by Motion for Stay,
Seeking Status Quo Ante Relief
| For background, see the accompanying Petition. |
|
OCTOBER TERM, 1989 No. 89-7594
LEROY J. PLETTEN, vs. CONSTANCE HORNER, Director,
_______________________________ MOTION FOR STAY TO PRESERVE STATUS QUO ANTE _______________________________
-i- TABLE OF CONTENTS
-ii-
Enclosures
-iv-
-v-
Introduction Respondents on 11 July 1990 filed a Waiver of their right to respond. So the Petition by Leroy Pletten is deemed to contain no "misstatements of fact or law." Supreme Court Rule 15.1. The Equal Employment Opportunity Commission (EEOC) twice Ruled in Mr. Pletten's favor, ordering administrative review to begin. Petition, 1, 40a-57a, and 29a-35a. EEOC succinctly explains the essence of what is happening:
This motion requests a stay restoring the status guo ante. The Army and Mr. Pletten had a favorable relationship for years. Mr. Pletten graduated from the University of Minnesota 12 June 1967. Encl. p. 115A. The Army has authority to hire new personnel employees at various pay levels including grade GS-5 (lower pay) and grade GS-7 (higher pay). Due to Mr. Pletten's good qualifications, it hired him 26 August 1969 as a Personnel Management Specialist for the Army Tank-Automotive Command (TACOM) at the higher (GS-7) level. Encl. p. 114A, Block 22. TACOM did the next of many favorable acts toward Mr. Pletten almost immediately. Its Edward Peszko on 6 November 1969 sent a letter of appreciation for his having "contributed immensely in . . . job descriptions." TACOM's Civilian Personnel Officer, Fred R. Goss, felt he "expressed the unwritten feelings of many of our employees." Encl. pp. 111A-113A. The good relationship continued with a pay raise and promotion to Personnel Management Specialist, GS-9, 6 September 1970. Encl. p. 110A. Another promotion came 19 September 1971, to Employee Relations Specialists GS-11. Encl. p. 109A. The Army needs healthy people. Encl. p. 55A [Army Proclamation], bottom. It [the Army says that it] appreciates employees who have perfect attendance and never use sick leave. TACOM began an Employee Recognition Plan in 1971 for employees with low use of sick leave. The first of many letters commending Mr. Pletten on his "excellent sick leave record" as "since your appointment . . . you have used no sick leave" began 3 March 1972 from Col. Benjamin Safar. Encl. p. 108A. John H. Cyrus commended Mr. Pletten 10 November 1972 "for his recent work in the areas of Disability Requests, Debt Complaints and Leave of Absence Requests." Encl. p. 107A. Col. Donald E. Atkinson commended Mr. Pletten 5 March 1973 for having "used no sick leave," a record "which very few attain." Encl. p. 106A. Verna L. Atkinson, a GS-12 supervisor, designated Mr. Pletten supervisor in her absence. Encl. p. 105A. Then TACOM granted Mr. Pletten an award ($185) for his suggestion on prompt action on employee pay. Encl. p. 104A. Mr. Pletten, without a computer background, nonetheless had mastered computer concepts so well as to aid all "Class Act" employees. Civilian Personnel Director W. S. Moyers commended him 27 February 1974 for having "used no sick leave." Encl. p. 103A. TACOM promoted Mr. Pletten 23 June 1974 to Labor Management Relations Specialist, GS-12, Job DA-907. Encl. p. 100A. The job description shows TACOM trusted Mr. Pletten to provide
Soon a letter of appreciation followed, from TACOM's Andrew Cook, in 1974. Encl. pp. 98A-99A. Mr. Pletten advised supervisors well. Supervisor Edward J. Leavy 2 May 1975 commended Mr. Pletten for his having "provided valuable guidance" on "selection criteria" (assessing employees' qualifications). This is significant because supervisors oft
This pleasant surprise for the personnel director (contrasting with what was said of coworkers) is on record:
