Appeal to EEOC, 15 April 1983, in Effort to Get Review to Begin, of the TACOM "Decision to Terminate," in Retaliation Against Pletten's Whistleblowing. The retaliation took the form of multiple violations, including but not limited to:
  • Inconsistencies and Due Process Violations Warranting Reversal: pdf, html
  • Violations of TACOM's Own Discipline Regulation: pdf, html
  • Violations Overview: pdf, html.
  • See also the Amicus Curiae Brief.
    This material parallels other Briefs in the series, e.g., 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, and continuing into the 1990's and into 2004.
    There are many, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was obstructing.
    These violations include but are not limited to:
  • Inconsistencies and Due Process Violations Warranting Reversal: pdf, html
  • Violations of TACOM's Own Discipline Regulation: pdf, html
  • Violations Overview: pdf, html.
    More in the series will be posted as scanned. The volume is enormous, takes some time.

    LEROY J. PLETTEN)15 APR 1983
    )Docket No. 03 83 0055

    Introduction1 -2
    Medical Background Data3 - 11
    Examples of the Body-Wide Spectrum of Diseases Associated with Smoking12 - 32
    Legal Principle for Resolution33
    Odd Smoker Behavior: Accidents34-36
    Odd Smoker Behavior: Fires37 - 41
    How Smoking Causes Brain Damage and Insanity42 - 54
    Projection: The Odd Smoker View of Nonsmokers55 - 56
    Smoker Lying57
    In-Depth Data on Smoker Insanity58 - 69
    Smoker Mental Illness in Legal Context70 -77
    Criminal Aspects: Introduction78 - 80
    Criminal Aspects: Current Data81
    Smoker Alcoholism82 - 84
    Criminal Aspects: Transition85
    Criminal Aspects: Smoker "Ultimate Intent," "Depravity," "Universal Malice"86- 108
    Criminal Aspects: Falsification109 - 111
    Criminal Aspects: Extortion and Embezzlement112 - 114
    Victim Rights: Taking Victims As They Come/Become115 - 119
    Victim Rights: On Not Retreating120 - 129
    Victim Rights: Constitutional Aspect130 - 132
    Victim Rights: Police Power Aspects133 -140
    Victim Rights: Liability of the Insane141 -147
    Victim Rights: Nuisance Aspects148 -149
    Victim Rights: Negligence Aspects150
    Victim Rights: Malpractice Aspects in Safety Context151 - 158
    EEO Principles159 - 170
    EEO Principles: Ill-Fitting171
    Smoking Not in Employment: General172 - 181
    Smoking Not in Employment: OPM Confirmation182 - 188
    Agency Experience189 - 191
    Adverse Action Guidance192 - 200
    Smokers as Victims201 - 205
    "Negative Defense"206 - 207
    Legal Malpractice Principles208 - 211
    Jurisdiction212 - 214
    Estoppel215 - 216
    Concluding Analysis217 - 229

    This is a petition to review the Merit Systems Protection Board decision [CH34438210381] of 17 Mar 83, received 25 Mar 83. That decision continues the pattern of refusal to review the local “decision to terminate” me noted by [EEOC’s] Henry Perez, Jr., not later than 9 April 1980. A hearing is requested. The continuing MSPB denial of its own jurisdiction, out of asserted deference to the jurisdiction of your agency, has no valid purpose. It simply produces delay. in violation of the “present rights” involved.

    Since the prior appeals to your office (17 Jul 81, Docket 03 81 0087; and 25 Aug 82, Docket 03 82 0122), an OPM issuance sustaining the lack of a nexus between smoking and job duties has been issued. A copy was sent promptly to your agency, and to MSPB. Until some nexus is shown, the case cannot even start, not even with a proper advance notice of some type, for me to reply to, if the agency (once reversed) chooses to try to develop some type of nexus, even though as a matter of law, no nexus is possible. Also since the prior appeals, more data on smoker mental illness has been publicized, and significantly, in the legal field, in the Mich. Law Review, Vol. 81(1), pp. 237-258, November 1982. MSPB behavior reflects unprofessionalism in failure to keep up with the literature. The latest MSPB issuance is clearly fragmentary, disconnected from reality, and becoming defensive, in not making even a de minimis defense of the accuracy of the prior issuances, since of course none of the actions asserted ever took place, as MSPB officials know without doubt. For example, the “health standards” referred to by local and MSPB offenders do not exist, as was recently well-stated in Smith v. Western Elec. Co., 643 S.W2d 10 at 14 (1982). Moreover, MSPB garbled EEO principles in with regular rules in a most bizarre manner, particularly in imposing “undue hardship” criteria of one civil law, onto multiple other laws and principles, in a weird [schizophasic] “word salad” of senseless malassociation on concepts.

    OSHA and EEO rules are not designed primarily to control mental illness and alcoholism. They were designed with other purposes, with other beneficent goals in mind. As policy matter, EEOC review is sought, not only on this case at bar, but on that general policy matter, which is a broader matter than merely “smoking” as such. The local and MSPB efforts to “force” unrelated principles where they are ill-fitting is inappropriate as a matter of law. Moreover, in the numerous cases on smoking, aspects on property as well as people are involved.

    OSHA and EEOC rules (the latter especially) protect people. EEOC rules do not exist to “accommodate” property. Because of the “universal malice” of smoking, including “fire” aspects, no court has ever found “smoking” behavior to involve a duty restriction or accommodation. Every case cited herein shows resolution on some other basis, on negligence, safety, product liability, or some other grounds, never on duty restriction or accommodation grounds. Local and MSPB behavior is odd in seeking to resolve a case on “smoking” without reference to any precedents whatsoever.

    Page 1 of 229 pages.Affiant's initials _________

    This appeal includes medical background data, pp. 3-11; examples of the body-wide spectrum of diseases associated with smoking, pp. 12-32; and an overview of a legal principle which, alone, provides for resolution, without necessity for reaching any further, p. 33. An introduction to odd smoker behavior is then discussed in terms of automobile accidents, pp. 34-36, and fires, pp. 37-41, placed in the medico-psychiatric context. Pp. 42-54 cover some mechanisms on how smoking causes brain damage and insanity, and provides context. Pp. 55-56 cover projection, which leads to the odd smoker view of nonsmokers. P. 57 covers smoker lying. Pp. 58-69 provide additional. in-depth data on insanity, for context purposes on understanding smoker behavior. Pp. 70-77 places mental illness in the legal context as applicable in general terms.

    Pp. 78-80 begin to introduce criminal aspects of a simple nature, in context as applicable, and p. 81 introduces current data, in an overall context. Pp. 82-84 are a sort of “flash-bac'” to smoker alcoholism, inserted at this point due to the significance or alcoholism and crime, and p. 85 sets the stage for return to coverage of crime.

    A three-part section on criminal aspects follows: Pt. 1 at pp. 86-108 covering smoker “ultimate intent” in terms of established legal principles on “depravity” and “universal malice,” in the context of reported cases on a range of criminal behavior from assault, to manslaughter, to murder; precedents which expressly discuss such smoker behavior are cited, as are precedents on the applicable principles.

    Context in terms of crime as committed by the offenders in this case at bar is also cited, which leads to part 2, at pp. 109-111, on falsification, and to part 3, pp. 112-114, on extortion and embezzlement principles. Repeated reference to “intent” is evident throughout, whether or not the “intent” has been achieved in whole or in part, or not at all (yet). The various intents and their relationship to each other, is also covered. Such data is imperative in a “universal malice” case such as this one, where the victim has been placed on trial, but not the offenders, in order to direct attention in the right direction.

    Crime is a major method of discrimination; crime requires resolution, but resolution is not “accommodation,” but rather the operation of law, as has often been needed in civil rights/discrimination cases. Such cooperation as has occurred between EEOC/Justice Dep’t/criminal authorities in other discrimination cases provides insight, based on the public domain dissemination of the fact of such cooperation.

    The rights of victims is covered in two parts, pp. 115-119, on taking victims as they come, or become, and pp. 120-129 on not retreating, all placed in context. Issues of “victims' rights” reflect a breakdown of law and order; society prefers a different emphasis on protection of victims, when possible, so a six part overview of some aspects is covered: (1) constitutional aspects. pp. 130-132, (2) police power aspects, pp. 133-140, (3) liability of the insane, pp. 141-147, (a) nuisance aspects. pp. 148-149, (5) negligence aspects, p. 150, and (6) malpractice aspects, here related to safety, pp. 151-158, all placed in context, since the law is a harmonious whole.

    In the overall context, EEO principles provide insight, pp. 159-170, though somewhat ill-fitting, p. 171. Smoking is not part of employment, pp. 172-181, as the OPM analysis covers, pp. 182-188. Aspects such as agency experience, pp. 189-191; adverse action guidance, pp. 192-200: smokers as victims, pp. 201-205, “negative defense,” pp. 206-207; legal malpractice principles, pp. 208-211, jurisdiction. pp. 212-214; and on estoppel, pp. 215-216, are presented, in context. A concluding analysis is at pp. 217-229.

    Page 2 of 229 pages.Affiant's initials _________

    (pp 3-23)

    The well-established connection of smoking behavior and alcohol use behavior is evident in the medical literature. For example, in The Lancet, Vol. 2(7105): 725-727, 31 October 1959, at 726, “men who took alcohol regularly–i.e., at least once a week–were much more likely to be heavy smokers.” Moreover, as is foreseeable from data on smoking and alcoholism as diseases, “nearly 90% of those who had smoked regularly had taken up the habit among friends most of whom were smokers.” While “‘dangerousness’ . . . may affect third persons in much the same sense as a disease may be communicable,” McIntosh v. Milano [168 N J Super 466], 403 A.2d 500 at 512 (1979), “disease” as disease in the case of smoking is clearly communicable. As it is a disease, avoidance (tantamount to quarantine) behavior includes not getting the disease, or other disease that the first disease “leads to.” Smoking “leads to” alcoholism. Foreseeably, “non-smoking tended to be associated with abstention from alcohol.”

    The article, “Smoking and alcoholism,” by B. M. Maletzky, M.D., and J. Klotter, M.D., in the Am. J. of Psychiatry, Vol. 131(4), pp. 445-447, April 1974, notes a “high correlation between smoking and drinking behaviors. . . . once these addictions are established, they evidently operate independently of each other (although they can be behaviorally associated . . .).” In that study, “Alcoholic subjects were selected from . . . Lyster Army Hospital, Fort Rucker, Ala.” Also, “the analysis revealed no subjects who significantly decreased their cigarette consumption while abstaining from drinking.” Even when there was “a decrease in the amount of alcohol they were consuming, the number of cigarettes they smoked was essentially the same as . . . before, underscoring the apparent autonomy of these two addictive behaviors.” At 446, such “data confirm previous reports of a positive association between smoking and drinking behavior.”

    The article, “Smoking and Alcoholism: A Brief Report,” by R. G. Walton, M.D., in the Am. J. of Psychiatry, Vol. 128(11), pp. 1455-1456, May 1972, provides like [similar] data. That study covered persons admitted to hospitals “for withdrawal from alcohol” “Over a two-month period.” “Out of the group of 130 patients admitted for withdrawal from alcohol, 126 answered 'yes' to the question ‘Do you smoke?’ In response to the question ‘How much do you smoke?’ 123 patients stated that they smoked one pack a day or more.” Dr. Walton was a supervisor in a “Mental Health Hygiene Consultation Service” at a “U.S. Army Health Clinic.” It was his “clinical impression that almost all hospitalized alcoholics are heavy smokers.”

    In The Medical Journal of Australia, Vol. 1, pp. 1271-1274, 30 June 1973, D. Ferguson discusses such “forms of drug abuse, in the sense of drug as ‘a substance used to stupefy or poison or for self-indulgence’ (Chambers Dictionary, 1959). In this sense all use is abuse . . . .” At 1272, “The association with drinking is well recognized. Smoking was therefore associated with major sources of mental and physical ill health . . . .” At 1273, “The associations between smoking, drinking, neurosis . . . suggest some causal interrelationship.” See the data from Dr. Matthew Woods, in J.A.M.A., Vol. XXXII(13), pp. 683-687, 1 April 1899, smoking “to repeat again familiar facts, weakens the memory . . . leads to intemperance . . . causes insanity . . . .”

    Page 24 of 229 pages.Affiant's initials _________

    The Surgeon General's Report for 1982 contains data on smoking and alcoholism, in the context of efforts to halt smoking behavior that involve relapses. At 277, “The factors governing whether or not relapse crises actually resulted in smoking were explored in analyses of over 30 variables. Only a few were significant. The presence of another smoker, the consumption of alcohol, and the location of the occurrence were all instrumental.” At 278, “When alcohol was consumed, 61 percent of crises led to relapse, as opposed to 33 percent in the absence of alcohol.”

    See the Mich. Law Rev. 81(1): 237-258, November 1982, at 240, “Overwhelming clinical evidence supports characterizing smoking as a physical addiction . . . as a disease.” Smoking is a dangerous disease, because it is inherently dangerous and “persists even though the addict knows it subjects him to serious risk of death” from numerous causes. The dangerous aspect alone, apart from the disease aspect, does “affect third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano [168 N J Super 466], 403 A.2d 500 (1979). The disease known as “smoking” is “communicable” not only in its effects on nonsmokers, but also by contact with smokers. As a disease, it is foreseeable that smokers will infect/re-infect ex-smokers and attempted ex-smokers.

    The 1982 Surgeon General's Report discusses at 276 “the circumstances surrounding their relapses. Most took place either at home or in a bar, tavern, or restaurant.” At 277, “The presence or another smoker, the consumption of alcohol, and the location of the occurrence were all instrumental.” At 276, “Other persons were present at 83 percent of the relapses . . . Sixty-two percent of relapses occurred when other people were smoking; 46 percent of relapse cigarettes were requested from others, 11 percent were offered by others, and only 27 percent were bought.” Such data is consistent which smoking “as a disease” in both the early and late stages of the “disease” and the multiple, additional diseases that smoking “causes” and “leads to.” As a matter of sound orientation for time, other diseases can also produce symptoms immediately upon contact, or after a period of time, or both. As a matter of sound orientation for person and place, disease is more likely around diseased persons, and around assemblies of diseased persons. Diseases such as alcoholism and smoking are foreseeable in such places as “a bar” or a “tavern.” Smoker brain damage is evident in their disorientation for time, person, and place, in their continued coming into contact with diseased persons whose disease is “communicable.”

    AR 1-8 warns against smoking behavior as a communicable danger to nonsmokers. AR 1-8 is to be enforced and obeyed without reaching the issue of smoker alcoholism. The endangerment is prohibited regardless of whether smoker “dangerousness” is more or less “communicable” when they have other diseases as well. Alcoholic smokers foreseeably pose a danger to nonsmokers (as well as to smokers). However, the disease known as “smoking” (“tobaccoism”–Dr. Kellogg's term) is not allowed to endanger nonsmokers, whether or not the diseased person also has a condition such as alcoholism. Since “Other persons were present at 83 percent of the relapse,” the disease is “communicable rapidly.” (The remaining 17 percent of cases involve contact at a time other than immediately “at . . . the relapses.”) AR 1-8 forbids both the fast and slow “communicable” danger.

    Page 25 of 229 pages.Affiant's initials _________

    (p 26)

    In 1899, Dr. Woods noted that smoking "often leads to drink." Both smoking and alcoholism produce additional diseases, including physical diseases. It is thus foreseeable that data on physical disorders would notice any synergistic or combined effects. Since the data on smoking and alcoholism is well-established, such data is not only available, it is widely available and used as recently as the 1982 Report of the Surgeon General.

    For example, at 7, the Report indicates, "The use of alcohol in combination with smoking acts synergistically to greatly increase the risk for esophageal cancer mortality." Indeed, at 101, "Numerous investigators have found a synergistic relationship between the use of tobacco in various forms, alcohol consumption, and the development of cancer of the esophagus." These include:

    T. Hirayama, "Prospective Studies on Cancer Epidemiology Based on Census Population in Japan," in Cancer Epidemiology, Environmental Factors, Volume 3, Proceedings of the llth International Cancer Congress, Florence, Italy, October 20-26, 1974. Amsterdam, Excerpta Medica, 1975, pp. 26-35.

