Appeal to EEOC, 3 Sept 1982, in Effort to Get Review to Begin, of the TACOM Decision to Terminate, Retaliating 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., 22 July 1982, 25 Aug 1982, 3 Sept 1982, 21 Sept 1982, and continuing into the 1990's and into 2004.
    Briefs appealing likewise to OPM include but are not limited to those of 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985.
    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 and is obstructing.
    More in the series will be posted as scanned. The volume is enormous, takes some time.
  • Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383 (D. Wyoming 1980), provides insight. The Court held that “We cannot allow the Defendants to accomplish by inaction what they could not do by formal administrative order” or decision. The installation opposes action to “ever consider the merits” based on the fact of the local violations already detected. EEOC already noted the pattern of “erroneous information or miscalculations” in improperly rejecting the cases. Action “to restrict and/or deny appellant the right to file EEO complaints and seek counseling” is clear. Such action is not allowed “by formal administrative order” and is thus not allowed by “inaction.”

    At 396, the Court noted that “At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review. Foti v. Imnigration and Naturalisation Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), Cities Services Gas Co. v. F.P.C., 255 F.2d 860 (10th Cir. 1958), Environmental Defense Fund, Inc. v. Hardin [138 US App DC 391] 428 F.2d 1093 [1 E R C 1347; 1 Envtl L Rep 20,050] (D.C.1970).” In this case, the delays are clear. OSHA has been the law since 1970. AR 1-8 has existed since 1977. The violations thereof were noted by USACARA on 25 Jan 80. A medically impossible duration is clear. The refusal of counseling is clear. Delays are obvious. Action by the EEO, grievance, and MSPB avenues has been delayed so long as to be “a refusal to act.” Indeed, it is clear that there is no intent to act—based on the [TACOM smoker management] disagreement with, and insubordination against, the rules.

    At 396, the Court continued: “When administrative inaction has precisely the same effect on the rights of the parties as denial of the requested agency action, an agency may not prevent judicial review by masking agency policy in the form of inaction rather than an order denying the action requested. Environmental Defense Fund, Inc. v. Hardin, supra, International Association of Machinists and Aerospace Workers, AFL-CIO v. National Mediation Board, 425 F.2d 527 (D.C.1970).” In this case, opposition to, and hatred of, AR 1-8 is clear. Smoker denial of reality is so great that decisions do not even advert to its very existence. The disregard of the pertinent rules is so obvious that various reviewing agencies have taken note of aspects of the violations. OPM noted “Reasonable accommodation not shown” as well as asked about “job-related” aspects prior to finding no basis for the local action. MESC also confirmed my ability to work, in its repeated reviews. USACARA had found many violations. Agency violations are clearly noticeable by other agencies, and not only by the courts. Indeed, noting violations by others is a function of various agencies; that is part of their raison d'etre.

    At 397, the Court said, “It is sufficient for the Plaintiff to allege a procedural injury.” “We cannot allow the Defendants to accomplish by inaction what they could not do by formal administrative order.” “To accept such . . . would be to ignore the realities of the present situation.” The reason is at 396: “The Administrative Procedure Act requires every agency to conclude any matter presented to it within a reasonable time.” Clearly, “administrative delay” which “amounts to a refusal to act” is unauthorized. Indeed, such “refusal to act” is insubordination.

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    Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 82, “The Commission here found 'that the proposed schedules are just and reasonable, and are not shown to be unlawful.' This does not constitute a finding that the rates were lawful, since rates 'may lie within the zone of reasonableness' and yet be unlawful. United States v. Illinois Cent. R. Co., 1924, 263 U.S. 515, 524, 44 S.Ct. 189, 193, 68 L.Ed. 417; I. C. C. v. Inland Waterways Corp., supra, 319 U.S. at page 685, 63 S.Ct. 1296, 87 L.Ed. 1655.” The fact of local and MSPB decisions by innuendo has been noted and objected to by me. Decisions by innuendo are not valid. Some of the defects include but are not limited to: no finding on safety, on “job-related” aspects, on courtesy, on smokers as dangerous to themselves, on compliance with AR 1-8, on implementation of the 25 Jan 80 Report, on the [agency] authority under AR 600-20 [to ban the conduct at issue], on “reasonable accommodation,” etc., etc.

