug laws in society at large is no license for drug use, dangerous conduct, on the job, nor for ousting those who say job safety rules were not included in the repeal. The government repeatedly seeks court support for more anti-drug rules on the job, while ousting personnel officials like Mr. Pletten who are dedicated, eager, ready, willing and able to work. To be competitive, society needs (a) its workers on the rolls, not ousted for -37- non-impartial personal desires of gateway drug users, and (b) its resources used in production, not drug wars being undermined by gateway drug users. EEOC twice ordered administrative review to begin. This case presents issues of enforcement, due process, court jurisdiction, secret law, job qualifications, freedom of expression, premature judicial decision usurping administrative review, impartiality, and spurious findings of fact. For these reasons, I respectfully request that this Court grant certiorari, adjudicate controlling issues, and remand for administrative review to begin. Respectfully submitted,        Leroy J. Pletten        LEROY J. PLETTEN Petitioner

APPENDIX TABLE OF CONTENTS Page A. Order by the Court of Appeals Denying Petition for Rehearing 9 February 1990 1a B. Opinion of the Court of Appeals 14 December 1989 2a C. Order by the District Court Granting Defendant MSPB's Motion to Dismiss 25 October 1988 11a D. Order by the District Court Denying Plaintiff's Motion to Strike Defendant MSPB's Motion to Dismiss 25 October 1988 12a E. Bench Opinion by District Court from Transcript Pages 21-22 24 October 1988 13a F. Right to Sue Letter by EEOC Petition No. 03880067 23 May 1988 14a G. Decision by OPM Claims Examiner Docket No. 3 559 363 3 June 1987 21a H. Decision by OPM (Unsigned) Docket No. 3 559 363 25 July 1986 21a I. Decision by OPM Claims Examiner Docket No. 3 559 363 25 June 1986 24a Appendix Table of Contents (cont'd.) Page J. Decision by OPM Claims Examiner on Army Application Docket No. 3 559 363 18 October 1985 25a K. Notice by OPM Assistant Director for Standards Development 30 January 1984 27a L. Decision by EEOC Request No. 05820275 4 March 1983 29a M. Decision by Michigan Employment Security Board of Review (MESBR) Denying Army Application for Rehearing, Appeal Docket No. B81-09032-RO-1-79856 22 June 1982 36a N. Decision by MESBR, Appeal Docket No. B81-09032-RO-1-79856 14 May 1982 38a O. Decision by EEOC Docket Nos. 01800273 et al. 23 February 1982 40a P. Order by Army Disqualifying Pletten 22 January 1982 58a Q. Order by MESC Referee Denying Army Application for Rehearing Appeal No. B81 09032R01 2 September 1981 60a R. Order by Army of Retroactive Enforced Leave Without Pay 4 August 1981 62a Appendix Table of Contents (cont'd.) Page S. Decision by Michigan Employment Security Commission (MESC) Referee, Appeal No. B81 09032 30 July 1981 64a T. Order by TACOM Accepting Army USACARA Report 15 February 1980 70a U. Order by Army Waiving Qua1ifications 18 September 1977 72a V. Order by Army Appointing Crime Prevention Officer 19 November 1976 74a W. Citations to Hazard/Drugs 75a X. A.L.R.s on Tobacco 80a Y. Supreme Court Tobacco Citations 82a -1a- APPENDIX A NO. 88-2196 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEROY J. PLETTEN : Feb 9 1990 Plaintiff-Appellant : vs. : ORDER CONSTANCE HORNER, ET AL., : Defendants-Appellees : This matter is before the court upon consideration of the appellant's petition for rehearing of the court's December 14, 1989 opinion affirming the decision of the district court. Having carefully examined the petition and the record, the court finds it misapprehended no question of law or fact in its December 14, 1989 opinion. It is ORDERED that the petition for rehearing be and hereby is denied. ENTERED BY ORDER OF THE COURT Leonard Green, Clerk /s/ Leonard Green -2a- APPENDIX B No-88-2196 [891 F2d 292, 1989 US App LEXIS 20088] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT December 14, 1989 LEROY J. PLETTEN, Plaintiff-Appellant, v. ON APPEAL FROM THE UNITED STATES DISTRICT CONSTANCE HORNER; COURT FOR THE EASTERN JOHN O. MARSH; DISTRICT OF MICHIGAN MERIT SYSTEMS PROTECTION BOARD, _____Defendants-Appellees._____ BEFORE: JONES and RYAN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge. RYAN, Circuit Judge. Plaintiff LeRoy J. Pletten appeals the district court's judgment dismissing his Title VII civil rights action for lack of subject matter jurisdiction. We affirm. I. Plaintiff Leroy Pletten was hired as a civilian employee of the United States (No. 88-2196) -3a- Army Tank-Automotive Command ("TACOM") on August 26, 1969. On December 14, 1980, TACOM placed the plaintiff on leave without pay because TACOM could not "reasonably accommodate" plaintiff's medical condition which, according to plaintiff's physician, required that plaintiff be provided a work environment totally free from tobacco smoke. Plaintiff appealed that action to both the Merit Systems Protection Board ("MSPB") and the Equal Employment Opportunity Commission ("EEOC") [evidencing TACOM refusal to inform him of his review forum option]. Plaintiff currently has two related cases on appeal to this court. The MSPB held that plaintiff was not a "qualified handicapped person" under the terms of 29 C.F.R. § 1613.702 which requires employing agencies to accommodate persons with certain conditions of handicap. The MSPB also held that (No. 88-2196) -4a- providing the smoke free work environment required for plaintiff would not be reasonable accommodation because it would impose an unreasonable burden on TACOM's operation. Therefore, on