OPM Appeal 10 October 1983

Brief to OPM, 10 October 1983, in Continued Opposition to April 1981 Agency Application, 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.
The goal was to encourage OPM to continue fighting on my behalf. Area U.S. Attorney staff and federal judges were later corrupted to ignore this evidence.
The ex parte-obtained corruption went to the extreme of saying I applied! The record shows I fought continually, and continue to do so, now the year 2001.
See also prior Briefs, e.g., 21 March 1983, 29 March 1983, 27 July 1983, 25 Nov 1983 and 2 Jan 1985, as per Pletten's working full-time developing every evidence for seeking recognition of his remaining an employee absent a 30 days notice of charges IAW federal law 5 U.S.C. § 7513.(b) warranting removal, and recording his position, for anticipated use in the EEOC forum, which TACOM was claiming would be reviewing the matter.
More in the series will be posted as scanned. The volume is enormous, takes some time.

UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
CSA BRIEF
OCT 10 1983
TABLE OF CONTENTS
Pages

Motions 2 - 5
Introduction to the Inadmissibility of Local/MSPB Input,
so that delay to "await the outome of the" alleged "MSPB cases"
is improper 6
Data on "conditions precedent" and "subsequent," the disregard
of which corroborates that MSPB offenders lack the mental ca-
pacity to be "considering" any "cases," hence, no delay is
appropriate 7 - 15
Data on Local and MSPB Falsification Behavior 16 - 21
Their Disregard of Rules to "Disrupt the Status Quo" 22
Their Disregard of Principles of Discrimination (as distinct
from "accommodation") of other EEO Cases 23 - 36
MSPB Fixation on the "hoops" of "accommodation," data which
also shows MSPB mental lackings to be "considering" any "cases,"
thus, there is no "command of law" to "await the outcome" 37 - 38
MSPB Disregard of/Unresponsiveness to Normal Stimuli: Safety 39 - 40
MSPB Symptoms of Unresponsiveness to Normal Stimuli such as
on "Job Requirements," Even When MSPB employees allude to
the Concept, Which Unresponsiveness Emphasizes the Severity of
their Mental Problems as Displayed 41 - 44
Smoking "causes insanity," hence Dr. Holt's misconduct is
"foreseeable" as a matter of law (re malpractice, negligence,
and/or other misconduct) 45 - 46
Smoker Behavior as Foreseeable: Suicide, Alcoholism, etc. 47 - 48
Negligence in Selection/Retention, such that both employers
(the installation and MSPB) are liable for their employees'
misconduct as evident in the alleged "cases" and here, etc. 49
Denial of Due Process; Refusal to Go by the authorized "personal
determination"; and lack of "compelling reasons" 50 - 53
MSPB Disregard of What was "articulated" 54 -55
MSPB fragmentation and like symptoms 56-58
Due to MSPB symptoms, including the displayed confabulations,
MSPB behavior is personal, not official, and inadmissible in
any event, based on well-established precedents on excluding
confabulations 59 - 67
Conclusion 68 - 70
Enclosures

(pp 2-5)

Confabulation and heightened suggestibility are discussed in State v. Mack, 292 N.W.2d 764 ([Minn.] 1980). Confabulation is a typical symptom in cases of “permanent destruction of brain tissue . . . Where the damage is severe.” The “symptoms typically include . . . a tendency to confabulate, that is, to 'invent' memories to fill in gaps,” data from Abnormal Psychology and Modern Life, 5th edition, 1976, by Dr. J. C. Coleman, pp. 460-461. P. 419 discusses delirium tremens and that “The full-blown symptoms include . . . (d) extreme suggestibility . . . .”
In Mack, supra, there is indication at 766 that the confabulator “was ‘quite drunk’ and . . . that she had ‘blacked out’ from drinking on other occasions.” “Nearly all alcoholics . . . are heavy smokers,” as noted by Dr. Arthur H. Cain in his book on The Cigarette Habit, 1964, p. 4. Smoking is cited as an organic mental disorder in the DSM-III. Thus, in Mack, confabulation and suggestibility were foreseeable even though an individual with “no formal education and no scientific understanding of the human memory” (p. 772) might not foresee such; cf. McAfee v. Travis Gas Corp. [134 Tex. 314], 153 S.W.2d 442 (1931) on institutional responsibility to foresee behavior even when an untrained person might not foresee it.
The Court in Mack, supra, on p. 772, contrasts the assertions of the confabulator with reality:
Assertions of the Confabulator Reality
“repeated stabbings” “only a single deep cut”
“black Yamaha” “maroon Triumph”
“at the Embers . . . ordered pizza” “Embers restaurants do not serve pizza”
“‘Dave’ as being ‘around’ 5'1" . . .
a tattoo on his left arm”
“David Mack is 5' 8" and has
no tattoos on either arm.”

Such data provides insight on the symptoms of mental illness, including but not limited to confabulation and suggestibility, displayed by MSPB persons who parade their symptoms in their written assertions, which they falsely claim are “decisions” as distinct from their own symptoms of mental derangement. The symptoms of mental disorder displayed by such persons are noted in the record. Examples include but are not limited to the following:
Assertions of MSPB Confabulators Reality
repeated claims of “improved” conditions "not even attempted”
“health standards” “not . . . any OSHA standard . . . to cover tobacco smoke”
“prohibited smoking in the entire
Civilian Personnel Division”
“not even attempted”
the ''undue hardship" claims "not substantiated by the agency”; claims were sua sponte from MSPB,
i.e., confabulated, as “The agency does not argue” it.
eliminating endangerment under
AR 1-8 is “unreasonable”;
AR 1-8 "doesn't make sense”
the standard is what is "necessary”
Dr. Holt “relied on” medical data. Dr. Holt overruled the evidence.

MSPB confabulations and suggestibility are clear.
Page 6 of 70 pages. Affiant's initials _________

The “conditions precedent” in AR 1-8 and in OSHA are remedial and preventive in nature. See REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974). Guidance “which is remedial in nature should be liberally construed,” Rutherford v. Am. Bank of Commerce, 565 F.2d 1162 at 1165 (1977). The “conditions precedent” were “designed to disrupt” smoker behavior such as endangering nonsmokers, cf. U.S. v. City of Los Angeles, 595 F.2d 1386 at 1391 (1979). The “conditions precedent” include safety aspects; hence they are “above all other considerations” since the hazard at issue does and “did not result from a work process and” can and “could be remedied rather easily,” data from Mark A. Rothstein, Prof. of Law, from the Mich. Law Rev., Vol. 81(6), May 1983, p. 1481, n. 671. The installation “is powerless to circumvent” the conditions precedent which include safety, higher ideation from “617 F.2d, at 663,” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 at 199-202 (1981).
A discussion of “conditions precedent” is found in New Orleans v. Texas & P. Ry. Co., 171 U.S. 312, 43 L.Ed. 178, 18 S.Ct. 875 (1898). At 883,
“In Cornell v. Insurance Co., 3 Mart. (N.S.) 223, 226, the supreme court of Louisiana said, in respect of conditions precedent:
'They are recognized and provided for by our system of jurisprudence, and by every other that has in view the ordinary transactions of men. . . the obligation is supended until the condition is performed . . . the performance of the condition must precede the execution of the obligation. . . . Till then nothing is due. There is only an expectation that what is undertaken will be due. Pendente conditione nondum debetur, sed spes est debitum iri.'”

Smoking is not to be “permitted” “until the” conditions precedent are met. Until the “conditions precedent” against endangerment, etc. are met, would-be smokers can have “only an expectation” of possible future smoking, i.e., at some future time if the ventilation shall then, for example, “remove smoke,” etc., to achieve the regulatory duties (the conditions precedent). To mentally ill smokers, of course, that “doesn't make sense,” Col. Benacquista (T. 25), but that is the rule set by AR 1-8.
USACARA explained that: the installation [TACOM] choice of action was either (a) compliance or (b) insubordination. The installation chose insubordination. Cf. [TACOM’s] Dr. Holt's incompetent legal opinion, “consider the issues that would be raised by smokers” (T. 36). Since he is not only not a lawyer, but has “paranoid delusions” (T. 52), he is unresponsive to facts such as that “Nonperformance or nonoccurrence of a ‘condition’ prevents . . . acquiring a right,” data from Ross v. Harding [64 Wn.2d 231], 391 P .2d 526 at 530 (1964) .
At 885, the Supreme Court noted that a proper orientation for time is necessary on “conditions precedents,” noting “the order in which they must necessarily precede and follow each other.” Data on brain damage provides insight on why local [TACOM] and MBPB offenders behave without regard for conditions precedents: “Impairment of orientation” is “especially for time” in situations of “permanent destruction . . . of brain tissue . . . Where the damage is severe,” data from Abnormal Psychology and Modern Life, 5th edition, 1976, pp. 460-1, by Dr. James C. Coleman. Such impaired orientation is particularly adverse in this situation, where the 32 C.F.R § 203 and AR 1-8 “conditions precedent” are “designed to disrupt” endangerment, and other foreseeable smoker behavior. Cf. U.S. v. City of Los Angeles, 595 F.2d 1386 at 1391 (1979), which provides significant insight (higher ideation) pertinent to the purposes of AR 1-8, 32 C.F.R § 203, OSHA, etc.
Page 7 of 70 pages. Affiant's initials _________