    The 25 Jan 80 Report already covered the key aspects. The reason for the continued disregard of the Report is the local and MSPB animosity towards the Report and the rules it upholds. Such disregard of reality brings to mind mental disorders including but not limited to paranoia, delusions of grandeur, schizophrenia, etc.

    [TACOM] Dr. Holt's legal opinions of 24 and 25 March 1980 are, of course, inadequate as a matter of law. They do not provide basic findings, advert to precedents, cite pertinent rules, etc. Thus, the entire case is void ab initio.

    The malicious animosity that underlies the situation is based on violation of fundamental legal concepts. Decisions say that I have not shown that I am not “not ready, willing, and able to work” or some variation thereof. Such assertions are, of course, based on the disconnected and disoriented disregard of the examining physicians' findings that I am ready, willing, and able to work. The decisions start off wrong—from a fundamental delusion, an obvious error. Then they deteriorate into even greater disconnection from reality and become more blunted. Refusal of jurisdiction is clear, as a malicious effort for [to obstruct] me to [not be able to] present my case even on their own bizarre terms. One of the characteristics of the insane is their unresponsiveness, nay unwillingness, to react to reality.

    However, once we examine the law and the precedents, that shows where the problems actually arise. The burden of proof is on the adverse party to show that I am unable to work—in relation to job-related standards, and, even first, to show that a safe environment (not extant as the 25 Jan 80 Report shows) has now been provided. A "not shown" clearly, as the Court says, "does not constitute a finding," and certainly not on the merits, which here the installation avoids. Here, the problem is simply the malice against providing a safe environment, and the normal status [excused absence] pending same. This arises from the bizarre behavior of Dr. Holt, namely, his intentionally overruling the assessments of the examining physicians, as well as his overruling USACARA, AR 1-8, and AR 600-20.

    I have met the burden of proof; the USACARA Report shows that. So the “not shown” aspects are doubly improper, they disregard reality, and they are blunted. Disturbed officials have evidently deceived themselves into thinking their negatives prove a positive.

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    Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 80, “It is clear from the cases that all relevant factors . . . must at least be considered . . . in every proceeding. E. g. American Trucking Ass'ns v. United States, supra, 344 U.S. at pages 313-314 . . . King v. United States, 1952, 344 U.S. 254, 263-264 . . . United States v. Rock Island Co., 1951, 340 U.S. 419, 434-436 . . . I. C. C. v. Parker, 1945, 326 U.S. 60, 66, 73 . . . Eastern-Central Ass'n v. United States, supra, 321 U.S. at page 194 . . . Cf. Ann Arbor R. Co. v. United States, 1930, 281 U.S. 658 . . . .” The 24 and 25 March 1990 legal opinions by Dr. Holt do not even advert to the guidance of AR 1-8, AR 600-20, the 25 Jan 80 USACARA Report, etc. There is no citation of job-related aspects, for the reason that there are none. There is no indication of compliance with safety rules such as the “unqualified and absolute” duty, the “mixture” guidance, etc., for the reason that there is no compliance, and “no evidence” of such, or of any intent to ever come into compliance. The refusal of consideration of the “all relevant factors” has continued to the present. EEOC [23 February 1982] noted the pattern of no action to “ever consider the merits.” MSPB noted the same but said that only “some” aspects need be covered, whereas other MSPB personnel felt that consideration of any aspect at all was “not relevant.” The blatant and brazen MSPB insubordination is a mockery and travesty of its role. The [Martin Baumgaertner] 23 Jul 80 “not relevant” assertion shows MSPB contempt for rules; so does the [lying] 18 Jun 81 statement [accepted 7 July 1981] on “some.” Even worse, thereafter, MSPB behavior became even more blunted and bizarre. The opportunities offered to correct its misconduct were summarily rebuffed.

