IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989
No. 89-7594
____________________________
LEROY J. PLETTEN,
PETITIONER
vs.
CONSTANCE HORNER, Director,
Office of Personnel Management;
JOHN O. MARSH, JR., Secretary,
Department of the Army; and
MERIT SYSTEMS PROTECTION BOARD,
RESPONDENTS.
_______________________________
MOTION FOR STAY TO PRESERVE STATUS QUO ANTE
_______________________________
| [10 September 1990] | | Leroy J. Pletten, Petitioner
| | 8401 18 Mile Road #29
| | Sterling Heights, MI 48078-3099
| | (313) 739-8343 | | | |
-i-
TABLE OF CONTENTS
| Page
| TABLE OF AUTHORITIES | iii
| |
| | STATEMENT OF THE CASE | 1
| |
| Introduction 1
| |
| Summary of Favorable Agency Actions 1
| |
| Summary of Adverse Agency Actions 6
| | | Procedural Steps in This Case 11
| |
| | ARGUMENT | 12
| |
| 1. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law On Thirty (30) Day Advance Notices | 12
| |
| 2. A Stay Restoring the Statue Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law On Agency Duty to Invoke "Grounds" | 13
| | | 3. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law On Acts Accomplished Through The
Violation Of A Controlling Regulation | 14
| |
| 4. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Against The Use of Secret Law | 17
| |
| 5. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Against Discipline for Job Duty
Freedom of Expression | 19
| | | | | | | | | | | | | | | | |
-ii-
| |
| 6. A Stay Restoring the Status Que Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Concerning Elimination of Hazards
and the Authority to Do So As Distinct
From Removing Those Who Report Hazards | 22
| |
| 7. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Concerning Impartiality | 24
| |
| 8. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court
Below Departed From Settled Principles of
Law Concerning Elimination of
Hazards to Workers | 25
| |
| 9. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Concerning Not Ruling Before
the Administrative Processing | 27
| |
| 10. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Concerning Cases With More than
Merely Private Claims | 28
| |
| 11. A Stay Restoring the Status Quo Ante
Should Be Granted as The Court Below
Departed From Settled Principles of
Law Concerning Interim Relief From
Violations of Law | 29
| |
| | CONCLUSION | 31
| | | | | | |
Enclosures
-iii-
TABLE OF AUTHORITIES
| |
| Alaniz v. Office of Personnel Management,
728 F.2d 1460 (Fed. Cir. 1984) 15
| |
| | American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981) | 22
| |
| | Austin v. State, 101 Tenn. 563 (1898), aff'd
sub nom. Austin v. Tennessee, 179 U.S. 343 (1900)
| 7
| |
| Bevan v. New York State Teachers' Retirement System,
74 Misc.2d 443, 345 N.Y.S.2d 921 (1973) 15
| |
| | Boilermakers v. Hardeman, 401 U.S. 233 (1971) | 10, 13, 24, 29
| |
| | Bowen v. City of New York, 476 U.S. 467 (1986) | 17
| |
| | Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985) | 12, 13
| |
| Equal Employment Opportunity Commission Decisions
Pletten v. Army 1,
9-14,
16,
18,
21,
24,
27
| |
| | Hotch v. United States, 212 F.2d 280 (9th Cir. 1954) | 17
| |
| 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) 25, 26
| |
| Levine v. C & W Mining Co., Inc.,
610 F.2d 432 (6th Cir. 1979) 18, 30
| |
| | Matter of Bertram, Worker Compensation Case A9-190131 (1977)
