Firing Whistleblowers
For Doing Their Job

Whistleblowers' role in protecting people has long been known. For example, during the Civil War, fraud that could injure or kill troops became a significant problem. There was fraud with respect to food (maggots), clothing (shoes that would disintegrate), and military weaponry (gunpowder that wouldn't explode), etc. The potential for disaster en masse became so severe that a False Claims (Qui Tam) Act was passed to protect, encourage, and reward whistleblowers exposing such activities.

Drug abuse is a danger to the nation. Drug abuse is linked to a starter drug. That starter drug leads to both substantial alcoholism and drug abuse. Drug abuse is in turn linked to organized crime, and to the money trail for terrorism.

Additionally, the starter drug typically involves quantities of toxic chemicals, and the emission into the surrounding ambient air of toxic emissions in quantities violating legal limits. Said toxic chemicals pose a hazard which is killing millions, all according to the U.S. Government's own data.

Could we head off significant amounts of the foregoing (alcoholism, drug abuse, organized crime, money trail to terrorism, and thus the resulting incidents and tragedies) by enforcing the pertinent hazardous-emissons law, rather than focusing all efforts narrowly, focusing only on other laws, the ineffectiveness of which limited approach is notorious?

Hazards are, by law (the Occupational Safety and Health Act [OSHA] of 1970, 29 USC § 651 - § 678), to be "eliminated" and "suppressed." But it is notorious that sometimes employers, to evade doing their duty to "eliminate" and "suppress" hazards, will claim, 'we'll monitor the situation.' Yeah, 'monitor' and 'monitor,' until the hazard renders you sick or dead, then we'll deny any resultant claims!

Legally speaking, 'monitoring,' whether called 'biological' or by another term, is not 'preventing' and 'suppressing' the hazard, but rather merely observing it continue! "Biological monitoring" is inadequate when it does "not eliminate or even reduce the hazard," but merely reveals it, says American Smelting & R. Co v Occ. Safety & Health Rev Commission, 501 F2d 504, 515 (1974).

The duty to eliminate hazards (behaviors or substances to which regular exposure foreseeably leads to "material impairment of [employee] health," of which tobacco smoke is the most notorious example) is "unqualified and absolute," says National Rlty. & C. Co, Inc v Occ. Safety & Health Rev Commission, 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973).

P 1267 says, "To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously."

P 1268 says, "Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere."

P 1264, n 27, says "permission often means only a failure to prevent . . . ." And: "An employer, of course, enjoys vast physical authority over his employees and their workplace, a fact which Congress stressed in drafting the general duty clause. See, e.g., S.Rep.No.91-1282, 91st Cong., 2d Sess., 9 (Oct. 6, 1970), U.S.Code Cong. & Admin.News 1970, p. 5177, and H.R.Rep.No.91-1291 . . . ."

Pp 1266-7, n 37, say, "we emphasize that an instance of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, or its hazardous character, at the moment of its occurrence. Conceivably, such conduct might have been precluded through feasible precautions concerning the hiring, training, and sanctioning [disciplining] of employees."
FPM Suppl. 532-1, S8-7, cites “elimination or reduction to the lowest level possible of all hazards . . .”
Segregation of the hazard-reporter is also not a legal alternative to compliance with the safety duty. “[U.S. Civil Right Law] Title VII [42 USC § 2000e–2. et seq.] is violated where employees who belong to a protected group are segregated by physically isolating them from other employees or from customer contact,” says the EEOC. “Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Employers should adopt 'best practices' to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.”

Unfortunately, due to reasons including the policy and pattern of retaliation against whistleblowers, and the sheer intense ultra-hatred of whistleblowers, the OSHA safety law is quite ineffective. See references on OSHA:
  • Charles Noble, Liberalism at Work: The Rise and Fall of OSHA (Philadelphia:
    Temple Univ Press, 1986)

  • Thomas O. McGarity and Sidney A. Shapiro, Workers at Risk: The Failed Promise of
    the Occupational Safety and Health Administration (Westport, Conn.: Praeger,
    1993)

  • Prof. Richard Moberly, "Unfulfilled Expectations: An Empirical Analysis of Why
    Sarbanes-Oxley Whistleblowers Rarely Win," William & Mary Law Review
    (Vol. 49, Fall 2007).

  • James Sandler, "The War on Whistleblowers" (November 2007)

  • Stephanie Mencimer, "OSHA: Where Good Laws Go To Die" (7 November 2007)
    ("For Whistleblowers, OSHA Is More Like NO-SHA" "In the first three years
    after Sarbanes-Oxley, only 13 of the 491 employees who filed complaints with
    OSHA found any sort of relief.")

    • The ultra-hatred of whistleblowers goes to an extreme.

    Writers Thomas M. Devine and Donald G. Aplin, "Whistleblower Protection—The Gap Between the Law and Reality," 31 Howard Law Journal (#2) 223-239 (1988), show that becoming a whistleblower can be the end to a federal employee's career, family, health, and normal life circumstances. It is government practice to “go well beyond merely defeating a whistle blower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with work record (and law)] the better . . . .”—"Gap," supra, p 226.

    And, "the threat of being fired is equal to the threat of most minor and some not so minor criminal sanctions," Herzbrun v Milwaukee County, 338 F Supp 736, 738 (ED Wis, 1972).

    Others also report on the retaliation policy and practice against whistleblowers, e.g.,
  • David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979)
  • Stephen M. Kohn and Michael D. Kohn, "An Overview of Federal and State Whistleblower Protection," 4 Antioch L J 99-152 (Summer 1986)
  • Devine & Aplin, "Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection," 4 Antioch L J 5-71 (Summer 1986)
  • Prof. William De Maria, Whistleblower International Bibliography (Web) (University of Queensland, 1993-1995)
  • Cynthia L. Estlund, "Free Speech and Due Process in the Workplace," 71 (#1) Ind. L. J. 101 (Winter 1995)
  • Thomas M. Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent," 51 Admin Law Rev (#2) 531-577 (Spring 1999)
  • Alex B. Long, "Retaliatory Discharge and the Ethical Rules Governing Attorneys," 79 U. Colo. Law Rev. 1043 (2008)
  • Julia Davis, "Office of Special Counsel (OSC) - The Dark Legacy" (The Examiner, 23 July 2010)

    • The 1979 article, "Canning Directions: How the Government Rids Itself of Troublemakers," gives the "recipe" and examples of how high integrity employees are harassed or gotten rid of:
  • 1. transfer to irrelevant assignment
  • 2. abolish the whistleblower's job
  • 3. refuse to provide pertinent records
  • 4. file false charges
  • 5. cause high legal bills
  • 6. falsely accuse of insanity
  • 7. cut their budget
  • 8. transfer away their co-workers
  • 9. close his office without warning
  • 10. deprive of promotion
    • "Embarrassment and humiliation denote shame, disgrace, degradation, distress, anguish, etc. See Perkins v Ogilvie, 148 Ky. 309, 146 S.W.2d 735 (1912)," cited in Ky Com on Human Rights and Cooper v Fraser, 625 SW2d 852 (Ky, 1981). [See Concept Details]. It is firm government policy and practice to shame, disgrace, degrade, distress and otherwise abuse whistleblowers, and, as with the abused Mrs. Cooper, supervisor "had fired her for her own benefit"!!

    The author of this website knows these reported reactions to whistleblowers to be true, not from reading, but from personal experience. The reaction to whistleblowers includes all the above, and worse, meaning outright criminal violations directed against the whistleblower, e.g., extortion, theft, falsification, mail fraud, and bribery of adjudicators including federal judges, to secure rulings against the whistleblower.
    (Bribery is used by tobacco pushers, see article, "Traders Offer Bribe to Stop Anti-Smoking Campaign." And see also the case of
  • the bribed sheriff, U.S. v Sheriff Goins, 593 F2d 88 (CA 8, 1979), bribed to not enforce cigarette law
  • the State Bureau of Cigarette and Beverage Taxes, U. S. v Frumento, 409 F Supp 136 (ED Pa, 1976), affd 563 F2d 1083 cert den 434 US 1072; 98 S Ct 1256; 55 L Ed 2d 775 cert den 434 US 1072; 98 S Ct 1258; 55 L Ed 2d 776, wherein the agency constituted an "enterprise . . . the activities of which affect interstate or foreign commerce," within meaning of 18 USC 1962 wherein employee was bribed as part of a cigarette-smuggling conspiracy.)
    “The U.S. government, through the CIA, disburses tens of millions of dollars each year in cash bribes. Bribery is a standard operating technique of the U.S. government, via the CIA, but it is a criminal offense for U.S. businesses,” says long-time CIA Agent John Stockwell, In Search of Enemies: A CIA Story (New York: W.W. Norton & Co, Inc., 1978), p 246.