    At 80, the court also said that “'general statements . . . to the effect that the Commission, in reaching its conclusions, considered all the pertinent evidence, add nothing . . . Complete statements . . . showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions . . .' Beaumont, S.L. & W. R. v. United States, 1930, 282 U.S. 74, 86, 51 S.Ct. 1, 6, 75 L.Ed. 22l.” Dr. Holt did not even claim to have considered “all.” He surely did not consider the 25 Jan 80 Report, AR 1-8, AR 600-20, etc. His disregard of “all” was supported by MSPB on the bizarre basis that following the rules was “not relevant.” MSPB insists that only “some” of the evidence need be considered—and that, falsely, with inventions of actions that the installation denies, denies by “the silence” tactic rejected by the Court at 82. The local and MSPB behavior is of such low quality (i.e., blunted, disoriented, disconnected, etc.) that is still beneath the inadequate levels rejected by the court. They do not even assert “all”; instead, they admit none (“not relevant”) or “some.”

    At 82, “To borrow language from Eastern-Central Ass'n v. United States, supra, 321 U.S. at page 210 . . . 'our function in review cannot be performed without further foundation than has been made . . . we cannot say . . . it . . . has the sanction of law without further basis than we now have.'” If specificity is ever devised by the installation, it will be responsible for issuing a proper advance notice and for giving consideration to any reply. Until then, the adverse action is void, and “make whole” action is essential.

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    Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 81, “'The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' S. E. C. v. Chenery Corp., 1943, 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626.” The record shows that the entire proceedings arise from Dr. Holt's bizarre legal opinions of 24 and 24 March 1980 issued by him based on the local desire to overrule the 25 Jan 80 USACARA Report and to continue the local unauthorized repeal of AR 1-8. Dr. Holt's "cannot" [obey control the behavior at issue] claim was false, and is false, at all times herein cited. All the local and MSPB gyrations thereafter arise from that blunted and disconnected view. Even the bizarre assertions MSPB made thereafter arise from that view. The behavior of the installation is thus void ab initio.

    The 24 and 25 March 1980 legal pronouncements by Dr. Holt clearly attempt to re-decide the 25 Jan 80 USACARA Report. Dr. Holt does not agree with the Report and with the USACARA analysis of AR 1-8 and AR 600-20. Dr. Holt thus does not analyze the rules, advert to the 19 June 1979 guidance from the installation legal office, or address the various legal precedents. Dr. Holt's legal opinions are, first of all, incompetent; secondly, outside his field of medicine—to which he ought to confine himself; and thirdly, blunted, and apathetic to and disconnected from reality.

    At 82, the Court said, “we hold that the order should be annulled because of the absence of any finding or other showing in the record of any investigation or consideration of” the pertinent aspects. Dr. Holt's behavior is part of the pattern of refusal to “ever consider the merits.” The Court remarked on “the silence” on the merits. Here, too, “the silence” is obvious. MSPB is responsible for noticing lack of consideration of the merits, disregard of the rules, refusal of implementation of a Grievance Report, etc. under the circumstances. However, MSPB employees, including at the presiding official and Board levels, also display blunted, disoriented, apathetic, disconnected, irritable, and/or paranoid behavior and symptoms. They too oppose the rules and would like to be able to re-decide the USACARA Report. Hence, their decisions/behavior is bizarre as well. Their behavior brings to mind data on delusions of grandeur.

    The bizarre local and MSPB behavior reflects the delusion that everybody is wrong but them. An unresponsiveness to reality is a typical characteristic of the insane. Unresponsiveness is not only a psychiatrie problem; under the circumstances, it is also a legal problem. Unresponsiveness is legally unacceptable.

    It is clear that there is a “'lack of the basic or essential findings required to support the . . . order.' State of Florida v. United States, 1931, 282 U.S. 194, 215, 51 S.Ct. 119. 125. 75 L.Ed. 291.” Those insightful words from p. 79 are pertinent here. Indeed, “The settled policy of our law is to require every tribunal, administrative as well as judicial, to reduce to writing the essential findings of fact and conclusions of law upon which decision is predicated.” Irritability with a Report that does that is not lawful. The disturbed hatred of the rules that produces psychotic attempts to re-decide the Report requires refection and annullment. Moreover, as a matter of being humane, rehabilitation of the culpable local and MSPB employees is recommended.