October 24, 1984, the MSPB upheld plaintiff's enforced leave status and TACOM's removal action. See Pletten v. Department of the Army, 23 M.S.P.R. 682 (1984). Plaintiff then filed an application for disability retirement which was rejected by the Office of Personnel Management ("OPM"). In September 1985, the MSPB reversed that rejection and, in October 1985, the OPM approved plaintiff's disability retirement application. On August 10, 1987, plaintiff filed a petition for enforcement, claiming that OPM erred in determining the beginning date of the disability. The MSPB Regional Office denied plaintiff's petition for (No. 88-2196) -5a- enforcement on September 30, 1987. The Administrative Law Judge held that statutory provisions require "the day after separation from the service or the day after pay ceases" to be the disability commencement date. See 5 U.S.C. § 8345 (b) (2) (B). OPM had listed December 14, 1980 instead of the correct commencement date of December 15, 1980. The judge found the discrepancy to be minimal and insufficient to support a finding of noncompilance. Plaintiff's petition for review was denied by the MSPB on January 29, 1988. That order notified plaintiff that he could petition the United States Court of Appeals for the Federal Circuit to review the MSPB's decision and that such a petition must be received by the court within thirty days. Instead, on February 26, 1988, plaintiff filed a petition for (No. 88-2196) -6a- review with the EEOC. EEOC regulations allow review of an MSPB decision on issues of prohibited discrimination where the petitioner raises allegations of discrimination before the MSPB. The EEOC concluded that plaintiff's petition for review of the MSPB's order denying plaintiff's enforcement petition was not within the EEOC's review jurisdiction because the enforcement petition raised no issue of discrimination, and the EEOC's review jurisdiction is limited to "matters"s involving allegations of discrimination." Accordingly, the EEOC issued a Denial of Consideration on May 23, 1988. On June 22, 1988, plaintiff filed this action pursuant to Title VII of the Civil Rights Act of 1964. The acts alleged by plaintiff in his complaint are the same acts he alleged in his action (No. 88-2196) -7a- before the MSPB. Defendants have characterized plaintiff's lawsuit as a "Title VII" complaint seeking review of a final order of the [MSPB]," a characterization with which the district court apparently agreed. In due course, the district court granted defendants' motions to dismiss plaintiff's complaint, finding that the court lacked subject matter jurisdiction. Plaintiff appeals. II Federal subject matter jurisdiction presents an issue which may be raised by the parties or by the court at any time. Enrich v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988); Fed. R. Civ. P. 12(h)(3). This court conducts a de novo review of a lower court's decision regarding subject matter jurisdiction. Bright v. Bechtel Petroleum, Inc., 780 F.2d 766 (9th Cir. [missing] (No. 88-2196) -8a- Plaintiff's brief presents, to say the least, a rambling, confused, and disorganized recitation of the facts of this case and the plaintiff's theory of entitlement to Title VII relief. It is clear, however, that plaintiff has filed numerous lawsuits concerning smoking in his work environment. In related cases, plaintiff has petitioned for review by the EEOC and the United States Court of Appeals for the Federal Circuit. It is not clear why plaintiff chose to file a Title VII action in this case in order to appeal the decision of the MSPB. Appellate review of final MSPB orders is governed by 5 U.S.C. § 7701-7703. Jurisdiction depends on whether the claims raised before the MSPB included assertions of discrimination. If discrimination issues are not involved, exclusive (No. 88-2196) -9a- jurisdiction for review of a final order of the MSPB rests with the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b) (1). In this case, the order to be reviewed concerns the effective date of plaintiff's disability retirement, the sole issue raised in plaintiff's petition for an enforcement order. The Administrative Law Judge defined the issue in the initial decision of the MSPB: Review of the appellant's pleadings reveals that he wishes to use the Board's enforcement procedure as a forum to continue his effort to ban smoking from his former employing agency, the United States Army Tank-Automotive Command (TACOM) in Warren, Michigan. Although the appellant cites a plethora of cases allegedly supporting his effort, these cases are neither relevant nor material to the issue presented by his petition for enforcement. The issue here is whether OPM has selected the correct date for the commencement of the appellant's retirement annuity. (No. 88-2196) -10a- As we have said, the EEOC refused to consider plaintiff's petition for review because his petition failed to raise any discrimination issues. Plaintiff's allegation on appeal that his case concerns discrimination claims does not suffice to avoid the exclusive provision of 5 U.S.C. § 703(b) (1). See, e.g., Edwards v. Weinberger, 688 F. Supp. 203 (E.D. Va. 1987). Since plaintiff's appeal does not concern claims of discrimination, exclusive appellate jurisdiction rests with the United States Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. S 7703(b) (1). The district court correctly determined that it lacked subject matter jurisdiction, and we AFFIRM its judgment dismissing the complaint. -11a- APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN LEROY J. PLETTEN Civil Case No. Plaintiff 88CV72571DT v. Judge: Ralph Freeman CONSTANCE HORNER, ET AL., Defendants. _________________________________/ ORDER Upon consideration of the motion to dismiss of the defendant Merit Systems Protection Board, it is this the 25th day of October, 1988, ORDERED that the motion should be and hereby is GRANTED; and it is further ORDERED that the plaintiff's complaint be dismissed. /s/ Anna Diggs Taylor ANNA DIGGS TAYLOR United States District Judge -12a- APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN LEROY J. PLETTEN Civil Case No. Plaintiff 88CV72571DT v. Judge: Anna Diggs Taylor CONSTANCE HORNER, ET AL., Defendants. _________________________/ ORDER Upon consideration of the motion to strike of the plaintiff, it is this the 25th day of October, 1988, ORDERED that the motion should be and hereby is DENIED; and it is further ORDERED that the plaintiff's motion to strike is denied. /s/ Anna Diggs Taylor ANNA DIGGS TAYLOR United States District Judge -13a- APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN BENCH OPINION          Oct. 24, 1988 LEROY J. PLETTEN, Civil Case No. Plaintiff, 88CV72571DT v. Judge: Anna Diggs Taylor CONSTANCE HORNER, ET AL., DEFENDANTS. TR 21-22 _________________________/ THE COURT: Thank you. For the reasons argued and fully briefed by the government here, the Court is going to grant the motion of the defendants and dismiss the case. It is clearly not a matter of which this Court has jurisdiction, and it appears to the Court that it would not well serve the judicial resources of the country to transfer it to the Federal Circuit Court of Appeals. The motion to dismiss is granted. There is an order here that I'm signing which she can take to be trued. Let's have a 10-minute recess. -14a- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Review and Appeals 5203 Leesburg Pike, Suite 900 Falls Church, Virginia 22041 Leroy J. Pletten, ) Petition No. Petitioner, ) 038100877 ) v. ) MSPB No. ) CH831L85C0424 Constance Horner ) Director, Office of ) Personnel Management, ) Agency. ) ________________________________ DENIAL OF CONSIDERATION On February 26, 1988, Leroy J. Pletten (hereinafter referred to as petitioner) timely initiated a petition for review by 1 ____________ 1Petitioner originally filed his petition for review on February 26, 1988. His petition was inadvertently returned to him, with some other documents, rather than being properly docketed. Petitioner resubmitted his petition on March 14, 1988 when he determined that it had been overlooked. Accordingly, the Commission finds that the proper filing date was February 26, 1988. -15a- the Equal Employment Opportunity Commission (EEOC) of a final order of the Merit Systems Protection Board (MSPB) issued on January 29, 1988. The MSPB's final order was made in connection with a petition for enforcement filed with the MSPB by petitioner. The petition for enforcement concerned the proper date for commencement of petitioner's [involuntary] retirement annuity. The instant petition for review is governed by the Civil Service Reform Act of 1978 and EEOC Regulation 29 C.F.R. § 1613.414 et seq. The record indicates that petitioner first [filed an EEO Complaint against the Hoover-filed application, to have it revoked ab initio, but Hoover's accessories refuse to process that case, so to force review via an EEOC forum, petitioner] filed an appeal with the MSPB. In its initial decision on this appeal, the MSPB [ignored petitioner's issue that the Hoover-filed application was void ab initio, and instead] ordered the agency [OPM] to grant petitioner's [Hoover's] application for disability retirement. The initial decision was not appealed [by OPM] and, therefore, became final on October 15, -16a- 1985. In his petition for enforcement filed on August 10, 1987, petitioner asserted that the agency [OPM, pursuant to TACOM's many different alleged dates, each selected without due process] selected [multiple dates, finally] an incorrect date for the commencement of his retirement annuity. Petitioner's petition for enforcement was denied by the MSPB. The MSPB noted that petitioner was using "the Board's enforcement procedure as a forum to continue his effort to ban smoking. . . ." Petitioner now petitions EEOC to review the [the real issues, the void-ab initio application, the denial of due process, as distinct from] MSPB's denial of his petition for enforcement. Petitioner's petition for enforcement did not raise any issues of discrimination. Moreover, petitioner was properly not advised in the rights included in the MSPB'a decision that he had a right to petition the EEOC for review. EEOC Regulation 29 C.F.R. § 1613.414(a) provides that a petition for -17a- review of an MSPB decision on issues of prohibited discrimination may be filed by an individual who has been before the MSPB with a matter involving allegations of discrimination. Petitioner's petition for enforcement raises matters which are not within the Commission's jurisdiction for petitions for review. Under these circumstances, the Commission is precluded from consideration of this petition. STATEMENT OF PETITIONER'S RIGHTS RIGHT TO FILE A CIVIL ACTION This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. However, you have the right to file a civil action in the appropriate United States District Court, based on the decision of the Merit Systems Protection Board, WITHIN THIRTY (30) DAYS -18a- of the date that you receive the Commission's decision. See 29 C.F.R. § 1613.421(c) and (d). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2). If any of your claims of discrimination were based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 633a), -19a- as amended, AS TO THOSE CLAIMS ONLY, you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. § 633a(f); and 28 U.S.C. § 2401(a). RIGHT TO REQUEST COUNSEL If you decide to file a civil action and do not have or are unable to obtain the services of an attorney to act on your behalf, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794c, as amended, you may request that the Court appoint an attorney to represent you. The Court may, in its discretion, appoint an attorney to represent you and may also permit you to file the civil action without the payment of fees, costs or -20a- security. If you want to request appointment of an attorney, your request must be FILED WITH THE COURT WITHIN THE TIME LIMITS FOR FILING A CIVIL ACTION, discussed above. FOR THE COMMISSION: MAY 23, 1988 /s/Delores L. Rozzi DELORES L. ROZZI, Director Office of Review and Appeals -21a- APPENDIX G United States Office of Personnel Management Civil Service Retirement System Washington, D.C. 20415 CSL: SJM JUN 3 1987 CSA Leroy J. Pletten Leroy J. Pletten 8401 18 Mile Rd. 29 Sterling Hts., MI 48078 We have changed your commencing date of your civil service annuity to 12-14-80 (the day after your pay ceased). Please see attached statement. /s/ S. McAllister S. MCALLISTER Claims Examiner Post Adj. Section O-SL -22a- APPENDIX H United States Office of Personnel Management Civil Service Retirement System Washington, D.C. 20415 CSL: SRA 7.25.86 CSA 3 559 363 Mr. Leroy J. Pletten 8401 18 Mile Rd. 29 Sterling Hts, MI 48090 YOU CANNOT CONTINUE YOUR BASIC LIFE INSURANCE Basic Life Insurance under the Federal Employees' Group Life Insurance Program continues into retirement only for those who retired on an immediate annuity and had life insurance throughout the 5 years of service immediately preceding retirement, or throughout the full period or periods of service during which life insurance was available (if fewer than 5 years). You are not eligible for the reason checked below: [ ] Retirement Disallowed. [ ] Non-Immediate Annuity (Annuity did not -23a- begin within 1 month of your separation). [X] Did not have insurance for the full period(s) it was available or for the 5 years immediately preceding retirement. Date of Date Elected Date Insurance Retirement Insurance Became Available 1.22.82 3.23.81 08.04.69 Eff 4.01.81 [X] MSPB disability retirement approval effective on 1.23.82 If you want to convert Group Life Insurance to an individual policy, then PROMPTLY send this form, together with the original of the enclosed Standard Form 2321, to: Office of Federal Employees' Group Life Insurance, 4 East 24th Street, New York, N.Y. 10010. Mail these within (15) 31 (sic) days of the date of this form OR CONVERSION RIGHTS EXPIRE! Signature [None there] Civil Service Retirement System -24a- APPENDIX I United States Office of Personnel Management Civil Service Retirement System Washington, D.C. 20415 CSL: SRA 6.25.86 CSA 3 559 363 Mr. Leroy J. Pletten Leroy J. Pletten 8401 - 18 Mile Road 29 Sterling Hgts, MI 48078 Dear Mr. Pletten, December 14, 1981 Your annuity begins J-a-n-u-a-r-y 2-3, March of -1-9-8-2, rather than in /\ 1981. A copy of OPM manual computation is enclosed. Copies of Health benefits and life insurance forms are also enclosed. Thank you for your note of appreciation. I sincerely hope you will enjoy your retirement. /s/ S. McAllister S. MCALLISTER Clms. Ex. Disability call-up date is Sept. 1986 -25a- APPENDIX J United States Office of Personnel Management Washington, D.C. 20415 In reply refer to Your reference CSL:SRA:me CSA 3 559 363 Leroy J. Pletten 10.18.85 8401 18 Mile Road 29 Sterling Heights, Michigan 48078 Dear Mr. Pletten: The application filed by your agency for your retirement under the disability provisions of the Civil Service Retirement Law has been approved because total disability for useful and efficient service in your position has been shown by the medical evidence. If you complete item three of Section A of the attached Application for Retirement, and also Section P (or G, as appropriate), you can help us issue your annuity more quickly. The fact that you accept this annuity has no affect on your appeal rights described below, and will provide -26a- you with income while your appeal case is being reconsidered. If you believe that the action taken on the retirement application is not proper, you may request reconsideration of our finding within 30 calendar days after the date you receive this letter. Any request you make should show your name and address (including ZIP CODE), the claim number shown above and the reason for the request for reconsideration. You may submit with your request any additional evidence which you (sic) address indicated below. A copy of the disability retirement reconsideration and appeals procedure is enclosed for your information. Where to File Request: Sincerely,       Office of Personnel Management /s/ S. Austin Compensation S. AUSTIN Chief, Medical Division Claims Examiner Washington, D.C. 20415 Adjudication Division II Enclosure -27a- APPENDIX K United States Office of Personnel Management Washington, D.C. 20415 JAN 30 1984 In reply refer to Your reference Mr. Leroy J. Pletten 8401 18 Mile Road 29 Sterling Heights, Michigan 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 -28a- by OPM that require smoking as a condition of Federal employment. You asked that this include qualification requirements in Handbook X-118 as well as