Encl. p. 97A. Gordon N. Hagin, Mr. Pletten's supervisor, placed this in his Official Personnel File (201 File). Encl. p. 96A. Soon, 3 June 1975, TACOM sent Mr. Pletten a "Certificate of Achievement" for another year not using sick leave, and a letter TACOM issued Mr. Pletten a $50 award 21 July 1975 for a suggestion on prompt action on employee pay. Encl. p. 93A. Mr. Pletten's "flawless record" of never using sick leave was again noted 9 April 1976. Encl. p. 92A. In August, TACOM trusted Mr. Pletten to explain the new sick leave analysis System to "All Directors, Project Managers, and Office Chiefs." Encl. p. 91A. It had him remind managers of their leave administration responsibilities 8 September 1976. Encl. pp. 89A-90A. TACOM's A. C. Strong appointed Mr. Pletten a "Crime Prevention Officer" 19 November 1976. Petition, 74a, repeated herein in original form at Encl. p. 88A. Army's A. C. Strong officially commended Mr. Pletten 5 April 1977 for "superior performance" for having "performed all of his duties in an outstanding manner." Encl. p. 87A. This award, significantly, was accompanied by a pay increase. Encl. p. 86A. Mr. Pletten continued to never use sick leave. Archie D. Grimmett, TACOM's new Civilian Personnel Director, commended him 19 April 1977 for it. Encl. p. 85A. Marie W. Milmine issued him a letter of appreciation 3 June 1977 for his suggestion on deter-mining employees' physical ability to do their job. Encl. p. 84A. For promotion to GS-13 level in personnel work, having more than one GS-12 level job over the years enhances promotability. To enhance Mr. Pletten's, TACOM reassigned him 18 September 1977 to be a Position Classification Specialist, GS-12, Job DA 905e, and went so far as to waive qualification requirements. Petition
As he left his employee relations duties, Mr. Pletten was given a letter of appreciation by the Selfridge Housing Management Division Manager, James Thompson (who had been a prisoner of war in the Korean War). Encl. pp. 79A-80A. As Mr. Pletten had experience with Selfridge while in employee relations, TACOM gave Mr. Pletten classification duties at Selfridge. Soon, its commander. Col. Irving Monclova, sent a letter of appreciation 20 Nov. 1978 (encl. pp. 77A-78A) for his
Supervisor J. H. Kator commended Mr. Pletten 20 February 1979 for further non-use of "over 500 hours sick leave." Encl. p. 76A. Personnel Director Col. Charles D. Phillips commended him for continuing to have "used no sick leave." Encl. p. 75A. The Detroit Full Scale Survey reports to the Department of Defense Wage Fixing Authority. TACOM appointed Mr. Pletten chairman. "A survey the size of Detroit is very demanding." Mr. Pletten immediately improved efficiency. The Department's Regional Representative, Jon Symon, found
Soon thereafter the issues herein came about. Mr. Pletten became a whistleblower. TACOM's Legal Office 19 June 1979 found that pursuant to 5 U.S.C. 7902(d) and 32 C.F.R. 203, Army
The Army affirmed per Army Regulation 600-20.2-1. Encl. p. 69A. Letters of appreciation and awards for Mr. Pletten were stopped, with few exceptions. Joe J. Shumate of Selfridge commended several employees, including Mr. Pletten 17 1979. Encl. p. 70A-71A. As Mr. Pletten continued doing quality work warranting a pay raise, supervisor J. H. Kator courageously issued him a pay raise 15 June 1980 for it. Encl. p. 68A. The facts are stated in the Petition, pages 1 - 9. They are the facts a counselor will find once administrative review begins. Mr. Pletten blew the whistle on TACOM's hazard as
quoted from the Proclamation (Encl. p. 55A) by Secretary of the Army, John O. Marsh, Jr. 1
Army recognition of the smoking hazard (cited in my Petition, 75a,
and 78a-79a) is well-established.