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    Salazar v. Hardin, 314 F. Supp. 1257 (D. Colorado, 1970), provides insight. Rules [by agencies] must conform to law and national policy. It is thus obvious that decisions must likewise conform. In this case, local and MSPB officials have decided to abrogate and repeal the rules, and in effect, to fabricate their own [rules]—along these lines: Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. Smoke is not to be removed, and an equitable balance is not to be established. USACARA Reports are to be ignored. Safety guidance such as on “mixture” situations is rescinded. The “unqualified and absolute” safety duty is wrong, and only alleged "attempts" to comply are to be asserted; real attempts need not be made. Any person who wins a grievance Report rejecting such misconduct is to be placed on sick leave; and MSPB jurisdiction is to be denied. Etc.—End of summary of the de facto smoker position. The smoker view is, of course, obviously disconnected, blunted, and bizarre. How should a reviewer deal with such an odd position as [insubordinate] local and MSPB employees have devised?

    Salazar v. Hardin, supra, provides insight. At 1259, “the regulation on its face destroys the very scheme which Congress envisaged.” Here, “Congress envisaged” an “unqualified and absolute” safety duty, “job-related” standards, control of dangerous government employees, efficient use of government resources for government purposes, working on government time instead of loafing, etc. Smokers refuse. AR 1-8 envisions a personal standard. Smokers resist. They resist compliance with review mechanisms to “ever consider the merits.” Such behavior “on its face destroys the very scheme which Congress” and others such as EEOC “envisaged” to prevent violations and to secure review when violations occur. Such behavior “is plainly inconsistent with the statute and operates in a manner which frustrates Congressional intent,” so “it can be given no force and effect and must be declared invalid. See, e.g., Celebrezze v. Kilborn, 322 F.2d 166 (5th Cir. 1963).”

    At 1259, “The evidence . . . establishes that the above” pattern “has been used as a means of frustrating this intent of Congress.” This includes both on the merits, and on the right to have due process such as by review of the situation, adherence to specificity guidance, decision based on evidence, explanation for unequal treatment, etc., in accordance with civil service specificity and advance notice rules [e.g., 5 USC § 7513], as well as under the Administrative Procedures Act, 5 USC § 706] and pertinent court precedents.

    At 1259, “we are unable to perceive that the regulation advances any desirable social purpose.” Endangering people, refusing to conform to safety rules, violating agency rules, refusing review rights, making false allegations, etc.—none “advances any desirable social purpose.” Indeed, such behavior is contrary to law, rules, and “desirable social purpose.” Safety rules constitute a “desirable social purpose.” Review mechanism rules constitute a “desirable social purpose.” AR 1-8 constitutes a “desirable social purpose.” “Reasonable accommodation” constitutes a “desirable social purpose.” At least in the Salazar v. Hardin case, there was “a convenient and expedient method.” Here, opposing safety, review, truthfulness, accommodation, etc. is neither. The many rejections (by USACARA, OPM, MESC, EEOC, etc.) [of TACOM smoker views] show that.

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    The local behavior opposes action to “ever consider the merits of appellant's allegations” concerning “When the agency failed to abide by” “a recommendation of ways the agency had” to obey AR 1-8 and thus as a by-product of compliance for all employees, “to accommodate appellant.” As part of the improper refusal of complaince, and as part of the pattern of reprisal for winning the favorable 25 Jan 80 Report, false pretenses of lack of MSPB jurisdiction were made on a continuing basis. Such improper claims were made despite the obvious jurisdiction MSPB has, but also despite the purpose of obtaining evidence [by cross-examination to elicit “confessions against interest” (as would occur)]. Various cases provide insight on pertinent aspects relative to evidence, the obtaining of evidence, and the relationship to jurisdiction.

    For example, see Casey v. F. T. C., 578 F.2d 793 (9th Cir. 1978). Unlike local and MSPB officials whose position is clearly personal and not official, the FTC position was a government position. The FTC resolved “to investigate” including by normal means such as a hearing and use of subpoenas. Non-government persons objected in accordance with their personal views, as was their right. The Courts rejected their claims of alleged lack of jurisdiction to hold a hearing and to enforce the subpoenas as a part of that process. The Court stated the genuine, and governmental position, well: “a conclusive showing” of jurisdiction “is not necessary to justify enforcing a subpoena” for testimony/documents at the hearing. The Court was emphatic and to the point: “a conCLusive showing is not necessary to justify . . . .” The FTC had provided “plausible” data. So have I—the available data shows that the reasonable accommodation process has not started; the prerequisite compliance process has not started; the medical evidence shows I am ready, willing and able to work; etc. Such evidence is more than merely “plausible” that I might be right. Every reviewer has concluded I am right in the aspects submitted and reviewed on the merits—OPM, USACARA, EEOC, MESC, etc.