any OPM may have issued or may be using that are not a part of the X-118 system. You also requested that if there are no such requirements that we so state. This office is not aware of any qualifications standards issued or in use by OPM that require the ability to smoke. As a consequence, we cannot fill your request for copies of such material. Sincerely, /s/ Joseph W. Howe Joseph W. Howe Assistant Director     for Standards     Development -29a- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON, D.C. 20506 IN THE MATTER OF THE ) REQUEST TO REOPEN BY ) Request No. LEROY PLETTEN ) 05820275 ___________________________) ACCEPTANCE OF REQUEST TO REOPEN On July 2, 1982, Leroy Pletten (hereinafter referred to as appellant) filed a request with the Equal Employment Opportunity Commission to reopen and reconsider its decision in Leroy Pletten v. Army, Appeal No. 01801850 dated May 18, 1981. EEOC Regulation 29 C.F.R. Section 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Under the Regulation, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written -30a- evidence or argument which tends to meet one or more of the regulatory criteria. The Commission has carefully reviewed appellant's request to reopen its decision and the entire appellate record. Based on this review, the Commission finds that appellant's request does establish one of the regulatory criteria of Section 1613.235. In Docket No. 01801850, the Commission affirmed the agency's rejection of appellant's complaint because it contained identical allegations raised in a previous complaint. Appellant argues that this finding was an erroneous interpretation of fact and that his complaint should be processed. A review of the appellate file shows that the agency's final decision concerns a complaint filed by appellant on July 11, 1980 in which he alleges that the agency had discriminated against him because of his handicap. -31a- According to the counselor's report, the agency had taken certain action to accommodate appellant's condition in February 1980, which he believed to have been inadequate. This allegation was the main thrust of his complaint. The only synopsis of appellant's earlier complaint filed in June, 1980 was revealed in the EEO counselor's report. The counselor indicated that there appellant was complaining about the agency's failure to accommodate his handicap and its action in December, 1979, declaring him unfit and sending him home. The agency's final decision states that this prior complaint was at this time accepted for processing and being investigated. On appeal appellant asserts that the instant complaint although grounded upon the same basis of discrimination, i.e. physical handicap, concerned a separate incident and should have been accepted for -32a- processing. The Commission takes administrative notice of our decision issued February 23, 1982, which includes Docket Nos 01800273, 01810321, 01810322, 01810323, 01810324, 01810555, 01810887, 01811012 and 01812239. Our decision reversed all of these cases on procedural grounds finding that the agency erred in refusing and failing to process appellant's complaints. Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart. -33a- The Commission therefore finds that the agency erred in rejecting appellant's complaint filed July 11, 1980. The agency's final decision is hereby reversed and the case remanded for investigacion in accordance with the applicable EEOC Regulations. The agency may consolidate this case to the extent it is possible with the other complaints referred to above pending before the agency. CONCLUSION Based upon a review of the record and in light of appellant's request to reopen and reconsider our previous decision in Docket No. 01801850, it is thedecision of this Commission to accept appellant's request to reopen. Furthermore, the Commission finds that our previous decision erroneously affirmed the agency's rejection of appellant's complaint and is, by virtue of this decision, reversing the agency's final decision in this matter. -34a- The case is remanded to the agency for further processing as discussed herein. 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 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. NOTICE OF RIGHT TO FILE A CIVIL ACTION Pursuant to 29 C.F.R. Section 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on the Rehabilitation Act claim in the appropriate United States District Court -35a- within thirty (30) days of the 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. FOR THE COMMISSION: 3/4/83 /s/Treva McCall DATE TREVA McCALL Executive Secretary for the Commission -36a- APPENDIX M STATE OF MICHIGAN EMPLOYMENT SECURITY BOARD OF REVIEW In the Matter of the Claim of LEROY J. PLETTEN, Appeal Docket No. B-81-09032-RO-1-79856 Claimant Social Security No. 586-67-6611 DEPARTMENT OF THE ARMY, U.S. ARMY TANK AUTOMOTIVE COMMAND,    Employer ORDER DENYING APPLICATION FOR REHEARING This case is before the Board of Review upon application of the employer for a rehearing by the Board in respect to its decision dated May 14, 1982. The Board of Review, having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied. -37a- IT IS THEREFORE ORDERED that said application shall be and the same is hereby denied. /s/Thomas L. Gravelle Thomas L. Gravelle, Member /s/Harry S. Benjamin, Jr. Harry S. Benjamin, Jr., Member MAILED AT DETROIT, MICHIGAN June 22, 1982 This order will become final unless a written appeal therefrom is RECEIVED by the clerk of the appropriate circuit court on or before July 12, 1982 TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME. TACOM feared the integrity of Macomb County Circuit Court, so did NOT dare appeal. It had shot its last wad, and would focus on corrupting the federal review system, and corrupt its officials at MSPB and in the federal courts. -38a- APPENDIX N STATE OF MICHIGAN EMPLOYMENT SECURITY BOARD OF REVIEW In the Matter of the Claim of LEROY J. PLETTEN, Appeal Docket No. B-81-09032-RO-1-79856 Claimant Social Security No. 586-67-6611 DEPARTMENT OF THE ARMY,    Employer DECISION OF BOARD OF REVIEW This case is before the Board of Review on the appeal of the employer [TACOM] from a Referee's order denying a rehearing. The Board finds that the Referee did not abuse his discretion in issuing such order, and such order is hereby affirmed. A copy of said order issued on September 2, 1981 is attached hereto and by this reference made a part hereof. The Board, having reviewed the Referee's decision in the light of the evidence appearing in the record made prior to the -39a- employer's request for a rehearing, is of the opinion that said decision is in conformity with the law and facts and should be affirmed. A copy of said decision issued on July 30, 1981 is attached hereto and by this reference made a part hereof. The Referee's order denying the employer's request for rehearing is hereby affirmed. The Referee's decision is hereby affirmed. /s/Thomas L. Gravelle Thomas L. Gravelle, Member /s/Harry S. Benjamin, Jr. Harry S. Benjamin, Jr., Member MAILED AT DETROIT, MICHIGAN May 14, 1982 Attachments This decision will become final unless a written request for rehearing or appeal to the appropriate circuit court is RECEIVED on or before     June 3, 1982 TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME. -40a- 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 viola- -41a- tion of Title VII of the Civil Rights Act of 1964, as 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 -42a- include improving the [outmoded] ventilation system of his building, a smoke-free office to work in and prohibiting other employees from smoking 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 -43a- denied EEO counseling and prevented from filing further complaints. As indicated in the Appendix, the agency failed to provide this Commission with several complaint 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, -44a- 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 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 -45a- 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 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., -46a- 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 discrimination against him because of his 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 -47a- 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 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 -48a- 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 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. -49a- § 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 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 -50a- 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 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 -51a- 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 requests to reopen. FOR THE COMMISSION:    FEB 23 1982 /s/Nestor Cruz Date Nestor Cruz, Director Office of Review and Appeals -52a- 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" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" -53a- 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/" -54a- 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 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/" -55a- 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 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/" -56a- 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" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/" -57a- 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 P 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 G     10. Retirement 1 11. [blank] 12. Code 330 Removal 13. Effective Date 01-22-82 14. Civil Service or Other Legal Authority ZLM, AUTH 5 USC 7512 15. From Position Classification Specialist Pos No. DA-905c E 16. GS-0221 17. Grade 12 Step 06 18. Salary $32,955 19. US Army Tank Automotive Command, Warren, MI 48090 Directorate for Personnel Training & Force Development, Civilian Personnel Division, Position and Pay Management Branch 20. [blank] 21. [blank] 22. [blank] 23. [blank] -59a- 24. [blank] 25. Duty Station Warren, Michigan 26. Location Code 26 5110 099 27. Appropriation 722896.N9000 28. Position Occupied 1 29. [blank] 30. Exempt—Fair Labor Standards Act Request No. A-82-1 Forwarding Address: 8401 18 Mile Rd. Apt. 29. Sterling Heights, MI 48078 S47 Reasons for Removal: Medical Disqualification. The Command is not able to provide an absolutely smoke free work environment as required by his personal physician. 