    M. Kamionkowski, and B. Fleshier, "The Role of Alcoholic Intake in Esophageal Carcinoma," Am. J. of the Med. Sciences 249(6): 696-700, June 1965.

    B. Kissin, M. Kaley, W. Su, and R. Lerner, "Head and Neck Cancer in Alcoholics: The Relationship to Drinking, Smoking, and Dietary Patterns, J. Am. Med. Ass'n 224(8): 1174-1175, 21 May 1973.

    B. Schoenberg, J. Bailar, and J. Praumeni, "Certain Mortality Patterns of Esophageal Cancer in the United States. 1930-1967," J. of the Nat'1 Cancer Inst. 46(1): 63-73, January 1971.

    D. Schottenfeld, "Alcohol as a Co-factor in the Etiology of Cancer," Cancer 43(5, Supplement): 1962-1966, May 1979.

    K. Takano, K. Osogoshi, N. Kaminura, K. Kanda, K. Kane, R. Kamiyama, K. Sakamoto, H. Sato, Y. Shirai, M. Sei, T. Tanabe, M. Horino, Y. Minami, H. Motoji, R. Morita, H. Orihata, and T. Hirayama, "Schokudogan no ekigaku, toku ni atsui inshokubutsu, inshu, kitsuen narabi, ni eiyo ketsubo ni tsuit (Epidemiology of Esophageal Cancer . . . )," Intl J. of Cancer 5: 152-156, 1970.

    R. Williams, and J. Horm, "Association of Cancer Sites with Tobacco and Alcohol Consumption and Socioeconoroic Status of Patients: Interview Study from the Third National Cancer Survey," J. of the Nat'l Cancer Inst. 58(3): 525-547, March 1977.

    E. Wynder and I. Bross, "A Study of Etiological Factors in Cancer of the Esophagus," Cancer 14(2): 389-413, March/April 1961.

    E. Wynder, M. Mushinski, and J. Spivak, "Tobacco and Alcohol Consumption in Relation to the Development of Multiple Primary Cancers," Cancer 40(4): 1872-1878, October 1977.

    Page 27 of 229 pages.Affiant's initials _________

    (pp 28-56)

    Patterns are evident in the falsification behavior by smokers and concerning tobacco. The court and FTC cases show a pattern of false and deceptive advertising. Smoker falsification and denial behavior also forms a pattern.

    The book, Cigarette Country: Tobacco in American History and Politics [(New York: Praeger Publishers], 1971, by Susan Wagner, provides insight. Chapter 7 discusses the trial which resulted in Lartique v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (1963), cert. den. 375 U.S. 865 (1963). Dr. Alton Ochsner testified concerning false information provided by smokers concerning their smoking behavior, i.e., denial of such behavior. (The pattern becomes clear––MSPB [e.g., 6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] provides false data claiming a halt on smoking in the local personnel office, just as smokers gave false data. Local smokers also give false data on the safety of smoking.) At 104, the book indicates, “There was a period between 1946 and 1948 when certain studies were made that indicated that there was no causal relationship between cancer and smoking, the surgeon testified. But in 1949, he said, it was found that hospital records regarding the smoking records of patients were incorrect. 'If we asked a patient if he smoked he would say “no,” and we would find out that he had stopped the day before . . . . we had to have scientific medical records’ . . . A special smoking history form was later devised for cancer patients.”

    It is clear why “it cannot be said that” a smoker “is a person of normal sensibilities,” words borrowed from Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965). It is clear why symptoms of mental illness are displayed, with malicious smoker denunciations of nonsmokers in terms of crime, “uniqueness,” “immediate threat,” “peculiar personal sensitivity,” etc. Data on smoker falsification, confabulation, and other bizarre inconsistency with reality, provides insight into the severe brain dysfunction, that gives rise to smoker misconception of nonsmokers. Data from “projection” on saying the opposite of what is meant, also comes to mind.

    The book, The Making of a Woman Surgeon [New York: Putnam], 1980, by Elizabeth Morgan, M.D., provides insight. At 155-156, “It is not easy for an unemployed disabled veteran to tell a disapproving doctor that he drinks a fifth of whiskey a day, especially if the doctor is a woman. If I simply asked, 'How much?’ my patients would say they did not smoke or drink. At first I believed them. One patient said he did not drink. I asked him when his last drink had been. He said, 'This morning, but I quit when I came to the hospital.' . . . I only drink a case a day, and I stop after two packs of cigarettes.' . . . Tobacco smoking was the worst health problem in the V.A. Something in the tobacco injures blood vessels and after twenty years of smoking a pack or two a day, atherosclerosis from the tobacco is bad enough to block arteries to the brain, the heart and the lower limbs, causing stroke, heart attack and gangrene of the legs.”

    Confabulation, “lowering of moral controls,” and other symptoms are known in the literature concerning alcoholism, smoking behavior, arteriosclerosis, brain damage, etc. Such data, including known smoker tendencies for falsification and deception, provide insight concerning the claims [6 MSPB 626; 7 MSPR 13] of safety, “health standards,” “prohibiting smoking in the entire Civilian Personnel Division,” and like innuendos, disconnected and impoverished assertions. etc. Such symptoms are foreseeable.

    Page 57 of 229 pages.Affiant's initials _________

    The book, Schizophrenia: Symptoms, Causes, Treatments [New York: Norton], 1979, by Kayla Bernheim, Ph.D., and Richard Lewine, Ph.D., provides insight. At 27-28, “There are two primary ways of describing disordered thinking. One is that the normal brain has a filter mechanism which prevents the intrusion of unwanted or irrelevant thoughts. As you read this book, for example, you are relatively unaware of the noises of the outside world. . . . You are able to focus your attention on this page, more or less at will, and you can direct your mind to shut off extraneous thoughts and feelings.” At 25, “More fundamentally, the schizophrenic finds it difficult to organize thoughts and direct them toward a goal.” Such data provides insight on the bizarre behavior of the deciding officials. They display symptoms of their minds wandering in a flight of ideas from topic to topic without ever doing a competent analysis of any point. They clearly display serious mental incapacitation to comprehend the “broadest intendment” of the meaning of words, concepts, rules, etc. They display a lack of “a filter mechanism” to deal with rules sequentially and progressively, for example, AR 1-8, OSHA, and “reasonable accommodation,” in a rational, complete, thorough, and professional manner. The serious lacking results in a bizarre fixation on the last step in the process, without ever dealing with the prior steps.

    At 28, “The schizophrenic person appears to have a faulty 'shut-off mechanism, a faulty filter. He tends to be flooded by information, by thoughts and feelings from within and by stimulation from without. Patients' descriptions . . . lend credence to such a view:
    'Each of us is capable of coping with a large number of stimuli, invading our being through any of the senses. . . . we would be incapable of carrying on any of our daily activities if even one hundredth of all these available stimuli invaded us at once. So the mind must have a filter, which functions without our conscious thought, sorting stimuli and allowing only those which are relevant to the situation in hand to disturb consciousness. What happened to me . . . was a break-down of the filter, a hodgepodge of unrelated stimuli were distracting me . . .'”
    Note the paranoid tendencies. Stimuli are considered an invasion. They are considered as disturbing consciousness. Such odd views concerning the activities of life is indeed bizarre. Such an odd view of life provides insight on smoker unwillingness to consider the merits. “Working and smoking don't mix” [says William A. Weis, Ph.D., C.P.A., “Profits up in Smoke,” 60 Personnel Journal (#3) 162-165 (March 1981)]. The psychiatric basis for smoker laziness is evident. The psychiatric basis for muteness is evident. Working is “disturbing.” The mere fact of a nonsmoker request for compliance is itself “disturbing.” Any stimuli is “disturbing” to the mentally ill smoker. The contents of a request for compliance merely display more strongly the already-present smoker paranoia that stimuli are “invading.”

    At 28, “When schizophrenics must choose to attend to certain stimuli and ignore others, they become confused and their performance is impaired.” I ask that AR 1-8 be implemented; local personnel make comments about OSHA [hallucinating compliance!]. Disturbed MSPB offenders “become confused” and senselessly garble their output, as the record shows. MSPB issues weird output even despite the aid of the 25 Jan 80 USACARA Report, thereby providing insight on the severity of the disorders involved.

    Page 58 of 229 pages.Affiant's initials _________

    (pp 59-61)

    The book, Understanding and Helping the Schizophrenic [New York: Basic Books], 1979, by Silvano Arieti, M.D., is insightful. At 49, “Patients suffering from the paranoid type of schizophrenia constitute the largest group.” At 52, “It may be difficult to distinguish a hebephrenic from a paranoid. Most of the symptoms seen in the paranoid type are also seen in the hebephrenic, but they appear in a more advanced form and with a less organized and coherent structure. The most obvious difference from the paranoid type is that the hebephrenic is more confused and on the whole less able to function normally. The illness, as a rule, starts earlier in life. Some hebephrenics seem to have passed through a paranoid phase and to have moved on to a hebephrenic style of living when not treated.” Such worsening is consistent with the data on brain damage caused by smoking. Children who start smoking earlier than others would foreseeably display worse symptoms earlier than others. As additional brain damage occurs, in addition to prior untreated brain damage, passing through one “phase” into another phase is foreseeable. Such data is consistent with the "passing" from the pre-withdrawal syndrome to the characteristic withdrawal syndrome in a period of only "at least several weeks," the period of time cited in the DSM-III.

    At 53, “The delusions of the hebephrenic are generally more out of contact with reality." "He has grandiose, absurd, illogically sustained delusions more often than the paranoid.” At 52, “Although at” times “hebephrenics can think logically, they spend a greater amount of time by far thinking in a rambling, incoherent, confused manner. . . . The” hebephrenic “does not care, as the paranoid often does, to demonstrate that his ideas are valid.” Such data provides insight on the local [Edward Hoover, Emily Bacon, John J. Benacquista, et al.] and MSPB [Martin Baumgaertner, Ronald Wertheim, Ersa Poston, Victor Russell, et al.] behavior. Their claims and assertions are often contradictory. Claims of “immediate threat” clash with claims of no hazard at all. Claims of actions taken clash with claims of actions that are supposedly an “undue hardship” or “cannot” be done. Claims of lack of authority clash with the evidence on the full authority. Claims of supposed "health standards" clash with evidence that standards covering tobacco smoke do not exist [due to TACOM falsifying the data], except for the “personal determination” standard and others in AR 1-8 which are considered an “undue hardship.” When the bizarre and rambling assertions from local and MSPB offenders are noted, there is no response “to demonstrate that” such claims and “ideas are valid.”

    At 43, “Although the patient has undergone a change that has made him become ill, he does not realize that a transformation has taken place within him.” [Ed. Note: Cf. anosognosia]. At 46, “The patient does not attempt to demonstrate the validity of his ideas. He 'knows'; that is enough. His knowledge comes from an inner, unchallenged certitude that does not require demonstration. 'He knows.'” Such data provides insight on the odd local and MSPB behavior. The claims of “cannot” and “undue hardship” are unsupported by evidence. There is no “attempt to demonstrate the validity of” the claims. The mentally ill individuals do “not realize that a transformation has taken place within” themselves. Since they provide no evidence for their bizarre and delusional claims, they have effectively repealed the right of reply. They have reversed the burden of proof and placed it on me, heedless of the evidence that the 25 Jan 80 USACARA Report refutes their odd ideas. They do “not realize” reality; they lack insight.

    Page 62 of 229 pages.Affiant's initials _________

    (pp 63-64)

    The book, Schizophrenia: Symptoms, Causes, Treatments [New York: Norton], 1979, by Kayla Bernheim, Ph.D., and Richard Lewine, Ph.D., provides insight. At 23, “One of the defining characteristics of schizophrenia is disordered thinking. This is present, in one form or another, at one time or another, in all schizophrenies and is typically what makes schizophrenia often seem so bizarre. In our example, Kate experienced a number of symptoms of thinking disturbance. . . . She had difficulty concentrating and was unable to understand what a co-worker was saying to her. Her perception of the co-worker's appearance changed. A major difficulty in studying thinking problems is that they are not directly observable and must be inferred from speech and behavior.” At 24, “To date, it has not been demonstrated that the schizophrenic can be taught or coerced or convinced not to have these thoughts.”

    Such data provides insight. The case record is replete with examples of the “disordered thinking” of deciding officials. The odd assertions are in writing, not limited to mere “speech and behavior.” The “speech and behavior” has included odd behaviors and assertions made in my presence. Symptoms of “difficulty concentrating” are evident both in person and in the written issuances. The written symptoms are “observable.” Such data is consistent with information on “prolonged use of tobacco . . . as one of the most common causes of insanity,” words borrowed from Dr. John Kellogg. When brain tissue is damaged to the point of being dead, it is clearly foreseeably unresponsive to input. Dead brain cells foreseeably cannot “be taught or coerced or convinced” of anything. Such information provides insight on the local [smoker] claims of “cannot“ act [to obey AR 1-8, OSHA, advance notice law, etc.], as distinguished from the MSPB claim of “undue hardship.” Dead brain tissue “cannot” respond, whereas for damaged and dying brain tissue, response might demonstrably be an “undue hardship.” However, MSPB has not made such a demonstration [as EEOC verified 8 April 1983, Docket 03.81.0087, 83 FEOR 3046].

    The MSPB assertion on “undue hardship” was rendered sua sponte. Such issuance is consistent with data at 26, quoting Bleuler, “'In schizophrenia . . . thinking becomes confused, bizarre, incorrect, abrupt.'” The “undue hardship” assertion was clearly “abrupt” [i.e., without advance notice to allow time for defense, reply]. It [MSPB's abrupt assertion] shows clear disorientation for time, including the brain damage and death process. Dead brain tissue follows the damage. Tissue death does not precede the damage. In the tissue dying stage, “undue hardship” may apply for that specific tissue, but “cannot” applies to the dead tissue. The process of dying leads to the deaths, at the cellular level. There would foreseeably be a repetitive process of cellular change, culminating in individual cell deaths. The MSPB [Wertheim, Poston et al.] “abrupt” assertion of “undue hardship” [rejected by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046] disregards the process, and is thus “incorrect” in the long term.

    Smokers displaying brain tissue death symptoms indeed “cannot” accommodate anyone. That is particularly true after they leave federal service, for example, by fraudulent disability retirements. Mentally ill and dangerous smokers are to be disciplined or removed, not retired on disability. When the “advanced stages” of mental illness are extant in smokers, discipline of course would be ineffective, since dead cells cannot “be taught or coerced or convinced” of anything.

    Page 65 of 229 pages.Affiant's initials _________

    (pp 66-68)

    The book, Understanding and Helping the Schizophrenic [New York: Basic Books], 1979, by Silvano Arieti, M.D., provides insight. At 167, “Adverse prognostic features in a considerable number of cases—but not in all—are the following:
    “1. Slow, insidious beginning of the illness.

    “2. Absence of precipitating factors or easily ascertainable psychological causes.

    “3. Blunting of affect and marked schizoid type of personality.

    “4. General attitude of defiance toward doctors and nurses.

    “5. Attempt to blame others and exonerate oneself. This criterion is not always valid.

    “6. Acceptance of one's illness or resignation to being sick. This trait belongs more properly to advanced stages of schizophrenia.”

    Such data is most helpful. The entire case clearly arises from smoker claims that compliance with the safety duty “cannot” be achieved. The [multi-year] duration arises from the bizarre MSPB view that compliance is an “undue hardship.” Such “resignation to being sick” mentally and to continuing to endanger nonsmokers such as me clearly arises from the “advanced stages of schizophrenia” or other deviance [e.g., bribery, racketeering]. Such claims as “cannot” comply are foreseeable, based on the many years of smoking that the makers of such claims have engaged in. It is now many years after the “at least several weeks” period cited for the “Tobacco Withdrawal” syndrome, in the DSM-III. The “advanced stages” of mental illness or other deviance are foreseeable after such a protracted period.