    • When whistleblowers are fired from the government for doing their job, the public is harmed, not just the worker. Some function of the government that ought to be done, is left undone. Worse, coworkers become afraid to act in the subject matter concerning which they saw their colleague fired.
    See examples in various federal agencies, e.g., the FBI, cited by Peter Lance, 1000 Years for Revenge: International Terrorism and the FBI: The Untold Story (New York: Regan Books, August 2003). Note that so a civil servant can at last become safe and free to defend the public, the importance of reaching “the point in the Bureau [government agency] where [the employee] was considered KMA. 'It stands for Kiss My Ass,' said [employee] Predtechenkis candidly. . . . I could retire at the end of the day if I wanted to. It's a comforting feeling. . .” (p 172).

    And, “To hear that from a decorated Bureau veteran is an indication of the atmosphere of fear that exists among FBI street agents today--the fear that expressing even modest disagreement with a supervisor, or staying loyal to an asset the way Nancy Floyd did, might result in an investigation with career-ending implications” (p 172). “Ironically, like Nancy Floyd, Smith found himself spending as much time battling his own agency and enduring the stress of office politics as he did chasing the bad guys” (p 214).

    With whistleblowers under constant attack, the Army was impacted. For example, the Army enlisted "Ali Mohammed, the traitorous ex-Egyptian Army officer who had become a U.S. Army sergeant and served as an instructor in the Special Operations Warfare School at Fort Bragg while working for al Qaeda," p 373. "At the same time he was instructing Green Berets at Fort Bragg . . . he was commuting . . . to train the . . . . 'jihad army.' He used his knowledge of Special Forces operations techniques to train the top commanders of al Qaeda in Khost, Afghanistan, along with elite members of bin Laden's own bodyguard in Sudan. . . . 'The fact that Osama [bin Laden] was able to put an operative like him into a Special Forces training school should have been a screaming alert to the community,' said one intelligence operative," p 374. But with nobody daring to "blow the whistle," who'd do the "alert?"

    The article, “C.I.A. Was Given Data on Hijacker Long Before 9/11,” by James Risen and Eric Lichtblau (New York Times, 24 Feb 2004), shows what happens due to fear-induced civil service paralysis of action: “American investigators were given [by German investigators] the first name and telephone number of one of the Sept. 11 hijackers two and a half years before the attacks on New York and Washington, but the United States appears to have failed to pursue the lead aggressively.
    . . . The Germans considered the information on Mr. Shehhi particularly valuable, and the [9/11 investigating] commission is keenly interested in why it apparently did not lead to greater scrutiny of him.”
    Note also the book by Prof. David Ray Griffin, The New Pearl Harbor: Disturbing Questions about the Bush Administration and 9/11 (Northampton, Mass.: Olive Branch Press, March 2004) and Interview, saying, e.g., “Members of the FBI, the CIA, and other intelligence agencies have taken oaths to not reveal things they’ve been told not to reveal . . . and if they violate this oath, repercussions may occur. You have a wife and children, and somebody says to you, “If you go public with that I cannot guarantee the safety of your family.” Would you go public with that? You have to choose between your family’s welfare and the welfare of the nation, and your story might not do that much good. You might just be denounced as a conspiracy kook. The press would ignore you, belittle you. People might look into your past and find that you had done some things you’re not so proud of. People would learn very quickly to keep their mouths shut.”
    In fact, the threat of reprisal is real, common, throughout Federal Civil Service. See the MSPB Retaliation Rate Study (December 2000) www.mspb.gov/studies/00decnws.pdf, citing a seven - twelve per cent retaliation rate, meaning hundreds of thousands of incidents.
    Intimidation of whistleblowers is a form of bulling. For background on bullying, see the anti-bullying site.

               Safety laws are written in both general terms (words against jeopardizing safety) and in numeric terms, quantities of toxic chemicals shall not exceed X amount, in essence, a speed limit, a quantity limit. Employers must obey both the general words and the specific numerics.

    After the employer got away with getting rid of this whistleblower, at the site, there soon resulted a worker death. There was litigation,
  • International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987), and

  • state-law criminal prosecution, People v General Dynamics Land Sys Div, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990),

    convicting the employer for the death. The State assessed a fine of $7,500.00!!

    • But the after-the-fact pro-safety decisions and fine (such as it was) did not help the killed worker. The employer knew it could kill with near-impunity as people such as myself were fired, and the others, intimidated. After all, it kept me off the job, now about two decades, despite my intense writing daily and appealing continually.

    Leroy Pletten          The case file is thousands of pages. Here are highlights. Essentially, with the support of my supervisor, Jeremiah Kator, I blew the whistle on law and regulatory violations, with respect to safety and health.

    The hazard is well documented, see, e.g., Tara Foss, "Any amount of cigarette smoke is dangerous to your lungs" (WebMD Health News, 20 August 2010). "Even the smallest amount of cigarette smoke in the lungs is harmful." "Even at the lowest detectable levels of exposure, we found direct effects on the functioning of genes within the cells lining the airways," says Dr. Ronald Crystal, senior author of the study." And: "This means that no level of smoking, or exposure to second-hand smoke, is safe." The National Institutes of Health says likewise, "Study Finds Even a Little Cigarette Smoke Harms Airway" (Friday, 20 August 2010). The study is published in the American Journal of Respiratory and Critical Care Medicine, Vol. 182, Issue # 4, entitled "Threshold of Biologic Responses of the Small Airway Epithelium to Low Levels of Tobacco Smoke" (6 August 2010).

    My allegations were upheld by the agency's own investigation office investigator, Norma Kennedy. She issued a Report, #05-80-001-G in my favor 25 January 1980.   She told the agency to comply with the pertinent regulation.

    Instead of complying, the agency retaliated, (1) committed extortion, demanding I stop whistleblowing; and (2) when I refused, fired me without filing charges of any misconduct. The efficiency of the federal service is not promoted by such firings!

    No employee has ever NOT won his job back in such circumstances, as the advance notice law, 5 USC § 7513.(b) is very clear, notice must be in writing 30 days PRIOR to the ouster!

    Various accessories, including the infamous Kenneth Starr, aided and abetted the illegality. He had a severe conflict of interest, a duty to uphold the law, while simultaneously aiding and abetting firing me for seeking enforcement of the law.

    This issue involves getting deep into the subject, so please bear with me. Michigan was an abolitionist state. Abolitionists deemed tobacco slavery product; most slaves were forced-laborers for tobacco farmers. Michigan in 1909 established by law a boycott of cigarettes, tobacco farmers' then newest product. The law is MCL § 750.27, MSA § 28.216. It institutionalizes the common law "right to fresh and pure air."

              The Army is especially concerned. Soldiers (smoking outside at night) were easier targets for being shot by the Confederates during the Civil War, then a widely publicized fact, see Meta Lander, The Tobacco Problem, 6th ed. (Boston: Lee and Shepard Pub, 1885), p 289. Smoking soldiers were more susceptible to disease. Soon West Point banned smoking. By the time of the Spanish American War (1898), the Army refused to even enlist smokers. Smoking alters blood pressure, impairs blood flow, stresses the nervous system, and so impairs night vision, and deteriorates hand-eye coordination, as Secretary of the Army John O. Marsh, Jr., and General John A. Wickham, Jr., Chief of Staff long ago said. Another effect is an increased accident rate.

    A problem arose as World War I and II manpower needs were so severe, that the bar on enlisting smokers was lifted. Tragically, once again, soldiers smoking at night were easier targets.

    Eventually, once again, the Army made efforts to ban smoking, for example, Army Regulation 1-8 (1977).

              An area federal agency (TACOM) appointed the web writer in 1969 as a personnel official and in 1976 added the crime prevention function to my responsibilities. While I could not solve the Army smoking problem elsewhere, it soon became evident that the Michigan law, thus the common law "right to fresh and pure air," was being widely defied. Cigarettes were being smuggled, constituting contraband. I could at least protect the troops and colleagues at my own Michigan Army base. So I blew the whistle.