Re the "tobacco problem" role in discipline, alcoholism, and drug abuse, Army USAARL Report No. 86-13 laments:
5 U.S.C. 7902(d) says to "eliminate work hazards and health risks." TACOM was not doing so. The specific hazard, compounded by ventilation system "mechanical failures [which] happen all the time" at TACOM, is admitted by its own staff. Petition, 4. Army tells us to make "reports of unsafe or unhealthful conditions." Petition, 3. Army, wisely, has [on paper] institutionalized whistleblowing. Taking the Army's Rule seriously, Mr. Pletten did so. Petition, 4. Soon Army directed commencement of compliance at TACOM, expressly emphasizing the authority to do so. Encl. p. 69A. TACOM's Col. John Benacquista undermined the Army order. Petition, 5. His doing so was doubly unlawful: -- Compliance is mandatory. Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980). Petition, 5. -- The circumstances constitute extortion. People v. Atcher, 65 Mich. App. 734 [238 NW2d 389] (1975). Agencies, unfortunately, do:
At 231-2, Devine and Aplin report the teaching of
Under the circumstances, defeating Mr. Pletten foreseeably would include misconduct tailored to him and his background:
This [retaliation methodology] is what is taught. This is what we will see: TACOM put Mr. Pletten on enforced leave. Petition, 6, and 62a-63a, repeated herein in original form at encl. p. 66A. The Court of Appeals agrees. Petition, 3a, repeated herein at 12A. As there was no advance notice pursuant to 5 U.S.C. 7513, the Court of Appeals cites none. There was no administrative review. [EEOC found that] TACOM since February 1980 has "denied [refused to allow] EEO counseling" and "prevented [Mr. Pletten] from filing further complaints" seeking review and commencement of counseling. Petition, 42a-43a. TACOM has not provided 29 C.F.R. 1613.403 forum data. Petition, 6. Once [the EEO review process that starts with] counseling begins, a counselor will find the enforced leave was imposed retroactively and in violation of TACOM's own Regulation 600-5.14-27, 28.a., and 28.d, which forbid enforced leave without pay. (Petition, 6).
TACOM's E. E. Hoover applied to retire Mr. Pletten on disability. Petition, 7, 25a. Mr. Pletten requested EEO counseling (administrative review); same has not occurred. No decision by the Associate Director for Compensation has been issued, as in reality, Office of Personnel Management staff rightly say there is no job requirement involved. Petition, 27a-28a, repeated herein in original form at encl. p. 60A. 2 When TACOM applied to retire Mr. Pletten, its having him on enforced leave without pay thereupon became a violation of more than its own local Regulation 600-5.14-27, 28.a., and 28.d.: -- 5 C.F.R. 831.1204(b) (1980) (i.e., without a decision from the Office of Personnel Management's Associate Director for Compensation); and -- 5 C.F.R. 831.1206 (1980), which requires TACOM to
________________________ 2 Neither the federal government nor state agencies have a tobacco requirement. Ends. pp. 22A, 49A-50A, 53A-58A, and 60A. The Court of Appeals failed to give deference to this fact. The Court of Appeals does not assert compliance with any of these Rules, as there was none. Once administrative review begins, an EEO counselor will immediately note the violations and cause the enforced leave to be overturned, i.e., undermine the disability retirement and removal. 3 TACOM removed Mr. Pletten. Petition, 58a-59a, repeated here in original form at encl. p. 62A. There was no 5 U.S.C. 7513 advance notice of "cause" and "specific reasons," i.e., no
During this time, Michigan Employment Security Commission (MESC) ruled four times in Mr. Pletten's favor, upholding his ability to work. Petition, 7, 64a-69a [the decision on merits, repeated herein at 63A-65A], 60a-61a, 38a-39a, and 36a-37a. The Department of Labor ruled for Mr. Pletten also. Encl. p. 59A, alluded to at 5A and 6A, repeating 31A and 48a. Notwithstanding the decisions in Mr. Pletten's favor (by EEOC ordering
administrative processing, and by MESC and the Department of Labor on the
merits of Pletten's ability to do his job duties), TACOM refuses to do what EEOC
ordered.