31. [blank] 32. [blank] 33. Code AR OO 34. /s/ Barbara Amyetov for AGNES SMITH Supervisory Personnel Clerk (2685) 35. Date 01-12-82 [Ed. Note: Pletten requested review of the removal in Jan 1982; TACOM refused; as of this writing, Feb 2001, its refusal is continuing; review has not yet begun. "Removal" is for disciplinary reasons [e.g., repeated employee misconduct, after repeated warnings and progressive discipline, of which there was none; TACOM realizes that its 'medical disqualification' claim renders the removal void, as a disqualification is not a discipline matter; additionally, as TACOM knows, there is no such medical qualification requirement, not for any job, much less, for any personnel worker job.] -60a- APPENDIX O DEPARTMENT OF LABOR MICHIGAN EMPLOYMENT SECURITY COMMISSION REFEREE DIVISION 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 ORDER DENYING APPLICATION FOR REHEARING This matter came before the Referee upon application of the employer's attorney received on August 19, 1981, for a rehearing by the Referee in respect to the decision dated July 30, 1981, and the Referee having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied. IT IS THEREFORE ORDERED that said -61a- application shall be and the same is hereby denied. /s/Michael Baldwin MICHAEL BALDWIN, REFEREE Mailed at Detroit, Michigan on SEP 02 1981 (Date) IMPORTANT This decision will become final unless a written appeal to the Board of Review is received on or before SEP 02 1981 (Date) To be filed on time, an appeal to the Board of Review must be received by any office of the Commission or the Board on or before the above-indicated date. Information and/or forms for an appeal to the Board of Review may be obtained from the Board or from any Commission Office. The Act also permits an order or decision of the Referee to be appealed directly to the appropriate circuit court if all parties agree to do so by written stipulation filed with the Referee. -62a- APPENDIX R 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 G     10. Retirement 1 11. [blank] 12. Code 460 LWOP NTE 12-13-81 13. Effective Date 12-14-80 14. Civil Service or Other Legal Authority [blank] 15. From Position Classification Specialist Pos No. DA-905c E 16. GS-0221 17. Grade 12 Step 04 18. Salary $34,441 19. US Army Tank Automotive Command, Warren, MI 48090 Directorate for Personnel Training & Force Development, Civilian Personnel Division, Position and Pay Management Branch 20. [blank] 21. [blank] 22. [blank] 23. [blank] -63a- 24. [blank] 25. Duty Station Warren, Michigan 26. Location Code 26 5110 099 27. Appropriation 722896.N9000 28. Position Occupied 1 29. [blank] 30. Exempt—Fair Labor Standards Act Code G in Item 9 indicates employee has elected FEGLI coverage of basic life plus additional opt with 1 times pay. Req. No. A-81-126 31. [blank] 32. [blank] 33. Code AR OO 34. /s/ Robin E. Morosini for AGNES SMITH Supervisory Personnel Clerk (2685) 35. Date 08-04-81 -64a- APPENDIX S 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 -65a- 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. -66a- 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. 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 -67a- 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 -68a- 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 -69a- 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). -70a- APPENDIX T DEPARTMENT OF THE ARMY US Army Tank-Automotive Materiel Readiness Command Warren, Michigan 48090 DRSTA-A 15 FEB 1980 Mr. Leroy Pletten Position and Pay Management Branch Civilian Personnel Division Directorate for Personnel, Training and Force Development US Army Tank-Automotive Materiel Readiness Command Warren, Michigan 48090 Dear Mr. Pletten: 1. Transmitted herewith is the report of findings and recommendations regarding your grievance concerning tobacco smoking and its hazards to your health. 2. I have reviewed the Examiner's report and have accepted the recommendations. In regard thereto, I have directed the following: a. Air content studies of your work area will be conducted by an Industrial Hygienist. -71a- b. After analysis of the data, a determination will be made as to whether your immediate work area constitutes an environment which is reasonably free of contamination. If a determination is made that such an environment is present, periodic air content measurements will be taken to ascertain the stability of that environment. If a determination is made that such an environment is not present, further action will be taken, as required, in addition to the respirator previously provided to you. 3. This decision is final and binding and is not subject to further review within the Department of the Army. FOR THE COMMANDER: /s/John J. Benacquista 1 Incl JOHN J. BENACQUISTA as Colonel, GS Chief of Staff -72a- APPENDIX U 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 $22,48504 19. US Army Tank Automotive Command, Warren, Michigan, Directorate for Personnel Training & Force Development, Civilian Personnel Division, Employee Relations Branch 20. To Position Classification Specialist Job No. DA-905c 21. GS-0221     22. Grade 12 Level 04 23. Salary $22,485 -73a- 24. US Army Tank Automotive Command, Warren, Michigan Directorate for Personnel Training & Force Development, Civilian Personnel Division, Position and Pay Management Branch 25. Duty Station Warren, Michigan 26. Location Code 26 - 5110 - 099 27. Appropriation 2182020 6D-8030 P72000 20113 722896.N9000 AL11978H ALSOO 28. Position Occupied 1 29. [blank] 30. Req. No. AL(S)-117-97 DRSTA-ALS C/L 12-7 FLSA-Exempt Civilian Personnel Career Program Code 002-01-8-3 CPR 950-1.4-8c(4) Qualification requirements waived, surplus employee 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 -74a- APPENDIX V 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 -75a- APPENDIX W Citations to Hazard/Drugs "[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 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 . . . an unmitigated evil." Austin v. State, 101 Tenn. 563, 566-7 (1898), aff'd sub nom Austin v. Tennessee, 179 U.S. 343 (1900). -76a- The 1964 Surgeon General Report lists tobacco chemicals on page 60 at levels in excess of safe limits (years later codified at 29 CFR 1910.1000.Z, examples of which include: Tobacco Chemical P.P.M. Amount Safe Limit "Carbon Monoxide 42,000 100.0" "Formaldehyde 30 5" "Acetaldehyde 3,200 200" "Acrolein 150 .5" "Acetone 1,100 200" "Methyl ethyl ketone 500 250" "Ammonia 300 150" "Nitrogen Dioxide 250 5" "Hydrogen Sulfide 40 20" "Hydrogen Cyanide 1,600 10" "Methyl Chloride 1,200 100 -77a- "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, not merely a peculiarly susceptible fringe group." Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert. den., 396 US 842 (1969). In U.S. National Institute on Drug Abuse ("NIDA") Monograph 17 (1977), then Director, William Pollin, M.D., says at page vi. why NIDA gives "increased priority to" smoking. There are "several reasons: the increasing identification of smoking as a prototypic addiction, the status of smoking as a gateway drug to use of stronger or illicit drugs, and our focus on substance abuse as a generic phenomenon that includes tobacco." 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: -78a- "all drug use is positively correlated with all other drug use, so persons who use tobacco, for example, are more likely to smoke marijuana than those who do not use tobacco . . . . these relationships are quantitative: those who use large amounts of marijuana are more likely to use heroin than are those who use marijuana infrequently, whereas those who have never used marijuana virtually never use heroin at all . . . . many who start with one drug do go on to other drugs. Conversely, decisions not to use a particular drug predict subsequent decisions not to use other drugs in the sequence. . . . Put simply, prevention means stopping the progression of the drug-dependence process at each stage, experimentation, occasional use, regular use, and dependent use." 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." 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. -79a- "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 co-workers who use tobacco. Also, as non-smokers, if we 1ive or work in a smoke-filled environment, we are at higher risk for cancer, cardiovascular and chronic obstructive lung diseases." (emphasis in original) Army Regulation 600-63.4-la. (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." "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). "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). -80a- APPENDIX X A.L.R.s on Tobacco Workmen's Compensation: Compensation to Workmen Injured Through Smoking, 5 ALR 1521 (1920) Liability of Master for Damage to Person or Property Due to Servant's Smoking, 13 ALR 997 (1921) Constitutionality of Anti-Cigarette Legislation, 20 ALR 926 (1922) Smoking As Ground for Expulsion or Suspension of Pupil, 33 ALR 1180 (1924) Liability of Manufacturer or Seller of Tobacco Product for Injury Caused Thereby, 80 ALR 2d 681 (1961). Master's Liability for Injury to or Death of Person, or Damage to Property, Resulting from Fire Allegedly Caused by Servant's Smoking, 20 ALR 3d 893 (1968) Licenses, Validity, Construction, and Application of State Statutes Forbidding Possession, Transportation, or Sale of Unstamped or Unlicensed Cigarettes or Other Tobacco Products, 46 ALR3d 1342 (1972) Leaving or Refusing Employment Because of Allergic Reaction as Affecting Right to Unemployment Compensation, 12 ALR 4th 629 (1982) Right to Unemployment Compensation As affected by Employee's Refusal to Work in Areas Where Smoking Is Permitted, 14 ALR 4th 1234 (1982) -81a- Right of Employee to Injunction Preventing Employer From Exposing Employee to Tobacco Smoke in Workplace, 37 ALR 4th 480 (1985) Civil Liability for Tobacco Sales to Minors, 55 ALR 4th 1238 (1987) Employer's Liability to Employee for Failure to Provide Work Environment Free from Tobacco Smoke, 63 ALR 4th 1021 (1988) Validity, Construction, and Application of Nonsmoking Regulations, 65 ALR 4th 1205 (1988) Pre-Emptive Effect of OSHA, §19[b] Injunction, 88 ALR Fed 833, § 19[b] (1988) -82a- APPENDIX Y 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 & A. R. Co v R. A. Patterson Tobacco Co, 169 US 311 (1898) Gundling v 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) -83a- Townsend v Yeomans, Attorney General of Georgia, 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, Comm'r of Agriculture of Georgia, et al v Hussey, et al, 368 US 297 (1961) United States 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). -84a- 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 Federal Trade Commission, 465 US 1100 (1984) New Jersey v T. L. O, 469 US 325 (1985) California Bd. of Equalization v Chemehuevi Tribe, 474 US 9 (1985) R. J. Reynolds Tobacco Co v Durham County, 479 US 130 (1986) Cipollone v Liggett Group, Inc, 479 US 104 (1987) Liggett Group, Inc v Cipollone, 484 US 976 (1987)

For more background, see the "Motion for Stay." Due to the public significance, the text of the above Petition Narrative was obtained and reprinted by a law information service: 5 Mealey's Tobacco Litigation Reporter (#11) Nov 1990, Appendix C, pp C•1 - C•32. See the multiple prior pleadings below at OPM, e.g., the 27 July 1983 Brief for Return to Duty in Opposition to Agency Application for Approval of Involuntary Disability. The Supreme Court decisions are at: 498 US 805; 111 S Ct 36; 112 L Ed 2d 13 (1 Oct 1990); and 498 US 966; 111 S Ct 427; 112 L Ed 2d 411 (13 Nov 1990). See also related Petition No. 90-5961 (1990) Petition No. 92-5413 (1992).

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.