The installation [TACOM] has not “even recognized” the “conditions precedent” and “subsequent” set forth in AR 1-8. EEOC noted that lacking. See the 8 April 1983 decision [Docket 03.81.0087, 83 FEOR 3046]. Conditions based “‘upon the action of another party,’” such as a nonsmoker, are based upon well-established legal principles. See the multiple cases on the matter, e.g., Evans v. Platte Valley Public Power & Irrigation Dist., 144 Neb. 368, 13 N.W.2d 401 (1941); New Orleans v. Texas & P. Ry. Co., 171 U.S. 312, 43 L.Ed. 178, 18 S.Ct. 875 (1898); and Federal Reserve Bank of Richmond v. Neuse Mfg. Co., 213 N.C. 489, 196 S.E. 648 (1938).
Unlike MSPB, which does not maintain consistency among its decisions, hence its “precedents” are worthless except for psychiatric analyses concerning their authors, courts issue precedents of value to the extent that other courts, even in other states, cite them, thus demonstrating a respect for the analyses by the other court(s). For example, Evans, supra, at 402, cites Federal Reserve, supra, “In negotiating a contract the parties may impose any condition precedent, a performance of which condition is essential before the parties become bound by the agreement. A promise, or the making of a contract, may be conditioned upon the act or will of a third person.’” “See 17 C.J.S., Contracts, p. 940, § 456 subsec. f; 13 C.J. 634. And, except for fault of the promisor, reasons given for failure or refusal to act or give consent are immaterial. See 17 C.J.S., Contracts, p. 960, subsec. b., p. 939, sec. 456d; 13 C.J. 648.”
Smoking has been “conditioned upon the act or will of a third person,” as the AR 1-8 criteria themselves make clear, and as USACARA noted on 25 January 1980. For example, USACARA noted, p. 12, “It is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers.” On 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], EEOC noted likewise. Moreover, “Whether or not an individual is discomfited by smoke is a personal determination to be made by that individual,” p. 12. The “reasons,”' if any, “are immaterial.” AR 1-8 follows the legal principle. A nonsmoker need not give any “reasons,” and the basis for AR 1-8 remaining silent on the point is that “reasons . . . for failure or refusal to . . . give consent” for smoking “are immaterial.”
Ed. Note: A "personal determination" is routinely accepted in other rights matters, e.g., the "personal determination" to object to someon'es unwanted attentions. Refusal to abide by said "personal determination" is unlawful, and is commonly enforced in civil law, e.g., an anti-stalking order, and/or in criminal law.

Such “consent” must be given “before” smoking is to be “permitted.” The word “before” is particularly significant, because it provides a time orientation. Time orientation poses a clear difficulty for local [TACOM] and MSPB offenders. “Impairment of orientation–especially for time” is one of the “symptoms typically” included in cases of “permanent destruction of brain tissue . . . Where the damage is severe,” data from Abnormal Psychology and Modern Life, 5th edition, 1976, by Dr. James C. Coleman, pp. 460-1. Moreover, under AR 1-8, nonsmoker “refusal to . . . give consent,” which is a “condition precedent” or “subsequent,” depending on the nature of installation compliance, is such that it makes no provision for any refusal, reasonable or otherwise, higher ideation from Matter of Knust, 288 N.W.2d 776 at 778 (1980).
New Orleans, supra, is cited in, for example, Rollins v. Rayhill, 200 Okla. 192, 191 P.2d 934, at 937 (1948). Rollins is noted for pointing out “that the effect of upholding the condition” does not “defeat” a supposed “right” (such as smoking), since it is “conditional,” and until the conditions (such as “consent” as by nonsmokers) are met, any condition unmet “negatives the existence of” the supposed “right.”
Page 8 of ___70____ pages. Affiant's initials _________

AR 1-8 sets multiple “conditions” on smoking, as do rules on safety, mental disorder, negligence, nuisances, etc., up to and including laws such as were noted in Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976), and Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979). The “conditions” which must be complied with before smoking is even to be “permitted” include the criteria against endangerment, discomfort, etc., and the criteria requiring an equitable balance such that those duties are met. The standard is what is “necessary” as USACARA noted 25 January 1980, the same standard as in OSHA [29 USC § 651 - § 678].
While the local [TACOM] and MSPB offenders fail to comprehend the series of instructions involved, such failure reflects their symptoms. In law, among lawyers who to not commit malpractice, and use falsehoods and misrepresentations (as local and MSPB repeatedly do), conditions are well known/well-established. Various cases cite the “condition precedent” oncept, a matter of higher ideation. For example, see Evans v. Platte Valley Public Power & Irr. Dist., 144 Neb. 368, 13 N.W.2d 401 (1944). At 402, “Applicable rules of law are: ‘A condition precedent in the law . . . either may be a condition which must be performed before the agreement of the parties shall become . . . binding . . . or it may be a condition which must be fulfilled before the duty . . . arises.’” Smoking is not “permitted'' under 32 C.F.R. § 203 until after the conditions are met. Smokers have no claim until after nonsmokers such as me have been given the opportunity to choose not to smoke. Smoking is not even “permitted” to start until after the conditions are met. The time orientation is clear in a condition precedent. However, considering the psychiatric problems paraded by local [TACOM] and MSPB offenders, they have not “even recognized” the conditions, as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], p. 5.
The local [TACOM] and MSPB unresponsiveness to normal stimuli includes the disregard of the condition noted in the 25 Jan 80 USACARA Report, p. 12, the “personal determination to be made by'” the nonsmoker. A nonsmoker as a “third party” makes the decision. The Army “’may impose any condition precedent . . . A promise . . . may be conditioned upon the act or will or a third person.' See, also, Gund v. Roulier, 108 Neb. 589, 188 N.W. 185 . . . Hanneman v. i>Olson, 114 Neb. 88, 206 N.W. 155. In Garner v. Grogan, 136 Okl . 261, 277 P . 649, we find this statement: 'When an obligation . . . is . . . made to depend upon the action of another party, over whom neither party has control, payment cannot be exacted, unless the specific act is performed.' See, also, Beams v. Young, 92 Okl. 294, 222 P. 952, and Gordon v. Pollock, 124 0kl. 64, 253 P. 1021. ln both of these last cited cases the obligations of the parties were conditioned upon the approval of the Secretary of the Interior of the United States,'' Evans, supra.
The Army chose to set smoking subject to a “personal determination.” USACARA overruled the installation [TACOM] claim that it could control that “personal determination.” As Col. [John J.] Benacquista confessed, the installation engaged in extortion to seek to coerce me, i.e., “All “that I “had to do was to say, 'I agree that this is reasonably free of contaminants.'” “The job was available.” (T. 62). Col. Benacquista sought to impose an unlawful “condition precedent’ to replace the one made under AR 1-8. To him, AR 1-8 “doesn’t make sense.” (T. 25). Thus, he had no qualms about using extortion.
Page 9 of ___70____ pages. Affiant's initials _________

Orientation for time is provided by cases on the principles of “conditions precedent.” Indeed, the principles are based upon orientation for time. References to timing are commonly found in such cases. For example, see New Orleans v. Texas & P. Ry. Co., 171 U.S. 312, 18 S.Ct. 875 at 883 [14 L Ed 178] (1898), with words and phrases such as: “until,” “when,” ‘the order in which they must necessarily precede and follow each other,” “a future or uncertain event,” etc. Under AR 1-8, whether smoking will ever be lawfully initially “permitted” is still “a future or uncertain event,” since the record shows that conditions have not even been “recognized,” as EEOC has noted, and since the record is replete with references to the danger.
References to time are contained in Blair v. Diaz, 342 So.2d 1237 at 1239 (1977), “lapse of time,” “until,” “immediately,” “the date,” “a future and uncertain event,” “the obligation cannot be executed until after the happening of the event. See also Dufrene v. Tracy, 232 La. 386. 94 So.2d 297 (1957); Boudreaux v. Elite Homes, Inc., 259 So.2d 669 . . . writ denied, 261 La. 1061, 262 So.2d 42 (1972).”
Evans v. Platte Valley Public Power and Irr. Dist., 144 Neb. 368, 13 N.W.2d 401 at 402 (1944), provides a significant reference to time, “a condition which must be fulfilled before the duty . . . arises.” The AR 1-8, OSHA [29 USC § 651 - § 678], and other conditions “must be fulfilled before” smoking is “permitted.”
The time emphasis is apparent in Federal Reserve Bank of Richmond v. Neuse Mfg. Co., 213 N.C. 489, 196 S.E. 848 (1938), “performance of which condition is essential before . . . .” The compliance with AR 1-8, OSHA, and other criteria “is essential before” smoking can be “permitted.”
Clearly, time is of the essence. For the installation [TACOM] “to prevail,” it ‘had the burden of proof” to show that the endangerment at issue had been suppressed. Instead, its case is based exclusively on its refusal to have suppressed the endangerment. Compare Ross v. Harding [64 Wash.2d 231], 391 P.2d 526 at 533 (1964), with Buckman v. Hill Milit. Academy [190 Or 154], 223 P.2d 172 at 175 (1950). The endangerment “went to the very heart of the” criteria. For the installation “to prevail,” it “had the burden of proof” on suppression of the hazard, i.e., on having “met the express conditions precedent.” When it “refused to’ suppress the hazard, the installation [TACOM] “breached the” conditions of the rules, “and defeated” its own “cause of action,” data from Ross and Buckman, supra, juxtaposed.
The same time orientation is evident in civil service rules, in many cases, e.g., Piccone v. U.S. [186 Ct Cl 752], 407 F.2d 866 at 872 (1969), cited by MSPB as recently as Basinger v. OPM, 5 MSPB 210 (1981), the installation [TACOM] action “cannot be effected if there is a lack of compliance with departmental regulations.” The endangerment cited as the basis breaches “the very heart of the” rules against endangerment. Under such circumstances, “the action was never commenced,” Siemering v. Siemering [95 Wis.2d 111], 288 N.W.2d 881 at 883 (1980). None of the “action was” ever “commenced,” not ever, not in March 1980, not the February 1981 disability application, not the LWOP, not the “suspension or termination,” not anything, “the action was never commenced.” Hence, no testimony, not even admissible testimony, “was . . . commenced.” Hence, not even the “nexus” asserted 20 June 1983 “was . . . commenced.”
Page 10 of 70 pages. Affiant's initials _________