TACOM refuses to do the 29 C.F.R. 1613.213 et seq. EEO counseling and administrative processing that EEOC ordered. So in order to obtain it, Mr. Pletten filed a complaint in Federal District Court. Enclosure pages 36A-47A. The complaint form said to enclose his request to EEOC, enclosure pp. 38A-45A. He also enclosed an amicus curiae brief from Environment Improvement Associates. Enclosure pp. 46A-47A. The complaint is a standard court form, including requests for injunctive relief and for legal counsel. Mr. Pletten sought both. Enclosure page 37A. He filed motions to enforce the: -- discrimination case processing Rules. Encl. pp. 34A-35A. -- disability case processing Rules. Encl. pp. 32A-33A. All requests were denied without action. In the Court of Appeals for the Sixth Circuit, Mr. Pletten filed a motion for interim relief. Enclosure pages 23A-30A. The Court of Appeals denied the motion. Encl. p. 21A. Mr. Pletten moved to reconsider the denial. Encl. pp. 18A-20A. This was denied without action. The Court of Appeals issued its decision. Petition, 2a-10a, repeated herein in original form at encl. pages 12A-17A. The request for reconsideration was denied. Petition, la, repeated herein in original form at encl. p. 11A. Mr. Pletten's petition for a writ of certiorari followed. It is awaiting disposition. Mr. Pletten now files this motion for interim relief, a stay restoring the status quo ante. ARGUMENT It is well settled that agencies must issue a 30 day advance notice. 5 U.S.C. 7513(b)(1). Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985). Petition, 2 and 62a, repeated herein in original form at 66A. 4 The cited law and your precedent show that lack of 30 days advance notice is both a statutory and a constitutional violation. Each is a substantial matter. There was no 30 day advance notice. TACOM's notice admits the enforced leave imposed 08-04-81 (Block 35) was retroactive to the effective date 12-14-80 (Block 13). It is settled law that retroactivity is not advance notice. Each independently (the absence of advance notice and the retroactivity) warrants restoring the status quo ante:
Proposed Order, enclosure page 20A. And encl. pp. 24A and 27A. Note the phrase "must be restored immediately." This is most apt here, as
EEO administrative review has been denied since February 1980. Petition, 42a-43a. The Court below departed from these principles. TACOM will not allow
review to begin unless you issuing a stay restoring the status quo ante.
It is well settled that agencies must invoke reasons for their acts, SEC v. Chenery, 332 U.S. 194, 196 (1947). Courts
The agency "invoked" no "grounds" for the enforced leave. Petition, 62a, repeated here in original form at 66A. Block 30 "invoked" no "gounds," i.e., no
Block 30 [the 'reasons' block] is blank except for routine notations on Fair Labor Standards Act, FEGLI (Federal Employee Group Life Insurance), [processing sequence] number (A-81-126) and office [mailing] symbol (DRSTA-ALS). The non-adherence to the Chenery, 332 U.S. 194, principle is a substantial matter. Congress commands "stating the specific reasons." 5 U.S.C. 7513(b)(1). Why? for [constitutional rights] "opportunity for the employee to present his side," Loudermill, 470 U.S., 543. Loudermill adds that this be at "the only meaningful opportunity [timel," i.e., "before the termination takes effect." Respondents deny me both the "opportunity" and the "meaningful" time. The Court below departed from these principles. [Respondent's] TACOM will not allow review to begin unless you cause it to let review begin in the 29 C.F.R. 1613.213 forum EEOC ordered. Petition, 42a-43a. Encl. p. 1A. Please issue a stay restoring the status quo ante, i.e., restoring the "meaningful" time.