| 25
| |
| Mercer v. Dept. of Health & Human Svcs.,
772 F.2d 856 (Fed. Cir. 1985) | 12, 18, 30
| |
| Michigan Employment Security Commission Decisions,
Pletten v. Army [10]
27, 31
| |
| | Morton v. Ruiz, 415 U.S. 199 (1974) | 17
| |
| 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)] 23
| |
| National Rlty. & C. Co. Inc. v. Occupational S. & H. R. Com'n.,
160 U.S.App.D.C. 133, 489 F.2d 1257 (1973) 23
| |
| | Newman v. Piggie Park Enterprises, 390 U.S.400 (1968) | 28
| | | | | | | | | | | | | | | | | | | | | | | | | |
-iv-
| |
| | Offutt v. United States, 348 U.S. 11 (1954) | 24
| |
| Peacock Records, Inc. v. Checker Records, Inc.,
430 F.2d 85 (7th Cir. 1970) 24
| |
| | People v. Atcher, 65 Mich. App. 734 (1975) | 7
| |
| People v. General Dynamics Land Systems,
175 Mich. App. 701 (1989), leave to
appeal denied, 435 Mich. 860 (1990) 26
| |
| | Piccone v. U.S., 186 Ct.Cl. 752, 407 F.2d 866 (1969) | 14
| |
| | Rankin v. McPherson, 483 U.S. 378 (1987) | 21
| |
| | Reynolds Alloy Co., 2 Labor Arb. Reports (BNA) 554 (1943) | 23
| |
| | SEC v. Chenery, 332 U.S. 194 (1947) | 13
| |
| | Service v. Dulles, 354 U.S. 363 (1957) | 14
| |
| | Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980) | 7, 26
| |
| | Smith v. Western Electric Co., 643 S.W.2d 10 (Mo.App. 1982) | 26
| |
| | Sullivan v. Dep't. of Navy, 720 F.2d 1266 (Fed. Cir. 1983) | 29
| |
| | Teamsters v. United States, 431 U.S. 324 (1977) | 30
| |
| | U.S. v. Hayes Int'l. Corp., 415 F.2d 1038 (5th Cir. 1969) | 29, 30
| |
| U.S. Department of Labor, Employee Compensation
Appeals Board, Pletten and Army (in process) 27, 31
| |
| | UNITED STATES CONSTITUTION |
| | |
| | First Amendment | 8
| |
| | STATUTES |
| | |
| | 5 U.S.C. 2302(b)(6) | 17
| |
| | 5 U.S.C. 7513 | 8,
10,
24,
29,
31
| |
| | 5 U.S.C. 7513(b)(l) | 12,
13
| |
| | 5 U.S.C. 7902(d) |
6,
7,
19,
22,
23,
24
| |
| | 42 U.S.C. 2000e-16, note 53 | 27
| | | | | | | | | | | | | | | | | | | | | | | |
-v-
| CODE OF FEDERAL REGULATIONS |
| | |
| | 5 C.F.R. 831.1204(b) (1980) | 9,
14
| |
| | 5 C.F.R. 831.1206 (1980) | 9,
14
| |
| | 29 C.F.R. 1613.213 | 11,
13,
14,
16,
18,
24
| |
| | 29 C.F.R. 1613.403 | 9,
14
| |
| | 32 C.F.R. 203 | 6
| |
| | ARMY REGULATIONS |
| | |
| | Army Regulation 600-20.2-1 | 6, 22
| |
| | Army Regulation 385-10.3-5a. and b. | 20
| |
| | TACOM Regulation 600-5, Secs. 14-27 and 28.a. and d. | 9,
14
| |
| | FEDERAL CIVIL SERVICE REGULATIONS |
| | |
| | Federal Personnel Manual Supplement 831-1.S10-2.(f) | 15,
16
| |
| | COURT RULES |
| | |
| | Supreme Court Rule 15.1 | 1
| |
| | MISCELLANEOUS REFERENCES |
| | |
| | Annot., 37 A.L.R.4th 480 (1985) | 26
| |
| Army USAARL Report No. 86-13 "Smoking and Soldier
Performance: A Literature Review" (1986) 7, 19,
24
| |
| Devine, Thomas M. and Donald G. Aplin,
"Whistleblower Protection--The Gap Between The Law
and Reality," 31 Howard Law Journal 223 (1988)7,
8,
18
| |
| | MSPB Rule On Smoking | 6, 18,
21
| |
| | Proclamation by Sec'y Marsh | 2,
6,
18, 19,
20,
22,
25,
28
| |
| Schroeder, Patricia, Rep., "Special Focus:
Whistleblowers and the Public Interest,"
"Introduction," 4 Antioch Law Journal 1 (Summer 1986)| 29
| | | | | | | | | | | | | | | | | | |
STATEMENT OF THE CASE
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:
| “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints." (Petition, 42a-43a).