(p 11)

Where the “conditions precedents” and “subsequent” have not been “even recognized,” as EEOC [Docket 03.81.0087, 83 FEOR 3046] noted 8 April 1983, a “self-respecting court” indicated that “we are not inclined to look with much favor upon the attempt of the” installation “to repudiate” AR 1-8, OSHA [29 USC §§ 651-678], the MESC analysis rejecting [TACOM] Dr. Holt's overruling the evidence, the 25 January 1980 USACARA Report, etc. See Associated Inv. Co. v. Cayias, 55 Utah 377, 185 P. 778 at 780 (1919), juxtaposed with the EEOC analysis and the facts herein. Considering the multiple symptoms displayed by local [TACOM] and MSPB offenders (confabulations, suggestibility, fragmentation, impoverished ideation, impaired orientation for reality, etc., foreseeable in conditions including but not limited to brain damage, alcoholism, etc.), the word “self-respecting'” is not one that would be used to describe such tragically impaired individuals.
The installation [TACOM] desire “to repudiate” AR 1-8 and the other “conditions” is clear. AR 1-8 “doesn't make sense” to mentally ill smokers. They object to AR 1-8, because its effect “negatives the existence of” smoking “by excluding the existence of a right to” smoke, higher ideation from Rollins v. Rayhill, 200 Okla. 192, 191 P.2d 934 at 937 (1948), and citations therein, including but not limited to “E. D. Bedwell Coal Co. v. State Industrial Commission, 157 Okl. 227, 11 P.2d 527; Tulsa County Truck & Fruit Growers Ass’n v. McMurphey, 185 Okl. 132, 90 P.2d 927.” The installation [TACOM] desire “to repudiate” AR 1-8 etc., does unlawfully “repeal” those rules. Indeed, the installation has not “even recognized” them, the repeal is so much its desire.
The endangerment is obvious. The MSPB issuance of 20 June 1983 [by Victor Russell] is replete with references to the danger, thus confirming the installation [TACOM] disregard of the rules against the endangerment. Nonetheless, in a bizarre raving (“word salad” [schizophasia]), Mr. Victor Russell claims that he (personally) cannot find what I have “articulated.” Let me emphasize, I do not dispute that his mental health is so poor that he cannot personally find what I “articulated.” I admit that he lacks substantial capacity to even find the citations of law and precedent with which the record is replete. I admit that he personally lacks the capacity to have “even recognized” those citations. See People v. Matulonis, 115 Mich.App. 263, 320 N.W.2d 238 (1982) for an analysis of health problems of that degree of severity.
It must also be emphasized that deciding officials whose mental health is not impaired, routinely can find what was “articulated.” See the 8 April 1983 EEOC analysis [Docket 03.81.0087, 83 FEOR 3046], the 25 January 1980 analysis, the MESC analyses., etc., etc. The problem clearly is Mr. Russell's health; he cannot find, respond to, or be motivated by normal stimuli, as is evident from his confession, dated 20 June 1983. He has not even admitted or “even recognized” the conditions the installation [TACOM] has breached, repealed, and repudiated. That breach “relieves'' me “of liability” to have articulated anything; cf. Ross v. Harding [64 Wash. 2d 231], 391 P.2d 526 at 533 (1964), and citations therein, including but not limited to Atkinson v. Thrift Super Markets, Inc., 56 Wash.2d 593, 594, 354 P.2d 709, 710.” Also, “equity does not require a useless acet,” i.e., more citations from me, Montgomery v. Cook [76 N.M. 199], 413 P.2d 477 at 482 (1966).
Page 12 of 70 pages. Affiant's initials _________

Under AR 1-8 and 32 C.F.R. § 203, smoking is not to be “permitted” unless the ''conditions'' are met. AR 1-8 expressly uses the phrase, “provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights.” EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] noted that the installation [TACOM] has not “even recognized” those “conditions.” See Amies v. Wesnofske, 255 N.Y. 156 at 161, 174 N.E. 436 at 437 (1931), “The employment of such words as ‘when,’ ‘after,’ or ‘as soon as,’ clearly indicate that a promise is not to be performed except upon a condition.”
See Jones v. Palace Realty Co., 226 N.C. 303, 37 S.E.2d 906 at 908 (1946), “The weight of authority is to the effect that the use of such words as ‘when,’ ‘after,’ ‘as soon as’ and the like, gives clear indication that a promise is not to be performed except upon the happening of a stated event. 12 Am. Jur. 849.” “It can make no difference whether the event be called a contingency or the time of performance. . . . It is the event itself, and not the date of its expected or contemplated happening, that makes the promise to pay performable. Amies v. Wesnofske, 255 N.Y. 156, 174 N.E. 436, 73 A.L.R. 918.” Smoking is not “permitted” until “the event itself” that the conditions in AR 1-8 are met. Note the USACARA analysis, 25 January 1980, p. 14, “less smoking or more ventilation.”
Smoking “‘may be conditioned upon the act or will of a third person,’” a principle from Evans v. Platte Valley Public Power & Irr. Dist., 144 Neb. 368, 13 N.W.2d 401 at 402 (1944). The “conditions precedent” in AR 1-8 and 32 C.F.R. § 203 make this clear. The 25 Jan 80 USACARA Report confirmed this. My position was sustained. So the installation [TACOM], in reprisal, fired me--by the use of deliberate fraud, [TACOM] Dr. Holt's overruling the medical evidence on my ability to work. The installation treats AR 1-8 as “a promise made without any intention of performing it . . . one of the forms of actual fraud,” Langley v. Rodriguez, 122 Cal. 580, 55 P. 406 at 407 (1898). (That also provides insight on the bizarre issuance from Ronald Wertheim, 18 June 1981 [6 MSPB 626; 7 MSPR 13], an issuance “made without any intention of performing it . . . one of the forms of actual fraud.” EEOC [Docket 03.81.0087, 83 FEOR 3046] noted that its claims “were not even attempted,” a clear confirmation consistent with the guidance on ‘actual fraud.”)
Under AR 1-8, smoking has already been “‘conditioned upon the act or will of a third person,’” a nonsmoker and his “personal determination.” USACARA expressly confirmed this. The USACARA analysis on the procedure on who decides is binding, Spann v. McKenna, 615 F.2d 137 (1980). Such a condition precedent is evident in the case of Thomas Goodman, PMCS Arb. Case 81K – 26042 [82-1 Lab Arb Awards (CCH) § 8206], 22 January 1982. Conditions precedent are well-established in law. Since smoking is ‘obviously widespread,” and smoker mental disorders are “obviously widespread,” not permitting smoking except on compliance with a ‘condition precedent” is foreseeable. Smokers are not rational enough to protect themselves, much less, others. A “condition precedent” “‘conditioned upon the . . . will of a’” nonsmoker is thus foreseeable. Indeed, that is what 32 C.F.R. § 203 and AR 1-8 have done. What is now needed is for compliance to begin.
Page 13 of ___70____ pages. Affiant's initials _________