It is well settled that agency actions cannot lawfully be "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). Petition, 17. Respondents are accomplishing the enforced leave and the adverse effects that flow from it by violating controlling regulations. Petition, 18. This is summarized here: (2) OPM's own Rule (5 C.F.R. 831.1204(b)) specifies [to await] decision by the Associate Director. None has been issued. (3) OPM's own Rule (5 C.F.R.831.1206) says the
None has been issued, so Army should be ordered to obey the rules and "retain [Mr. Pletten] in an active duty status until [TACOM] receives the initial decision." (4) 29 C.F.R. 1613.403 requires TACOM to inform him of "forum." Such informing did not occur. Petition, 6. (5) 29 C.F.R. 1613.213 et seq. provide for counseling, a hearing, etc. Respondents do not assert any of these review acts have occurred. Why not? They know review has been denied since Feb. 1980. Petition, 42a-43a. The Army repeatedly admits Mr. Pletten's perfect sick leave record. Encl. pp. 75A, 76A, 85A, 92A, 94A, 95A, 103A, 106A, and 108A. TACOM went so far as to issue him multiple letters of appreciation and commendation. Pages 2-5 above. He says:
That's what the doctors say. Enclosure pages 5-7A, 9A, 31A, 48A, 61A, and 67A. That is why Mr. Pletten repeatedly returns to duty, paralleling Bevan v. N. Y. St. T. R. System, 74 Misc.2d 443 (1973), another non-requirement case. Petition, 7. As that employee continued returning to work, meeting all actual requirements of record, so does Mr. Pletten. Considering the mass of TACOM data contradicting TACOM, TACOM's new view of Mr. Pletten is a sham "fashioned for the purposes of litigation," paralleling Alaniz v. Office of Personnel Management, 728 F.2d 1460, 1465 (Fed. Cir. 1984). A stay will buttress OPM's opposition to invalid disability retirements. OPM's Regulation FPM Supp. 831-1.S10-2.(f) says OPM
Even after the reprisals started (reprisals initiated above the supervisory level), Mr. Pletten's supervisor, J. H. Kator, courageously granted him a pay increase 15 June 1980. Encl. p. 68A. That was "only a short time before the" December 1980 effective date the Court of Appeals asserts is the sole issue. The district court did not let the case go forward to the proof stage, i.e., did not allow a trial on the merits. On the merits, Mr. Pletten will prevail two ways: a. He will testify there has been no administrative processing, which will be undisputed, as there is no assertion, and no showing, that it has occurred. b. Even were the Court to insist on trial on the merits of the underlying issues of which Mr. Pletten seeks administrative review (even though trial on such issues would be premature ahead of the administrative process), the Army's own many witnesses will testify to Mr. Pletten's excellent ability and good health. A stay will cause the administrative review OPM's own rule, FPM Supplement 831-1.S10-2.(f), makes clear is necessary. The Court below departed from these principles. Clearly, TACOM will not allow administrative processing to begin unless you cause it to let review begin in the 29 C.F.R. 1613.213 forum EEOC ordered. (OPM has no objection to its own rule being followed.) Please issue a stay restoring the status quo ante.
It is well settled that the government cannot use secret law. Morton v. Ruiz, 415 U.S. 199 (1974); Bowen v. City of New York, 476 U.S. 467 (1986). But TACOM relies on secret law, a "medical" qualification on tobacco smoke. 5 Petition, 19-23, 58a-59a (Block 30), repeated here in original form at 62A. There is no requirement for tobacco smoke. Tobacco smoke is not in "the requirements for any position," 5 U.S.C. 2302(b)(6). (2) Other agencies also deny a tobacco requirement: -- Michigan Department of Civil Rights, encl. p. 49A -- U.S. Department of Labor, encl. p. 56A -- Executive Office of the President, Office of Management and Budget, encl. p. 57A -- Michigan Department of Civil Service, encl. p. 58A. Absence of a requirement is "a jurisdictional point." Hotch v. U.S., 212 F.2d 280, 281 (9th Cir. 1954), cited in my renewed request to the Sixth Circuit, in the proposed order. Encl. p. 19A. The problem is not lack of evidence
showing there is no requirement. The problem is TACOM's disregarding it.
Smoking is not a requirement, it is behavior "to eliminate." MSPB admits tobacco smoke is not a job requirement: "efficiency of the Board's operations is compromised by the contaminants associated with smoking." Encl. p. 53A. Behavior that compromises efficiency is not a requirement. It is "secret law" to do enforced leave, removal, and retirement vis-a-vis a "medical" qualification requirement that does not exist. The pattern of "practicing secret law" against whistleblowers (here, a pro-safety anti-drug one such as me) is so widespread Devine and Aplin cite it. 31 Howard Law J. at 235. The concept of restoring the status quo ante, namely,
should be applied here by assuring that
The Court below departed from these principles. [Respondent] TACOM refuses to allow review by an EEO counselor, review that will begin the administrative process that will halt the use of secret law. Please cause review to begin in the 29 C.F.R. 1613.213 forum EEOC has ordered. Please issue a stay restoring the February 1980 status quo ante.