"It is also clear that the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling." (Petition, 46a). |
This motion requests a stay restoring the status guo ante.
Summary of Favorable Agency Actions
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
-1-
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.
-2-
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
| “positive advisory service to managers and supervisors on their basic responsibilities for personnel administration, identifying areas of possible supervisor weakness or other supervisor-employee relationships that tend to cause dissatisfaction" (paragraph 4)
and to deal with
"Personnel adverse actions [discipline], grievances and appeals, communications and employee counseling" (para. 3) among other responsible duties. Encl. pp. 101A-102A. |
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
| “have all, verbally and in writing, complained about the service provided by [the TACOM personnel office.]" |
This pleasant surprise for the personnel director (contrasting with what was said of coworkers) is on record:
| “It's a pleasure to see that once in a while some kudos are received in a very difficult functional area." |
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
-3-
for not using "over 500 hours sick leave." Encl. pp. 94A-95A.
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
-4-
72a-73a, repeated herein in original form at Encl. p. 81A. The job description shows TACOM trusted Mr. Pletten to do duties including evaluating job duties of other
| “civilian positions assuring accuracy and consistency with established position and pay management regulations," and to
"participate[s] actively with supervisor[s] in program planning and evaluation." Encl. pp. 82A-83A. |
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
| “professionalism, dedication and positive attitude . . . prompt, responsive, and understanding actions." |
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
| “This survey and its preliminary work proceeded more efficiently than previous surveys conducted in the Detroit area in the past several years. This was due |
-5-
| largely to the efforts of Mr. Leroy Pletten . . . first year as the chairman." Encl. pp. 73A-74A. |
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
| “does give officials the authority to ban smoking in areas under their jurisdiction." Encl. p. 72A. |
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.
Summary of Adverse Agency Actions
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
| “the use of tobacco products adversely impacts on the health and readiness of our force . . . a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its
usage," |
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.
________________________
1 Merit Systems Protection Board (MSPB) finds the same adverse impact: "The conclusion is inescapable that the efficiency of the Board's operations is compromised by the contaminants associated with smoking." (Encl. p. 53A) .
-6-
Judicial notice was taken in Austin v. State, 101 Tenn. 563, 567 (1898), aff'd sub nom. Austin v. Tennessee, 179 U.S. 343 (1900).
Re the "tobacco problem" role in discipline, alcoholism, and drug abuse, Army USAARL Report No. 86-13 laments:
| “[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." |
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 NW2d389] (1975). Agencies, unfortunately, do:
| “go well beyond merely defeating a whistleblower. In order to prove to others that no one is safe, the goal is to make the most outrageous charges possible . . . A soft-spoken, self-effacing individual will be branded a loud-mouthed egomaniac." Thomas M. Devine and Donald G. Aplin, "Whistleblower Protection--The Gap Between The Law and Reality," 31 Howard Law Journal [#2] 223, 226 ([Winter] 1988). Petition, 9. |
-7-
At 231-2, Devine and Aplin report the teaching of
| “a course for federal managers on how to fire employees without OSC [review] . . . how to avoid conceding first amendment violations and still fire whistleblower . . . for exposing . . . safety violations." |
Under the circumstances, defeating Mr. Pletten foreseeably would include misconduct tailored to him and his background:
| My Background Is In: | | Agency Attack Is Thus:
| |
| Assuring proper advance
notices and specificity
in discipline cases
| | Disregard the 5 U.S.C.
7513 advance notice and
specificity rules
| |
| Discipline employees only
for cause via
specific charges
| | Enforce leave, retire, and
remove Mr. Pletten without
stating any charges
| |
| Counsel supervisors and
employees on the admin-
istrative review process
| | Refuse to allow the
administrative review process
[to] occur
| |
| | Disability cases
| | Saying I am disabled
| |
| | Leave Cases
| | Disregard of leave rules
| |
| | Never using sick leave
| | Forced disability retirement.
| |
| | Never asked for sick 1eave
| | Claim I applied to retire
myself on disability
| |
| Reviewed doctor's letters
on others
| | Ignore all doctors' letters
showing my ability to work
| |
| | Wrote job descriptions | | Ignore my job description. | | | | | | | | | |
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.