The installation [TACOM] has not “even recognized” the “conditions precedent” and “subsequent” relative to smoking, as EEOC [Docket 03.81.0087, 83 FEOR 3046] has noted. Thus, the installation has not even begun to reach comprehension that smoking is “conditioned upon the act or will of a third party. 13 C.J. 679; Wellsville Oil Co. v. Miller, 243 U.S. 6, 37 S.Ct. 362, 61 L.Ed. 559; Rollins v. Denver Club, 43 Colo. 345, 96 P. 188 . . .,” higher ideation from Federal Reserve Bank of Richmond v. Neuse Mfg. Co., 213 N.C. 489, 196 S.E. 848 at 850 (1938).
Smoking is “conditioned upon the act or will of a third party,” as USACARA noted 25 January 1980, p. 12, in these words, “a personal determination to be made by that individual” nonsmoker. A “personal determination” “negatives the existence of” smoking, higher ideation from Rollins v. Rayhill, 200 Okla. 192, 191 P.2d 934 at 937 (1948). Installation [TACOM] offenders such as Col. [John J.] Benacquista, well aware of the above, thus chose to engage in a pattern of extortion and embezzlement. Cf. People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1976), on extortion involving “questioning” a person on “whether she was going to” perform a lawful act. In my case, the lawful act related to my making a “personal determination” which “negatives” smoking. The extortion concerned “whether” I “was going to” adhere to my “personal determination,” as clearly authorized under AR 1-8. The unlawful installation [TACOM] purpose was, and Is, to “keep” smoking “going” even when a “personal determination” envisioned by AR 1-8 “negatives” the behavior that would “keep” smoking “going.” Cf. State v. Gates [182 Ind. App. 214], 394 N.E.2d 247 at 249 (1979).
To installation [TACOM] offenders such as Col. Benacquista, the “conditional” aspects which AR 1-8 establishes relative to smoking don't “make sense” (T. 25). To them, AR 1-8 “doesn't make sense.” They oppose “upholding the condition”(s) in AR 1-8, because their existence, combined with the poor installation ventilation system, “negatives the existence of” smoking. [MSPB’s] Mr. Victor Russell, on 20 June 1983, obliquely acknowledged/alleged a poor installation ventilation system. He did this when he claimed that there is “only” one way to meet the conditions, “an installation wide-ban on smoking,” p. 8. If the ventilation as bad as he alleges, then he has misrepresented what is needed. A “ban” is not the solution; what is necessary, then, is that smoking not be “permitted” based on the non-compliance with the conditions.
AR 1-8 applies to the installation [TACOM] at issue. What some other “government installation” has or has not done is immaterial. It is necessary to go by the regulations of the agency involved, not by the (actual or supposed) rules of some other agency(ies). See Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1265 (1973), that the law and rules [e.g., to “prevent and suppress hazardous conduct by employees”] are to be followed, without regard for what “the average workplace” may or may not do. Also see Gacayan v. OPM, 5 MSPB 358 (1981), showing a like emphasis on conformance to rules and conditions, “not whether other” places “may” be behaving “properly or improperly.” The installation [TACOM] has not complied with, indeed, has not “even recognized” the “conditions precedent” and “subsequent” set by the agency at issue. This agency [Department of the Army] has a rule. It must be obeyed. There are also other rules, OSHA, mental health, etc., which must also be obeyed. Whether other agencies “properly or improperly” respond to rules and laws is not the issue.
Page 14 of ___70____ pages. Affiant's initials _________

AR 1-8 and the multiple other pertinent rules (e.g., on safety, nuisances, mental disorder, etc.) are “conditions” which must be met for smoking to be “permitted.” The installation [TACOM] has not “even recognized” any of the “series of” “conditions,” and certainly has not “even recognized” them in their interactions. Cf. words from Ross v. Harding [64 Wn.2d 231], 391 P.2d 526 at 533 (1964), applied in context. “In the case at bar,” the Army, “if” it “was to prevail, has the burden of proof–proof that” it “had met the express conditions precedent.” It “did not sustain” its “burden.” Indeed, the 20 June 1983 personal symptoms, displayed by Mr. Victor Russell, repeatedly note the endangerment, thus expressly confirming violation of the “conditions precedent” enumerated in AR 1-8, without reaching additional “conditions” which are also unmet. Ross, supra, at 533, confirms, “Proof of performance of an express condition precedent is a burden which must be met by the party who seeks” to impose the adverse action, “suspension or termination,” which burden has clearly not been met. Mr. Russell has demonstrated that he is disconnected from reality, i.e., his symptoms show that he has not responded to his own statements confirming the hazard.
At 531, Ross, supra, indicates, “Any words which express . . . the idea that . . . performance . . . is dependent on some other event will create a condition. Phrases such as 'on condition,’ ‘provided that,’ ‘so that,’ ‘when,’ ‘while,’ ‘after,’ or ‘as soon as’ are often used. 12 Am.Jur. § 249, p. 849; 5 Williston, Contracts (3d ed.) § 671, p. 161. AR 1-8 expressly uses the word “provided'” and then proceeds to list various “conditions.” 32 C.F.R. § 203 does likewise. The force of the restrictions and multiple “conditions” that must be met is re-emphasized by words such as, “permitted only if,” followed by conditions. Based on the numerous “conditions” stated in the regulations, “the authority . . . to ban all smoking” exists, as USACARA noted 25 January 1980, at the installation level, without need for reaching higher echelons, either in structure, or in additional rules. For example, OSHA precludes hazards anywhere on the premises. The criminal law precludes harming people anywhere; see Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976).
The various conditions in the rules, including but not limited to AR 1-8, are clear. The installation and MSPB simply do not agree with those conditions. Their contempt for AR 1-8 is typified by the brazen denunciation of AR 1-8; it “doesn't make sense,” Col. Benacquista (T. 25).
The various ''conditions'' are expressly indicated and emphasized by words such as “provided” and “only if.” Cf. Ross, supra, at 531. “It would be difficult to choose words to more precisely express an intention to create a condition precedent than those used in the” documents “here to be construed.” “This language leaves no room for interpretation.” USACARA made that fact quite clear. Thus, there was nothing left for the installation but (a) compliance, or (b) insubordination. Col. Benacquista, Mr. Hoover, Ms. Averhart, Dr. Holt, etc., chose insubordination. They chose a pattern of extortion, embezzlement, falsification etc., as apparent in the record. MSPB offenders chose to abet their unlawful behavior. They ignore “the burden of proof” requirements, which the installation “did not sustain.” Instead, in malice, MSPB offenders insist that the conditions “be made to jump through the procedural hoops” for accommodation; cf. Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976).
Page 15 of 70 pages. Affiant's initials _________

The record shows that local [TACOM] and MSPB offenders have made multiple, intentionally false claims. Liars foreseeable lie. Local [TACOM] and MSPB officials lie because they want to “keep'' smoking “going,” despite the rules. When deciding officials oppose rules, it is foreseeable that they would lie. The use of falsehoods as a method of resisting compliance with rules is foreseeable not only from the fact that liars foreseeable lie, but also from precedents such as Kyriazi v. Western Elec Co., 461 F.Supp. 894 (1978). That case also found the use of falsifications by the employer. In that case, unlike mine, the deciding official (the judge) was honest, and objected to the use of lying. Here, MSPB officials not only do not object to local [TACOM] lying, they themselves engage in lying, as part of their unlawful team effort to “keep” violations “going.”
Kyriazi, supra, at 915, cites falsification committed in another discrimination setting. Culpable offenders do lie in order to keep their violations going. “At trial it developed that Western's employees not only ‘may have committed perjury . . .’ , as conceded by Western's counsel, but that they actually did.” In this case, local [TACOM] liars and MSPB liars have lied, time and again. Worse, their lack of personal integrity is such that they have not even “conceded” their falsifications, or made any effort to remedy them. They have not “conceded” their falsifications to the appropriate criminal authority/ies, such as the police or FBI.
At 914, the court discussed the fact that “Plaintiff here has done more than provide the Court with cold statistics; she has exposed the very attitudes which produced those statistics in the first place.” I have not only demonstrated the endangerment (as the 20 June 1983 MSPB issuance shows); I have “exposed the very attitudes which produced” the endangerment: local [TACOM] and MSPB willingness to engage in felonious acts (falsifications) to “keep” the endangerment“going.”
Under civil service rules, adverse actions are to be overturned when the installation has not demonstrated compliance with rules. Here, on the contrary, the outrageous MSPB behavior of affirming the adverse actions is predicated upon the existence of the prohibited endangerment. The very endangerment which is the basis for rejecting the adverse action, is used (unlawfully) by MSPB to support the adverse actions. [The rules ban endangering behavior; endangerers are to be disciplined/removed, not the conscientious public servants who blow the whistle on them].
MSPB has stood the rules on their heads. Such disconnect is foreseeable in criminal misconduct.
At 931, “it is plain that she was not wanted and that she was put off by them on the false ground that there was no available opening.” Here, it is plain that I was not wanted and “was put off by” local [TACOM] and MSPB falsifiers, by their use ot multiple “false grounds,'' not just by one “false ground.” The record is replete with instances of local [TACOM] and MSPB falsifications and methods by which they “put off” initiating compliance to eliminate the prohibited endangerment.
At 930, “the objective evidence confirms the accuracy of Kyriazi’s complaints,” just as here, “the objective evidence confirms the accuracy of” my “complaints,” which have been upheld by USACARA, EEOC, MESC, etc.
Page 16 of 70 pages. Affiant's initials _________