Secretary of the Army, John O. Marsh, Jr., issued a proclamation (Enclosure page 55A) identifying
That's what 5 U.S.C. 7902(d) says to do, "eliminate work hazards and health risks." Secretary Marsh said it. Mr. Pletten got put on enforced leave, fired, retired for saying likewise. That's not equal [justice under law]. Army recognition of the hazards of smoking is cited in my Petition, at 75a, and 78a-79a. The Army knows smoking's role in discipline, alcoholism, and drug abuse. Army USAARL Report No. 86-13 notes:
Among the various letters of appreciation and awards [Respondent's] TACOM issued Mr. Pletten over the years, one makes a key point. The then TACOM Civilian Personnel Director W. S. Moyers said:
That's what personnel management is, "a very difficult functional area." We in personnel have a job to do, to be sensitive to top management and implement what they want done. We must verbally Local officials, union officers, rule violators, and others may well be vehemently opposed to what top management wants. Sometimes they display their anger at top management at us in local personnel management jobs. We in personnel management have " very difficult functional area." We are supposed to be sensitive to top management and support them. I do. Note Petition page 5: Col. Benacquista admits:
Just deny the hazard Secretary Marsh's Proclamation admits; just don't be a whistleblower--and I would still be at work. Col. Benacquista was not supporting top management. Freedom of expression on hazards is a job duty as Army Regulation 385-10.3-5a. and b. shows. Petition, 3. We in personnel jobs must be sensitive to and supportive of rules, including safety rules. It's our duty to advise management on disciplining employees for rule violations, including safety violations. Note my job description duty:
Advising managers on "adverse actions" (discipline) of employees is "a very difficult functional area." Local officials, rule violators, and others may well be vehemently opposed to what This duty of being sensitive to top management, to support the laws and rules they adopt, more than meets the Rankin v. McPherson, 483 U.S. 378, 384 [107 S Ct 2891; 97 L Ed 2d 315] (1987) criteria. Petition, 24 - 26.
That's true in all agencies; rules on smoking are to be enforced "in the same manner as any other violation." It is our role in personnel jobs to advise managers on doing this. It is clear that this is a freedom of expression case. Petition, 5, 24-26. Col. Benacquista against interest makes that point, admits what I say is the basis for the actions against me:
The Court below failed to apply these principles. [Respondent's] TACOM knows it will be reversed on freedom of expression grounds as soon as a [the administrative review process begins and a] counselor begins review. That is why TACOM will not allow the EEOC-ordered review to begin unless you motivate it by a stay. Please issue a stay restoring the status quo ante. Secretary Marsh's Proclamation admits the hazard. Enclosure page 55A. In American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508 (1981), this Court, scrutinizing safety law wording, analyzed a safety law [OSHA, 29 USC 651-678] that parallels 5 U.S.C. 7902(d). But some justices felt that the other safety law has some limiting words ("to the extent feasible") impairing it. 5 U.S.C. 7902(d) lacks the limiting words about which some justices expressed concern. 5 U.S.C. 7902(d) says, "eliminate work hazards and health risks," explicit words. The wording poses a substantial federal question. This Court wrote the entire Donovan decision on safety law wording. This Court in Amer. Textile, 452 U.S., 509, shows safety is "above all other considerations," as "Congress itself defined." Safety is "above all other considerations," is "above" smoking. TACOM agrees that Army's own Rules (and of course, 5 U.S.C. 7902(d)) "give officials the authority to ban smoking in areas under their jurisdiction." TACOM Legal Office Exhibit 8q, Encl. p. 72A. This was affirmed [by Respondents investigation], based on Army Regulation 600-20.2-1:
Congress in 5 U.S.C. 7902(d) sets a standard ("eliminate").