-8-
[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).
| Ed. Note: For more on TACOM Reg. 600-5.14, click here. |
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
| “retain [Mr. Pletten] in an active duty status until it receives the initial decision of the Associate Director for Compensation." Petition, 6. |
________________________
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.
-9-
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
| “statement or citation of the written regulations that [Pletten] was said to have violated [and] a detailed statement of the facts relating to [same]." Boilermakers v. Hardeman, 401 U.S. 233, 245 (1971). |
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.
________________________
3
The Court of Appeals asserts the sole issue is [retirement] effective date[!!]. Petition, 15a. That is plain error. But even were its assertion accurate, OPM cannot set a date. Petition, 8, 21a, 23a, and 24a. 24a is repeated herein in original
form at Encl. p. 51A. Note three different dates asserted in the one decision!
Contrast TACOM's memo asserting yet different dates. Encl. p. 52A. Such
diversity is what happens when the administrative review EEOC ordered has not
occurred. Please halt the Sixth Circuit's usurping of the administrative review
process.
-10-
Procedural Steps in This Case
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.
-11-
ARGUMENT
| 1. A Stay Restoring the Status Quo Ante Should Be Granted
as The Court Below Departed From Settled Principles of Law
On Thirty (30) Day Advance Notices |
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:
| “the employee [Leroy Pletten] must be restored immediately to 'active duty status,'" Mercer v. Dept. of Health & Human Svcs.,
772 F.2d 856, 858 (Fed. Cir. 1985).
|
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.
________________________
4
The enforced leave [decision] notice, at 66A, by TACOM, was issued
to Mr. Pletten in bad condition, hard to photocopy and read.
| Ed. Note:
See the agency's arrogance and defiance of the rule of law. It was not
a proposal of possibly doing this enforced leave some 30 days in the future. It
gave no right to reply and to defend against it. Instead, it arrogantly, outside the
rule of law, said the forced leave without pay was being made several months
retroactive.]
|
-12-
| 2. A Stay Restoring the Status Quo Ante Should Be Granted as The Court Below Departed From Settled Principles of LawOn
Agency Duty to Invoke "Grounds" |
It is well settled that agencies must invoke reasons for their acts, SEC v. Chenery, 332 U.S. 194, 196 (1947). Courts
| “must judge the propriety of [agency] action solely by the grounds invoked by the agency." (Petition, 29). |
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
| “statement or citation of the written regulations that [Pletten] was said to have violated [and] a detailed statement of the facts relating to [same]."Boilermakers, 401 U.S., 245. |
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.
-13-
| 3. A Stay Restoring the Status Quo Ante Should Be Granted as
The Court Below Departed From Settled Principles of Law On Acts
Accomplished Through The Violation Of A Controlling
Regulation |
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:
(1) The Army's own Rules (TACOM Regulation 600-5, Secs.
14-27 and 28.a. and d.) forbid enforced leave.
(2) OPM's own Rule (5 C.F.R. 831.1204(b)) specifies decisionby the Associate Director. None has been issued.
(3) OPM's own Rule (5 C.F.R.831.1206) says the
| “agency shall retain an employee in an active duty status until it receives the initial decision of the Associate Director for Compensation . . . ." |
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.
-14-
It is a substantial matter when just one action is "accomplished through the
violation of a controlling regulation." Here, several are being accomplished:
enforced leave, removal, and enforced disability retirement to which I am clearly
ineligible.
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:
| “I have no disability preventing work. I can do all the duties of my job description. Every treating and examining physician finds my work ability." |
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
| “uses an employee's pay history . . . as a significant source of information about the employee's performance . . . . the awarding of a pay increase . . . only a short time before the . . . application . . . must be explained. . . . OPM deems this type of pay action to be a confirmation that the employee's service or performance is useful and efficient, as these terms relate to disability retirement."
|
-15-
Here, Mr. Pletten's pay history shows continued good performance. The record is
replete and overflowing with data affirming Mr. Pletten's ability to work, and
work well, better than his peers.
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.
-16-
| 4. A Stay Restoring the Status Quo Ante Should BeGranted as The Court Below Departed From Settled Principles of Law Against The Use of Secret Law |
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).