The repeated use of false claims by local [TACOM] and MSPB offenders is evident in the record. The use of falsehoods is foreseeable from smokers, since their brain damage is such that they confabulate, i.e., “cannot differentiate between . . . fantasy” and truth, insight on inadmissible evidence from People v. Gonzales [108 Mich App 145], 310 N.W.2d 306 at 310 (1981) [aff'd 415 Mich 615; 329 NW2d 743 (1982)]. The insane foreseeably lack “substantial capacity to . . . conform . . . to the requirements of the law” (including laws on truthfulness), People v. Matulonis, [115 Mich. App. 263], 320 N.W.2d 238 at 240 (1982). Since smokers foreseeably provide false information, and have done so repeatedly in this situation at bar, the local [TACOM] and MSPB behavior “violates due process,” People v. Cornille [95 Ill. 2d 497, 69 Ill. Dec. 945 ], 448 N.E.2d 857 at 859 (1983).
People v. Cornille, supra, provides insight on falsification as a due process violation. Numerous cases reject the use of false claims. Here, local [TACOM] and MSPB offenders make false claims on “authority,” my duties, the “employment” situation, actions taken, the standards to be used, etc. Regulations against endangerment are ignored. Pre- endangerment aspects are not “even recognized.” The data from USACARA is not “even recognized.” The medical evidence showing my ability to work is not “even recognized.” OPM has noted the lack of a relationship with employment, the critical nexus: a nexus with endangerment is not enough, since I am not the one who has caused the danger, cf. Clark Oil &. Refining Corp. v. Golden [114 Ill. App. 3d 300, 70 Ill Dec 80], 448 N.E.2d 958 (1983).
The multiple false claims by local [TACOM] and MSPB offenders are reprehensible. Cf. Cornille, supra, at 863, “’Perjury is the mortal enemy of justice.’” People v. Shannon, 28 Ill.App.3d 873 at 878, 329 N.E.2d 399 (1975). At 865, “It would have been a simple procedure in this case for the” government “to have” noted the USACARA data on the “authority” involved, and on the proper standard (“necessary” vs. “reasonable”); “to have” noted the many precedents showing that smoking is not part of “employment”; “to have” reviewed my job description; “to have” noted that smoking is abnormal, i.e., is a mental disorder listed in the DSM-III known to cause insanity for well over a century, insanity in a range of disorders, etc., etc. Smoking endangers people on a “universal malice” basis, hence, 32 C.F.R. § 203 and AR 1-8 were issued. For me to prevail, “Comparison with a single employee is sufficient,” Golden, supra, at 964, citing McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). The medical evidence consistently rejects the misconduct of singling me out. Singling me out is malicious; “Malice to presumed,” Nestlerode v. U.S. [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).
The government falsehoods, by themselves, without reaching issues of other types, “violates due process,” Cornille, supra, at 859. The adverse action must be overturned, and the installation [TACOM] may then proceed, if it thinks it can, to try again! The use of falsehoods “based upon false testimony is contrary to fundamental principles of fairness in a civilized society (see, e.g., Mooney v. Holohan (1935), 294 U.S. 103 . . . Napue v. Illinois (1959), 360 U.S. 264 . . . Every major civil and common law jurisdiction has provided some means of redress for persons unjustly convicted on false testimony. (See, e.g., Murray . . . reviewing remedies provided by the United States, Great Britain, France, Germany, Spain, and Mexico . . . ‘The government does not need convictions based upon such testimony.’ Mesarosh v. United States (1956), 352 U.S. 1,” Cornille, supra, at 863.
Page 17 of 70 pages. Affiant's initials _________

(pp 18-20)

The record shows a pattern of multiple false statements by local and MSPB offenders. Both USACARA (25 Jan 80) and EEOC (8 April 83 [Docket 03.81.0087, 83 FEOR 3046]) have detected and noted the falsehoods. On 23 February 1982, EEOC told the installation [TACOM] of its duty to process my requests for review of the [TACOM] misconduct involved. For example, note Docket 01.81.0324. Installation refusal to process the case, concerning misconduct related to MSPB, shows “flight and resistance to” review having “probative value to guilt. Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101; United States v. Crisp (7th Cir. 1970), 435 F.2d 354,” cited in Wangerin v. State, 73 Wis.2d 427, 243 N.W.2d 448 (1976).
The local [TACOM] and MSPB pattern of falsehoods, ex parte communications, disregard of facts and rules of law, etc., violates laws on extortion, embezzlement, falsification. etc. The wrongdoer does “cross the line” between civil and criminal misconduct, insight from Boyce Motor Lines, Inc. v. U.S., 342 U.S. 337 at 340 [72 S Ct 329; 96 L Ed 367] (1952). The pattern, including the ex parte communications (which EEOC [Docket 03.81.0087, 83 FEOR 3046] cited with disfavor on 8 April 1983), goes beyond the “civil conspiracy” criteria as discussed in cases such as Simpson v. Weeks, 570 F.2d 240 (1978). At 242, that civil rights case discusses “civil conspiracy,” and notes,
“The doctrine of civil conspiracy extends liability for a tort, here the deprivation of constitutional rights, to persons other than the actual wrongdoer, W. Prosser, The Law of Torts § 46 at 293 (4th ed. 1971), but it is the acts causing damage to the plaintiff that give rise to liability for damages, not the conspiracy itself.'' At 243, “‘The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.’ Rutkins v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956).”

Here, each individual offender is an “actual wrongdoer,” and “persons other than” them, if any, may be added upon learning their identity(ties), once proper case processing begins.
Insight on the criminal aspects of conspiracy is provided by cases including but not limited to People v. Bolla [114 Ill. App.3d 442, 70 Ill. Dec. 118], 448 N.E.2d 996 (1983). At 1001, “The crime of conspiracy is separate and distinct from crimes committed pursuant to it. (People v. Robertson, 284 Ill. 620, 623, 120 N.E. 539 (1918).)” At 1002,
“A conspiracy conviction in addition to conviction for a substantive crime is proper where, as here, the conspiracy has as its objective engaging in a continuing course of criminal conduct; this involves a distinct danger in addition to that which follows from the actual commission of the substantive offense.” Moreover, “A single conspiracy exists even though it embraces multiple crimes if the crimes are the object of the same agreement or continuous conspiratorial relationship.”

The relationship of the several “persons” each of whom (locally and/or at MSPB) is an “actual wrongdoer” is “continuous,” and for the “same” “object” or objects. The object(s) include effort to “keep” the endangerment “going,” higher ideation from State v. Gates [182 Ind. App. 214], 394 N.E.2d 247 ([Ind. Ct. App] 1979), despite the AR 1-8 and OSHA [29 USC § 651 - § 678] guidance, which provide no “limitation on . . . ‘relief,’” higher ideation from Coates v. Nat’l. Cash Register Co., 433 F.Supp. 655 at 664 (1977), especially not a “reasonable” “limitation,” as “reasonable” is directly precluded. Cf. the 25 Jan 80 USACARA Report, and Nat’l. Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 141; 489 F.2d 1257 at 1265 (1973).
Page 21 of 70 pages. Affiant's initials _________

United States v. City of Los Angeles, 595 F.2d 1386 (CA 9, 1979), provides insight in various ways. It discusses behavior at 1391 that a “statute was designed to disrupt.” AR 1-8 and 32 C.F.R. § 203 and OSHA [29 USC § 651 - § 678] are remedial and preventive rules “designed to disrupt” unsafe conduct. AR 1-8 singles out smoking as a particularly noxious hazard, and establishes nonsmoker consent as a “condition precedent” which must be met before smoking is even to be “permitted.” AR 1-8 is “designed to disrupt” smoker misconduct that endangers, discomforts, unreasonably annoys, etc. However, the installation [TACOM] “refuses to alter” or “disrupt” the smoker endangerment, as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], p. 6. The government “is powerless to circumvent” safety “by adopting less than the most protective feasible standard. 617 F.2d, at 663,” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 at 199 (1981). Thus, the claims of lack of “authority,” of compliance as somehow “unreasonable,” or as an “undue hardship,” are nonsensical and insane raving.
AR 1-8 and the OSHA “statute was designed to disrupt” unsafe conduct, particularly by smokers, who are prone to unsafe behavior in multiple contexts. Los Angeles, supra, at 1391, states, “Congress has directed that the status quo cannot be maintained.” The reason is clear; REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974), notes, OSHA “is remedial and preventative in nature. See Brennan v. . . . Common (Gerosa, Incorporated), 491 F.2d 1340, 1343 (2d Cir. 1974). . . clear purpose of the statute to get new standards of industrial safety.” Clearly, “Congress has directed that the status quo cannot be maintained,” since “the statute was design to disrupt” it. AR 1-8 and 32 C.F.R. § 203 are likewise clear. See the 25 January 1980 USACARA Report, which the installation [TACOM] refuses to implement. Though they are “designed to disrupt” a full range of smoker conduct, the installation [TACOM] “refuses to alter” its status quo.
Controlling smokers, even if “‘brusquely,’” in their irritable opinion, is “relatively trivial,” Diefenthal v. C.A.B., 681 F.2d 1039 at 1042 (CA 5, 1982). The claims, supra, of “unreasonable,” “hardship,” etc., are insane ravings. However, when smokers “cross the line” (words from Boyce Motor Lines, Inc. v. U.S., 342 U.S. 337 at 340 (1952)), and endanger others, the consequences for them are anything but “relatively trivial.” See Commonwealth v. Hughes, 468 Pa. 502, 364 A .2d 306 (1968) (criminal prosecution); Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979) (commitment “as a mentally ill and dangerous person”); etc., etc. AR 1-8 was “designed to disrupt” smoker behavior so that cases of such nature would not arise in the Army.
Controlling smokers, even if “‘brusquely,’” is consistent with EEO principles such as in Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (1971), cert. den. 404 U.S. 950 (1971), i.e., that the preferences of persons who discriminate or who would otherwise interfere with legal rights have no legal standing. Passengers may “want” female stewardesses, but that is not a preference that can serve to prevent the operation of law. Here, of course, the insane delusions of deciding officials are for their own personal reasons. They have not even asked smokers to cooperate, since they feel that AR 1-8 “doesn’t make sense.” Thus, they ignored what USACARA
Page 22 of 70 pages. Affiant's initials _________