    Smoker mental problems show a “Slow, insidious beginning” based on the evidence concerning “General attitude of defiance toward doctors and nurses” and the public domain data on the hazards of smoking. False advertising directed at children is also part of the pattern. These factors are involved in the initial smoking. Thereafter, addiction and brain damage arises, producing continued smoking. Lack of insight combined with disorientation for time is evident in the disregard of the long-term effects of continued smoking behavior. The untreated behavior continues; additional symptoms including but not limited to paranoia, delusions of grandeur, lowered ethical standards, impairment of comprehension, aphasia in various forms, etc., etc., arise and worsen to a noticeable degree.

    Bizarre behaviors are evident in the smoker behavior as discussed in the case record. Weird “schizoid” claims are made by the offenders, involving odd and contradictory claims. Examples relate to the “immediate threat” claim initiated by Emily Bacon, as contrasted with the implied denial of even so much as a hazard, issued by Ronald Wertheim [Ersa Poston, et al.]. His bizarre symptoms [7 MSPR 13] include both a denial that smoking can be controlled, as well as a simultaneous insistence that a ban is already extant! Clearly, “defiance toward doctors” and medical evidence, as well as the “personal determination” envisioned by AR 1-8, is evident. The malicious accusations against nonsmokers such as me (typical of smoker paranoia) are part of the [insane's] “Attempt to blame others.” Note Ms. Bacon's [symptomatic] 29 Apr 80 claim that the situation “was brought about by Mr. Pletten.” MSPB has accepted that bizarre reversal. I have not “brought about” the non-compliance [with AR 1-8, OSHA, advance notice law 5 USC § 7513, etc. TACOM did!]

    Page 69 of 229 pages.Affiant's initials _________

    (pp 70-74)

    When schizophrenes, deviants, and others have demonstrated in writing the existence of their fixations, the rigidity that is characteristic of such disorders of thought processes is unresponsive to the presentation of evidence for examination. The record reveals multiple examples of rigidity, including rigidity disconnected from reality, including reality such as issuances from the same agencies.

    For example, MSPB is aware of “an environment [TACOM's] where exposure to cigarette smoke presents a hazard to all employees,” yet MSPB does not overrule the symptoms of mental illness of local offenders who claim that there is no “hazard to all employees.” Such claims are disconnected from the [reality of] multiple cases showing the hazard “beyond controversy,” Larus & Brother Co. v. F.C.C., 447 F.2d 876 ([CA 4] 1971), and “inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events,” Banzhaf v. F.C.C. [132 US App DC 14], 405 F.2d 1082 (1968) [cert den 396 US 842 (1969)]. Under such circumstances, psychosis is clear in such [MSPB staff] remarks as, “the agency reaffirmed its offer to return the appellant to work as soon as he provides medical dearance from his personal physician.” Clearly, such claims support data that smoking “causes insanity,” including but not limited to brain damage, delusions of grandeur, and schizophrenia.

    Another example of the rigidity of disordered thought processes relates to the bizarre claim by MSPB that the “police power” poses an “undue hardship,” and that I should be punished for reference to the police power in some way. Such MSPB delusions, displayed 18 Jun 81, clearly violate guidance on bills of attainder, freedom of expression, finality of USACARA Reports, etc. But delusions of grandeur are also evident in the 18 Jun 81 remarks.

    Competent police officials recognize the range of self-defense possibilities. The severe rigidity of thought processes evident in the continuing MSPB behavior is not evident in competent analyses. A competent police official recently stated, “I never want to be” in “a position to say a victim didn't do enough. We don't criticize someone for not fighting . . .” Such data is from “Detroit Police Inspector Robert Hislop, head of the crimes against persons unit,” whose assessment was printed in the Detroit Free Press, Vol. 152, Issue 229, 19 December 1982, pages 1 and 15. The police “don't criticize.” MSPB offenders lack such self-restraint. Their severe rigidity is evident.

    The Supreme Court has shown the other end of the spectrum of resistance to harm. See Brown v. United States, 256 U.S. 335, 41 S.Ct. 501 [65 L Ed 961] (1920). The range of acceptable behavior on the part of a victim is clearly wide. Words such as “vast” and “full range” come to mind. However, in deviant, schizophrenic, or other rigidity, running afoul of some unstated view obviously disconnected from the body of law is used as grounds by MSPB for supporting reprisal. In delusions of grandeur, self-restraint such as “don't criticize” is lacking. Disorientation for time is also evident in the bizarre 18 Jun 81 issuance. Cf. Matter of Seraphim [97 Wis 2d 485], 294 N.W.2d 485 [500] (1980) [cert den 449 US 994 (1980)], quoting In the Matter of Laster [404 Mich 449], 274 N.W.2d 742 (Mich. 1979), “One path seeks to correct past prejudice . . . the other seeks to prevent potential prejudice to future” victims. To mentally disturbed people, mild requests such as I made after my requests for compliance with AR 1-8 were denied, are inappropriate. Schizophrenic smokers and other dangerous people clearly are mentally incapacitated to comprehend cases such as Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976), in either past or preventive terms.

    Page 75 of 229 pages.Affiant's initials _________

    (pp 76-78)

    People v. Cook, 34 N.Y.2d 100 [356 NYS2d 259], 312 N.E.2d 452 (1974), provides insight. Its analysis of the police power answers [refutes] much of the bizarre, delusional, disconnected, and blunted deviance of local and MSPB offenders. When mental disorder and/or deviance is manifested by muteness,
    [Ed. Note: Referring to there being no advance notice of charges, with such allegations as were made, made retroactively, apart from the rule of law, obstructing justice by preventing normal response]
    the psychotic or otherwise deviant nature of the decisions burdens the victim thereof [here, Pletten] by forcing a need to speculate as to the matters to which response may be appropriate. (Already, some of the situation, indeed, most if not all, arises from insane delusions or hallucinations or deviance which could not be foreseen.)

    Ed. Note: Foreseeablity is not by the smoker's victim such as a fellow employee, but as a matter of law, holding the employer responsible. See precedents such as McAfee v Travis Gas Corp, 137 Tex 314; 153 SW2d 442 (1941); and Shipley v City of Johnson City, 620 SW2d 500 (Tenn App, 1981). As a matter of law, employers are required to foresee the behavior of those whom they hire. The better approach is to not hire such foreseeably dangerous people.

    At 456, “The link between smoking cigarettes with a high tar and nicotine content and poor health is widely and officially acknowledged. The means utilized to accomplish the health purpose . . . is reasonably related to the goal of reducing consumption of the more harmful high tar and nicotine brands, since it is intended to force a cigarette consumer to pay a higher retail price for the harmful cigarettes. . . . This conclusion is reinforced by the fact that cigarette tobacco is now recognized as a substance dangerous to public health and, as in the case of alcohol, justifies greater legislative control . . . .” AR 1-8 is based on the fact that smokers are [foreseeably] likely to violate the rights of nonsmokers, by causing endangerment, discomfort, and u reasonable annoyance, etc. While alcoholics do not force people to drink, smokers do this with their smoke, forcing it on nonsmokers. An equitable balance means that nonsmokers are free to choose not to smoke; and that nonsmokers shall not be endangered, discomforted, etc. Due to the inherent difference between post-consumption alcohol and cigarettes, “greater . . . control” is needed. Consumed alcohol is inside the drinker; a consumed cigarette produces a situation likely to endanger, discomfort, and unreasonably annoy—since much of the cigarette is not consumed. Thus, AR 1-8 envisions a personal standard. We are free to choose whether and what to drink; nonsmokers are free to choose likewise on smoking. The guidance of AR 1-8 is “clear” as the 25 Jan 80 USACARA Report noted.

    At 458, the Court rejected uniqueness assertions. (Here, like [similar] claims of uniqueness are made directly and by innuendo.) The Court answer included, “There is no requirement that a local law be a response to a uniquely local situation.” AR 1-8 envisions a personal standard; AR 1-8 decentralizes the decision authority; the authority is clearly at the nonsmoker level. The decentralization is what infuriates local offenders, who thus misuse their positions, to retaliate against me. Their innuendo seems to be the rejected idea like that cited at 457, which argues “that a locality may not 'enact a local law which prohibits conduct which is permitted by State law,'” only applied to reject my “personal determination,” even though such is envisioned by AR 1-8. The Court answer is insightful, in rejecting such a view, “This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory. Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule.” It is also the essence of a “personal determination.” Safety law is similar, Natl Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 141], 489 F.2d 1257 at 1265 (1973). “A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry.” The reason is that the safety “adjective is unqualified and absolute.”

    Page 79 of 229 pages.Affiant's initials _________

    (pp 80-82)

    The book, If your child is drinking . . ., 1981, by Nancy H. Woodward, provides insight. At 108, “It is important that the alcohol abuser be aware of every negative consequence of his drinking.” Also, “Let your child know each and every time he hurts a member of the family or a relative or a friend or causes an unpleasant scene because . . . of his drinking.” Counseling guidance is provided at 125, “Each person is asked to list . . . specific incidents surrounding the abuser's behavior and how these incidents adversely affected someone else. They might be: ‘You were too drunk to go to school . . .’ or ‘Your grandmother was very hurt . . .,’ or ‘You stole the money I'd been saving . . . .' These should be specific, firsthand incidents and data to break through the denial and the illusion of the abuser.”

    Data of such nature provides insight on the insane local and MSPB behaviorisms. The insane reprisals, particularly as evident in the 18 Jun 81 MSPB issuance [6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston], rage against the “specific” data provided by me. Disorientation for time is clearcut, in clear inability to comprehend the events leading up to the grievance that gave rise to the 25 Jan 80 Report. When insane MSPB officials take reprisal because ot my following professional techniques, including quoting laws, the “negative consequences” of smoking and alcoholism are obvious. It is clearly difficult to apply professional techniques when the offenders are powerful officials who are themselves mentally disordered or otherwise deviant. Sane deciding officials are requested. A competent review of the situation is requested.

    Local smokers “were too drunk” or disconnected to be responsive. They were and are “'too __________________'' to do their jobs; the various symptoms can be inserted as appropriate to complete the multiple applicable statements on “negative consequences.”

    The bizarre patterns including the weird assertion about a non-smoker being an “immediate threat,” involves multiple offenses including but not limited to extortion, falsification, etc., that “stole the money” in my leave account, etc., in the context of the situation. When “intention is in law deducible from the act itself” [People v. Carmichael, 5 Mich 10, 17; 71 Am Dec 769 (1858)], it is clear that the foreseeable consequences were and are intended.

    “It is important that the . . . abuser be aware of every negative consequence of his” smoking. It is clear that my compliance with professional principles brought reprisals down on me. It is clear that the offenders resent and retaliate because of my use of guidance the government taught me as an Employee Relations Specialist, and which I in turn taught others (particularly supervisors) as part of my assigned duties.

    At 108, “It cannot be repeated often enough: Consequences must rest with the abuser.” At 22, reprisals against people who seek to give up drinking are discussed as foreseeable: “The reactions you will get will range from ‘You are joking’ or ‘You are half-mad’ to ‘You are ill’–in no particular order.” It is clear that MSPB and and local deciding officials were and are “too drunk,” “'too” disconnected, and/or “too _________” to grasp and comprehend and react to and reject the reality of the reprisals. When the behavior of deciding officials is so out-of-touch with reality, words such as “feeble-minded” come to mind, as descriptive of their “denial” and “illusion” pattern.

    Page 83 of 229 pages.Affiant's initials _________

    The book, If your child is drinking . . ., 1981, by Nancy Hyden Woodward, provides insight. At 16, there is a discussion on “bad drinking influences on children . . . the most obvious, and often most dominant force in their children's lives . . . the parent.” Yet “When parents are asked to list bad drinking influences on children,” denial behavior occurs, “they fail to” list “themselves.” That typical denial behavior provides insight on the local and MSPB behavior pattern. That pattern includes but is not limited to denial of reality, disregarding causes, etc., typical of odd behavior that is “communicable” and “may affect third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano, [168 N J Super 466], 403 A.2d 500 (1979).

    At 31, “Those who exhibit an early predisposition to alcohol usually are alienated from family, or friends, are immersed in a low self-image, and tend to be intrigued with the deviant or forbidden. Feelings of disaffection will be found most noticeably in children of parents who are separated or divorced, in those of the sexually deviant, the alcoholic, the introverted, or the abusive.” The local and MSPB behavior shows “feelings of disaffection” with the rules and facts as they exist, so fabrications, delusions, confabulations, and/or other deviance are devised. Standards that do not exist and events that have not happened are cited. The behavior pattern shows severe local and MSPB disconnection from reality. Multiple falsifications, reprisals, delays, violations and other misconduct is consistent with the analysis including “intrigued with the deviant or forbidden.”

    At 74, “A . . . mother pulled her ten-year-old daughter out of school the day an AA member was to speak before the student body. Her husband is an alcoholic. A . . . father tried to have his son's Scout leader ousted because the troop had devoted three meetings, in part, to alcohol and drugs. Both father and mother are heavy drinkers.” Information of this nature provides insight on the local refusal to have educational programs, on ousting me shortly after the 25 Jan 80 USACARA Report, on the reprisals, etc. Clearly, a hearing is essential on the underlying issues and facts.

    At 76, “You cannot pretend that alcohol does not exist.” At 88, “You can help . . . if you discuss the issue calmly–repeat, calmly–and if you are willing to listen . . . and to take any criticism that might come your way . . . .” When local and MSPB offenders “pretend” especially that there is no hazard contrary to the “‘overwhelming evidence,’” and violate so many basic and normal resolution principles, and are mute, they clearly display their severe symptoms of mental disorder. They are unwilling to “discuss the issue calmly,” for they are unwilling to “discuss the issue” at all. They are willing to hand out criticism and make personal attacks on me that show more about them and their symptoms including projection, than about non-smokers' health, including mine. (Nonsmokers are healthier than smokers, on an overall basis). They are unwilling to accept criticism from anyone (USACARA, OPM, MESC, etc.) They are not “willing to listen.” Persons displaying delusions of grandeur are foreseeably not “willing to listen” as new information could challenge their views. A “personal determination” under a “personal standard” [as mandated by AR 1-8] is thus not only not listened to, reprisal occurs for my seeking listening.

    Page 84 of 229 pages.Affiant's initials _________

    (p 85)

    Smoking “stupefies the moral sense,” “makes man selfish, unmannerly, and sometimes worse,” and “callous to the requests of others,” as Dr. ]Matthew] Woods noted in [32 J Am Med Ass'n (#13) pp 683-687] 1899. Symptoms of brain damage include “Impairment of inner reality and ethical controls––with lowering of behavioral standards,” as Dr. [James] Coleman noted in [Abnormal Psychology and Modern Life, 5th ed.] 1976.

    The law takes into account aspects of behavior that reflect indifference to other people. For example, State v. Massey, 20 Ala. App. 56, 100 So. 625 (1924), discusses “universal malice” in terms of behavior “without knowing or caring who may be the victim” and “evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life.”

    Wallace v. State, 216 Ga. 180, 115 S.E.2d 338 (1960), indicates that a “wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill” as warranting sustaining a conviction. The “apt and correct principle of law” is well-established.

    Nestlerode v. United States, 74 App. D.C. 276, 122 F.2d 56 (1941), discusses “an act done with a depraved mind and attended with circumstances which indicate a wilful disregard or the rights or the safety of others.” “Precisely what happened is what might have been expected as the result of the events which appellant set in motion and is the natural and probable consequence of these acts. Malice is presumed under such conditions.”

    State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442 (19 73), indicates “A depraved mind lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment. A depraved Mind has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm.”