    The Court upheld the FTC government position in favor of the hearing on the aspects involved. The Court said at 799 that “The subpoena must be enforced if the information sought is 'not plainly incompetent or irrelevant to any lawful purpose' of the FTC. Federal Maritime Commission v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943)). Accord, FTC v. Swanson, 560 F.2d 1, 2 (1st Cir. 1977); FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976). See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); FTC v. Texaco, Inc., supra, 555 F.2d at 872-73 & n.23.” The government position as distinct from the personal position is clear. Here, local and MSPB officials refuse to “ever consider the merits” even though they have not shown that the “information sought” via the hearing process requested by me is “plainly incompetent or irrelevant to any lawful purpose” normally involved in a hearing, Indeed, they make no attempt at such a showing. They are aware of the disregard of the rules, themselves oppose the rules, and so they make no showing at all, but simply resort to mere assertions, using falsifications, “erroneous information or miscalculations,” and other wrongdoing as necessary to further their unlawful purposes. Their misuse of their jobs for their personal reasons causes them to refuse to allow a hearing which they are well aware is clearly relevant.

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    Silverman v. N. L. R. B., 543 F.2d 428 (2nd Cir. 19?6), provides insight on the wrongful delays giving rise to, and in, the case at bar. “The Board's inaction violates the mandate of the Administrative Procedure Act [5 USC § 706] which provides for prompt disposition of agency proceedings . . . NLRB v. S. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 264-66 (1969).” Various local and MSPB violations are apparent. OSHA was enacted in 1970. AR 1-8 was issued in 1977. Other pertinent rules have been extant for years or decades. The USACARA Report on the situation was issued 25 Jan 80. The local EEO officer recommended corrective actions and meeting with me in September 1980. Mr. Perez noted “the agency's decision to terminate” me as long ago as 9 April 1980; the same fact was evident in September 1981. MESC upheld my eligibility for unemployment compensation as long ago as 30 Jul 81. OPM supported my ability to work as long ago as 5 Oct 81. EEOC issued a report with instructions for compliance as long ago as 23 Feb 82 [Dockets 01800273 et al.].

    Hazards are normally resolved within hours. But the one at issue is unresolved for many years. The refusal shows insubordination against the various rules.

    In Silverman, supra, the Court rejected delays that were not as great as the delays that have been occurring in the case at bar. It has been significantly longer than a decade since OSHA, for example. In Silverman, supra the Court said, “Despite the fact that our final judgment was entered more than five years ago, the Board still has not determined the employees' back pay awards.” The result was that each individual in that case “continues to be deprived of the compensation to which he is lawfully entitled . . . .” I continue to be deprived of the compensation to which I am lawfully entitled. Both my coworkers and I continue to be deprived of the safe work environment to which we are lawfully entitled. There, “the Board simply has failed to comply with the mandate of our judgment of more than five years ago.” Here, the installation and the Board are refusing to comply with rules that have existed for years or decades.

    The refusal of compliance, including the disregard of time limits, and of routine EEO case processing, is particularly odious considering Ms. Bacon's 14 May 80 statement, “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations . . . .” The odious aspects are also clear from the 23 Jul 80 reference by [MSPB's] Mr. Baumgaertner to “other avenues.” The assertions were false. EEOC noted a part of the pattern of avoidance of action to “ever consider the merits” in its 23 Feb 82 decision [Dockets 01800273 et al.]. Local and MSPB claims that proper action would be taken were deceptive. At least in the Silverman case, the NLRB attempted to make some sort of case. The Court noted that the NLRB “has sought to explain,” but that “we find no merit whatsoever in its present assertion that this delay of more than five years is excusable.” It was clear that “the Board simply has failed to comply with the mandate.”