              Problem: As Thomas M. Devine and Donald G. Aplin, "Whistleblower Protection—The Gap Between the Law and Reality," 31 Howard Law J 223 (1988), show, becoming a whistleblower can be end to a government employee's career, family, health, and normal life circumstances. As money can be made by allowing hazards (here, one endangering troops), there is a tendency to pressuring whistleblowers to back off.

    Reprisals Against Whistleblowers: How the Whistleblower Protection System is Undermined

    Reprisals against whistleblowers have long taken many forms, unwarranted pretext-based reprimands, suspensions, firings. An article by David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979), cited a litany of reprisal methods:
  • 1. transfers to irrelevant assignments;

  • 2. abolishing the whistleblower's job;

  • 3. refusing to provide pertinent records;

  • 4. filing false charges;

  • 5. causing high legal bills;

  • 6. falsely insanity charges;

  • 7. cutting their budget;

  • 8. transfering away their co-workers;

  • 9. closing their office without warning; and

  • 10. depriving of promotion.

    • Whistleblowers may, if informed of the rights, be able to defend themselves against false charges. But federal employer reprisal can go much deeper than the short list. It can include -- and I say this from experience --
    1. ordering ouster without issuing a pre-decision advance notice at all;

  • 2. and/or refusing to state the accusations with specifity;

  • 3. refusing to provide notice of appeal rights;

  • 4. making ex parte contacts with potential reviewers

  • 5. providing false or fraudulent information to potential reviewers

  • 6. depriving of income as as to obstruct ability to retain competent legal counsel

  • 7. denying the employee "informed choice" of rights;

  • 8. refusing to process the employee's uninformed efforts to get review;

  • 9. fighting and parrying every review effort on merits so that such review never occurs

  • 10. even misprocessing some such efforts so as to be able to later to obstruct genuine review, by claiming 'review has already occurred';

  • 11. making false promises that genuine review will occur, with no intention of carrying out the promise

  • 12. ignoring all rules of law, substantial, procedural, technical . . .

  • 13. insisting the potential reviewers must, however, strictly, mechanically, and mindlessly follow review-processes laws down to the nth technicality and sub-clause!

  • 14. obstructing justice in other words.

    • The effect is that if and when the whistleblower ever does learn his rights, and seek to commence review as it perhaps should have occurred years earlier, that potential reviewers deem themselves "constrained" by the preceding abuses, to taking little or no remedial action. In other words, they feel they must ignore all the rights violations (lack of notice or charges and rights, the agency fraud and falsifications, etc)., and focus solely on strictly, mechanically, and mindlessly following review-processes laws down to the nth technicality and sub-clause! Thus, the agency reprisal process continues unabated.

    Are mindless limitations and constraints by such procedural or other constraints really required?

    This became an issue in the notorious Chicago judges' bribery scandal, "Operation Greylord." An excellent narrative on this is by investigators James Tuohy and Rob Warden, Greylord: Justice Chicago Style (New York: C. P. Putnam's Sons, 1989).

    The issue of mindless limitations and constraints by such procedural or other constraints really required, is addressed at its papges 143-144.

    For example, there's the issue of taking action to "prosecute a fireman when he sets a backfire to prevent a forest fire from spreading spreading." Arson is absolutely illegal, it is a major felony! As the book says, "Whatever the elements of arson are, if you apply them in the same mindless way, I am sure you can make out a case for arson."

    But the message of the book shows, don't be mindless, "Yet I think we would all be shocked to find a fireman prosecuted for arson in such a situation."

    With judge corruption, here is how the concept was applied non-mindlessly, ignoring "constraints." "In order to ferret out venality, it was necessary to put hidden microphones in judges' chambers, to create phony cases defended by bogus lawyers, and even for FBI agents to commit make-believe crimes." None of this is by the book! It "constrains."

    What was the answer? "This conduct cannot be prejudicial to the administration of justice because the purpose is to ferret out corruption in the administration of justice."

    When police officers speed to catch suspects, shoot on-scene robbers, pose as drug sellers, etc., in a mindless view, that's "illegal." The people being chased, even shot, are all "innocent until proven guilty!" So it is utterly "illegal" for the police to do such of what they routinely do!

    The message is, let's learn from firemen, let's learn from police, let's learn experience. Retaliators act well outside the rule of law. Of course, the situation remains a matter of massive retaliation, documented by the government's own studies after studies, e.g., the MSPB Retaliation Rates Study of 2000, summary at http://www.mspb.gov/studies/00decnws.pdf.

    Retaliation will remain at high levels as long as retaliators are free to operate outside the rule of law, while the supposed "protectors" fell themselves "constrained" to strictly, mechanically, and mindlessly following review-processes laws down to the nth technicality and sub-clause!

    Potential reviewers should cease having the "constraint" reaction. "This conduct [acting outside normal constraints] cannot be prejudicial to the administration of justice because the purpose is to ferret out corruption [abuses] in the administration of justice."

    For background, note that it is typical that cigarettes are the starting point in the drug abuse lifestyle; they are the delivery agent for nicotine, the gateway (starter) drug for children. The average age of onset is 12. Next in sequence, alcohol follows, average age 12.6; then marijuana, average age 14. See, e.g.,

  • DHEW National Institute on Drug Abuse (NIDA), Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p vi (Dec 1977);

  • DuPont, Teen Drug Use, 102 J Pediatrics 1003-1007 (June 1983);

  • Fleming, et al., Cigarettes' Role in The Initiation And Progression Of Early Substance Use, 14 Addictive Behaviors 261-272 (1989);

  • and DHHS, Preventing Tobacco Use Among Young People: Surgeon General Report (1994). Page 10 supports law enforcement, saying, "Illegal sales of tobacco products are common."

    Enforcement is needed, to win the war on drugs. "A stitch in time saves nine." This is especially true, for protecting the troops, often young, likely to have been suckered by tobacco advertising into smoking.

              Americans are being killed due to drugs, due to the inordinate demand. The demand arises primarily among smokers; nonsmokers do not use the starter drug, so rarely are the typical drug abuser. I want to do my job, deal with the massive violation of the cigarette law, thus save lives.

    "Most of the nation’s approximately 16.4 million current illicit drug users and approximately 15 million heavy alcohol users hold full-time jobs, according to a new study by the Substance Abuse and Mental Health Services Administration (SAMHSA), "Worker Substance Use and Workplace Policies and Programs" (16 July 2007). In a summary, Director of National Drug Control Policy John Walters said, "Employees who use drugs miss work more often, are less healthy, and are more prone to harming themselves and others in the workplace. We hope that employers will take note of this report and consider implementing workplace drug testing policies that can help prevent drug use before it starts, help identify drug-using employees who need drug treatment services and also reduce employers’ liability from drug-related workplace accidents."

    An efficient way to "prevent drug use before it starts"is to ban the starter drug delivery agent, tobacco, and at mimimum to not hire starter drug users, aka tobacco users. Avoid negligent hiring, don't hire smokers.

    "A stitch in time saves nine." Pletten's immediate supervisor, Jeremiah Kator, was supportive. In addition, the drug gives off toxic emissions (details below), making its use a job safety issue pursuant to 5 USC § 7902.(d) and 29 USC § 651 - § 678. Also, deleterious cigarettes are unlawful under Michigan law (MCL § 750.27, MSA § 28.216).

    The case began unlawfully, with both the aforesaid law violations, and, in turn, extortion (demand that I cease and desist exposing the illegal aspects including the smuggling of the unlawful drug delivery agent). Under such circumstances, says the Supreme Court:

    "We think that where a [smuggling] distribution system exists . . . which is illegal . . . where that illegality necessarily persists in part . . . subsequent [actions], otherwise valid, should be cancelled, along with the invalid arrangements, in order that the ground may be cleansed effectually from the vice of the former illegality."

    "Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole. U.S. v Univis Lens Co, 316 US 241, 254; 62 S Ct 1088, 1095; Ethyl Gasoline Corp v U.S., 309 US 436, 461; 60 S Ct 618, 627. Cf. Standard Oil Co v U.S., 221 US 1, 78; 31 S Ct 502, 523; 34 LRA (NS) 834; Ann Cas1912D, 734; U.S. v Union Pac R Co, 226 US 61, 96; 33 S Ct 53, 61; U.S. v Union Pac R Co, , 226 US 470, 476, 477; 33 S Ct 162, 165 [(1913)]; Aiken v Wisconsin, 195 US 194, 205-206, 25 S Ct 3, 5-6; 49 L Ed 154, 159; U.S. v Bausch & Lomb Optical Co, 321 US 707, 724; 64 S Ct 805; 88 L Ed 1024 (SD NY, 10 April 1944).