(1) OPM denies a requirement. Petition, 28a, repeated herein in
original form at 60A, renewing its denial 6/2/89. 22A.
(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.
________________________
5 Even if there were a requirement, a counselor will find [once the administrative review process begins], once counseling begins, it was waived when TACOM assigned Mr. Pletten to job DA 905e. Petition, 72a-73a, repeated
herein in original form at 81A. Note that the removal document (Petition, 58a-59a, repeated here at 62A) admits removing him from the same job (DA 905e).
You note this by comparing block 15 on the removal document with block 20 on
the reassignment document.
-17-
(3) The Army itself denies tobacco smoking is a job requirement. Proclamation, encl. p. 55A. Secretary Marsh says:
| “the use of tobacco products . . . has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage." |
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,
| “'the last uncontested status which preceded the pending controversy' [i.e.,] that which existed immediately prior to the
commission of [the violations]," quoted from Levine v. C & W
Mining Co., Inc., 610 F.2d 432, 437 (6th Cir. 1979)
|
should be applied here by assuring that
| “the employee [Leroy Pletten] be restored immediately to 'active duty status,'" Mercer, 772 F.2d, 858. |
The Court below departed from these principles. [Respondent's] 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.
-18-
| 5. A Stay Restoring the Status Quo Ante Should Be Granted as
The Court Below Departed From Settled Principles of Law
Against Discipline for Job Duty Freedom of Expression |
Secretary of the Army, John O. Marsh, Jr., issued a proclamation (Enclosure page 55A) identifying
| “the problem of tobacco use. Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. . . . a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage." |
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:
| “[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." |
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:
| “Please convey my appreciation to Leroy for his assistance to Mr.
Leavy. It's a pleasure to see that once in a while some kudos are
received in a very difficult functional area." (Encl. p. 97A).
|
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
-19-
and in writing support top management to local managers.
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:
| “All he [Leroy Pletten] had to do was to say, 'I agree that this [smoke-filled TACOM worksite] is reasonably free of
contaminants." |
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:
| “Develops draft policies and implements actions regarding . . .
Personnel adverse actions, grievances and appeals,
communications and employee counseling. . . . Assists managers
in conducting pertinent inquiry on grievances, appeals, and
proposed adverse actions. Acts as the central point of contact for
such cases submitted to the Civilian Personnel Office for final
action." (Encl. p. 102A). |
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
-20-
the rules command. We in personnel jobs cannot abdicate our responsibility to
support the rules, to be sensitive to top management, to assure that local managers
do what top management says to do (via the rules and laws they write). It is our
job duty to do freedom of expression in favor of rules, to motivate people to obey
them, and to assist in the "adverse action" (discipline) process when some won't
obey the rules.
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.
| “Failure to abide by the Board's 'No Smoking' policy will be dealt with in the same manner as any other violation of an administrative directive or Rule." Enclosure p. 54A. |
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:
| “All he [Leroy Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants." |
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.
-21-
| 6. A Stay Restoring the Status Quo Ante Should Be Granted as The Court Below Departed From Settled Principles of Law
Concerning Elimination of Hazards and the Authority to Do So
As Distinct From Removing Those Who Report Hazards |
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:
| “. . . It is Army policy that each individual in the chain of command is delegated sufficient authority to accomplish assigned tasks and responsibilities." 6 [Encl. p. 69A]. |
Congress in 5 U.S.C. 7902(d) sets a standard ("eliminate").
________________________
6 Army Regulation 600-20.20-1 is a rule we personnel workers cite to employees/union officials who claim we lack authority to do some act they object to. The answer we give is, "Of course we have the authority, AR 600-20.2-1 says
so."
-22-
Congress does not say "reasonably," nor "to the extent possible." Congress deems it reasonable to eliminate hazards in the federal government. Congress sets the standard: "eliminate." Obeying and enforcing 5 U.S.C. 7902(d) is one of our
"assigned tasks and responsibilities." We have both the duty and the authority. 7
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.
________________________
7 The TACOM Legal Office (enclosure p. 72A) agrees TACOM has "the authority to ban smoking in areas under their jurisdiction." The entire document is attached at 72A so you can see typical pro-gateway drug user assertions (dicta) against using that authority.