Other discrimination case precedents provide insight. For example, see Barnes v. Costle, 561 F.2d 983 [183 U.S.App.D.C. 90; 15 Fair Empl.Prac.Cas. 345, 46 A.L.R.Fed. 198, 14 Empl. Prac. Dec. ¶ 7755] (CADC, 1977). At 987, the Court discussed the Equal Employment Opportunity Act of 1972. Smoking has disproportionate impact on women and on blacks, thus the background for the law is pertinent. Smoking is linked with alcholism and crime, sexual harassment, rape, disproportionate death rate of blacks. etc. Smokers are clearly dangerous to women. Such is foreseeable in “universal malice.”
At 987, the Court noted congressional views that “‘discrimination against women is no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct. . . . there ls a close correlation between discrimination based on sex and racial discrimination, and that both possess similar characteristics.’” Such is foreseeable considering the “universal malice” involved.
Barnes, supra, provides insight pertinent in this situation. At 989-990, “It is much too late in the day to contend that Title VII does not outlaw terms of employment for women which differ appreciably from those set for men, and which are not genuinely and reasonably related to performance on the job.” Note 57 indicates, “Appellee, quite understandably, does not argue that provision of sexual services can qualify as a ‘bona fide occupational qualification’ for women in federal employment.” Cf. Stalkfleet v. U.S. Postal Service, 6 MSPB 536 at 541 (1981), on the necessity “to examine the position descriptions.” Smoking “causes insanity,” as the record amply shows, and the deciding officials' behavior confirms. Sane people would “not argue that provision of” a safe workable by the suppression of the hazardous conduct of others “can qualify as a” basis for removal of people seeking such “provision,” on the basis of their opposition to such a worksite.
The desire for safety is not something to be suppressed; however, people such as Mr. Hoover, Mr. Russell, Mr. Taylor, and Dr. Holt, etc. clearly feel that the desire for safely is to be suppressed. Their malice is clear.
At 990, for a violation to be found, “it is enough that gender is a factor contributing to the discrimination in a substantial way.” Cf. Bullock v. Pizza Hut, Inc., 429 F.Supp. 424 at 429-430 (1977), “an employer cannot claim that his” action “is based on 'any other factor than sex' if the plaintiff's sex is wholly or partially a motivating factor.” Likewise, the basis is handicap “if the plaintiff's” handicap erroneously perceived as job-related “is wholly or partially a motivating factor.” Here, of course. even the admitted reason (the endangerment) is clearly already disallowed and not “permitted” under AR 1-8. That fact renders the situation, “no cause for action” against me, ab initio.
The MSPB pattern of misconduct is of a continuing nature. MSPB continues to refuse “compliance with any of the applicable standards of proof required of an agency,” as cited by the EEOC letter [Docket 03.81.0087, 83 FEOR 3046] of 8 April 1983, p. 4. MSPB misconduct is at the extreme of claiming that nonsmokers (the vast majority) need “accommodation,” i.e., protection from insane and dangerous smokers, but that such protection is to be refused, despite the multiple rules forbidding insane and dangerous people to be at-large. See cases such as Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979).
Page 23 of 70 pages. Affiant's initials _________

Discrimination cases provide insight. For example, see United States v. City of Chicago, 549 F.2d 415 [14 Fair Empl.Prac.Cas. 462, 40 A.L.R.Fed. 421, 13 Empl. Prac. Dec. P 11,380] (CA 7, 1977) [cert den 434 US 875 (1977)]. By itself, without reaching other cases at all, it refutes the 20 June 1983 assertions from Mr. Victor Russell. Mr. Russell follows the malicious MSPB pattern of decision by innuendo. For example, he refers to what “any government installation” may or may not have done, p. 8. His assertion reflects fragmentation, since he does not relate his claim to AR 1-8, to the guidance on protecting “property” as well as “life,” etc. He ignores Gacayan v. OPM, 5 MSPB 358 (1981), on going by rules, not by what others “may properly or improperly” be going. Chicago, supra, indicates at 429, answering a claim like Mr. Russell’s, “This argument misses the point,” and at 435, “it is no defense . . . that not everyone else is in compliance with the law” and rules such as AR 1-8. Thus the Court found discrimination. Here, EEOC on 6 April 1983 [Docket 03.81.0087, 83 FEOR 3046] found not only that, but also that the prerequisite rule (AR 1-8) was not “even recognized.”
Mr. Russell's personal behavior, and his imposing his personal views, instead of going by the rules, is particularly reprehensible considering his position, and the nature of the case. Mr. Russell is a “Presiding Official” who is responsible to overturn agency actions when they do not conform to departmental rules. Cf. Piccone v. U.S. [186 Ct Cl 752] 407 F.2d 866 at 872 (1969), action “cannot be effected if there is a lack of compliance with departmental regulations.” Mr. Russell displays disconnection from reality when he disregards the well- established principle at issue. His behavior is particularly reprehensible for another reason. This is a safety case, not a “medical incapacity” case (Mr. Russell's misrepresentation, p. 9, among his various misrepresentations which form a part of a pattern by MSPB).
In safety, the same principle applies as in discrimination, “A workplace cannot be just ‘reasonably free’ of a hazard, or merely as free as the average workplace in the industry,” as “the” safety “adjective is unqualified and absolute,” Nat’l. Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 140], 489 F.2d 1257 at 1265 [1 O.S.H. Cas.(BNA) 1422] (1973). Mr. Russell's reprehensible behavior does not even recognize the prerequisite safety duty, and he clearly does not recognize that that “condition precedent” must be met, before even reaching later rules (such as accommodation) in the “series of instructions” involved.
Mr. Russell's behavior is particularly reprehensible considering the installation [TACOM] “general atmosphere of discrimination,” Sweeney v. Bd. of Trustees of Keene St. Coll., 604 F.2d 106 at 113 (1979), and “general atmosphere of” non-compliance, indeed, not “even recognized” the rules. The 23 February 1982 EEOC decision [Dockets 01800273 et al] shows “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts,” Int'l. Bro. of Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843 at 1855 (1977). The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] shows the “standard operating procedure––the regular rather than the unusual practice,” including but not limited to “no evidence that”' the installation ]TACOM] “considered the rights of the non-smokers or even recognized” those “rights,” so compliance “actions were not even attempted.” The installation [TACOM] has not even begun the process of starting compliance. The installation has no case, has “no defense,” Chicago, supra. Non-compliance is “the regular . . . practice.”
Page 24 of 70 pages. Affiant's initials _________

The record shows discrimination of various types. It also shows two sources for the discrimination pattern. The pattern is “a mosaic” interwoven between and among the various installation [TACOM] and MSPB issuances. A “mosaic” of discrimination is discussed in Kyriazi v. Western Elec. Co., 461 F.Supp. 894 at 924 (1978). The “mosaic” includes their common, personal opposition to “the applicable standards of proof required of an agency,” in the various aspects or “conditions” which must be met for the “action” to have “commenced,” data from the 8 April 1983 EEOC analysis, p. 4, juxtaposed with Siemering v. Siemering [95 Wis 2d 111, 115] 288 N.W.2d 881 at 883 (1980). Standards which they have disregarded, in their common enterprise of opposition to rules, include the need to show a “requirement” related to “employment,” i.e., a “nexus” with “employment.” Ignored standards include laws on safety, negligence, nuisances, mental disorders, etc. AR 1-8 is a “standard” which must also be met. The job description is another.
Moreover, even in their “jumbled” use of the word “accommodation” which they have garbled in with safety rules, they have not used any of the standards which EEO specify. They have not shown any “physical qualification” requirements, much less cited any specificity on how a choice to not smoke would run afoul of such standards.
The joint local [TACOM] and MSPB opposition to standards demonstrates a continuing “mosaic” of discrimination. Cf. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (1972). At 1382, “In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of ‘fixed or reasonably objective standards and procedures . . .’ as a discriminatory practice.” At 1383, “The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential treatment . . . . Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971).” Smoking is not a business necessity, and the installation [TACOM] “proof discloses no objective standards” showing it to be a job requirement, a qualification requirement, etc. Moreover, the installation “proof discloses no objective standards” for the claims of “cannot” comply with the guidance against endangerment, and the abandoned claims of “unreasonable” and lack of “authority” to comply. No “proof” was provided at any time, in any case. The lack of “proof” shows the lack of specificity about which I have sought relief from MSPB, but have been refused. The installation “proof discloses no objective standards” for refusing excused absence pending correction of the hazard, i.e., no “proof” of an “objective” type for refusing to provide the normal civil service status pending correction of a hazard. Until such “proof” is provided, my [5 USC § 7513.(b) / 5 CFR § 752] right to reply has been violated, and “the action was never commenced,” Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 883 (1980).
Brown, at 1382, noted that “The company lacks objective guidelines for” the matters discussed, and ruled that “Elusive, purely subjective standards must give way to objectivity.” In the civil service, this means that the reasons for the claims of “cannot,” “unreasonable,” lack of “authority,” etc., must [5 USC § 7513.(b) / 5 CFR § 752] be provided in an advance notice, so the person can reply. The installation [TACOM] refuges to do this; MSPB has engaged in the “mosaic” of discrimination by its support of the lack of specificity. Until there is at least an effort to provide data for “applicable standards of proof,” reply has been refused [me].
Page 25 of 70 pages. Affiant's initials _________