    It is noted that the employees were not responsible to provide the conclusion; it was the Board's job. The NLRB did not make weird claims that the employees were responsible to make the determinations for the NLRB. The NLRB did not make weird denials of jurisdiction and thus refuse to show good faith by refusing to hold a hearing to allow the evidence even into the record. Yet, in this case, MSPB makes weird claims that I must show jurisdiction without being provided the normal means [commanded by law, 5 USC § 7701] such as a hearing to do so.

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    Association of Nat. Advertisers v. F. T. C., 460 F. Supp. 996 (D.D.C. 1978), provides insight. “The parties to this proceeding are as a matter of fundamental due process entitled to a . . . decision that will be premised on factual determinations which have not been prejudged in advance or tainted by the participation of one whose objectivity is subject to serious question.” Local officials refuse to alter their views, even when repeatedly their errors are called to their attention by various outside reviewing bodies including but not limited to USACARA, MESC, EEOC, and OPM. Once the multiple violations were recorded by USACARA 25 Jan 80, resolution should have occurred. Instead, the environment was worsened in reprisal for my success—a success foreseeable to a reasonable person considering that the violations were obvious. Disregard of the OSHA “mixture” guidance, the “unqualified and absolute” safety duty, the various criteria in AR 1-8, etc. is obvious, and was known to management prior to the 25 Jan 80 Report. However, since they [local management, MSPB, adjudicators] do not agree with the rules, they are insubordinate to them. Their views, already rejected, they continue to insist on—an obvious “prejudged in advance” situation. An unalterably closed mind is clear. Unresponsiveness to evidence is clear. The persons who chose to oust me did so—knowing that their views and behavior were wrong and, indeed, already rejected.

    At 997, the Court cited “The test for disqualification” as “whether 'a disinterested observer may conclude that' deciding official 'has in some measure adjudged the facts as well as the law of particular case in advance of hearing it.'” The duty is that a decision or hearing “'must be attended, not only with every element of fairness but with the very appearance of complete fairness' . . . .” The Court cited “the standards of conduct laid down in Cinderella Career and Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 160, 425 F.2d 583, 591 (1970]” and “Accord, Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 336 F.2d 754 (1964), vacated and remanded on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d. 714 (1965).” All the criteria have been disregarded by local officials and by MSPB. The case file is replete with disregard of evidence, the record, and reality. The unresponsiveness shows “prejudged in advance.” Local officials make claims already rejected [by USACARA, MESC, EEOC, OPM, etc.]. MSPB reduces specificity rather than increases it. When evidence is ignored, “prejudged in advance” is clear. There is no intent of ever coming into compliance. There is no intent of ever responding to the evidence.

    The Court rejected a deciding official's “use of conclusory statements of fact, his emotional use of derogatory terms and characterizations, and his affirmative efforts to propagate his settled views” which thus “made his further participation improper.” The entire case file is in conclusory terms by local and MSPB officials misusing their jobs for personal reasons. Conclusory words such as “cannot” have no factual support at all. Various assertions have no factual support and indeed, appeared as assertions for the first time in MSPB decisions—denying me any opportunity to respond prior to decision. Malicious and false claims to discredit me had no purpose but “to propagate . . . settled views” and to attack me in “derogatory terms,” in order to keep those already rejected “settled views” contrary to the rules. Opposition to review to “ever consider the merits” is obvious and provides insight on the motives, motives in opposition to further review to again reject their “settled views.”

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    When “an unalterably closed mind on matters critical to disposition of” a case is apparent, “An agency member may be disqualified,” Association of Nat. Advertisers, Inc. v. F. T. C., 627 F.2d 1151 (1979) [cert den 447 US 921; 100 S Ct 3011; 65 L Ed 2d 1113 (1980)]. Clues to “an unalterably closed mind on matters critical to disposition” on my case are evident; indeed, the local and MSPB behavior is replete with evidence showing such “unalterably closed mind.” Action to “ever consider the merits” is summarily rejected, time and again. Errors, miscalculations, false statements, and other misconduct has been used to obstruct action to “ever consider the merits.” Previously rejected [e.g., by USACARA] assertions are unblushingly continued. The absence of “job-related” aspects is brazenly disregarded, and, indeed, not even noticed. The disregard of the 25 Jan 80 Report goes on and on, even when that disregard is specifically noted.