    Instead of adhering to the rule of law, TACOM reroactively alleged the matter to be one of "job qualifications"! That violated additional law, e.g., federal law 5 USC § 552.(a)(l)(C) - (D). Said law requires advance publication of rules/qualifications. It further makes publication of rules/qualifications "jurisdictional (a mandatory condition precedent, sine qua non)," as all honest judges have ruled:
  • Hotch v U.S., 212 F2d 280, 281 (CA 9, 22 March 1954);
  • Morton v Ruiz, 415 US 199, 231-237; 94 S Ct 1055, 1073-1075; 39 L Ed 2d 270 (20 Feb 1974);
  • Bowen v City of N Y, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986);
  • Berends v Butz, 357 F Supp 143, 154-158 (D Minn, 20 March 1973);
  • W. G. C. T. & S. Corp v Army, 480 F2d 498, 503 (CA 4, 13 June 1973) (Army has pattern, did this before);
  • Anderson v Butz, 550 F2d 459 (CA 9, 1 Feb 1977);
  • Dean v Butz, 428 F Supp 477, 480 (D HAW, 28 Feb 1977);
  • St. Elizabeth Hospital v U.S., 558 F2d 8, 13-14 (CA 9, 1 Feb 1977);
  • Onweiler v U.S., 432 F Supp 1226, 1229 (D ID, 25 May 1977);
  • Aiken v Obledo, 442 F Supp 628, 654 (D ED Cal, 18 Oct 1977);
  • Historic Green Springs, Inc v Bergland, 497 F Supp 839, 854-857 (D ED Va, 1980);
  • Vigil v Andrus, 667 F2d 931, 936-939 (CA 10, 4 Jan 1982).
    The tobacco qualification "requirement" does not exist, was purely ad hoc, invented solely for my case by TACOM, with corrupt prior MSPB and DOJ approval, ex parte arranged.
    U.S. Attorney pattern of contempt for due process rights is clear, see NAACP v Levi, 418 F Supp 1109, 1114-1117 (D DC, 3 Sep 1976) (not investigating before acting).
    I repeatedly return to duty per Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) (employee also falsely accused of not meeting non-existent qualification requirement!) Army had provided me a qualifications waiver-then ousted me re 'qualifications'!

    • Ed. Note: The agency, the Army TACOM, put Pletten on enforced leave, and claimed that doing so outside the rule of law was somehow not an "adverse action."
    Pletten appealed in the TACOM EEO forum and was refused access. Subsequent jurisdiction-less appeal (jurisdiction-less under 29 CFR 1613.403) to the MSPB resulted in this: "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 Captain Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Milit Law Rev 143, p 35 of 39, n 206 (Fall 1987).
    The pro-drug MSPB and its accessories often use the whistleblowers' alleged "motive" to attack the whistleblower's job and carreer. But in law, one's motive prompting one to seek enforcement of legal duties or rights is immaterial. Vitagraph Co. of America v Swaab, 248 Pa 478, 94 A 126, Ann Cas 1916C, 311 (Pa., 1915).
    Background on the Pletten case in due process context can be found at "The Human Rights of Due Process and Effective Remedy" (Janet Parker, OpEd News, 4 August 2010).

    “The tobacco industry is the greatest killing organization in the world. The harm done by all the armies in the world combined, will not begin to equal the damage inflicted upon the human race by the combined activity of the cultivators, manufacturers, and distributors of tobacco.”—Dr. Jesse M. Gehman, Smoke Over America (East Aurora, N.Y: The Roycrofters, 1943), p 216.

    "Tobacco alone is predicted to kill a billion people this [21st] century, 10 times the toll it took in the 20th century, if current trends hold," says the Associated Press article, "Tobacco could kill 1B this century," The Detroit News, p 4A (11 July 2006). Details are at "American Cancer Society CEO Urges United States to Do More to Win Global War Against Cancer in Address to National Press Club" (26 June 2006).

    "Tobacco producers are "terrorists", Seffrin tells Israel Cancer Association," The Jerusalem Post (31 March 200 5): "All those involved in the production and marketing of tobacco products are 'terrorists', declared Dr John Seffrin, president of the American Cancer Society and elected president of Geneva-based International Union Against Cancer (UICC)."

    See also the overview of the tobacco lobby connection to Kenneth Starr and the Federalist Society. "Federalist Society" members, with their views being typically those of pre-Civil War Confederates, have shown strong hostility to personal constitutional rights and government power and duty to enforce same.

    Further note the tobacco farmer connection to slavery. Tobacco farmers began the major use of slaves in the U.S. See Glenn Porter, ed., Encyclopedia of American Economic History, Vol II (NY: Charles Scribner's Sons, 1980), "Slavery," pp 552-561. It says "of the American slave population . . . most worked in tobacco," p 552. Tobacco farmers were family-destroyers in more ways than one.

    The Federalist Society is amenable to beliefs that oppose morality such as are prescribed by constitutional rights and in internal law. See data by, e.g., Nat Parry, "Chertoff's 'Chilling Vision'" (Consortiumnews, 22 November 2006). The Federalist Society favors the government having "authority unbound by any law, including the constitutional rights of Americans," including torture, in contrast to, e.g., "principles of environmental protection, human rights and individual dignity."

              Kenneth Starr, James Ryan, Roy C. Hayes, Jr., Maura Corrigan, Stephen Markman, and/or others in the Federalist Society, with its reported anti-human-rights Confederate-type views, became involved in my case in this way. As part of his blowing the whistle, Pletten (a crime prevention officer and personnel specialist, with support by Jeremiah Kator, the immediate supervisor who continued giving Pletten good performance recognition and ratings unceasingly), reported the widespread violations to the regional Appellate Authority (USACARA). After investigation, it ruled in Pletten favor, told the federal agency (TACOM) to come into compliance.

              Instead, the agency (TACOM) summarily fired Pletten. It did so without providing 30 days notice. This is a due process law to enable accused employees time to prepare a defense against any charge(s). TACOM's summarily ousting Pletten thus violated federal law 5 USC § 7513.(b). This was unequal treament, disparate treatment, not done to others. It was done to intimidate coworkers from doing their job on the subject. That violates efficiency of the federal service, vs promoting it. Pletten immediately sought review pursuant to the Inspector General system and the Equal Employment Opportunity Commission (EEOC) system, the latter request made pursuant to 29 CFR § 1613.

              The agency was afraid of EEOC's known integrity. An EEOC official, Administrative Judge Henry Perez, Jr., by letter notified the agency that he had observed the firing ("decision to terminate"); and the agency knew that he had observed this without the agency having first issued me the prerequisite 30 days notice, violating 5 USC § 7513.(b) whjich requires 30 days ADVANCE notice with opportunity to reply.

              Wherefore the agency decided to obstruct my obtaining review in the EEOC forum. The agency is in Michigan. The agency therefore unlawfully forced the case to be heard against Pletten's will, and in violation of 29 CFR § 1613.403, in the corrupt Chicago Cook County system, specifically, the federal "Merit Systems Protection Board," with same type of "integrity" as such Cook County judges! (The Chicago MSPB office has jurisdiction over Michigan federal employee cases, when the federal employees voluntarily seek such review; and that was the pretext).

              Pletten sued in federal court to get review, specifically, EEOC review, of his appeal of being fired without notice. No federal employee has ever lost a case in such a circumstance (except Pletten, at MSPB!). And Pletten's case would be even easier to win, due to the Perez letter citing observing the firing.

              However, the sad state of judicial institutions (in essence, as some writers such as Molly Ivins label it, "legalized bribery" and/or a racist, Confederate attitude among federal attorneys and judges), made Pletten the one and only exception. To prevent my appeal being heard, they said I applied to disability retire myself! retroactively, years after the firing, long after the one-year statute of limitations, contrary to all medical writings!! And then they ignored it when my doctor wrote the court and said I did no such thing, I have no medical condition preventing me working!!

              Others on "total disability" had to have significant medical data showing 100% inability to do the job! The civil service system provided no "partial disability" (1-99%). The rule was 100% disability necessary to qualify, anything less, application denied.)