    Ziegler v. State, 146 Wis. 531, 131 N.W. 837 (1911), indicates, “But the facts and circumstances were such that the perpetrator of the act may well be held to have known that in its necessary and ordinary consequences it was dangerous to the life of another . . . .”

    Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12 at 17 (1955) indicates, “The risk incident to dealing with fire, firearms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence.”

    Lash v. Worker's Compensation Appeals Board [491 Pa. 294], 420 A.2d 1325 (1980), indicates “unconscionable” and “barbaric to require an employee to continue in a position where he is exposed to a toxic substance until he is so ill that he physically is incapable of performing his job.”

    Such data provides insight on the local [TACOM] and MSPB behavior. The behavior causing the hazard is depraved; the refusal of correction is depraved; the falsifications concerning correction are depraved; the requests for medical clearance for return are depraved. Cf. Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965)], “it cannot be said that” a smoker “is a person of normal . . . sensibilities.”

    Page 86 of 229 pages.Affiant's initials _________

    (pp 87-108)

    McBride v. Johnson, 225 F.2d 249 (5th Cir. 1955), provides insight. It is a criminal case involving medical misconduct “to satisfy” others’ “appetite or craving for such drug” as was involved in that case “only and not in the treatment of his patient, then the dispensation of such drug would not be in good faith nor in the regular course of the defendant's professional practice as a physician, nor for legitimate medicinal purposes . . . .” Smoker “craving for tobacco” is cited in the DSM-III and is well-established. Smoking is clearly “not in the treatment of . . . patient” of [TACOM] Dr. Holt's, and even if it were, it would not be “in the regular course” considering the multiplicity of evidence on the adverse health effects of smoking. The misconduct of Dr. McBride provides insight on the behavior of Dr. Holt.

    The decision in McBride, supra, is consistent with the principles in the poisoning case decision of People v. Carmichael [5 Mich 10], 71 Am. Dec. 769 (1858), for example, that “It is obvious that the law does not encourage tampering with such matters, even by physicians and nurses.”

    McBride, supra, indicates at 252 that, “Evidence of the failure to follow standard medical practices shows a lack of good faith. So also as bearing on good faith is the evidence of” McBride's “unorthodox attitude toward narcotics and addiction. Without detailing this evidence we mention as examples excerpts from appellant's testimony: ‘You can take morphine, you can take codeine, you can take anything at all without being an addict. Just because you drink whiskey is no sign you are a drunkard, and about the only people who become addicts are weaklings.’”

    The Court provided more data on Dr. McBride's “unorthodox attitude toward narcotics and addiction” by citing his quoting his patient, who evidently said “I took pantopon every day, two or three times a day, for six weeks to two months, and, boy, I love that stuff, boy, it's heaven, pantopon is heaven, it's wonderful, but I tell you what, I wouldn't take that stuff because I'm scared of it. . . .” (P. 253).

    It is evident, and I don't dispute, that an addict may have strong feelings about the subject of his addiction. This may well be the case with tobacco addicts with a “craving for tobacco.” The words cited above are insightful for what they may reveal about the views of brain-damaged smokers whose addiction is a clue to the brain damage. (An undamaged brain is presumably the state prior to addiction to poison, considering the evidence that smoking “causes insanity.”) However, the issue relates to the prohibition of causing endangerment,   discomfort,   inefficiency, etc.

    [TACOM] Dr. Holt's “unorthodox attitude” is evident. His writings including but not limited to his 15 July 1980 memorandum provide insight to that. The “careful examination of the record as a whole” shows unorthodoxy including but not limited to declaring a person not fit for duty in advance for the purpose of “protecting” the person (me) from becoming not fit for duty; disregard of causes including but not limited to endangerment prohibited by the rules; disregard of data on smoker addiction and mental disorder; disregarding evidence; taking measures or holding beliefs against me instead of dealing with smokers who appear to be “projecting” their symptoms; ignoring evidence such as the 25 Jan 80 USACARA Report; etc.. etc. Cf. U.S. v. Moore, 423 US 122 (1975), and Merchants Nat. Bank & Trust Co. of Fargo v. U.S., 272 F. Supp. 409 (1967), particularly the behavior of Dr. Linnell.

    Page 109 of 229 pages.Affiant's initials _________

    (p 110)

    It is clear that local [TACOM] and MSPB offenders decided upon a course of action including but not limited to multiple falsifications. Ex parte behavior was decided upon as a tactic to implement the intention to make false statements, including but not limited to false assertions of actions taken, standards, “uniqueness,” “immediate threat,” etc. Cases on falsification thus provide insight. See People v. White, 411 Mich. 366, 308 N.W.2d 128 (1981). The court said that “we should be mindful of the menace to our trial system which a perjurious witness imports. It is difficult to imagine a more potent threat to the adjudicative process than perjury. Nothing should impede legitimate efforts to punish it.”

    MSPB delusions, hallucinations, and/or other deviance is clear in this area. The sweeping language of the 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] issuance shows “irritability” at the arrest possibilities, i.e., at the broadest intendment––the “police power.” MSPB considers any control whatsoever of smoker crimes to be an “undue hardship” by the sweeping wild assertions MSPB made. MSPB opposes control of insane smokers such as was done in the situation described in Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979). MSPB opposes control of assaultive smokers such as in the situation of State v. Giles [183 Neb 296], 159 N.W.2d 826 (1968). MSPB opposes control even in manslaughter situations such as described in Commonwealth v. Hughes [468 Pa 502], 364 A.2d 706 (1976). The sweeping denunciation of control measures is clear in the local [TACOM] and MSPB behavior. No rules are alluded to––not AR 1-8, not 5 CFR § 752, not anything––to control smokers from endangering others.

    Considering the extreme hatred of the rules displayed by local [TACOM] and MSPB offenders, it is clear why falsifications were resorted to. When people begin a life of crime, they can find themselves in a vicious circle. Additional crimes are committed, as an unlawful measure to avoid penalties for prior crimes committed. Smokers began by endangerment. Thus, AR 1-8 was initiated as a control measure. Smokers violated that. I sought compliance. Smokers refused. The 25 Jan 80 Report specified compliance. Smokers defied it. I sought implementation. Smokers fired me. I appealed. Smokers began a series of additional crimes. Falsifications were committed. Extortion attempts occurred. Ex parte communications occurred. Falsification were issued from MSPB. Etc. Etc.

    The entire cycle of local [TACOM] and MSPB misconduct could have been avoided. At the very least, the “unqualified and absolute” safety duty [Nat’l Rlty. & C. Co, Inc v OSHR Comm, 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973)] could have been obeyed years ago. Even before that, rules such as on negligence should have been obeyed. By 1977, at the latest, there should have been compliance with AR 1-8.

    But the cycle of violations began. So, at this point, data on falsifications provides insight. Local [TACOM] and MSPB frauds on tribunals are clear. Had there been any desire at all for them to halt their unlawful behavior, they would have demonstrated such desire at some point. But they choose to be mute. Thus, cases such as White, supra; U.S. v. Myers, 131 F.Supp. 525 (1955); U.S. v. Blackmon, 225 F.2d 249 (1955); etc. provide insight. The local [TACOM] and MSPB behavior is to be distinguished from that cited in Matter of Rabideau [102 Wis. 2d 16], 306 N.W.2d 1 (1981), since the refusal of retraction for so long shows that they are not “penitent in the sense of a revised or reformed personal moral view.”

    Page 111 of 229 pages.Affiant's initials _________

    (pp 112-116)

    The bizarre, fragmented, impoverished, and unresponsive local and MSPB behavior is clear. Their behavior is wrong in fact and as a matter of law. Their behavior is disconnected from the “'overwhelming evidence'” and from the [case] law that “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 ([CA 10] 1931). Employees are “employed to” perform duties; and smoking is not a duty and is not a “business necessity.” The bizarre MSPB claims that I “was not ready, willing and able to” do what I am “not employed to” do reflect severe disorientation and other severe psychiatric symptoms. Even if it were true that I am “not ready, willing and able to” do what I am “not employed to” do, the conclusion that local and MSPB offenders arrive at is disconnected from such finding, even if true.

    When local and MSPB assertions are disconnected from reality, more is revealed about local and MSPB offenders and their health, than about the nature of tobacco smoke, the rules, the 25 Jan 80 Report, or nonsmokers' health including mine. It is especially so when their errors are called to their attention, but they fail to demonstrate the capability of being responsive. Disorientation for time is evident from not only the medically impossible duration they assert, but also from evidence such as the use of the word “was” on p. 6 of the 18 Jun 81 MSPB issuance. When people are disoriented, their behavior reveals their disorientation in depth. The local and MSPB behavior is replete with such evidence.

    When people display symptoms of disconnection, over a substantial period of time, it is clear that their thinking processes [have already been and so] are adversely affected. There has been, and is, and foreseeably will continue to be, worsening and further deterioration. When their “mind is wandering,” so to speak, such is clear and becomes clearer. It is clear that local and MSPB minds are and have been, wandering off the issue of what employees are “employed to” do (duties), and straying onto the issue of “environment,” as for example, is evident in the MSPB issuances of 18 Jun 81 and 26 Jul 82, the latter by innuendo.

    Dr. Matthew [Woods] [in 32 J Am Med Ass'n (Issue #13) p 68 (1 April 1899)] noted long ago that smoking “causes insanity.” Austin v. State [101 Tenn 563], 48 S.W. 305 [70 Am St Rep 703] (1898), describes cigarettes in terms such as “always harmful,” “inherently bad, and bad only,” “wholly noxious and deleterious,” and “an unmitigated evil.” State v. Olson [26 ND 304], 144 N.W. 661 (1913), indicates that “Tobacco, in short, is under the ban.” It is clear that “Workmen are not employed to” do what is, for example, “inherently bad,” “always harmful,” or “under the ban.” It is also clear that the “real derangement” involved wanders off from what employees are “employed to” do, in my case, all my duties for which I am (was) “employed to” do; instead, they [TACOM, MSPB, etc.] fixate on what I am not responsible to do. Indeed, they fail to even address that point, for there is nothing there for them to say; thus their fixation is even more bizarre, i.e., on the unknown “environment.” The severity of their “real derangement” is evident from the disconnection from the “unqualified and absolute” safety duty, from the various court precedents extending as far back as 1847 on controlling dangerous smokers, from the AR 1-8 and USACARA guidance, etc. Indeed, their mere use of the word “environment” confirms the non-existence of evidence relative to what I was “employed to” do. Hence, charging sick leave was void ab initio.

    Page 117 of 229 pages.Affiant's initials _________

    Criminals take the victims as they come; so the law sets criminal responsibility likewise. The hazard from tobacco smoke is well-established. The agency admits the likelihood by its regulation, AR 1-8. The various claims of action as alleged by MSPB purport to deal with the hazard. Local [TACOM] offenders claim to be doing some sort of studies, but that compliance with the guidance against endangerment “cannot” be effected. Words from Cox v. The People, 80 N.Y. 500 at 515 (1880), come to mind, “The confession was not induced by any promise or threat and so far as appears was entirely voluntary.” AR 1-8 “was entirely voluntary” in its issuance. So was the 25 Jan 80 USACARA Report. So were the claims of “cannot” comply and of “undue hardship.” So were the MSPB fabrications [documented by EEOC, Docket 03.81.0087, 83 FEOR 3046].

    The danger and the falsifications are linked. The process of misconduct began at the regulatory violation level. But when falsifications and other misconduct are added, there is a raise in “the grade of the offense” to the criminal level. Cf. Ex parte Heigho [18 Idaho 566], 110 P. 1029 at 1032 (1910), “The statute has the effect of raising the grade of the offense in which the party is engaged to the rank of manslaughter where it results in the death of a human being.” Just as untreated conditions can worsen, violations when uncorrected can have “the effect of raising the grade of the offense” to a worse “rank.” In this case, “Precisely what happened is what might have been expected as . . . natural and probable consequence . . . Malice is presumed under such conditions,” words borrowed from Nestlerode v. United States [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).

    “The confession” of various aspects an evident in the various issuance in “entirely voluntary.” Extortion and embezzlement as part of the pattern directed against me, the victim taken as he comes, is evident. Heigho, supra, indicates, “Many examples might be called to mind where it would be possible for the death of a person to be accomplished through fright, nervous shock, or terror as effectually as the same could be done with a knife or gun.” Aspects such as “fright” or “terror” are foreseeably utilized in extortion; cf. People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1976). And see Mich. Law Rev. [Vol.] 79, p 1270 at 1284 (May 1981), discussing U.S. v. Benjamin, 328 F.2d 854 (1964), “In our complex society . . . the lawyer's opinion can be instruments for inflicting pecuniary lose more potent than the chisel or the crowbar.” Such data applies also to extortion and falsification, including wrongdoing by MSPB employees for their personal reasons, as part of a pattern of unlawful behavior directed against a victim taken as he comes.

    Heigho, supra, indicates, “As was said by Justice Denman in the Towers Case, it would be ‘laying down a dangerous precedent for the future’ for us to hold as a conclusion of law that manslaughter could not be committee by fright, terror. or nervous shock.” Indeed, an effort to deny application of manslaughter law to smoking has already been rejected, Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976). Clearly, “it would be laying down a dangerous precedent for the future' . . . to hold as a conclusion of law that” extortion, embezzlement, falsification, etc. “could not be committed” under such circumstances as these directed against a nonsmoker seeking rule compliance. Indeed. such crimes “might have been expected,” considering the public domain data on smoker mental disorder, alcoholism, crimes, and inherently dangerous behavior.

    Page 119 of 229 pages.Affiant's initials _________

    (pp 119-141)

    Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb., 1980), provides insight. It was issued only a few days before the bizarre assertions by Mr. Baumgaertner reflecting his incapacitation to deal with the concept of "dangerousness." His weird response stands in marked, and wholly unfavorable, contrast to the competent analysis by the federal court. At 190, that court cited with approval language from McIntosh v. Milano, 403 A.2d 500 (1979).
    "'To an admittedly uncertain but nevertheless sufficient extent, 'dangerousness' must be considered identifiable . . . and although not a 'disease' as that term is commonly used, may affect third persons in much the same sense as a disease may be communicable.'"
    Courts do not engage in weird and disjointed tirades against the victims, unlike MSPB; courts restrain themselves to rational analyses of the law and facts, and focus on the duty to halt harm.

    The odd behavior of local and MSPB employees ignores the duty to implement AR 1-8, control dangerous people, control insane people, etc. The bizarre idea of "undue hardship" was flatly rejected by the Court. At 190, "The argument of the United States ignores the fact that psychiatrists and mental hospitals have been held liable for failing to predict the dangerous propensities of their patients. See Hicks v. United States, 511 F.2d 407, 415-17 (D.C.Cir. 1975); Eanes v. United States, 407 F.2d 823 (4th Cir. 1969); White v. United States, 317 F.2d 13, 17 (4th Cir. 1963) . . . ." AR 1-8 forbids such harm; there is not even the saving attempt aspect of being able to allege "inherent difficulties in predicting dangerousness." Local and MSPB employees are not being asked to write AR 1-8 ab initio. They are not being asked to decide if smokers are sufficiently dangerous to warrant a rule controlling their dangerous propensities and desires. The "predicting dangerousness" aspect is long past; local and MSPB time disorientation, delusions of grandeur in overruling AR 1-8, and paranoia at the possibility of its being enforced, and other symptoms, are evident. AR 1-8 "predicting dangerousness" already exists.

    At 193, "Moreover, this Court refuses to rule as a matter of law that a reasonable therapist would never be required to take precautions other than warnings, or that there is never a duty to attempt to detain a patient." Such matters "can only be determined after the parties have had an opportunity to prove . . ." their cases. Here, in marked and unfavorable contrast, the bizarre local and MSPB behavior rejects the "only" proper procedure. Psychiatric symptoms in local and MSPB employees explain/provide insight on the intense and protracted refusal to "ever consider the merits." Unwillingness to communicate is far worse than merely "sullen reluctance." It is at the "mute" level. Such tragic extremity of symptoms rejects the "only" lawful approach. Worse, another bizarre consequence arises, rejection "as a matter of law" of corrective action as an "undue hardship" alleged without regard to facts and evidence. Effort "to attempt to detain a" dangerous person is not inappropriate as a matter of law. At 193, the Court expressly cited the Tarasoff analysis including that
    "The discharge of this duty may require . . . one or more . . . steps . . . it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps . . . ."
    There is no "undue hardship" as a matter of law; the accommodation process has not started, because the "only" method for review has not started, but was rejected by MSPB; so local mutes remained mute.