Drug users oppose use of authority (for example,
Supreme Court precedent); they assert that using authority lacks "'reasonableness,'" N.F.F.E. v. Cheney [280 US.App.DC 164], 884 F.2d 603, 609 n. 7 (C.A.D.C. 1989) [cert den 493 US 1056; 110 S Ct 864; 107 L Ed 2d 948 (1990)]. Petition, 25.
"A workplace cannot be just 'reasonably free' of a hazard.'" Nat'l. Rty. & C. Co., Inc. v. Occ. S. & H. R. Com'n., 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973). The Supreme Court puts safety above hazards. As a personnel worker, it is my job to support such top echelon rulings, which include Supreme court rulings. I do, and am being punished for doing so.
-23-
| 7. A Stay Restoring the Status Quo Ante Should Be Granted as
The Court Below Departed FromSettled Principles of Law
Concerning Impartiality |
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.
________________________
8 It is outside the record evidence to do enforced leave, removal, and disability retirement, without an on-the-record "statement or citation of the written regulations that [Pletten] was said to have violated [and] a detailed statement of the facts relating to [same]," Boilermakers, 401 U.S., 245, on which to base the enforced leave, removal, and disability retirement.
-24-
| 8. A Stay Restoring the Status Quo Ante Should Be Grantedas
The Court Below Departed From Settled Principlesof Law
Concerning Elimination of Hazards to Workers |
In his Proclamation on the universal malice "problem of tobacco use," Secretary Marsh says:
| “the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination. . . has
become a substantial threat to the well-being of our Army, and we
must take immediate steps to eliminate its usage." (Enclosure p.
55A). |
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:
| “. . . 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). Petition, 4. |
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.
| Ed. Note: In The Tank Automotive News, 7 Jan 1980, Vol X (Issue # 26), p 2, was a question on whether employees feared reprisal for giving their views in the newspaper. The editor, Frank Gaal, Jr., lamented that nobody answered the question; none of those whom he surveyed would answer. Fear of TACOM's policy of reprisal was clearly rampant at TACOM, understandably so, as mine is an example of said policy.
"The proof of the [reprisal] pattern or practice supports an inference that any
particular decision, during the period in which the policy was in force, was made
in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977). |
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,
-25-
815 F.2d 1570, cert. den., 484 U.S. 976 (1987), and People v. General Dynamics Land Systems, 175 Mich.App. 701 (1989), leave to appeal denied, 435 Mich. 860 (1990). Petition, 3, note 3.
When there is extant universal malice hazardous conduct, endangering
"all these other people," that constitutes
| “continuing exposure to smoke in the workplace . . . increasingly
deleterious to [their] health and . . . causing irreparable harm.
Assuming the allegations and reasonable inferences therefrom to
be true, we think it is fair to characterize [foreseeable future]
deterioration of [their] health as 'irreparable' and as a harm for
which money damages cannot adequately compensate. This is
particularly true where the harm has not resulted in full-blown
disease or injury. Money damages, even though inadequate, are
the best possible remedy once physical damage is done, but they
are certainly inadequate to compensate permanent injury which
could have been prevented. [One] should not be required to await
a harm's fruition before he is entitled to seek an inadequate
remedy. Moreover, the nature of [their] unsafe work environment
[universal malice hazardous conduct by gateway drug users]
represents a recurrent risk of harm that would necessitate multiple
lawsuits. . . . we find that injunction would be an appropriate
remedy."
Smith v. Western Electric Co., 643 S.W.2d 10, 13
(Mo.App. 1982), 37 A.L.R.4th 480 (1985).
|
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.
-26-
| 9. A Stay Restoring the Status Quo Ante Should Be Granted as
The Court Below Departed From Settled Principles of Law
Concerning Not Ruling Before the Administrative Processing |
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.