              However, "once bribed, always bribed" (meaning, no retraction even when caught) so Pletten has been forced onto so-called "total disability" at taxpayer expense! That does not promote efficiency of the service, but is contrary to it (the whole idea of course, behind illegally getting rid of a whistleblower. And Pletten's appeal of being fired illegally was never heard in the 29 CFR § 1613 system I want!!)

    In addition, Pletten also sought review of the agency decision to even apply to force him onto so-called "total disability." Pletten's evidence shows him continuing working! with gusto! the very opposite of the genuinely disabled! The agency (TACOM) refuses to allow that request for review to be heard either!

              As stated, Pletten's case was deemed by the agency as related to tobacco. "For almost four hundred years, European and American physicians have observed the toxic effects of tobacco . . . . physicians have known for centuries that smokers were daily taking into their bodies large quantities of one of the most poisonous substances known to man."—Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 67.

              Here are some examples of what Dr. Wood means. Cigarettes are inherently dangerous. The Department of Health and Human Services (DHHS), Reducing the Health Consequences of Smoking: 25 Years of Progress: a Report of the Surgeon General, Publication CDC 89-8411, Table 7, pp 86-87 (1989), lists examples of deleterious ingredients including but not limited to:

    acetaldehyde (1.4+ mg)arsenic (500+ ng)benzo(a)pyrene (.1+ ng)
    cadmium (1,300+ ng)crotonaldehyde (.2+ µg)chromium (1,000+ ng)
    ethylcarbamate 310+ ng)formaldehyde (1.6+ µg)hydrazine (14+ ng)
    lead (8+ µg)nickel (2,000+ ng)radioactive polonium (.2+ Pci)

               Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions. The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions compared to the chemicals' "speed limits" (set in the toxic chemical regulation 29 CFR § 1910.1000, available at your local library), including but not limited to:

    Chemical
    Quantity
    "Speed Limit"
    acetaldehyde 3,200 ppm 200.0 ppm
    acrolein 150 ppm     0.5 ppm
    ammonia 300 ppm 150.0 ppm
    carbon monoxide 42,000 ppm 100.0 ppm
    formaldehyde 30 ppm     5.0 ppm
    hydrogen cyanide 1,600 ppm   10.0 ppm
    hydrogen sulfide 40 ppm   20.0 ppm
    methyl chloride 1,200 ppm 100.0 ppm
    nitrogen dioxide 250 ppm     5.0 ppm

               Additional data of this type can be found in the book by Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 154. Here is a word picture (using the example of carbon monoxide) of what this type data means:

    | 42,000 ppm - cigarettes' carbon monoxide
    |      
    |
    | 32,000       For perspective, police stop speeders going 60 in a 50 mph zone.
    |                   Tobacco far exceeds the "speed limits." Tobacco kills precisely
    |                   because its toxic chemicals are above the safe levels.
    | 22,000
    |
    |      
    | 12,000 ppm - cars' limit           "Cigarette Makers Get Away With Murder,"
    |  (40 CFR § 85.2203-81)            says Elizabeth M. Whelan, Sc.D., M.P.H.,
    |                                                    in The Detroit News, p 4B (3-14-93). The
    |                                                    above "speed limit" numbers show why.
    |      
    | 2,000                       (Not to scale)
    |      
    |      
    |      50 - legal amount indoors (29 CFR § 1910.1000)
    |        9 - legal amount outdoors
    |        0 - amount cigarette pushers allow from their personal furnaces

              It is because cigarettes' emissions vastly exceed the "speed limits" that they are dangerous and so fatal as to kill millions of people. If cigarettes' toxic chemicals were under the "speed limits," they'd be safe! Example: The "speed limit" for carbon monoxide is about 50, whereas it's doing 42,000. Enforcing safety rules promotes efficiency of the service, indeed, the well-being of society at large. Firing people who want to do their job, violates efficiency.

              The Michigan law banning cigarettes with deleterious ingredients, MCL § 750.27, MSA § 28.216, is clearly a life-saver, intended to prevent cigarettes with dangerous ingredients!! Only safe cigarettes, if any, can legally be manufactured, given away, and sold in Michigan. Naturally, I blew the whistle, citing federal rules of the time.

    Judicial notice of cigarettes' deleteriousness was taken as long ago as 1897 pursuant to a Tennessee law banning cigarettes. The law, when challenged by the tobacco lobby, was upheld in Austin v State, 101 Tenn 563, 566-7; 48 SW 305, 306; 70 Am St Rep 703 (1898) affirmed 179 US 343 (1900). Indeed, even before 1897, aspects of the hazard had been shown in the medical profession, and so well documented, that aspects of the hazard had already received judicial notice. Examples:
    * It is deleterious due to the fire hazard, Commonwealth v Thompson, 53 Mass 231 (1847).

    * It delivers a drug, Carver v State, 69 Ind 61; 35 Am Rep 205 (1879), Mueller v State, 76 Ind 310; 40 Am Rep 245 (1881), and State v Ohmer, 34 Mo App 115 (1889).

    *It is deleterious to nonsmokers due to the second-hand smoke aspect, State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890).

    Note the Pentagon-drugs connection to the illegal decision to terminate Pletten without advance notice, and to refuse him the review rights others are allowed to exercise.

    In the 1898 Spanish-American War era, the Army would not enlist smokers. Austin v State, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703 (1898) aff’d 179 US 343 (1900).

    Now the Army by policy and practice is pro-starter drug, pro-drug, pro-drug smuggling. Note the period leading up to Pletten's reporting rampant violations, starting with AMC’s Inspector General. Examples: “A former military intelligence noncom tells of a 1960 . . . . airstrip . . . transfer point . . . into and out of Vietnam. . . . The first planes out of Vietnam . . . was filled . . . with . . . small plastic bags of a white powder that he has no doubt was heroin.”

    “The U.S. Government not only promoted this drug traffic, it intervened to make sure the traffic wouldn’t be discovered. A former officer who did criminal investigations for the Pentagon in the Vietnam theater . . . vividly remembers political interference with criminal justice. ‘Some of the time when you’d be running a criminal investigation, say narcotics, you’d find out that [some official] is involved. . . . . You investigate it up to a point and then you can’t go any further. . . . It would go to our headquarters and then it would go to Washington and nothing would ever happen.’”

    “Another former officer from the army’s Criminal Investigation Division recalls a mammoth heroin scheme . . . . he and four others from his unit were investigating corruption in the sale of supplies . . . . The corrupt U.S. and Vietnamese officers they caught tried to bargain away jail terms by describing the heroin traffic involving Vietnamese politicians and senior U.S. officers. The reports checked out, the investigator says. The . . . investigation group filed reports to the Pentagon revealing that G.I. bodies being flown back to the United States were cut open, gutted, and filled with heroin . . . . the heroin-stuffed soldiers bore coded body numbers, allowing conspiring officers . . . to remove the heroin–up to fifty pounds of heroin per dead G.I.”

    “The army acted on these reports—not by coming down on the dope traffickers, but by disbanding the investigative team and sending them to combat duty . . . . Other reports corroborate the use of G.I. bodies to ship dope back to the United states. This was the prevailing atmosphere . . . .”—Jonathan Kwitny, The Crimes of Patriots (New York: W. W. Norton, 1987), pp 51-52.

    This “prevailing” drug culture attitude retaliated against Pletten for his action against the starter drug, tobacco. They knew that "all" drug addicts are smokers.—Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953), p 196. They knew "there would be no marijuana addicts . . . if people did not first learn to smoke cigarettes."—Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143. Also, "all of those who became alcohol addicts, in the experience of this writer [Wood], were first tobacco addicts."

    "Tobacco . . . holds a special status as a ‘gateway' substance in the development of other drug dependencies not only because tobacco use reliably precedes use of illicit drugs, but also because use of tobacco is more likely to escalate to dependent patterns of use of most other dependence producing drugs."—Jack E. Henningfield, Richard Clayton, and William Pollin, "Involvement of Tobacco in Alcoholism and Illicit Drug Use," 85 British J of Addiction 279-292, esp p 283 (1990).

    Pletten's actions were in the direction of reducing their post-gateway-drug customer base! their lucrative profits! Pro-drug TACOM officials naturally opposed this. They are part of the problem in the ‘war on drugs.’ Hence, they retaliated against Pletten.