    Page 142 of 229 pages.Affiant's initials _________

    (pp 143-158)

    Pertinent information is readily available in court precedents. A summary of certain handicapper aspects is in Valparaiso University Law Review, Vol. 13, “Private Rights of Action for Handicapped Persons Under Section 503 of the Rehabilitation Act,” pp. 453-500, a 1979 article by Eugene A. Schoon. At 453, “Congress recognized the severe employment problems . . . as a national problem responsible for economic waste and social dislocation. Congress also recognized that employment barriers were also barriers to integration of handicapped persons into society.” See “S. Rep. No. 318, 93d Cong., 1st Sess. 26.” The USACARA guidance against “relocating one nonsmoker” is based on AR 1-8. Thus, it is not necessary to reach the “integration” purposes of other guidance such as the Rehabilitation Act. The various duties, including on safety, all command the same result––integration.

    At 454-455, what Congress mandates and establishes in the law is “a direct tripartite attack on handicap employment discrimination.” The local [TACOM] and MSPB behavior is clearly inconsistent with the overall Congressional mandates, by opposing even routine compliance which is a prerequisite for even reaching issues under the Rehabilitation Act. Cf. 29 CFR § 1613.703, “The Federal Government shall become a model employer of handicapped individuals.” Cf. Executive Order 11807 [28 September 1974], “As the Nation's largest employer, the Federal Government has a special obligation to set an example for all employers by providing a safe and healthful working environment for its employees.” A “model” or “example” takes the lead; it is not a mere follower. The mere fact of the necessity for me to cite private cases confirms that the “model” and “example” guidance is not met.

    At 457, Section 503 affecting private contractors is discussed. It includes guidance “to take affirmative action” and “not discriminate.” At 455, “Of all the programs established by Congress, Section 503 . . . potentially has the most drastic impact on handicap employment discrimination in the private sector.” Local [TACOM] and MSPB offenders should be setting an “example” as a proper “model.”

    At 455, note 17 cites, “‘The obligation to take affirmative action imports more than the negative obligation not to discriminate.’ Southern Ill. Builders Ass'n v. Ogilvie, 471 F.2d 680, 684 (7th Cir. 1972).”   Clearly, the installation [TACOM] has not even halted the endangerment, so the “not to discriminate” guidance is still violated. “Affirmative action” has clearly not been reached, or even considered. Clearly, setting an “example” of “affirmative action” has not been reached, or even considered. It is likewise obvious that local offenders are not a “model” of an “example.” Each “obligation . . . imports more than” the preceding “obligation.” Clearly, the process has not even started. It has not even been considered, as the 25 Jan 80 USACARA Report makes clear.

    At 459, the article observes that “Section 503 adopts a broad definition of who is handicapped.” At note 36, for example, “Congress recognized that persons who are perceived as having an impairment, persons who were at one time erroneously thought to have an impairment . . . are also the victims of discrimination.” That data is particularly relevant in my situation, where enforcement of pertinent rules such as AR 1-8 would preclude the need to ever reach the issue of actual or perceived “not ready. willing and able to” do what I am “not employed to” do in the first place. At 460, “Congress recognized that discrimination on the basis of handicap is as much a result of employers' perceptions of disability as it is of actual disability.”

    Page 159 of 229 pages.Affiant's initials _________

    13 Valparaiso University Law Review 453 at 460 (1979) observes that “Congress recognized that discrimination on the basis of handicap is as much a result of employers' perceptions of disability as it is of actual disability.” Thus, “In order to combat discrimination based on erroneous perceptions, the Act prohibits employment discrimination against persons ‘regarded as being handicapped.’” Assertions that a nonsmoker is or “was not ready, willing and able to” do something “not employed to” do reflects, treated most favorably, “erroneous perceptions.” The local [TACOM] and MSPB claims are bizarre, disconnected, fragmentary, senselessly malassociated, disoriented for time, apathetic to reality, etc. [These statements are pre-bribery-pattern awareness].

    At 460, note 41 refers to “the above-average safety record of handicapped employees.” Evidently such employees comply with the “unqualified and absolute” safety duty “above all other considerations.” Moreover, a comparison of nonsmoker vs. smoker behavior in safety and related matters shows that nonsmokers have fewer accidents such as car accidents that are fatal, far fewer suicides, and significantly less “lost time” for illnesses. Nonsmoker efficiency is greater, as is foreseeable from the “‘overwhelming evidence.’” Smoker disorientation for time and place, difficulty concentrating, irritability, and other symptoms of mental disorder including brain damage, clearly impairs efficiency and thus is unsafe.

    At 461, “Clearly, when dealing with a person merely perceived as disabled or with an erroneous record of disability, the employer has no particular problems because the individual's ability is not affected. The employer must simply put aside his bias when dealing with the individual in employment relations.” In the case at bar, the malassociated claim is made of “not ready, willing and able to” smoke despite even though “not employed to smoke.” The bizarre MSPB issuance 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.], unretracted 26 Jul 82, calls to mind concepts of mental disorder including but not limited to “incoherence, marked loosening of associations, markedly illogical thinking,” etc. The odd associations made are senseless. They are disconnected from the body of laws and facts. They do not move in the direction of reality, but counter to reality. They contribute nothing to compliance. [These statements are pre-bribery-pattern awareness].

    At 462, “Congress intended to eradicate vestiges of charity wherever feasible and to assure handicapped persons a life of dignity, fully integrated into the social mainstream.” Note 47 indicates, “The Congress finds that . . . the complete integration of all individuals with handicaps into normal community living, working, and service patterns be held as the final objective. Pub. L. No. 93-651 . . . 89 Stat. 2-16 (1974) . . . .” Cf. 460 data on “erroneous perceptions,” where the higher ideation concept of “complete integration” applies with even greater force. At 461, “The employer must simply put aside his bias.” In the current case, USACARA found that AR 1-8 rejects “relocating one nonsmoker” without need to show a second violation (for example, of safety rules), third and more violations of other unitary laws, and without reaching the “final” guidance on “complete integration.” Action to “put aside . . . bias” is involved in, for example, action “'to . . . put” any endangering smoker “out of the building.” Compliance is what the law specifies; compliance with law is not “charity” and is not “reasonable accommodation,” as such need not even be reached, once there is prerequisite compliance.

    Page 160 of 229 pages.Affiant's initials _________

    [Eugene A. Schoon, "Private Rights of Action"] 13 Valparaiso University Law Review 453 at 462 (1979) cites Congressional guidance for “complete integration . . . into normal . . . working . . . patterns . . . .” Note 46 cites cases such as Weeks v. Southern Bell Tel. & Tel., 408 F.2d 288 (5th Cir. 1969) rejecting discrimination regardless of actual ability to perform a job, such as relative to occasional handling of a fire extinguisher by a woman. Cf. LaFleur v. Cleveland Board of Educ., 414 U.S. 632 (1974). In the case at bar, the refusal of “complete integration” by insistence on “relocating one nonsmoker” confirms multiple violations. Cf. Am. Smelting & R. Co. v. OSHRC, 501 F.2d 504 at 515 (1974), on behavior that “did not eliminate or even reduce the hazard; it merely disclosed it.” The local [TACOM] and MSPB behavior violates the unitary aspects of law including safety and anti-discrimination law.

    At 463, there is a discussion on guidance that does “specifically forbid reduction of compensation” due to discrimination. Note 50 cites 41 CFR § 60-741.4 (1977) guidance against discrimination in “‘rates of pay and other forms of compensation’ . . . Other compensation presumably includes insurance benefits which are frequently of special importance for handicapped employees because of the difficulties they often have in obtaining insurance.” In the case at bar, local [TACOM] offenders have discriminated and taken reprisal in that aspect as well. The pattern of misconduct includes but is not limited to behavior resisting my right to unemployment compensation insurance, giving false and misleading information to OWCP relative to my workers' compensation insurance claim, violating the local one year absence limit rule [TACOM-R. 600-5.14-29.b.(2)] thus adversely affecting health insurance, etc.

    At 464, there is a discussion of the enforcement mechanism under Section 503, including “compliance review of affirmative action programs.” Compliance involves eradication “of any systematic discrimination.” In the case at bar, local [TACOM] offenders are neither a “model” nor an “example.” There is no “affirmative action.” The rights of nonsmokers are ignored and suppressed. Such behavior conflicts with the safety duty to “suppress” unsafe behavior, not people who report unsafe behavior. The unimplemented inted out the [TACOM] violations. MSPB should have told the installation [TACOM] to halt its violations. It should have implemented the 25 Jan 80 USACARA Report shows a local lacking in this area.

    P. 465 cites a range of penalty actions, up to debarment of the contractor. In this case, civil service rules provide for a range of penalties for unsafe behavior, harming others, harming self, discrimination, etc. (There is no penalty for being harmed; the local [TACOM] and MSPB innuendos to the contrary are delusional or otherwise deviant.) As a personnel specialist, I have processed disciplinary cases, including for discrimination by management officials. In this case, debarments are reasonable considering the severity and duration of the violations, including the pattern of violations, and the protracted refusal of review.

    P. 465 also provides information concerning “lacking the will and commitment to enforce Section 503.” Here, local [TACOM] and MSPB behavior is a “model” and “example” in terms of hostility to compliance. They commit a range of improper practices, including discrimination, non-compliance with prerequisite rules, reprisal, falsifications, delays, refusal to comply with guidance from reviewers such as EEOC and USACARA when such occurs, opposing review thereafter, etc., etc.

    Page 161 of 229 pages.Affiant's initials _________

    Eugene A. Schoon, "Private Rights of Action," 13 Valparaiso University Law Review 453 at 465 (1979) indicates that the “remedies for non-compliance clearly focus on the enormous leverage the government wields in its power to” eradicate discrimination. In my case, it is clear that claims of “undue hardship” are disconnected from reality, impoverished to the extent that concreteness is lacking, unresponsive to the examination of evidence, and irritable at the “unqualified and absolute safety” duty “above all other considerations,” etc. The “will and commitment” to comply is “lacking.” Hence, there is no “will and commitment to enforce.”

    At 467, “All of these factors suggest that the prospective benefits to individual handicapped persons . . . are in serious danger of being diluted . . . Recognizing administrative inability to effectively enforce federal laws . . . remedies include both actions against the enforcement agency and actions against the offending party.” P. 468 cites “action . . . to force the agency to perform its legal duties.” In this case, “the offending party” and the “enforcement” personnel are generally the same. Disciplinary action is a normal personnel technique when violations occur, especially after rehabilitation occurs or is refused by offenders.

    P. 469 discusses “duties to handicapped individuals protected by the act. Those duties are two-fold: to receive and promptly investigate complaints alleging non-compliance and to take such action as the complaint and its circumstances warrant. The duty to receive and investigate complaints is fairly self-evident. An aggrieved handicapped person is given an explicit right in the statute to complain. . . . The Department must ‘promptly investigate’ each complaint.” In this situation at bar, it is clear that there are not only multiple violations on the merits, there are also multiple procedural violations. Each violation separately is improper. When considered together, in viewing the record as a whole, a pattern of discrimination is clear when the violations, procedural and merits. are considered as they increased in number over time, and compounded in interaction with each other. The pattern of substantive discrimination is one pattern; the pattern of procedural discrimination is also a pattern; they are not “disconnected” patterns, but an overall whole––an overall pattern of discrimination, a pattern by various means, as is foreseeable from the pattern of disregard of rules that gave rise to the situation. The pattern, of course, continued during the attempted review process, and was and is clearly designed to obstruct review.

    P. 472 discusses “injury due to agency action which, if unredressed, would not only harm himself, but also undermine the congressional purpose of eliminating employment discrimination on the basis of handicap . . . .” At 473, “the Act requires the agency to investigate every complaint it receives . . . the agency must apply law in its decisions of what is appropriate action. . . . a vast amount of experience from sex and race discrimination cases to draw upon . . . concepts of discrimination can be applied . . . .” It is clear that the local [TACOM] and MSPB pattern of discrimination, reprisal, falsification, delays, etc. “undermine the congressional purpose” relative not only to discrimination, but also on falsification, safety, timeliness, etc. The behavior ks disconnected from the body of law and related precedents, to the extent that review is opposed and fabrications are invented, to divert attention away from the local [TACOM] and MSPB misconduct. The “vast amount of experience” in the various areas is brazenly disregarded.

    Page 162 of 229 pages.Affiant's initials _________

    (pp 163-175)

    When deciding officials are mentally ill, symptoms such as disorientation for time, and disconnected, malassociated, and impoverished "reasoning" are foreseeable. That is, data on mental illness is an efficient predictor of the behaviors. Hallucinations are predictable or foreseeable; delusions are likewise foreseeable.

    The bizarre issuances from MSPB and local offenders display multiple symptoms of mental disorder. Claims of actions taken appear, but are disconnected from each other, from the rules, from reality, and from the matters giving rise to the appeals. When "real derangement" exists, such is foreseeable. Insanity is an efficient predictor. The severe and "real derangement" displays foreseeable effects, such as disconnection from AR 1-8. AR 1-8 forbids endangerment, because smokers lack the mental capacity and willingness voluntarily to not endanger people. They have a pattern of refusing; hence, AR 1-8 became necessary. When severe and "real derangement" exists, disconnection from multiple rules is foreseeable. Insane smokers are disconnected from AR 1-8, and also from other rules as well. For example, they are disconnected from sick leave rules such as 5 CFR 630.401. See the ASH brief, 6 Oct 80, pp. 11-12.

    When deciding officials are insane, their delusions and hallucinations result in different conclusions at different times and in different cases. Sometimes the process is "not relevant" and need not start (23 Jul 80 issuance [by Martin Baumgaertner]). Other times, it is already completed (18 Jul 81 [6 MSPB 626, 7 MSPR 13, by Ronald P. Wertheim and Ersa H. Poston, decision reversed as wrong on both facts and law and remanded by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046]). In mental disorder, what is predictable is that symptoms of confusion, disconnection, malassociation, etc. are foreseeable, and will occur. The exact nature of the insane behaviors, of course, varies. For example, in alcoholic hallucinations, different animals can be hallucinated from time to time, and from person to person. Thus, an overall pattern of symptoms becomes evident.

    For example, the claims of "in the environment" are part of the pattern of mental disorders. 5 CFR 630.401 does not envision such. When a person "is physically able to perform" the "job" duties, but the "environment" is out of order, sick leave is not appropriate. Excused absence is the proper status. This is particularly so for "a nonnecessary toxic substance," words borrowed from Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 at 411 (1976). But even if tobacco smoke were other than "nonnecessary" (which has not been shown, since the compliance process has not yet started), "All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace," Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 (1973). Cf. the federal safety law, 5 USC 7902.

    However, and additionally, smokers display further malassociation and impoverished "reasoning" in even using the word "environment." The situation arises from the presence of insane smokers. It is the insane smokerswho are the cause of the situation. It is essential that words pertinent to causation be used, lest meanings of words be obscured, with resultant disconnection from reality. Emphasis on the word "environment" reflects malassociation of cause and effect. Civil service rules such as FPM Suppl. 752-1 envision that insane individuals will not be employed or retained. Causation arises from the disregard of such rules. Solution does not involve "sick leave" as the rules do not contemplate such a response in lieu of compliance with guidance against reckless retention of insane individuals.