-27-
| 10. A Stay Restoring the Status Quo Ante Should Be Granted
as The Court Below Departed From Settled Principles of Law
Concerning Cases With More than Merely Private Claims
|
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
| “enforcement would prove difficult and . . . the Nation would have to rely in part upon private litigation as a means for securing compliance with the law [a] suit is thus private in form only . . . a plaintiff . . . does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-402 (1968). |
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:
| “Tobacco usage impairs such critical military skills as night
vision, hand-eye coordination . . . increases susceptibility to
disease . . . a substantial threat to the well-being of our Army."
(Enclosure p. 55A). |
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.
-28-
| 11. A Stay Restoring the Status Quo Ante Should Be Granted
asThe Court Below Departed From Settled Principles of Law
Concerning Interim Relief From Violations of Law
|
| “Just over one minute into flight, the space shuttle 'Challenger ' exploded into a raging fireball. Congress voted to protect whistleblowers to facilitate communication of key information to
those who can avert disaster. . . . Rep. Patricia Schroeder, "Special Focus: Whistleblowers and the Public Interest," "Introduction," 4 Antioch Law Journal 1 (Summer 1986).
|
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
| “statement or citation of the written regulations that [Pletten] was
said to have violated [and] a detailed statement of the facts relating
to [same]," Boilermakers, 401 U.S., 245, on which to base the
enforced leave, removal, and disability retirement. |
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
| “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). Petition, 8. |
U.S. v. Hayes Int'l. Corp., 415 F.2d 1038, 1045 (5th Cir. 1969) says:
| “Where, as here, the statutory rights of employees are involved and an injunction is authorized by statute and |
-29-
| the statutory conditions are satisfied as in the facts presented here, the usual prerequisite of irreparable in jury need not be established [though I am showing it here nonetheless.] We take the position
that in such a case, irreparable injury should be presumed from the
very fact that the statute has been violated. Whenever a qualified
Negro employee is discriminatorily denied a chance to fill a
position for which he is qualified and has the seniority to obtain,
he suffers irreparable injury and so does the labor force of the
country as a whole."
"[W]here an employer has engaged in a pattern and practice of
discrimination on account of race, etc., in order to insure the full
enjoyment of the rights protected by Title VII of the 1964 Civil
Rights Act, affirmative and mandatory preliminary relief is
required." |
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:
| “irreparable injury should be presumed from the very fact that the statute has been violated." Encl. p. 26A. |
Here, it is undisputed that many statutes have been violated.
| “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). |
The Court below departed from (failed to apply) these settled principles.
Under the circumstances, please issue a stay restoring
| “'the last uncontested status which preceded the pending controversy' [i.e.,] that which existed immediately prior to the
commission of [the violations]," quoted from Levine, 610 F.2d
432, 437. |
Please issue a stay restoring the status quo ante. Order that
| “the employee [Leroy Pletten] be restored immediately to 'active
duty status,'" Mercer, 772 F.2d, 858. |
-30-
Conclusion
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.
| Respectfully submitted,
| Leroy J. Pletten
| Leroy J. Pletten
| Petitioner
| 8401 18 Mile Road
| Sterling Heights, Michigan 48313
| (313) 739-8343 | | | | | | |
-31-
Enclosures In Support of
Motion for Stay to Restore Status Ouo Ante
Letter Re-Requesting Counseling to Begin
22 August 1990 1a
| | Motion for Expedited Ruling to U.S. Department
of Labor, Employee Compensation Appeals Board
with enclosures 1, 2 and 3
20 August 1990 2a
| | Letter by U.S. Department of Labor
Employee Compensation Appeals Board
5 July 1990 8a
| | Letter by Dr. Silas Cardwell
13 June 1990 9a
| | Letter by U.S. Department of Labor
Employee Compensation Appeals Board
16 May 1990 10a
| | Denial of Rehearing [by CA 6]
9 February 1990 11a
| | Court Order
14 December 1989 12a
| | Motion to Reconsider Denial of Interim Relief
with Proposed Order
13 July 1989 18a
| | Denial of Motion for Interim Relief
5 July 1989 21a
| | Letter by Office of Personnel Management
2 June 1989 22a
| | Motion for Interim Relief with proposed Order
6 January 1989 23a
| | Letter by Dr. Jack Salomon
29 December 1988 31a
| | Motion for Injunction to Enforce
Disability Case Processing Rules (R. 19)
23 September 1988 32a
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
|