5 U.S.C. 7902(d) says to "eliminate" the hazards, not the personnel workers such as me who report them. It is a well settled principle that "Expressio unius est exclusio alterius"; "'to express one thing is to exclude others,'" Reynolds Alloy Co., 2 Labor Arb. Reports (BNA) 554 (1943). Enclosure page 42A. The Court below departed from, failed to apply, these principles. When the EEOC-ordered [review process that begins with] counseling begins, a
counselor will find that TACOM is doing "other" than what 5 U.S.C. 7902(d) says, is doing what is "excluded." Instead of enforcing the law and eliminating the hazardous conduct, TACOM drug users put me on enforced leave, fire and retired me. TACOM will not stop doing "alterius"unless you issue a stay restoring the status quo ante. Please issue a stay restoring it.
Once 29 C.F.R. 1613.213 EEO [administrative review process is forced open and] counseling begins, a counselor will find that the TACOMers doing the acts at issue were not impartial. Their own personal behavior was at stake. Army USAARL Report No. 86-13 links smokers with the "discipline, alcoholism, and drug abuse problems in the Army and other services." The TACOMers doing the acts at issue deem such words [when I say them] "offense" to them. It is their behavior that obeying 5 U.S.C. 7902(d) would "eliminate." They "identify offense to self with obstruction to law." Offutt v. U.S., 348 U.S. 11, 13 (1954). Petition, 28. That is why they make assertions outside the record evidence (5 U.S.C. 7513 advance notice) system. 8 Making assertions outside the record evidence system is behavior "indicating personal bias and prejudice," P. R. I. v. C. R. I., 430 F.2d 85, 89 (7th Cir. 1970). A counselor will find that bias underlies the case. By not causing administrative review to commence, the Court of Appeals departs from settled law against decisions being made by non-impartial individuals. TACOM refuses to do the administrative processing EEOC twice ordered. The refusal, from February 1980 to the present, will not cease unless you cause it to cease. Please issue a stay restoring the status quo ante.
In his Proclamation on the universal malice "problem of tobacco use," Secretary Marsh says:
The universal malice nature of "the problem of tobacco use" is clear and undisputed. Petition, 3. The universal malice is true generally, and it is true at TACOM in specific. My fellow TACOM employees are endangered. TACOM's own Dr. Francis J. Holt, when asked 5/23/82, admits against interest the bad TACOM ventilation system and universal malice impact:
The universal malice hazardous conduct injured co-worker Evelyn Bertram. She filed a workers ' compensation claim (Matter of Bertram, Claim A9-190131, which was approved) but, avoiding reprisal, she did not dare to seek Rule compliance. Petition, 4.
TACOM hostility to obeying Congress and federal safety rules is pervasive. [TACOM has a tank plant manufacturing tanks.] The Tank Plant hazard is the subject of Int. Un. U.A.W. v. General Dynamics Land Sys. Div., 259 U.S.App.D.C. 369, When there is extant universal malice hazardous conduct, endangering "all these other people," that constitutes
By not causing administrative review to commence, thus not causing compliance with the Army order with which compliance is mandatory (Petition, 5, citing Spann, 615 F.2d 137), the Court of Appeals departs from settled law against hazards. A stay restoring the status quo ante should be granted pending commencement of administrative review [and] should be granted based on the irreparable harm being caused to my fellow workers by the ongoing hazardous conduct.
EEOC twice ordered review to begin. Petition, 1, 29a-35a, and 40a-57a. TACOM has not begun the case processing on the various incidents. Mr. Pletten continues to ask that EEO counseling begin on the removal itself. Encl. p. 1A. The Court of Appeals decision was premature, before administrative review. MESC upheld Mr. Pletten's ability to work. Petition, 7, 36a-37a, 38a-39a, 60a-61a, and 64a-69a [the latter is repeated in original form herein at 63A-65A]. Administrative review will seek res judicata effect for said rulings. Petition, 7, note 4. The U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP), repeatedly upholds Mr. Pletten's ability to work. Encl. pp. 2A-7A, and 59A. OWCP's findings contradict the assertions of Mr. Pletten's disability. The Employees' Compensation Appeals Board is currently in process of adjudicating Mr. Pletten's request to return to duty. Encl. pp. 2A-8A. There are already conflicting decisions. Unless a stay is granted, there foreseeably will be more. The in-process [ECAB] administrative review will foreseeably result in more rulings favorable to Mr. Pletten [this time, in the still closed EEOC forum], further contradicting the premature decision by the Court of Appeals. Case law at 42 U.S.C. 2000e-16, n. 53, shows administrative review is required first before courts can rule. Since the Court of Appeals departed from these principles (ruled prematurely), a stay should be granted to avoid additional conflicting decisions.