    Page 176 of 229 pages.Affiant's initials _________

    It is clear that MSPB has overruled the evidence in order to declare me “not ready, willing and able to” do what “Workmen are not employed to” do. The refusal of local and MSPB offenders to cite a nexus between the thoughts underscores the wrongfulness of not providing an advance notice and opportunity to reply concerning “the agency's decision to terminate” me [as observed by EEOC’s Henry Perez, Jr.] so many years ago. When symptoms of mental disorder exist in local and MSPB issuances, legal principles are ignored. Local and MSPS allegations are fragmentary,   disconnected, bizarre, disjointed, concrete but impoverished, and unresponsive to the evidence, among other failures.

    The ASH brief dated 6 Oct 80 called attention, delicately, to some of the behaviors. For example, at p. 16, ASH noted behavior “inappropriate in the circumstances, and . . . contradictory inter se.” That delicate phraseology refers to the clearly disconnected, garbled, and bizarre behavior involved. However, local and MSPB offenders lack insight into their own symptoms and so do not demonstrate a rational reaction to normal stimuli, i.e., the presentation of evidence for examination.

    “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931). Cf. 39 Comp. Gen. 154, cited in the 31 March 1980 appeal. Cf. FPM Supp. 752-1, S1-6c(4)(c) at p. 27, “In summary, the placing of an employee on sick leave without his consent when he was capable of performing the duties of his position was erroneous.” MSPB claims that I “was not ready, willing and able to” do non-duties that I am “not employed to” do are clearly disconnected from the governing criteria. The bizarre claims are fragmentary,   impoverished, and indeed impoverished to the severe degree that even concreteness is lacking. They are “inappropriate in the circumstances.”

    The FPM Supplement which I have used for many years as a part of my Employee Relations Specialist duties expressly reminds us to be prudent, “This is a delicate area, full of hair-thin distinctions, and should be approached with caution.” It is clear that local and MSPB offenders disregard multiple rules and cautions, of which that is only one among many. Nonetheless, it is clear that they have simply failed to show, even after all these years, any “duties” that are pertinent. The 39 Comp. Gen. 154 guidance is basic. Showing “duties of his position” is basic, to even start to have a cause of action. The local and MSPS blunderbuss approach is disconnected from the basic aspects; the basic “duties of his position” has not been established, and indeed, cannot be established, since “Workmen are not employed to smoke” is true as a matter of law, as well as is clearly a factual matter as well. When the basics are not shown, when claims are not responsive to reality, and when evidence has been overruled, it is no surprise that claims are “contradictory inter se.”

    When the basic requirement for a cause of action is lacking (i.e., no “duties of his position” are shown), the case is void ab initio, and there is no need to reach additional issues. It is clear that local and MSPB good faith is lacking, clear in many ways, and not just relative to the summary removal in hasty reprisal.

    Page 177 of 229 pages.Affiant's initials _________

    (pp 178-191)

    Adverse actions are not valid when they are found to be arbitrary, capricious, an abuse or discretion, unsupported by substantial evidence, without a rational basis, improperly motivated, contrary to law, or not in substantial compliance with procedural regulations. The MSPB pattern of behavior is disconnected from these well established legal principles. A review of pertinent precedents shows that one or more violations invalidates the action. Here, in this case, the many violations are so numerous as to be burdensome in simply listing the multiple errors with precedents for rejection in each area.

    The local and MSPB pattern of falsification, confabulations, delusions, hallucinations, and/or other deviance brazenly defies the principles on evidence cited at 5 CFR 1201.56. The facts and law establish clearly my position, and show the multiple fallacies of the local [TACOM] views. I have met the burden or proof, though it has been improperly imposed on me; the local offenders have not met the burden of proof, and cannot meet it in fact or as a matter of law.

    The fabrications, confabulations, and/or other deviance are not only the entirety of the local case in overruling the facts based on the local delusions and/or insubordination, the deviance is doubly improper. It arises as the tainted fruit of ex parte communications. Opportunity for cross-examination of witnesses has been refused since the beginning. The local and MSPB misconduct denies fundamental rights. When local and MSPB falsification exists, the individual must have “an opportunity to show that it is untrue. . . . this is important in the case of documentary evidence” and “testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy,” Green v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

    The Supreme Court has consistently rejected the abuse of rights that is clearcut in this case. See cases such as Mattox v. United States, 156 U.S. 237 (1895); Kirby v. United States, 174 U.S. 47 (1899); and others for the principle (higher ideation) involved. The bizarre assertions by MSPB [Martin Baumgaertner, Ronald P. Wertheim, Ersa H. Poston, etc., 6 MSPB 626; 7 MSPR 13 (18 June 1981), etc.] on what has happened are contrary to reality and foreseeable smoker behavior; even if smoker mental disorders were not well-established, the assertions 18 Jun 81 “can be primarily established only by witnesses.” (Principles of law and regulations must be found by other means; it is clear that MSPB delusions of grandeur produced references to non-existent principles of law, to non-existent “hea1th standards,” etc.) Cf. State v. Olson, 144 N.W. 661 at 669-670 (1913) for pertinent limitations of evidence in a particular case on a widespread matter. For example, since “Workmen are not employed to smoke,” the views of a person such as Dr. Holt that a nonsmoker such as me cannot work at what “not employed to” is nonsensical and absurd. That such claim is disconnected from reality is clear even if I were to provide no evidence at all on the facts of the matter. The “overwhelming evidence” was [judicially] noted as long ago as Austin v. State, 48 S.W. 305 (1898), in Larus & Brother Co. v. F.C.C., 447 F.2d 876 (1971), and in other cases.

    A person such as me “is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence . . . when . . . the exact nature” of the claims, includes disconnected claims “only after” the decision, words borrowed from Nat'l Rlty & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (1973), a principle consistent with the above cases.

    Page 192 of 229 pages.Affiant's initials _________

    The installation action against me is not supported by substantial evidence. Indeed, the adverse action pattern is contrary to the evidence. The lack of evidence provides insight on the extreme opposition to review on the merits. EEOC on 23 Feb 82 already noted a portion of that opposition. The MSPB pattern arises from the insistence that the burden of proof is on me, as is evident from the 26 Jul 82 MSPB issuance, and throughout the MSPB behavior pattern. Even if the burden of proof were on the employee (me), which it is not, I have more than met the burden. The decisions by various impartial reviewing bodies cover all the pertinent aspects. For example, the 23 Feb 82 EEOC decision shows non-implementation of the 25 Jan 80 USACARA Report, a pattern of errors, etc. The OPM analyses 17 Sep 81 and 5 Oct 81 show a lack of accommodation and lack of showing “of a medical condition which has caused a deficiency in service.” The repeated MESC decisions confirm my ability to work. The 25 Jan 80 Report shows a hazard to me. (The numerous court precedents show that when there is a hazard to one or more persons, the safety duty to eliminate the hazard is "unqualified and absolute" and "above all other considerations.") These analyses were made independently on the facts.

    In none of the above cases was information from the on-point case, Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 ([CA 10] 1931), provided. “Workmen are not employed to smoke . . . .” I did not cite that case to EEOC, OPM, USACARA, or MESC, none of them cited it. Indeed, only the EEOC decision of 23 Feb 82 cites any court precedents at all. (EEOC citations were on the procedural, i.e., non-merit, aspects.) It is clear that (a) the installation has not met the burden of proof, and (b) I have. I have, on the merits, on the facts, without the need to ever reach issues of law. Nonetheless, based on my personnel background, I am trained to be thorough. (That thoroughness undoubtedly figures in the reprisal; reprisal is more likely, not less likely, when the person is trained in accuracy and thoroughness.)

    It is well-established that a federal agency must make at least two separate determinations in its “decision to terminate” an employee. It must show the pertinent event(s), facts, and/or act(s) allegedly responsible for the termination; and the agency must show a nexus between the merits and the efficiency of the service. See cases such as Wathen v. United States [208 Ct Cl 342], 527 F.2d 1191 (1975), cert. den. 429 U.S. 823, 97 S.Ct. 69 [50 L Ed 2d 82] (1976); Young v. Hampton, 568 F.2d 1253 ([CA 7] 1977); and Masino v. United States [218 Ct Cl 531], 589 F.2d 1048 (1978). Both determinations must be supported by substantial evidence. (There must of course be determinations on matters such as on issuing an advance notice, willingness to consider a reply, etc., all lacking in this case, as characterized by local muteness.) Here, there is no evidence on facts to support the local behavior. Moreover, the behavior is purely personal. Any allegations, if made, on efficiency of the service, would run afoul of AR 1-8 guidance against letting smoking cause inefficiency in the first place. Moreover, the Maloney Tank case, supra, is dispositive as a matter of law. Cf. Prewitt v. U.S. Postal Service, 662 F.2d 292 ([CA 5] 1981), “the employer must bear the burden of proving that the physical criteria are job related.” That process has not started even yet after so many years, for the reason not only of the local muteness, but also due to the disposition as a matter of law. Also see Shelby Fire Dep't v. Shields [115 Mich App 98], 320 N.W.2d 306 [1982].

    Page 193 of 229 pages.Affiant's initials _________

    FPM Suppl. 752-1 shows multiple well-established principles. For example, S5-4c(1)(e). p. 60, indicates “'it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss.” When there is an “'environment'” problem, FPM 630.11 on “Excused Absence” is controlling, yet that has not even been addressed. When the basic rules have not been addressed, it is clear that the “reasonable accommodation” process has not even started, since it [that process] presupposes compliance with the preceding and underlying rules. In my case, excused absence was first granted, and then revoked, in part, when the overall reprisals and other misconduct already found, began in greater earnest.

    FPM Suppl. 752-1.S3-2b(1). establishes, “No cause because no change in circumstance.” There is “''overwhelming evidence''” on the dangers of smoking behavior, Larus & Brother Co. v. F.C.C., 447 F.2d 876 ([CA 4] 1971). When a person is admittedly endangered, the FPM guidance applies, as the danger of smoking and fire-setting behavior was known prior to the initiation of the cause of action. Words borrowed from Quarles v. Philip Morris, 279 F.Supp. 505 at 515 (1968), provide insight: “The plain language of'" OSHA, 5 USC § 7902, DOD Instruction 6015.18 [32 CFR § 203], etc. are met when a person is “'endangered.” Elimination is mandatory; the hazard must be “excluded.”' Any other course of action, even disability retirement, causes “loss” greater than “the least possible loss.” As compliance is mandatory, refusal is a prohibited personnel practice.

    The hazard is well-established; there is “'no change in circumstances.” See Banzhaf v. F.C.C., 405 F.2d 1082 at 1097 (1968), “it is a danger inherent in the normal use of the product . . . It threatens a substantial body of the population, not merely a particularly susceptible fringe group.” Claims of “uniqueness'” or “'peculiar physical sensitivity” are clearly false when what happens in both smokers and nonsmokers is normal reaction to the presence of clear-cut poisons and radiation. It would be a lack of reaction that would be abnormal. The “'inherently bad” effects have been known since prior to Austin v. State, 48 S.W. 408 (1898), aff'd sub nom. Austin v. Tennessee, 179 U.S. 343 (1900). (That decision also alluded to the known adverse mental effects.) Claims of “uniqueness” or “peculiar physical sensitivity” when made contrary to data clearly in the possession of the makers of such claims run afoul of principles of law such as are contained in cases such as U.S. v. Blackmon, 24 F.Supp. 830 (1938); U.S. v. Myers, 131 F.Supp. 525 (1955); and U.S. v. Olivares-Vega, 495 F.2d 827 (1974).

    The various cases brought by nonsmokers confirm that “'uniqueness”' claims are false. The mere existence of rules such as DoD Instruction 6015.18 belies “'uniqueness” claims. The various workers' compensation claims from nonsmokers likewise belie the “uniqueness” claims. Even the various cases received by MSPB on the matter belie the claims. For guidance on intention in such matters, see such cases as People v. Carmichael, 71 Am. Dec. 769 (1858). Moreover, since “Workmen are not employed to smoke'” even passively, Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931), any assertions of inability to perform the actual job duties must be considered in light of the source. A trained personnel specialist such as myself (Pos Class Spec), having written numerous job descriptions, avoids such fallacies, which arise from the non-“normal sensibilities”' of smokers who feel that nonsmokers are weird or “unique'”; cf. Aldridge v. Saxey, 409 P.2d 184 (1965) .

    Page 194 of 229 pages.Affiant's initials _________

    Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11 [99 L Ed 11] (1954), provides insight. That case involved “Almost from the outset, a clash between the presiding" official "and petitioner . . . which, it is fair to say, colored the course . . . with increasing personal overtones.” In my case, the local offenders were provided “in January, 1980 with a recommendation of ways the agency had to” enforce pre-accommodation guidance (AR 1-8). The 25 Jan 80 USACARA Report alluded to in the 23 Feb 82 EEOC decision arose from the failure of compliance, based on local misuse of jobs to support purely personal desires to smoke, regardless of what the rules say. Those offenders “failed to abide by the” Report, so “appellant filed even more EEO complaints.” By 14 March 1980, the malpractice of the installation physician [Dr. Francis Holt] was also being reported in writing; hence, the next workday after 14 March 1980, the local offenders fired me—on 17 March 1980, after a pattern of misconduct by them, predicated on the belief that I, based on my background, would foreseeably note the malpractice of the installation physician.

    Local malice against me shows clearly “increasing personal overtones.” I have been trained to be impartial and to use conservative analysis techniques, including the copying of rules. Local offenders aware of the “unqualified and absolute” safety duty and the full authority and duty to implement it clearly chose a malicious pattern of “increasing personal overtones” as part of refusal “to abide by the” rules and the 25 Jan 80 USACARA Report. Such misconduct “sets up an unjustified clash of interests . . . to reduce the likelihood and . . . effectiveness . . . to achieve . . . legitimate goals under the” guidance and to produce “an apathy or docility which inhibits . . . asserting . . . rights against the perpetrator . . . ,” United Packinghouse Workers v. NLRB, [135 US App DC 111] 416 F.2d 1126 (1969) [cert den 396 US 903 (1969)]. EEOC officials are undoubtedly familiar with the unlawful motives behind [employer] misconduct. The 23 Feb 82 decision notes “that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints and seek counseling.”

    In Offutt, supra, there was also “a clash.” Whatever were the causes of such “clash” in the Offutt case, it is clear that the causes here arise from local and MSPB irritability at my copying rules, rules which they have a personal desire to disobey. In Offutt, “Each responded to great provocation from the other.” Evidently those persons did not have (or use) training such as has been provided me in dealing with employees with personal or health problems such as alcoholism, drug addiction, unauthorized absences, family problems, etc. Such background is most helpful to me when faced with “great provocation” from local and MSPB people with obvious severe psychiatric difficulties. Such persons are clearly “increasing personal overtones” as a product of those psychiatric difficulties, including the “projection” thereof.

    Even when no psychiatric symptoms are evident, deciding officials are not allowed to engage in misconduct for personal reasons, Knotts v. U.S. [128 Ct Cl 489], 121 F.Supp. 630 (1954). Offutt provides insightful words such as “assuring alert self-restraint.” Misconduct such as refusing rule enforcement, refusing EEO counseling and case processing, opposing review on the merits including by MSPB, making false claims, etc., is not “alert self-restraint.”

    Page 195 of 229 pages.Affiant's initials _________

    Muscare v. Quinn, 520 F.2d 1212 (7th Cir., 1975), provides insight. That employee was suspended with undue haste. At 1216, the Court quoted the appellant's comment in his brief that: “The present case hardly presents an emergency requiring the . . . Department to act without any prior process, where the . . . Department utilized the services of” the appellant “for a period of . . . months” before. The Court noted the precedents (something local [TACOM] and MSPB employees do not do) and found “a matter of considerable dispute in the decided cases.” However, because of the unseemly haste, “we find it unnecessary to resolve that controversy in this case . . . .”

    Mr. [Henry] Perez [of EEOC] noted “the agency's decision to terminate me” as long ago as his 9 April 1980 letter. The civil service rules [e.g., 5 USC § 7513] on advance notice, specificity, right to reply, etc., had not been followed. Indeed, considering the existence of AR 1-8, it is evident that local employees acted on their own. They have provided false and deceptive data to MSPB; such misconduct by them in dealings with the agency above them in thus foreseeable.