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (1972), provides insight. At 1379, “The district judge found that ‘Brown asked for employment as a welder and was given to understand by supervisory people that it was premature to try to place a Negro in a Job as welder.’” [TACOM says likewise, it is “premature” to comply.] A sound orientation for time is essential in comprehending such misconduct. It is always the right “time” to obey the rules. Here, it is always the right “time” to provide a non-endangering environment, as AR 1-8 mandates, and as USACARA confirmed 25 January 1980. The USACARA Report should have been implemented, Spann v. McKenna, 615 F.2d 137 (1980). The refusal to implement it is discriminatory in various ways, including in the time delay. The installation ]TACOM] and MSPB reasons for refusing to support the AR 1-8 guidance, are that they feel (personally) that the rules are “unreasonable,” though they dp pot explain why they have drawn such conclusion. They have definitely not followed the “applicable standards of proof required of an agency” to make a finding of “unreasonable.”
In discrimination (as distinct from accommodation), a claim that rule compliance is “premature” is foreseeable, but does not excuse the violation, as Brown, supra, shows. What other employment shall he find? “‘Whither shall he flee, and how far, and when may he be permitted to return?’” People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914), quoted in Gainer v. State, 40 Md.App. 382, 391 A.2d 856 (1978). “When may he be permitted to” work? Of course, as Brown, supra, shows, a penalty applies to the employer for the entire duration of the time during which employment is not allowed. At 1379, “Brown, therefore, is entitled to back pay,” for the entire period during which compliance was considered “premature.” Likewise, I am “entitled to back pay,” for the entire period during which the danger remained extant. Moreover, since “the action was never commenced,” Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 883 (1980), due to [TACOM] disregard of the “conditions” to have “commenced” the “action,” as a matter of law, my status was never changed off “duty status,” thus avoiding the necessity, if any, for reaching use of the term “back pay” in describing the “pay” to be provided me.
That the installation [TACOM] and MSPB consider any compliance at all “premature” is evident from the long duration involved and that compliance “actions were not even attempted,” as EEOC [Docket 03.81.0087, 83 FEOR 3046] noted 8 April 1983. The situation had been no different 23 February 1982 [Dockets 01800273 et al]; it was no different 25 January 1980 [USACARA Report 05-80-001-G]. Nothing had changed when AR 1-8 was issued in 1977. To smokers, compliance is always “premature.” Thus, compliance “actions” have never been “even attempted.” The installation [TACOM] refuses to alter its dangerous behavior, i.e., refuses to suppress smoker hazardous conduct. Suppressing smoker-caused hazards is always “premature” to people who consider the duty to suppress hazardous conduct “'unreasonable.” I was terminated because I do not feel that compliance is “unreasonable,” and USACARA agreed with me. So the installation [TACOM] singled me out and falsely pretended that the danger justifies such misconduct, even though under discrimination guidance, a person such as me need only show “Comparison with a single employee” likewise endangered, to prevail, Clark Oil & Refining Corp. v. Golden [114 Ill App 3d 300; 70 Ill Dec 80], 448 N.E.2d 958 at 964 (1983), and I have shown more.
Page 26 of 70 pages. Affiant's initials _________

International Bro. of Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), provides insight on the pattern of misconduct, the pattern already noted by the EEOC decisions of 23 February 1982 [Dockets 01800273 et al.] and 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046]. The underlying fact on the misconduct pattern is that the installation [TACOM] has not “even recognized that” the agency's “own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others.” Due to the extreme local hostility to the AR 1-8 guidance, the installation [TACOM] Chief of Staff, Col. [John J.] Benacquista, insisted that AR 1-8 “doesn't make sense.” (T. 58). Thus, the installation [TACOM] “does not argue nor does the record support that it ever complied.” The installation [TACOM] has not “complied” with what it has not “even recognized.”
See Teamsters, supra, 431 U.S. at 336, 97 S.Ct. at 1855, on “a systemwide pattern or practice of resistance to the full enjoyment of . . . rights . . . more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts . . . standard operating procedure––the regular rather than the unusual practice.”
Note that the 23 February 1982 EEOC letter [Dockets 01800273 et al.] discussed cases on “a continuing pattern of discrimination,” p. 3. Clearly, the issue arose from the repeated, routine disregard of safety rules and of AR 1-8; the employer “repeatedly and regularly engaged in acts prohibited by the” rules, data from Teamsters, supra, n. 16. The violations started with disregard of underlying rules. I [blew the whistle] reported it. The installation [TACOM] responded with “derogatory references” “in an agency's publication,” p. 2 of the 23 Feb 1982 EEOC decision. The pattern continued, with the disregard of the 25 January 1980 USACARA Report, i.e., “When the agency filed to abide by” it, “appellant filed even more EEO complaints.”
At that point, the “suspension or termination” took place as a further step in the pattern of misconduct. To the installation [TACOM], AR 1-8 “doesn't make sense,” so the installation [TACOM] has not “even recognized” the duty to comply with it. AR 1-8 “doesn't make sense” to the installation [TACOM], so it “refuses to alter” the “smoke-filled environment.” Compliance efforts “were not even attempted,” which is foreseeable considering the installation view that AR 1-8 “doesn't make sense.” When the compliance process has not even started, a pattern of “acts prohibited by the” rules is foreseeable, and clearly has taken place. The endangerment, discomfort, unreasonable annoyance, etc., “acts prohibited” by smokers, are “standard operating procedure––the regular . . . practice,” such that AR 1-8 was issued as a remedial and preventive regulation. However, the installation has not “even recognized” the duty to comply.
Instead, it [TACOM] began a further pattern of misconduct, in support of the underlying pattern of misconduct, by “some effort to limit . . . complaints . . . right to file complaints and to seek EE0 counseling. . . . went so far as to utilize erroneous information or miscalculations upon which to base its rejection,” p. 3 of the 23 Feb 1982 EEOC decision 1982 [Dockets 01800273 et al.]. The pattern included my “suspension or termination,” along with refusal to process a review of the facts.
Page 27 of 70 pages. Affiant's initials _________

International Bro. of Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) provides insight, on rejection of “a systemwide pattern or practice of resistance to the full enjoyment of . . . rights . . . more than the mere occurrence of isolated or ‘accidental’ or sporadic . . . acts . . . standard operating procedure––the regular rather than the unusual practice.” Smokers endanger and discomfort nonsmokers as a “regular . . . practice” to such an extent that AR 1-8 was issued as a remedial and preventive measure. The installation [TACOM] has not “even recognized” the duty to comply with it; see the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], p. 5.
Teamsters, supra, at 1855-1857, discusses “statistical evidence” presented by the U.S. Government “that . . . carried its burden of proof” of the “systemwide pattern.” The data on smoking as inherently dangerous shows the danger statistically. In addition, the very existence of AR 1-8 arises from the known, well-established danger. At 1856, “this was not a case . . . which . . . relied on ‘statistics alone.’” “The Government bolstered its statistical evidence with the testimony of individuals who recounted over 40 specific instances of discrimination. Upon the basis of this testimony the District Court found that” individuals “‘over the years, ‘either had their requests ignored, were given false or misleading information . . . or were not considered . . . .’” AR 1-8 is based on the well-established endangerment of, and discomfort to, nonsmokers. AR 1-8 is already based on the known problem. It is not necessary to re-prove the need for the issuance of guidance on controlling smoking; the question of the basis for AR 1-8 arises only because the installation has not “even recognized” the duty of compliance, and “refuses to alter” smoker behavior, so as to conform to the remedial nature of AR 1-8.
The 27 February 1982 EEOC decision [Dockets 01800273 et al.] shows that the words, “‘had their requests ignored,’” is appropriate in this case as well. The installation repeatedly refused to process my requests, then my complaints, seeking compliance. “The agency additionally, went so far as to utilize erroneous information or miscalculations,” an analysis like that , “‘given false or misleading information,’” in Teamsters, supra. The installation [TACOM] has repeatedly used “‘false or misleading information’” as the record shows. In addition, “this was not a case . . . which . . . relied on ‘statistics alone.’ The individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life.” The endangerment, discomfort, etc., caused by smokers to nonsmokers “brought . . . convincingly to life” the need for an AR 1-8 and a 32 C.F.R. § 203. The 25 Jan. 80 USACARA Report “brought . . . convincingly to life” the criteria (“necessary” as distinct f rom “reasonable”) and the full “authority” involved. The installation [TACOM] offenders displayed even worsening insanity, and fired me in their anger at that Report “brought about” by me; see the 29 April 1980 letter from [TACOM attorney] E. Bacon.
When nonsmokers are harmed by smokers, their “personal experiences” “brought” the harm “convincingly to life” in cases such as Commonwealth v. Hughes [468 Pa 502], 364 A .2d 306 (1976), and Hentzel v. Singer [138 Cal App 3d 290], 88 Cal. Rptr . 159 (1982). A death or discharge caused by smokers “interferes with . . . ability to practice a profession or earn a livelihood,” Kyriazi v. Western Elec. Co., 476 F.Supp . 335 (1979). Kyriazi, supra, is clearly pertinent to nonsmokers such as me.
Page 28 of 70 pages. Affiant's initials _________