Mr. Pletten filed motions for compliance with discrimination case and disability case processing Rules. Encl. pp. 32A-33A and 34A-35A. He "moves [each] for himself and as private attorney general" []to help others similarly situated] for such compliance. Enforcement of both of these rules has proven difficult. No compliance occurred, or is asserted. As
Enforcing the multiple rules cited herein is not for Mr. Pletten only, but also for his fellow workers, whistleblowers, the federal civil service at large, and the public who relies upon them, who benefit from honest, capable civil servants. This is especially true in critical times such as these when we are relying on the military for protection. Recall Secretary Marsh's words in his Proclamation:
Our military need their "critical military skills." The reasons are obvious, and require no explanation. The Court below departed from settled principles by treating the case as purely private. Please issue a stay restoring the February 1980 status quo ante.
Safety is a reason why "Congress voted to protect whistleblowers." This case is also an example of why. How many more national heroes must die before that protection is meaningful? Congress in 5 U.S.C. 7513 orders advance notices, cause and meaningful opportunity to reply. When these concepts are obeyed, and administrative review is allowed to begin, doing so in effect protects whistleblowers. Here, it is undisputed there is no
Mr. Pletten is able to perform all his duties. Dr. Silas Cardwell wrote the Sixth Circuit judges rejecting their view. Encl. p. 9A. Their view is plain error. Under the circumstances each of which
U.S. v. Hayes Int'l. Corp., 415 F.2d 1038, 1045 (5th Cir. 1969) says:
Here, a pattern is obvious. EEOC has already shown [Respondent Army as guilty of] refusal of administrative processing . Petition, 1, 29a-35a, and 40a-57a. In his request to the Court of Appeals for interim relief, Mr. Pletten cited the bottom-line concept from Hayes:
Here, it is undisputed that many statutes have been violated. The Court below departed from (failed to apply) these settled principles.
Under the circumstances, please issue a stay restoring
Please issue a stay restoring the status quo ante. Order that
EEOC found [Respondent Army guilty of] violations and ordered administrative processing. Petition, 40a-57a. TACOM refuses to obey.
MESC and Department of Labor affirm my ability to work. There is undisputed conflict of opinions, which will continue unless you issue a stay.
The many violations shown here in are so egregious that this Supreme Court may, as a matter of law and equity, summarily reverse the decision below.
In the interim, Petitioner respectfully requests that you issue a stay restoring the status quo ante, to the status which existed before February 1980, before the denial of EEO counseling began, before the enforced leave imposed retroactively without 5 U.S.C. 7513 advance notice, before the removal, and before the enforced disability retirement.
Please restore the status quo ante pending compliance with the rules cited
here in, including pending issuance of a 5 U.S.C. 7513 notice (if there is cause [for removing me], which there is not), pending decision by the OPM Associate
Director for Compensation and by the Department of Labor, and pending
disposition of the petition for a writ of certiorari.
Motion for Stay to Restore Status Ouo Ante
OCTOBER TERM, 1989 No. 89-7594
LEROY J. PLETTEN, vs. CONSTANCE HORNER, Director,
_______________________________ PROOF OF SERVICE I, Leroy J. Pletten, do declare that on this date, 10 September 1990, pursuant to Supreme Court Rules 29.3 and 29.4, I served the attached MOTION FOR STAY TO PRESERVE STATUS QUO ANTE on each party to the above proceeding, or that party's counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first class postage prepaid. The names and addresses of those served are as follows:
The Supreme Court is provided the original and two copies. Those above named are provided one copy each.
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