    In this case, the various cases about the harm by smokers and by smoking behavior do not show “considerable dispute.” The cases are consistent in finding that smoking is not a business necessity, hence, “undue hardship” [claim] is false as a matter if law. All cases presuppose that management can control smoking, i.e., “workmen are not employed to smoke.” See, for example, such cases as:

    Palmer v. Keene Forestry Ass’n [80 NH 68], 112 A. 798 (1921)

    Feeney v. Standard Oil Co. [58 Cal App 587], 209 P. 85 (1922)

    Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 [31 ALR 283] (1923)

    Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 F.2d 146 (1931)

    Allen v. Posternock [107 Pa Super 332], 163 A. 336 (1932)

    Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935)

    Jones v. Eastern Greyhound Lines, Inc. [159 Misc 662], 288 N.Y.S. 527 (1936)

    Vincennes Steel Corporation v. Gibson [194 Ark 58], 106 S.W.2d 173 (1937)

    Petition of Republic of France, 171 F. Supp. 497 (1959)

    Shimp v. New Jersey Bell Telephone Company [145 N J Super 516], 368 A.2d 408 (1976)

    Here, the duration of the endangerment (once a proper time orientation is considered) evidences the unseemly haste. Reprisal is clear––anger at my winning the favorable Report 25 Jan 80, anger at my noting [TACOM] Dr. [Francis J.] Holt's evident malpractice, normal smoker irritability, etc. Thus, mute local [TACOM] smokers hoped to repeal the rule enforcement process and the reasonable accommodation duty. The duration and the disregard of intervening events confirms malice, including malice to cause a situation financially worse than cited at 1215, note 3, showing judicial concern at a mere $1,400 situation.

    Page 196 of 229 pages.Affiant's initials _________

    (pp 197-198)

    Disciplinary Intent” Assertions as Symptoms/Behaviors

    Mr. [Martin] Baumgaertner [of Chicago MSPB] on 25 July 1980 alleged “not disciplinary in nature.” Ms. Bacon on 29 April 1930 alleged “no disciplinary intent.” Ms. Bacon made a like denial in her 18 September 1980 letter, “not . . . disciplinary purposes.”

    In Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], Dr. [Lyle] Tussing at 361-2 indicates, “The vast majority of mental-hospital patients . . . are more like cattle, sitting around until someone tells them what to do next. Modern psychiatric treatment aims to help mentally sick patients find themselves again as living human beings.” At 357, words such as “fragmentary” and “seem feeble-minded” are used in a discussion on common symptoms of schizophrenics. Such data provides insight when people, trained in legal and personnel matters presumably, consider only a "fragmentary" aspect of the concept of “adverse action,” disconnected from the body of guidance on the subject. Words such as “like cattle, sitting around until someone tells them” more than the “fragmentary” aspect they cite, and then “tells them what to do next” with such data.

    Ed. Note: These “like cattle, sitting around until someone tells them what to do next” symptoms continued among TACOM and MSPB officials (Hoover, Benacquista, Bacon, Baumgaertner, Wertheim, Poston, Russell, Ellingwood, et al.) until overruled by the Supreme Court and the Federal Circuit Court of Appeals, e.g., by Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); and Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987).
    An Army's own analyst would say: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR § 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Review 143, p 35 of 39, n 206 (Fall 1987).

    Data on stereotypy also comes to mind concerning such “fragmentary” assertions [as TACOM and MSPB made]. See [Profs. Ernest R.] Hilgard and [Richard C.] Atkinson, Introduction to Psychology [(Harcourt, Brace & World, Inc., 1967)], 4th edition, pp. 512-3. Stereotypy is “a tendency to blind, repetitive, fixated behavior. . . . Once adopted, it is very resistant to change, so much so that it has been called an 'abnormal fixation.' For example, if the rat that has come to jump regularly to the right is now punished every time he jumps, he may continue to jump to the right for as many as 200 trials. . . . The behavior is so stereotyped that the alternative does not exist for the rat (Maier, 1949).”

    When an “alternative” or more than merely “fragmentary” aspects do “not exist” for people because of “blind, repetitive, fixated behavior” or other symptoms, it is foreseeable that such condition would continue until “someone tells them what to do next,” such as in the rehabilitative process. A marked prolongation of the process is foreseeable when rigidity, apathy and indifference to reality, irritability, and/or unwillingness to be responsive upon the presentation of evidence, is part of the symptom pattem as well. At 474, Dr. Tussing indicates, “When a person wants to support a prejudice, even though he is not conscious of this desire, he sees only the bad and unpleasant things about the people at whom his feeling is directed.” In mental illness, the word “fragmentary” provides insight. In this case, the [TACOM and MSPB] behavior/fixation on disciplinary intent is part of the pattem of refusing case processing. Words such as “extreme withdrawal from personal contacts, ranging from sullen reluctance . . . to actual muteness” come to mind. Mr. [Martin] Baurngaertner [of MSPB] displayed “sullen reluctance” and “actual muteness.” He refused to consider my case by the normal means such as by a hearing. His second issuance, 4 August 1980, confirmed his pattern. Even years later, his condition has shown no improvement. Ms. Bacon's behavior is even more pronounced.

    The 23 Feb 82 EEOC decision noted that “the agency failed to abide by the” 25 Jan 80 USACARA Report,   “made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling,”   “went so far as to utilise erroneous information or miscalculations,”   and did not “ever consider the merits.”   When lawyers are asked to engage in plans to violate laws, words borrowed from State v. Collentine [39 Wis 2d 325], 159 N.W.2d 50 [at 53] (1968), come to mind, “it is the absolute duty of the attorney to refuse to act.” Cf. Disciplinary Board v. Amundson, 297 N.W.2d 433 [at 443] ([N.D.] 1980), “Even personal illness does not shield an attorney from his professional responsibility. State ex rel. Oklahorna Bar Ass'n v. Fore, 562 P.2d 511 (Okl.1977).” When “fragmentary” assertions are made, “it cannot be said that” the maker “is a person of normal sensibilities,” words from Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965).

    Page 199 of 229 pages.Affiant's initials _________

    (p 200)

    Pritchard v. Liggett & Myers Tobacco Company, 350 F.2d 479 (3d Cir. 1965), provides insight. The tobacco company “pleaded assumption of risk as an affirmative defense” against its smoker customer. The tobacco company opposition to smokers' rights to collect compensation is part of the pattern of opposition to basic legal principles evident in the record. The local [TACOM] and MSPB behavior parallels tobacco company opposition to smokers' rights; nonsmokers’ rights are also opposed, even when expressly protected by specific guidance including but not limited to AR 1-8 and the 25 Jan 80 USACARA Report.

    The court rejected the tobacco company position. “It has been held by the Superior Court of Pennsylvania, an intermediate court of appeals, that contributory negligence is inapposite as a defense in an action for breach of warranty. Jarnot v. Ford Motor Company , 191 Pa.Super. 422, 156 A.2d 568 (1959). We have found, and the parties to this appeal have cited no other case on point. We are therefore obliged to follow this decision . . . The rule as announced by the Superior Court appears to represent the majority view and is supported by substantial authority in other jurisdictions. Green v. American Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963), cert. den. 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306; Brown v. Chapman, 304 F.2d 149, 163 (9th Cir. 1962); Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254, 258 (6th Cir. 1960) . . . It was held in the cited cases that . . . the defense of contributory negligence is inapposite. There are other decisions to the same effect. . . . We are of the view, and so hold, that since contributory negligence is not available as a defense . . . assumption of risk in the sense of contributory negligence is likewise not available.”

    Compare Michigan guidance such as Swick v. Aetna Portland Cement Co ., 147 Mich. 454 at 467 [111 NW 110] (1907), “we cannot hold that the plaintiff assumed the risks . . . This question was passed in the case of Sipes v. Starch Co ., 137 Mich. 258 [100 NW 447; 16 Am. Neg. Rep. 401 (1904)], where it was said by Mr. Justice Montgomery, following the case of Narramore v. Railway Co ., 96 Fed. 298 (48 L. R. A. 68) [37 CCA 499, C.C.A. 6th, 1899], that, as the assumption of risk is the result of a contract of employment, and as the master could not legally contract to violate a statute, he is not in a position to assert, as against the servant, the doctrine of assumption of risk . . . .”

    OSHA [29 USC § 651 - § 678] guidance on the subject is consistent. “An employer has a duty to prevent and suppress hazardous conduct by employees, and this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence,'' Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 142], 489 F.2d 1257 (1973), p. 1266, n. 36. Also, OSHA “is remedial and preventative in nature. . . . In view of the clear purpose of the statute to set new standards of industrial safety, we cannot accept the proposition that common law defenses such as assumption of the risk or contributory negligence will exculpate the employer who is charged with violator the Act,” REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974).

    It is evident that local [TACOM] and MSPS offenders share with L & M Tobacco Co. a disregard for basic legal concepts. It is clear that local and MSPB offenders oppose the limitations, including that the government “could not legally contract to violate a statute” or rule, so they resort to deviance such as (a) reprisal for my quoting rules, and (b) extortion to halt such quoting. Freedom of expression cannot be waived even by “assumption of the risk” of reprisal.

    Page 201 of 229 pages.Affiant's initials _________

    P. Lorillard Co. v. Federal Trade Commission, 186 F.2d 52 (4th Cir. 1950), provides insight. It was a false advertising case. "The company was ordered to cease and desist 'from representing by any means directly or indirectly,’” that the cigarettes at issue “‘will not harm or irritate the throat’” and “‘will not irritate the throat or mouth of a smoker, or is cool, or is free from bite, burn, or harshness,’” and that their length “will filter out or eliminate the harmful properties in the smoke from such cigarettes’ . . . .” The company admitted its behavior, i.e., “The company does not contend that the falsity of the representations referred to in paragraphs (1), (2) and (4) of the above order was not established by substantial evidence . . . .” At 56, “. . . the Commission found . . . that the advertising was false, misleading and deceptive. The evidence amply supports this finding.” At 57, what the company had done “shows a perversion of the meaning . . . to cause the reader to believe the exact opposite of what was intended by the writer . . . .” At 58,"To tell less than the whole truth is a well known method of deception . . . .”

    The local [TACOM] and MSPB behavior, fabrications, innuendo pattern, etc. shows a like pattern, a “false, misleading and deceptive” pattern. Clearly “a perversion of the meaning” of the evidence is involved.

    At 58, “In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have . . . .” In this case, no “excuse” has been made for the local [TACOM] and MSPB behavior pattern. The pattern of violations is still in process. Thus, it is not necessary to reach the subtle wisdom of the Court decision to deal with the local [TACOM] and MSPB violations. Their violations are brazen. The falsehoods are clear and not a matter of “fine spun distinctions.” The refusal of correction for so long a period confirms that the falsehoods are intentional.

    The Court rejected the company claims that its violations could not be controlled because of “alleged procedural irregularities.” Here, local [TACOM] and MSPB offenders refuse corrective action on like insubstantial grounds. The real fact is––they hate the rules and are willing to commit falsifications and other offenses to “repeal” the rules. As part of their pattern of refusing compliance, insubstantial claims such as on time limits and “res judicata” and on alleged corrections are made. When the falsity of such claims is made an issue, the response is––muteness. Pretense of concern for time limits is made by some offenders; as such claims are clearly disconnected from their own behavior pattern, words such as “blunted,” “deranged,” and “perversion of the meaning” come to mind.

    It is public policy to control falsifications, control the insane, eliminate hazards, etc. “Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials. United States v. City & County of San Francisco, 310 U.S. 16 . . . Utah Power & Light Co. v. United States, 243 U.S. 389 . . . .” Here, the local [TACOM] and MSPB behavior is not “mistaken”; it is intentionally wrong. The legal duties protect employees as well as the “public.” Obeying the legal duties is what local [TACOM] and MSPB behavior opposes.

    Page 202 of 229 pages.Affiant's initials _________

    Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292 (3d Cir. 1961), provides insight. For example, the issue of causation was raised. The tobacco company wrongly “contends that even though the plaintiff's experts may have given categorical opinions concerning the relationship between smoking and cancer, such opinions should have no validity since there was no proof of the acceptance of this relationship by the medical profession.” The tobacco company claim, wrong as it is, is insightful in showing the intentional errors of local [TACOM] and MSPB offenders. They make statements, including false statements, that deal only inadequately with the alleged effects, but utterly disregard the data on the causes. Endangerment is a cause, so is discomfort, unreasonable annoyance, and malicious reprisal. AR 1-8 and other rules forbid such misconduct by smokers. Moreover, even the fraudulent local [TACOM] and MSPB claims do not specifically and directly assert the lack of a hazard. But even if they did make such claims, bizarre and disconnected from reality as they would be, they “will not rebut an employee's statement that smoke in the air in his or her workplace is damaging his or her health.” [DHEW, Soc Sec Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982), p 1.]

    The court answer rejecting the tobacco company position, and thus, the local [TACOM] and MSPB position, is “Aside from the fact that the testimony in question reveals that such acceptance existed, this contention has no merit unless we are to overrule what we said in Brett v. J. M. Carras, Inc., 3 Cir., 1953, 203 F.2d 451, which was approved by us in Deitz v. United States, 3 Cir., 1955, 228 F.2d 494. See also Puhl v. Milwaukee Automobile Ins. Co., 1959 . . . 99 N.W.2d 163; People of the State of New York v. Williams, 1959 . . . 159 N.E.2d 549; McKay v. Texas, 1950 . . . 235 S.W.2d 173 . . . . This we have no intention of doing.” In my case, the record clearly shows that my “personal determination” of the hazard exists, along with overwhelming evidence on the hazard. The record shows perverse response by local [TACOM] and MSPB culprits. The sadistic emphasis on rejecting dealing with the cause is pronounced; the decision by Mr. [Martin] Baumgaertner is particularly sarcastic in the rejection of his duty, and in maliciously twisting the evidence as provided.

    Note that the [Pritchard] decision was in the year 1961. Note “that such acceptance existed” “by the medical profession” which local [TACOM] and MSPB offenders, clearly bizarre and disconnected, purport to reject, directly or by innuendo. The Court behavior is consistent with the evidence, including that ten (10) years later, referenced in Larus & Brother Co. v. F.T.C., 447 F.2d 876 (1971), “. . . the detrimental effects of cigarette smoking on health are beyond controversy” based on the “'overwhelming evidence.” Cf. Austin v. State [101 Tenn 563], 48 S.W. 305 (1898) [aff’d 179 US 343 (1900)]. Clearly, the local [TACOM] and MSPB behavior is obviously wrong, directly flouting the basis for AR 1-8, and is clearly contrary to the principle “designed to insure to the whole world, governmental employees and the general public alike, that any record, document, instrument or statement made by a governmental employee, great or small, in his official capacity and in the course of his official duties can be relied upon by all,” insightful words from U.S. v. Myers, 131 F. Supp. 525 (1955). The court in Pritchard, supra, had “no intention of doing” anything contrary to the law and evidence. Local [TACOM] and MSPB issuances do not reflect such restraint. They ignore what “acceptance existed” so long ago, what exists in AR 1-8, what was upheld in the 25 Jan 80 USACARA Report, etc., etc.

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    (pp 204-209)

    Attorney misconduct, particularly the making of false statements, is not acceptable. See Matter of Looby, S.D., 297 N.W.2d 487 (1980), and Matter of Voorhees, S.D., 294 N.W.2d 646 (1980). In Looby, the court vas especially concerned because the felony at issue “involves willful misrepresentation and the making of false statements.” Victims “complained of these misrepresentations.” Under the circumstances, the court indicated, “Not only has respondent transgressed the statutory prohibition against commission of a ‘serious crime,’ he has made a mockery of Disciplinary Rule 9-101 of the Code of Professional Responsibility . . . which requires avoidance of even the appearance of impropriety.”