    In Re United Corporation, 249 F.2d 168 (1957), shows that an Examiner's Report “is a guide to our conclusion and should have been given due regard by the” installation as well as by MSPB. Such “due regard” is significant when “the recommendations of the examiner were supported by substantial evidence while the findings of the" local officials and "of the Board were not.” In the case at bar, there have been several reviews—by OPM, MESC, and EEOC, as well as by USACARA. Clearly, “an unalterably closed mind on matters critical to disposition of” the case is obvious on the part of local and MSPB officials who utterly ignore and do not even advert to data other than their own “settled views” that show “an unalterably closed mind.” Here, of course, the many rules involved are not merely “a guide to our conclusion,” they are the standards against which decisions are to be made. AR 1-8 sets standards against endangerment, discomfort, unreasonable annoyance, unremoved smoke, etc. OSHA involves “mixture” guidance as well as an “unqualified and absolute” duty. Yet the decisions are unresponsive to those standards. Disregard of rules is lawless, and lawless decisions are improper, arbitrary, capricious, and void.

    All around the nation, closed minds by decision-makers are rejected, Prejudgment of a case is improper. Juror misconduct is evident when, during the presentation of evidence, jurors are not paying attention. Reading a novel or doing crossword puzzles is not acceptable at such a time. See Hasson v. Ford Motor Co., 126 Cal.App.3d 52, 178 Cal. Rptr. 514 [1981].

    Association of Nat. Advertisers v. F. T. C., 460 F. Supp. 996 (1978), cites “fundamental due process” as providing entitlement to “factual determinations which have not been prejudged in advance or tainted by the participation of one whose objectivity is subject to serious question.” Reading novels or working crossword puzzles is not listed as involving mental disorder; whereas smoking “causes insanity.” Mental disorder involving “an unalterably closed mind” requires disqualification. Such is particularly needful when “a chronic disorder is irreversible because of permanent damage to the nervous system.” “Cell bodies and nonmyelinated neural pathways do not have the power of regeneration, which means that their destruction is permanent.” Considering the persistence of the refusal to “ever consider the merits,” recovery of the culpable smokers is not of any degree of probability as would preclude their disqualification.

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    N.L.R.B. v. Clement-Blythe Companies, 415 F.2d 78 (4th Cir. 1969), provides insight, similar to the decision in Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 (1st Cir. 1964). “The need for the Board to provide its reasons is based on something more than insistence on technical compliance with the Administrative Procedure Act [5 USC § 706].” It [in this case] is also based on more than simply the normal civil service rules [e.g., 5 USC § 7513] on the agency having to provide an advance notice with specifics, with opportunity to reply. None of these rules were followed in “the agency's decision to terminate” me [Perez's April 1980 term]. In the decision of the Court, at 81, the court noted that each side cited precedents in its favor. The Board did no proper analysis, i.e., “did not state its reasons” for the course of action decided on. The local installation had done likewise; the Board refused to do its review duty, and instead, like a zombie, copied the actual or supposed agency-position, in a weird, disconnected, disoriented, and blunted fashion.

    The installation cited no basis for its bizarre claims. It has no acceptable basis for insubordination—insubordination is “arbitrary and capricious.” USACARA rejected its inaction. I cited that precedent as well as others. MSPB ignores the evidence and refuses to consider the violations. It refused to consider the accommodation process on the bizarre grounds of “not relevant.” The bizarre and disproportionate emphasis on “jurisdiction” means that the burden of proof on the merits is on me, instead of on the installation. Yet MSPB refuses to allow a hearing which is the normal way of meeting the burden of proof. The bizarre MSPB fixation disregards its own misconduct and disregards precedent such as Missouri Pacific Railroad Company v. U.S., 203 F. Supp. 629 ([ED Mo] 1962).