    Their retaliation included inventing known false claims including that enforcing the no-smoking rule would somehow be an "undue hardship" under the Rehabilitation Act of 1973! How an unrelated law on a different subject could be involved in obstructing enforcement of the no-smoking rule, was of course never explained!

    Moreover, as a fact matter, every study shows that enforcement of clean air rules provides benefits! See overview by Michael Eriksen, ScD and Frank Chaloupka, PhD, in "The Economic Impact of Clean Indoor Air Laws," CA Cancer J Clin 2007; 57:367-378. Drs. Eriksen and Chaloupka found that
    "Clean indoor air laws are easily implemented, are well accepted by the public, reduce nonsmoker exposure to secondhand smoke, and contribute to a reduction in overall cigarette consumption. There are currently thousands of clean indoor air laws throughout the Unites States, and the majority of Americans live in areas where smoking is completely prohibited in workplaces, restaurants, or bars. The vast majority of scientific evidence indicates that there is no negative economic impact of clean indoor air policies, with many studies finding that there may be some positive effects on local businesses. This is despite the fact that tobacco industry-sponsored research has attempted to create fears to the contrary."
    Their findings refute the knowingly false claims to the contrary, by Department of the Army lawyers, and by the corrupted Merit Systems Protection Board adjudicators and federal judges such as Anna Diggs Taylor.

    In view of it being known a century ago, the hazard cannot legitimately be denied! As Starr's conduct obstructing my getting EEOC review, violated federal and state law, I filed a complaint on the subject in January 1991 pursuant to this being discriminatory (others are not denied EEOC review on request). Investigation of that complaint is being obstructed as well. This is further obstruction of justice. Starr wants to force others to testify, but he doesn't do so in my case pending against him for now over eight years.

    Years ago, in September 1998, I filed a petition to attempt to get an order to move the case forward in Washington, D.C. The text of that petition and copies of a few of the papers from my voluminous case file are at this site.

    Army employees appreciate quitting, see example.

    For Those With Interest In Underlying Issue
    In Different Styles For Different Perspectives
    So As To Offer A Connection to the Reader
    Pletten's Cost Saving Suggestion Article
    The Worker Safety Issue
    "Federal employees too scared to report threats" (Macomb Daily, 17 Jan 2002)
    "When Workers Die: California Leads in Making Employer Pay for Job Deaths," by David Barstow, New York Times (23 December 2003)
    Seeds of Fire: China and the Story Behind the Attack on America
    Corporate Bullying
    "'State secrets privilege' blocks fired translator from suing FBI" (23 November 2006) "Instead of protecting and standing up for whistle-blowers, this is just giving the complete green light to retaliate," says Edmonds, who lost her appeal.
    Marcus Baram, "Big Oil Fought Off New Safety Rules Before Rig Explosion" (Huffington Post, 27 April 2010) ("whistleblowers working on [off-shore oil] rigs . . . complain about the work conditions and the environmental damage caused by such operations," to no avail, the deaths occur, and major environmental damage)
    Jason Leopold, "Whistleblower: BP Risks More Massive Catastrophes in Gulf" (Friday, 30 April 2010) ("A former contractor who worked for BP claims the oil conglomerate broke federal laws and violated its own internal procedures by failing to maintain crucial safety and engineering documents related to one of the firms other deepwater production projects in the Gulf of Mexico.")

    Other Materials in Case File

    Appellant's 19 Nov 1976 Appointment
    as Crime Prevention Officer

    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
    (ignored by MSPB due to its firm, intractable, permanent, determined, irrevocable hatred of whistleblowers protecting the American people from anything, on any subject, including but not limited to drugs, the drug money trail linked to terrorism, etc. Long-term government policy and practice, as upheld by MSPB (and the federal courts), is to “go well beyond merely defeating a whistle blower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with work record (and law)] the better .   .   .   .”—Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection—Gap Between Law and Reality,” 31 Howard Law J (#2) 223, 226 (1988)).
    The foregoing material parallels other Briefs in the series, e.g., 1 June 1982, 22 July 1982, 25 August 1982, 3 September 1982, 21 September 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.

    • The 28 May 1993 Attempt To Get Review to Begin
    Citing Violation of Due Process: NO NOTICE OF CHARGES

    The 17 Apr 1996 Attempt To Get Review to Begin After
    Being Obstructed 1991-1996: Citing Legal Principles With
    Respect To Some of The Crimes Being Aided and Abetted

    The 19 Apr 1996 List Of Rules of Professional Practice
    for Attorneys Being Violated And Attempting To Get
    Review To Begin After Being Obstructed 1991-1996

    The 6 March 1998 Correspondence
    Citing Starr's Apparent Coverup
    of Falsehood In Another Case and
    My Attempting to Get Review
    To Begin After Being Obstructed 1991-1998

    The 25 August 1998 Correspondence Citing a
    Published Analysis of Starr's Apparent Sexual Fantasies
    and Again Attempting to Get Review to Begin After
    Being Obstructed 1991-1998, Correspondence
    That Combined With This Material Inspired the Agency
    to Sudddenly Fight Harder to Prevent Review
    as It Clearly Must Be Striking Close to The Truth

    The September 1998 Petition
    To Get Review To begin

    The 20 April 1999 Brief On Merits Pursuant
    To Agency Refusal to Allow Review on Merits

    4 August 2004 Appeal to the Dept of Defense Inspector General

    29 April 2008 Testimony [pdf]

    Background Article:
    "The Human Rights of Due Process and Effective Remedy"
    (OpEd News, 4 August 2010)

    Related Websites

    The government establishes a duty to investigate abuses against whistleblowers, see 5 USC § 1214. For background on the merit principles of the federal civil service and the public health and safety, and the “broken covenant” of the Civil Service Reform Act (CSRA) of 1978, see www.broken-covenant.org. That website described the broken covenant, broken promise of protection for whistleblowers, thus the American people, in eye-glazing detail. Americans are harmed, even killed, by the fear to blow the whistle, that the rampant retaliation causes, and intends to cause.
    Sarbanes-Oxley Whistleblower, Subject: Fraud Study Says Whistleblowers Are The Most Common Means Of Identifying Fraud, But This Comes At A High Personal Cost When Whistleblower Anonymity Is Not Maintained" (February 2007)
    http://www.humanities.uci.edu/history/faculty/Prof. Jonathan Wiener (History, Univ of California, Irvine, "Big Tobacco & The Historians: A Tale of Seduction and Intimidation," The Nation (15 March 2010) (on intimidating professors who testify on the tobacco holocaust, and financial support of those who aid and abet Big Tobacco)
    Charles Peters and Taylor Branch, Blowing the Whistle: Dissent in the Public Interest (New York: Praeger, 1972) (Summary; site has other unrelated data as well)
    Daniel Schulman, "Office of Special Counsel's War On Whistleblowers" (24 April 2007): "It's come to the point where some advocates now counsel federal employees against coming forward, period. "When people call me and ask about blowing the whistle, I always tell them, 'Don't do it, because your life will be destroyed,'" says William Weaver, a professor of political science at the University of Texas-El Paso and a senior adviser to the National Security Whistleblowers Coalition. "You'll lose your career; you're probably going to lose your family if you have one; you're probably going to lose all your friends because they're associated through work; you'll wind up squandering your life savings on attorneys; and you'll come out the other end of this process working at McDonald's."

    Weaver says that most of the people who contact him are so determined, they go ahead with their disclosures anyway. "I see what the result is," he sighs. "It's destruction from one end of their lives to the other."

    "Whistleblowers are never vindicated," says Andrew M. Greeley, The Priestly Sins (New York, T. Doherty Associates, 2004), Chap. 1, p 23.
    See also
  • Catherine Rampell, "Whistle-blowers tell of cost of conscience" (USA Today, 24 Nov 2006): "Devine says the U.S. Court of Appeals for the Federal Circuit has ruled against whistle-blowers in 125 of 127 of the reprisal cases seen by the court since 1994. 'They've gutted the law,' Devine says, 'and it's degenerated into a rubber stamp for retaliation.'"

  • William Fisher, "Whistleblowers Charge Retaliation; More Protections Sought" (22 May 2007) ("Career federal employees who report waste, fraud, abuse and mismanagement in government agencies are routinely subjected to career-ending retaliation, humiliation and legal costs. . . .")