    The disregard of AR 1-8 led to the issuance of the 25 Jan 80 USACARA Report. EEOC on 23 Feb 82 [Dockets 01800273 et al.] observed that “the agency failed to abide by” it. The disregard violated Army guidance, cf. Spann v. McKenna, 615 F.2d 137 (1980). False assertions were made [by e.g., Edward E. Hoover, Emily S. Bacon, Ronald P. Wertheim, and Ersa H. Poston] in the process of the disregard of the Report. Local [TACOM] issuances from 18 and 29 April 1980 to the present reflect misconduct of various types. MSPB went along [as accessory] with the unlawful local [TACOM] pattern. MSPB disregarded its role as a reviewing agency. See its decisions, particularly the false assertions [by Ronald P. Wertheim and Ersa H. Poston] in the 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13, [falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. There is not even a de minimis reference to the USACARA Report; cf. proper behavior such as was referenced for guidance [“is a guide to our conclusion and should have been given due regard”] in In Re United Corporation, 249 F.2d 168 [22 P.U.R.3d 341] (1957). Examples of such nature should not be needful, considering the safety and EEO guidance for the federal government on being a “model” and an “example.” Thus, I have “complained of” the misrepresentations,” false statements, non-compliance, etc. I accepted the 18 June 1981 allegations, [thus enabling EEOC to determine their falsity, 83 FEOR 3046].

    Voorhees, supra, provides additional insight. In that case, there were efforts made to show mitigating circumstances for the false statements involved. Nonetheless, the Court disbarred the offender. For example, “Counsel suggests that Voorhees was guilty more of naivete, stupidity and lack of perception then dishonesty.” In this case, “naivete, stupidity and lack of perception” cannot justify the local [TACOM] and MSPB false statements. The 25 Jan 80 [USACARA] Report contains answers to [rebuttals of] the false claims. AR 1-8 contains answers to [rebuttals of] the false claims. There simply is no basis whatsoever for a finding of any extenuating circumstances for the false statements. The MSPB deciding officials are acting in their specialty, personnel cases. The local [TACOM] legal office is involved in personnel cases, in accordance with TACOM Regulation 600-5, Chapter 18, p. 11, para. 18-12.e. The record provides ample evidence of the falsehoods committed. The circumstances also show a refusal to retract when errors are brought to the attention of the culprits. It is clear that the offenders are not “penitent to the sense of a revised or reformed personal moral view,” words borrowed from Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981) [app. dism. 454 U.S. 1025, 70 L. Ed. 2d 469, 102 S. Ct. 559], which also observed, “There is clearly a moral aspect to this behavior, and under the circumstances it may be characterized as turpitudinous.”

    Voorhees indicated, “There can be no question that the making and use of a forged document to obtain greater cash benefits reeks of dishonesty, fraud, deceit, and misrepresentation.” (United States v. Myers, 151 F.Supp. 525 (1955), indicates that under 18 USC § 1001, “establishment of . . . financial loss is neither necessary nor required . . . to prove its case,” p. 531). In this case, fabrications are clear, including but not limited to the reversal of my [victim] role as an “immediate threat” in the 29 April 1980 letter [by Emily S. Bacon], the fabrications in the 18 June 1981 issuance from MSPB [by Ronald P. Wertheim, Ersa H. Poston], etc. Fabrications of actions taken, which did not happen, brings to mind words such as: “reeks of dishonesty, fraud, deceit, and misrepresentation.” Considering that the whole case arises from the failure to comply with the rules and eliminate the hazard, it cannot be said that “naivete, stupidity and lack of perception” excuse the falsification. Instead, words such as “a mockery of . . . the Code of Professional Responsibility” come to mind.

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    (pp 211-216)

    It is not acceptable in law to send people “elsewhere” to obtain the protections the law provides, State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 [59 S Ct 232; 83 L Ed 208 (1938)]. The “unitary” nature of law and the duty to comply is well-established in both the safety and the discrimination situations. Even compliance in one area does not excuse violations in other areas. In this case, of course, there is clearly “no evidence” of compliance; instead, there is “overwhelming evidence” of non-compliance. It is not necessary to show violation of the awesome legal duties such as the “unqualified and absolute” duty “above all other considerations.” The 25 Jan 80 USACARA Report was based on local violation of AR 1-8 guidance for “an environment reasonably free of contamination” to eliminate behavior that would “endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights.” When endangerment, discomfort, and other violations are evident, it is clear that the “environment” has not even been made “reasonably free of contamination.”

    Compliance is to be “integrated” without the need “to leave” or go “elsewhere.” Cf. Griffin v. State of Maryland, 378 U.S. 130 [84 S Ct 1770; 12 L Ed 2d 754 (1964)]. The safety duty is consistent with the integration duty. “And racially integrated working conditions are valid objects for employee action. N.L.R.B. v. Tanner Motor Livery, Ltd., 9 Cir., 349 F.2d 1 (1965),” as noted in United Packinghouse Food & Allied Wkrs, Int. U. v. N.L.R.B., 416 F.2d 1126 at 1135 (1969). The court also noted that “The principle of ‘divide and conquer’ is older than the history of labor relations in this country, but that does not lessen its application here.” The bizarre, disconnected. and blunted assertions and personal attacks make against me show the accuracy of data from the March 1981 Michigan Law Review [Vol. 79 (Issue # 4), pp 754-756, review of Mental Disabilities and Criminal Responsibility by Herbert Fingarette [Ph.D.] and Anne Fingarette Hasse (Berkeley: Univ of Calif Press, 1979)], p. 754, “. . . criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned . . . .” The 25 Jan 80 Report supported my reading of AR 1-8, even to the point of noting that “the other nonsmokers also have rights even though they have not actively pursued such rights. No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.” The compliance duty is "unitary"; it does not apply to “only the one nonsmoker.” There is “No evidence” of such consideration and, hence, “No evidence” of such compliance.

    Cf. U.S. v. Hayes Int'l Corp., 415 F.2d 1038 at 1045 [CA 5, 1969]. “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 . . . employee is discriminatory denied . . . a position . . . he suffers irreparable injury and so does the labor force of the country as a whole.” The government is supposed to be a model employer setting an example on safety and discrimination. Yet, the malice and abuse directed against me for winning the favorable 25 Jan 80 Report is the worst I have seen, in either the private or public sectors. The disconnect was in process before “the agency fabled to abide by the” guidance, and worsened thereafter. At least that case was processed; see the 23 Feb 82 EEOC decision for data on [TACOM] misprocessing of other cases. When there is “a pattern and practice of discrimination . . . affirmative and mandatory preliminary relief is required.”

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    (p 218)

    "Experience” from other sources is appropriate for use, Prewitt v. U.S. Postal Service [27 EPD 32,251], 662 F.2d 292 ([CA 5] 1981). Such “experience” is pertinent concerning the relief sought. Indeed, in smoker brain damage, such “experience” is essential, since typical symptoms of brain damage include but are not limited to impairment of orientation for time, impairment of memory, impairment of learning and comprehension, and impairment of ethical controls, as noted by Dr. [James C.] Coleman [Abnormal Psychology and Modern Life, 5th ed (Scott, Foresman & Co, 1976), pp. 460-461].

    The bizarre issuances from local and MSPB offenders reflect severe mental incapacitation to distinguish “proscriptive” and “corrective” relief. Shimp v. New Jersey Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 (1976), is an example of “proscriptive” relief concerning smoking; and Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (1979); McKinney v. Bland [188 Okla 661], 112 P.2d 798 (1941); Wood v. Saunders, 238 N.Y.S. 571 (1930); and Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931), all examples of after-the-fact relief, i.e., compensation.

    Both types of relief, “proscriptive” and “corrective” or “compensatory,” are well-established. Legal malpractice and/or other deviance is evident when issuances, especially the 18 June 1981 MSPB issuance [by Ronald Wertheim and Ersa Poston], senselessly malassociate or otherwise garble the clearly discrete legal principles. Such is particularly evident when correction of the errors [verified by EEOC] is refused [by MSPB]; and the errors remain extant for a protracted period.

    In personnel matters, MSPB is responsible for having expertise. The refusal to display such expertise is thus intentional. Rules against endangering people are well-established. There are rules for the private sector, and there are rules for the federal government. The federal government is to be an example. [See, e.g., then Executive Order 11807.] Federal precedents in terms of compliance with safety rules and mental health rules should be numerous, as an “example” to others. Yet MSPB nonetheless refuses to either (a) direct compliance, or (b) at least note the non-compliance, and overturn the adverse action-on either basis.

    Ed. Note: MSPB hatred for whistleblowers causes it to defy decades of case law concerning agency non-compliance with rules, case law obeyed for others. See precedents such as Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).

    The MSPB behavior is in marked, and unfavorable, contrast to the 25 Jan 80 USACARA Report. Indeed, the MSPB behavior is in marked contrast to the behavior of a separate review agency, EEOC, whose 23 Feb 82 decision specified [at p 4] “further processing in accordance with this decision.” No doubt the installation would refuse to comply; but at least there was guidance. Installation representatives refuse to obey the rules; thus, it is foreseeable that they would refuse to obey a decision, as a decision is a mere creature of the rules, a subordinate creature.

    Ed. Note: TACOM management, criminals, did indeed refuse to obey the 23 Feb 1982 EEOC order. No processing as ordered ever occurred [1982 - 2004].

    MSPB did not even specify [to do] implementation of the 25 Jan 80 Report. Cf. Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980) [compliance is mandatory!]. Implementation of the USACARA Report would resolve the situation, producing return to duty even according to the odd local claims, which involve refusal to let me stay on-post when I periodically returned [pursuant to precedents such as Bevan v N Y St T R Sys, 74 Misc 2d 443; 345 NYS 2d 921 (1973)]. EEOC noted [p 2] that the installation “failed to abide by the” Report. MSPB offenders undoubtedly noted the same; however, MSPB offenders disagree with the ruies, so they leave significant facts out of their decisions, as well as place fabrications in the issuances.

    The [MSPB] misconduct is particularly noticeable, based on the fact that the misconduct takes the form of a multiplicity of criminal violations, one aspect of which is embezzlement of funds/leave account, i.e., embezzlement in the form of an “adverse action,” but nonetheless, embezzlement in substance

    Page 219 of 229 pages.Affiant's initials _________

    Numerous cases show that there is no “right” to smoke. Such cases arise in the context of safety, nuisance, and other well-established legal principles. For example, see Commonwealth v. Thompson, 53 Mass. (12 Metc.) 231 (1847). The law is cited at 232, “‘Every person who shall smoke, or have in his or her possession, any lighted pipe or cigar, in any street, lane. or passage way, or any wharf in said town, shall forfeit and pay, for each and every offense, the sum of two dollars.’” The legal validity of such law is, of course, obvious to all who do not garble the “undue hardship” concept applicable to “reasonable accommodation” with the police power. Cf. Powell v. Texas, 392 U.S. 514 at 532 (1968), wherein “appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.” Controlling smokers “in any street, lane, or passage way” which is “for being in public while” smoking is clearly proper.

    The Massachusetts decision is consistent with the body of law; it is not disconnected from the body of law. At 231, “A warrant was issued on” a “complaint, and the defendant was carried before . . . court, where he was tried, found guilty, and ordered to pay a fine and costs of prosecution.” There is no indication of “undue hardship” at any stage of the proceedings, at the “complaint” stage, at the “carried before . . . court” stage, at the “tried” stage, at the “found guilty” stage, etc. Sane people comprehend both concepts involved, the “complaint” and “carried” “concrete”-type aspects, as well as the higher ideation concept of the “police power.” It is clear that mental illness or other deviance as displayed by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] does not demonstrate either level of understanding; the 18 Jun 81 issuance “seems feeble-minded.”

    At 233, “This damage would be equally great from smoking in any street, used as such, whether laid out by lawful authority or not.” Clearly compliance is mandatory regardless of who makes the decision that dangerous behavior is to be controlled. My “personal determination” is by “lawful authority,” i.e., AR 1-8. Moreover, endangerment is to be anticipated, under the [AR 1-8] “affirmative action” guidance. It is not acceptable to wait for the “lawful authority” of a “personal determination.” There is no “undue hardship” since “smoking in any street” is not a “business necessity.” Smoking that causes endangerment (even potentially) is not a “business necessity.” Indeed. smoking per se is not a “business necessity.”

    At 232, “The case is precisely within the words of the statute.” Here, the case at bar “is precisely within the words of” AR 1-8. I am being endangered, etc., have made a “personal determination,” and am seeking implementation of the 25 Jan 80 USACARA Report, etc. My conservative approach (quoting) “is precisely within the words of the statute” and other quoted citations.

    Thompson, supra, is insightful not only for law, but also on the facts. Smokers can indeed be dangerous outdoors, dangerous to lumber yards, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); dangerous to people, Wood v. Saunders [228 App Div 69], 238 N.Y.S. 571 (1930); dangerous to fields, Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935); etc. Clearly, smoker “dangerousness” “may affect” property and “third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano [168 N J Super 466], 403 A.2d 500 (1979).

    Page 220 of 229 pages.Affiant's initials _________

    (pp 221-225)

    Not all “discrimination” involves “accommodation” for resolution. For example, see Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 ([CA 5] 1971) cert den 404 US 950 (1971]; in that case, supposedly “passengers overwhelmingly preferred to be served by female stewardesses.” Resolution of the case did not involve “accommodating” men but simply the application of law. Weird statements that the person bringing the case was somehow “unique” or had a “peculiar sensitivity” do not appear in the decision.

    Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 [98 L Ed 873] (1954), also shows that resolution of “discrimination” does not per se involve “reasonable accommodation.” Medical data was utilized in the case on the “detrimental effect” of the “discrimination.” Nonetheless, that medical data did not give rise to bizarre and mentally disordered allegations that Ms. Brown was somehow “unique” or “peculiar.” Sound minds are able to recognize “universal” situations in cases brought by individuals.

    Resolution of Missouri ex rel. Gaines v. S. W. Canada, 305 U.S. |337, 59 S.Ct. 232 [83 L Ed 208] (1938), was also not “accommodation” in a “discrimination” case. Nor was Mr. Gaines considered “unique” or “peculiar.”

    Browder v. Gayle, 142 F. Supp. 707 (1956) [cert den 352 US 903 (1956)], concerned public accommodations (i.e., buses), but the resolution of the “discrimination” involved application of fundamental law, not “accommodation.” No person bringing the case was cited as “unique” or “peculiar.”

    Vietnamese Fishermen's Ass’n. v. Knights of the Ku Klux Klan, etc, 543 F. Supp. 198 ([S.D. Tex] 1982), shows “discrimination,” but resolution involved application of law, not “accommodation.” Moreover, the number of “Vietnamese fishermen” is demonstrably fewer than the number of nonsmokers in America; yet no claims of “unique” or “peculiar” were made in that case.

    It is clear that when smokers are suffering from mental disease, their “thinking” is deranged to the extent that it is fragmentary, impoverished, bizarre, concrete, depraved, and/or otherwise deviant. Weird remarks about “accommodation” are both raised and rebuffed by them. In their mentally disturbed and incoherent writings, abruptness is obvious. They are supposedly addressing an issue on smoking; yet they do not cite any precedents on smoking. To insane people, with delusions of grandeur, they are their own authority.

    Such behavior is in marked and unfavorable contrast with the professional techniques seen in competent issuances. For example, note the 23 Feb 1982 EEOC decision [Dockets 01800273 et al]. It cites precedents. Moreover, it shows a resolution of a case by the application of rules, not by “accommodating” the matters raised.

    “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 ([CA 10] 1931). That is a “universal” principle, but mentally ill smokers are not able to bring such “higher ideation” to bear on the specific duties (position classification duties) in the case at bar. Where no “duty” is involved, no duty “restriction” is involved, as a matter of law. Hence, in addition to the general principles concerning resolution of “discrimination” without “accommodation,” such is particularly appropriate in this case. Simply stop the “discrimination.”

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    (pp 227-229)