    The installation and MSPB ignore the many precedents that show smoking as personal and not part of the job. Many Court precedents from worker compensation cases show that fact. Product liability cases brought by smokers and/or their survivors show smoking as a hazard to the smokers as alleged by the users and/or their survivors themselves. Smoking is the #1 hazard causing preventable death and disability among smokers. The local and MSPB behavior disregards such reality. The bizarre correspondence from local and MSPB personnel does not even advert to such facts. Such denial of reality is in marked contrast to the competent and sane analysis in the 25 Jan 80 USACARA Report. Other aspects of the disregard of precedents include but are not limited to cases brought under safety law, mental health law, criminal law, constitutional law including but not limited to due process, equal protection, right to work, etc. The pre-accommodation process has clearly not started. Local officials refuse to speak to me, since they oppose even beginning the process, and since MSPB declared the process “not relevant.”

    The NLRB v. Clement-Blythe Companies case, supra, rejected the detective government behavior. It is not proper “to have to speculate as to the basis for an administrative agency's conclusion.” At 82, “the reasons for the Board's decision become essential, for lack of clarity in the administrative process infects review with guesswork.”

    Page 11 of ___12____ pages.Affiant's initials _________

    Equal Employ. Opportunity Com'n v. Bell Helicopter, 426 F. Supp. 785 (D. N. D. Texas, 1976), provides insight. Priority is given to “public action” aspects as a matter of promoting national policy. In the case at bar, the “public action” aspects include but are not limited to securing compliance with time limits, securing action to “ever consider the merits,” halting a pattern of misconduct tactics such as violations designed “to restrict and/or deny appellant the right to file EEO complaints and seek counseling” and review, securing compliance with specificity and explanation guidance of civil service and administrative procedures rules, securing due process and equal protection, etc. Relative to the merits as distinct from the above matters, the “public action” aspects include but are not limited to securing enforcement of laws and rules on safety, alcoholism, mental health, federal employee behavior, leave and attendance, reasonable accommodation, truthfulness, good faith, etc.

    Obstacles or apparent obstacles to “public action” are generally not acceptable. For example, see Chromcraft Corp. v. EEOC, 465 F.2d 745 at 746 (5th Cir. 1972), “Nor is the equitable doctrine of laches applicable to a governmental agency acting to vindicate a public right,” also cited at 789 in EEOC v. Bell Helicopter, supra. A doctrine such as of laches does not bar corrective action, including against a government agency refusing to process cases, violating laws, and otherwise engaging in a pattern of misconduct. Vindicating public policy is a well-established concept, not only in EEO matters, but also in safety matters, for example, see [Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions”] 64 Cal. Law Rev. [#3] 702 ([May] 1976).

    Even state law does not bar corrective action in a “public” matter. “Where the government is suing to enforce rights belonging to it, state statutes of limitations are not applicable,” United States v. Georgia Power Co., 474 F.2d 906 at 923 (5th Cir. 1973), cited at 789.

    The overwhelming power of the government to enforce rules is a pale shadow of the individual power to protect himself, as is well-established in cases such as Brown v. United States, 256 U.S. 335, 4l S.Ct. 501 (1921). In a self-defense matter involving an admitted/ stated “immediate threat,” an “equitable doctrine” such as of laches, or “state statutes,” or any administrative rule or policy such as may otherwise appear to limit (for example) jurisdiction, is subject to the fact that “The promotion of safety of persons and property is unquestionably at the core of the State's police power,” Kelley v. Johnson, 425 US 238 at 247 (1976). Such power has historically been repeatedly needed to crush discrimination. Such power exists for the duration of the “immediate threat.” As long as “plausible” grounds exist, “a conclusive showing is not necessary,” Casey v. F.T.C., 578 F.2d 793 at 799 (1978), especially when the situation is an “immediate threat” in which “Detached reflection cannot be demanded,” Brown v. U.S., supra.

    In EEOC v. Bell Helicopter, at 792, three criteria are cited for rejecting government behavior: (a) delay (b) which is unreasonable, and (c) prejudicial. Considering the “present rights” flouted by the installation, and the circumstances, immediate relief is imperative regardless of any obstacles or apparent obstacles.

    Page 12 of 12 pages.Affiant's initials _________

    Other EEO Cases
    EEOC 22 July 1982

    EEOC 25 Aug 1982

    EEOC 21 Sept 1982

    EEOC 15 April 1983