  • Deborah Hastings, "Whistle Blowers On Contractor Fraud in Iraq Face Penalties" (25 August 2007) ("One after another, the men and women who have stepped forward to report corruption in the massive effort to rebuild Iraq have been vilified, fired and demoted. Or worse." "If you do it [blow the whistle], you will be destroyed," said Prof. Weaver. "'Reconstruction is so rife with corruption. Sometimes people ask me, 'Should I do this?' And my answer is no. If they're married, they'll lose their family. They will lose their jobs. They will lose everything.'" "'You just don't have happy endings.'")

  • Prof. Richard Moberly, "Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win," William & Mary Law Review (Vol. 49, Fall 2007)

  • James Sandler, "The War on Whistleblowers" (November 2007) ("Whistle-blowers lose their cases, the investigation shows, nearly 97 percent of the time. Most limp away from the experience with their careers, reputations and finances in tatters."

  • Stephanie Mencimer, "OSHA: Where Good Laws Go To Die" (7 November 2007) ("For Whistleblowers, OSHA Is More Like NO-SHA" "In the first three years after Sarbanes-Oxley, only 13 of the 491 employees who filed complaints with OSHA found any sort of relief.")

  • Sibel Edmonds, F.B.I. linguist (blew the whistle on ineptitude and espionage in the FBI's translation program on terrorism; was thus fired in 2002)

  • Valerie Plame Wilson, CIA employee whose identity was 'outed' in retaliation for whistleblowing by her long-time State Department employee husband Joseph Wilson.

  • Jesselyn Radack, The Canary in the Coalmine (punished for blowing the whistleblower on torture and denial of medical care)

  • "Federal ‘No Fear Act’ gives little recourse: Valvo led down primrose path" (Walsh County Record, North Dakota, 25 May 2011) ("whistleblower laws are flawed through exemptions and built-in weaknesses and are rarely helpful. Indeed, it might be said that whistleblower laws give only the appearance of protection, creating an illusion that is dangerous for whistleblowers who put their trust in law rather than developing skills to achieve their goals more directly [because OSC and MSPB constitute] a procedural abyss where one out of 10,000 cases hypothetically see the light of day."

  • Glenn Greenwald, "Is Michael Mukasey Prioritizing the Harassment and Imprisonment of Journalists?" ("Salon.com, 3 February 2008). ("It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President. . . . Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.")

  • Sean Gonsalves, "Whistleblowers: The Canaries in the Coal Mines" (12 May 2008)

  • "CIA Asset Susan Lindauer, Extreme Prejudice: The Terrifying Story of the Patriot Act and the Cover Ups of 9/11 and Iraq: The Ultimate Conspiracy to Silence Truth (Lexington, KY: CreateSpace, 10 Oct 2010) (whistleblower jailed for reporting 9-11 and Iraq War facts) (Video).

  • And, “journalists (and whistle-blowers) who tell the truth in America are more likely to be pummeled than rewarded, whereas those who lie for powerful interest groups live high on the hog. . . . In America, money, not truth, has the power. . . . Taking on these vested interests is most often a career-ending event. . . . When government and special interests finance education and research, and the media is concentrated in a few large corporations dependent on government broadcast licenses, there is not much room left for truth.”--Paul Craig Roberts, Ph.D., "Can Truth Retain Its Independence?" (ICH, 30 May 2008). See also Alisa Miller, "Why we know less than ever about the world."

  • "First, Justin Stoner blew the whistle on his platoon. Now, the Army apparently wants to silence him. In photos obtained by CNN, Stoner sports bruises and abrasions on his back, chest and near his neck -- the marks of a beating inflicted by fellow soldiers as payback for reporting their rampant hashish use, the Army said. At the time, those close to the investigation tell CNN, Stoner just wanted the smoking in his tent and around him to stop. So he went outside his group and reported the drug use to his superiors . . . What is clear is the Army is scrambling to contain the news of an apparently out-of-control platoon,"   "Soldier silenced for testimony in Afghan killings probe," say Drew Griffin and Kathleen Johnston, CNN Special Investigations Unit (14 October 2010).

  • "EPA Whistleblower on Dangers of 9/11 Toxic Dust Reinstated to Job" (Monday, 7 May 2012) ("Dr. Jenkins was isolated, harassed and ultimately removed from her position on December 30, 2010 by EPA based upon an un-witnessed claim that the soft-spoken, petite childhood polio survivor threatened her 6-foot male supervisor. . . . Dr. Jenkins’ constitutional right to due process was violated because EPA fired her on an entirely new charge it had not previously even raised.")

  • "FDA lawyers authorized spying on agency’s employees, senator says" (Monday, 16 July 2012) (“'The FDA’s actions represent serious impediments to the right of agency employees to make protected disclosures about waste, fraud, abuse, mismanagement, or public safety,' wrote [Senator Charles E.] Grassley, who demanded that the agency release a copy of the memo authorizing the surveillance and the name of the FDA official who requested it.")

  • Martha Waggoner, "Documents reveal details of Lejeune's toxic water" (Associated Press, Friday, 20 July 2012). ("Thousands of newly released documents about water contamination at Camp Lejeune add to the evidence that the military long knew about tainted tap water blamed for deaths and illnesses among Marines and their families, and that officials covered up the information for years, a North Carolina congressman said Friday.")

  • David Axe, "General: 'My Career Was Done' When I Criticized Flawed Warplane" (4 Oct 2012).   ("Don Harvel thought he was cruising to a well-deserved retirement after 35 years flying cargo planes for the U.S. Air Force. Then in the spring of 2010 he was tapped to investigate the fatal crash of a high-tech Air Force tiltrotor aircraft - and everything changed. What Harvel discovered about the controversial hybrid aircraft drew him into a battle of wills with his superiors at Air Force Special Operations Command. Harvel, then a brigadier general, uncovered evidence of mechanical problems - and resulting safety woes - in the V-22 Osprey, which takes off like a helicopter and flies like an airplane. These are issues the Pentagon has been eager to downplay. So when Harvel refused to alter his findings to match the Defense Department's expectations, he knew that was the final chapter of his decades-long military service... "I turned [my report] in and I knew that my career was done," Harvel says.)

    • Attacks on whistleblowers are so common, they are the subject of movies, e.g.,
  • Serpico (re an honest police officer)
  • Casualties of War (1989) (true case of a Vietamese woman kidnapped by American soldiers (ringleader played by Sean Penn), who gang rape her and murder her. One soldier (played by Michael J. Fox) refuses to participate; the second half of the film details his ordeal as a whistleblower.)

    • In this respect, the judges who have "gutted the law" due to their hatred of whistleblowers are like judges in the Nazi era. Then too judges went outside the law to spew their hatred of Jews. “Judges and [lawyers] were so eager to purge the institutions and the country of Jewish influence that they, beginning already in the first few months of Nazi governance, often outran the legal mandates that the regime promulgated. In October 1933, one Berlin court upheld the dismissal of a Jew from administering an estate, ruling that the people's pervasive hatred of Jews 'made it seem inadvisable to retain a Jew in office, even in the absence of a special law to this effect.' Earlier that year, in July, another Berlin court provided a more sweeping justification for judges taking such initiative in the battle against Jewry. According to Die Juristische Wochenschrift, the most important German legal periodical, the court, writing with obvious approval, pointed out 'that a revolutionary legislature [the Nazis had been in office but six months] naturally leaves loopholes which ought to be filled by the Court in applying the principles of the National Socialist Weltanschauung.” See Prof. Daniel J. Goldhagen, Hitler's Willing Executioners: Ordinary Germans and the Holocaust (New York: Alfred A. Knopf, 1996), p 97. (Excerpt).
    “The German judiciary—almost all of whom had taken the bench during Weimar and therefore were not, at least formally, not 'Nazi judges'—was composed of such ardent racial antisemites that leading Nazis (bound to the belief that the eliminationist program should be legally governed) chastised judges for having violated the law in their rampant eliminationist ardor. Interior Minister Wilhelm Frick similarly tried to rein in all those under his jurisdiction, including many holdovers from Weimar, from extending the eliminationist measures beyond the laws that the regime had made. The judiciary's extensive contribution to the persecution of the Jews during the Nazi period reveals its members to have been zealous implementers and initiators of eliminationist measures. The judges composed a group that was obviously bristling with anti-Jewish hatred during Weimar, and then, when Hitler took power, was [felt] freed to act upon these beliefs.” See Goldhagen, Hitler's Willing Executioners, supra, p 97. Here too, officials have to object to the judiciary's spewing hatred apart from the rule of law.

    Diane Farsetta, "War vs. Democracy: Untold Stories from the Lynch / Tillman Hearing" (PR Watch.org, 11 May 2007) (on military falsifying information including witness statements)

    Abuse of whistleblowers is also of international concern. See examples by Professor Brian Martin in Australia, his Documents Site, his Medical and Systemic Abuses Against Whistleblowers Site; and his Site on This Case (linking to http://medicolegal.tripod.com/stareopen1985.htm).

    Retaliation Against Whistleblower Doctors: A Post-Gazette 2003 Series
    "Dispute over treatment of heart patients derails career"
    "Violations of medical ethics by our military" by Howard Brody (Galveston County Daily News, 22 May 2007) ("It is a clear-cut violation of international medical ethics to force-feed hunger-striking prisoners. The American Medical Association is a signatory to the world codes of medical ethics that condemn this practice. It is also a gross violation of international medical ethics for physicians to participate in or observe torture or degrading treatment of prisoners and not report it to authorities.") Almost nobody dares "blow the whistle," lest they be themselves attacked.

    Government Knowingly Files False Charges!
    http://justicedenied.org/issue/issue_27/fbi's_legacy_of_shame.html

    http://edition.cnn.com/2007/US/law/07/26/wrongful.convictions.ap/index.html

    http://www.signonsandiego.com/uniontrib/20070727/news_1n27wrong.html

    http://news.yahoo.com/s/ap/20070816/ap_on_re_us/wrongful_convictions_wives

    http://www.boston.com/news/local/articles/2007/07/27/us_ordered_to_pay_1017m_in_false_murder_convictions/

    http://www.foxnews.com/wires/2007Jul26/0,4670,WrongfulConvictions,00.html

    Bullying Style Overview
    Resultant Injury to Victims

    Analysis of Chicago Area Judges

    The Website Promoting Justice For This Situation

    An Neutral Private Citizen's Analysis
    of Kenneth W. Starr and the Like

    http://www.whistleblower.org

    http://www.pogo.org

    http://www.peer.org

    http://www.wikileaks.org/

    See also the article by Sam Dillon, "Whistle-Blower on Student Aid Is Vindicated" (New York Times, 7 May 2007) (shows how high, including Cabinet level, the anti-whistleblower attitude goes).

    For an example of how whistleblowers are treated, see www.ceada.com , by a former U.S. Customs Service whistleblower, and her related sites
  • www.cathyharrisspeaks.com (Speaking)
  • www.thecathyharrisstory.com (New Book)
  • www.homelandinsecurity.com (New Book)

             While decision on the Pletten case is pending on whether to even ever allow review on the merits to begin, the petitioner will continue to post additional materials from the case file, including issues on the merits, as able. The government's hostility and pattern of misconduct, delay, falsification, repirsal, ostracism, abuse of the system, parallels that of other segregationists, those who opposed desegregating the University of Mississippi. For background, see Univ. of Mississippi Prof. Russell H. Barrett, Integration at Ole Miss (Chicago: Quadrangle Books, 1965).

             Your assistance is requested. Please write to the President asking him to order a genuine investigation, and when he verifies that no notice of charges was issued me (unlike what is provided to others accused of genuine wrongdoing), to reinstate me.

    The President's Address for Employee Issues
    President Barack Obama
    1600 Pennsylvania Avenue
    % White House Office of Agency Liasion
    Old Executive Office Building, Room 6
    Washington DC 20502

    Sample Request for Investigation for Readers to Send

    The Address of the Secretary of the Army
    Louis Caldera, Secretary
    Department of the Army
    The Pentagon
    Washington DC 20310-1500

    The Address of the Pertinent General
    General John G. Coburn
    Commanding General
    U.S. Army Materiel Command
    5001 Eisenhower Avenue
    Alexandria, VA 22333-0001

             "Removal" is defined as "A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault," according to Federal Personnel Manual Supplement 296-33, Subchapter 35, Glossary, page 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications requirements, and/or performance standards involved as allegedly having been (typically flagrantly and willfully) violated, incidents, dates, witness names, etc., and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in performance and/or conduct.

             You can easily verify the lack of notice. Cite the Freedom of Information Act, 5 USC § 552. Request a copy of the notice of charges (misconduct, malperformance, etc., warranting disciplinary removal) citing the rules, qualifications requirements, and/or performance standards involved, incidents, dates, witnesses, etc., all 30 days prior to ordering me off the premises. When you get a denial letter, or no response, you will have verified my claim. Of course, when there is no notice, legally the person is on the rolls. Analogy: when there is no divorce decree, there is no divorce, no matter how many years have transpired!

    Analysis of Chicago Area Judges Where MSPB Is

    A Recent Texas Firing Of A Whistleblower

    See also:
  • " Two FBI Whistleblowers Confirm Illegal Wiretapping of Govt Officials, Support Sibel Edmonds Claims" (5 March 2007).

  • "Pfizer Unit Pleads Guilty, Prosecutors Praise the Corporate Criminal, Not the Whistleblower" (21 Corporate Crime Reporter 15, 3 April 2007).

    Solutions Needed: Any new law must mandate that:
  • a. When an agency or EEOC has issued inadequate notice of rights to an employee, the error must be corrected regardless of how long (years or decades) the stalling has occurred

  • b. That any employee filing(s) prior to receipt of correct rights, supra, must be deemed void.

  • c. such new law must be retroactive to 1978, the year of the so-called Civil Service Reform Act. Reason: ALL reform laws have been adjudicated full of loopholes. Each new law has caused new victims, as employees emboldened to blow the whistle have been declared by MSPB, OSC, and Federal Circuit, as 'not covered.' Now we are gunshy, and fear whatever new law is passed, we'll be the one 'not covered.' That is a risk not worth taking. So any new law must be retroactive, must remedy all those past victims of the 'not covered' employees, lest the process of being 'not covered' recur indefinitely to the detriment of the public interest.

  • d. the same right to whistleblowers that accused criminals get, a 'public defender' office -- an office assigned to represent whistleblowers automatically on request. That would be "equal protection under the law," the Constitution, as right now, ANY boss/manager, no matter how corrupt/liar, is automatically represented, at no charge, by his/her agency legal office all the way to the Supreme Court! Whistleblowers need equal rights, "equal protection of the law," automatic full representation, at no charge.

  • e. requiring a mandatory STAY of pay cut-off until AFTER ALL review on merits is completed. The idea of being pay-less for years is an ultra-deterrent to whistleblowing, and costs lives as employees fear to blow the whistle, as cannot afford being pay-less for years.

  • f. Provide for mandatory jury trials in all whistleblower cases.

  • g. That awards must not only be for back pay, but also under the Anti-Racketeer Act, 18 USC 1961 et seq. (RICO), whenever the agency uses false statements in the retaliation process, by deeming such falsifications as mail fraud under RICO.

  • h. That back pay awards MUST be recovered from the management officials responsible for the wrongful discipline.

  • i. That US Attorneys MUST criminally prosecute in all situations when whistleblower cites extortion, falsification, bribery, mail fraud, or other crimes by management.

  • j. Mandatory disbarment for agency lawyers defending retaliation. This is needed to force them to do their duty, enforce the rule of law impartially, follow the code of ethics to represent their client the agency as distinct from rule-defying managers and supervisors, thus penalize their current knee-jerk supporting ANYTHING some individual supervisor or manager wants no matter how corrupt, retaliatory, or illegal.

  • k. Defining agency retaliators as tortfeasors so as to enforce the pertinent legal precedent concept as follows: “A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965).” Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).

    • Keenth Starr dates from the wicked and amoral or immoral Ronald Reagan era. Reagan had committed date rape; drank a lot; used filthy language; slept with so many women he lost track; used astrological guidance while pretending to the contrary, and supported tobacco (the number one family destroyer) i.e, pretended to support "family values" while in fact sabotaging same by his actions and appointees such as Starr. Source: Kitty Kelley, Nancy Reagan: The Unauthorized Biography (New York: Simon and Schuster, 1991), pp 86, 92, 114, 175, etc. Reagan's support of the tobacco holocaust was notorious. See, e.g., the chapter "Tobacco in the White House," pp 224-241, in the book by Peter Taylor, The Smoke Ring: Tobacco, Money, and Multinational Politics (New York: Pantheon Books, 1984).

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