Precedents from other discrimination cases provide insight. For example, see Hill v. Nettleton, 455 F.Supp. 514 (D.Colo. 1978). At 517, there is a discussion on initial allegations by the employer, and the response upholding the employee. That parallels my situation. The employer claimed that compliance with the AR 1-8 guidance was “ unreasonable,” and that the Command lacked “authority.” When it was evident that the installation [TACOM] had no intent of complying with AR 1-8, based on the nonsense claims made by smokers, I filed a grievance, which USACARA [the Army designated review organization] sustained 25 January 1980. USACARA rejected the installation [TACOM] claims, and noted that the criterion is what is “necessary” to achieve the goals, repeat, “necessary.” The success with USACARA parallels Ms. Hill's reaction to employer assertions. At 517, she “challenged those” employer views, and review sustained her view. (There is a difference in one sense. I have not “challenged” anything; it is the installation which has “challenged” the rules. By the use of multiple falsehoods, confabulations, ex parte communications, etc., it has secured MSPB claims which have likewise “challenged” AR 1-8, etc.)
At 518-9, Ms. Hill “was given the very difficult task of trying to be the leader and administrator of an emerging . . . program while assigned . . . in an academic department which did not support her efforts or goals.” This parallels my situation under Army Regulation 385-10, 3-5b., “Commanders will publicize all channels for reporting unsafe or unhealthful conditions, emphasizing personnel responsibility for making such reports.” The [TACOM] personnel officer, Archie Grimmett, has testified that he is “not aware of any mechanism other than the complaint procedure which existed at TARCOM to resolve real or perceived unsafe working conditions.” (See EEOC Docket 01.82.1399).
Col . [John J.] Benacquista considered that AR 1-8 “doesn’t make sense .” ( T. 25). EEOC conf armed that installation [TACOM] insubordination independently, ie., without having Col . Benacquista's views expressly confessed in writing to it, in noting, on 8 April 1983, that the installation has not “even recognized” the AR 1-8 criteria, and thus compliance “actions were not even attempted.” Ms. Hill found lack of “support” for merely “her efforts or goals.” Here, the installation [TACOM] opposed AR 1-8 [Army goals].
Ms. Hill’s employer insisted on a non-job related requirement, p. 519. The same is true here, smoking is and “was not reasonably related to the duties of the position for which” I “was” employed “and which” I “was performing. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S Ct. 1817, 36 L.Ed.2d 668 (1973) .” Cf. Stalkfleet v. U.S. Postal Service, 6 MSPB 536 at 541 (1981) , to “examine the position descriptions” for “legitimate job requirements.” “Workmen are not employed to smoke,” Maloney Tank Mfg. Co . v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931). The court noted “The unreasonableness of the requirements imposed upon her” in confirming discrimination. Likewise, here, insisting on smoking as a part of the job shows “unreasonableness.” Nay, it shows worse: mental derangement, alcoholism, and/or other deviance. The installation [TACOM] and MSPB offenders act by innuendo. Nowhere do they directly state that smoking is a job requirement. But, based on their symptoms, they uphold a “medical disqualification” as though a “requirement” had been stated and upheld. Muteness on their part is evident––a severe symptom of mental derangement. Such behavior shows “intent to formulate a pretext.” “Malice is presumed,” Nestlerode v. U.S. [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).
Page 29 of 70 pages. Affiant's initials _________

(p 30)

Col. [John J.] Benacquista's demand is clear: “All he [Pletten] had to do was to say, ‘I agree that this [TACOM] is reasonably free of contaminants.’” (T. 62). “The job was available.” “The demand thus amounted to a condition of employment, an additional duty or burden . . . as a prerequisite to . . . continued employment,” Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 at 1047 (CA 3, 1977). The unlawful purpose of the installation [TACOM] was, and is, to “keep” smoking “going,” words from State v. Gates [182 Ind. App. 214], 394 N.E.2d 247 (1979). The unlawful purpose of the installation [TACOM] ignores 32 C.F.R. § 203, which “was designed to disrupt” a full range of smoker behavior, cf. U.S. v. City of Los Angeles, 595 F.2d 1386 at 1391 (CA 9, 1979). Despite the purpose of AR 1-8, “the agency refuses to alter” the prohibited smoker behavior [says] EEOC decision [Docket 03.81.0087, 83 FEOR 3046], 8 April 1983, p. 6. The extortion “suggests that petitioner will never be able to return to the agency's employment if it does not” halt the over-accommodation of smokers which they have obtained without following the established procedures, including making a showing that they will not endanger themselves or others.
People v. Atcher, 65 Mich. App. 734, 238 N.W.2d 389 (1975) cites extortion “after questioning her whether she was going to testify.” Here, Col. Benacquista and the entire resources of the installation [TACOM] have been, and are, devoted to preventing me from working “after questioning” me on “whether” I “was going to” “do” “All he had to do.” In Tomkins, supra, reprisal was taken against her when she did not “do'” “All” she “had to do.” The court found that her complaint “stated a cause of action under Title VII of the Civil Rights Act of 1964,” p. 1045. The misconduct there included an employer official stating what she “had to do” and “stating that this would be necessary if they were to have a satisfactory working relationship. When Tomkins” declined “to do” “All” she “had to do,” the employer official “responded first by threats of recrimination against Tomkins in her employment, then by threats of physical force, and ultimately by physically restraining Tomkins. During the incident, he told her that no one at PSE&G would help her should she lodge a complaint against him.”
Those facts remarkably parallel the facts in this case. The insistence that I “do” “All” I “had to do” “would be necessary if they were to have a satisfactory working relationship.” When I declined, it was arranged that Dr. [Francis J.] Holt, a mentally ill smoker, would overrule the medical evidence, and have me placed on “sick leave,” which misconduct EEOC has accurately noted “was essentially the same as a suspension or termination.” Also, “no one . . . would help,” and with the use of false data, and confabulations, and other inadmissible data, combined with multiple ex parte communications with MSPB offenders themselves displaying multiple symptoms of mental disorder, alcoholism, and/or other psychiatric disturbances, “no one” did “help.” The use of criminally false data and of inadmissible confabulations (first objected to by me in my initial appeal to MSPB, but ignored by Mr. [Martin] Baumgaertner and other MSPB offenders) is tantamount to “threats of recrimination,” nay, it is far worse. The “threats” level is de minimis compared to the stage of misconduct actually taking place. But even at the relatively de minimis level (“threats”) by comparison, Ms. Tomkins had “stated a cause of action.” The mental disease of MSPB offenders, starting with Mr. Baumgaertner, is clear––in their continued refusal to even allow case processing, and especially, in their use of clearly false claims. Worse, they supported Dr. Holt's extortion/embezzlement in overruling the evidence.
Page 31 of 70 pages. Affiant's initials _________

Other discrimination ease precedents provide insight. For example, see Hairston v. McLean Trucking Co., 520 F.2d 226 (1975). In that case, there were “practices which constitute present and continuing . . . discrimination.” Such is the case here as well, as is evident from the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], “The agency [TACOM] presented no evidence that it considered the rights of the non-smokers or even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others.” Thus, for nobody (not even other nonsmokers), compliance “actions were not even attempted.” While “in our society” nonsmokers “are willing to work for less” than consideration of their rights and recognition of the rules and conditions precedent, “This is clearly an inappropriate factor under the law. Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974); Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970),” Bullock v. Pizza Hut, Inc., 429 F.Supp. 424 (1977).
In Hairston, “it was found that . . . policy and practice . . . tended to prevent” nonsmokers who want consideration and recognition of the rules are “excluded,” Hairston, juxtaposed with the reality here. Methods of exclusion include continued endangerment until nonsmokers become ill and, over time (as a matter of orientation for time), develop tobacco-induced conditions. For example. see Parodi v. MSPB, 690 F.2d 731 (1982). Such situations are foreseeable when reality is at the level as EEOC has accurately noted.
In Hairston, “The district court ordered substantial relief.” The reviewing court found that “plaintiffs are entitled to greater relief than was afforded them.” Here, of course, 32 C.F.R. § 203, AR 1-8, OSHA [29 USC § 651 - § 678], etc., provide for suppression of the hazard. AR 1-8 provides for suppressing the hazard as part of a “series of instructions” to achieve “an environment reasonably free of contamination.” That by itself is the “relief” sought in this case, as it by itself, once compliance “actions” are “attempted,” will suppress the hazard. It will “disrupt” the smoker behavior “it was designed to disrupt,” higher ideation from U.S. v. City of Los Angeles, 595 F.2d 1386 at 1391 [19 Fair Empl.Prac.Cas. 1455, 19 Empl. Prac. Dec. P 9257A] (1979).
Due to malice, and the desire to assist the installation extortion and embezzlement pattern, MSPB [6 MSPB 626; 7 MSPR 13, etc.] refuses to provide any “relief” at all. It desires to set precedents of destroying the careers of nonsmokers. Thus, it provides no “relief” to me or any nonsmoker, including nonsmokers on premature disability retirements. See Hairston, supra, at 232, When “an employer can avoid back pay liability through a policy which makes an attempt to gain a” recognition of rules and consideration of one’s rights “risky or futile,” then this subtle form of discrimination is encouraged, not “discouraged.” MSPB intent is deducible from its pattern of misconduct. It wants nonsmokers to be “deterred by the futility or risk of seeking” compliance attempts. Thus, MSPB condones and engages in multiple falsifications, ex parte communications, delays. etc. It admits inadmissible confabulations. It misrepresents the issues. It ignores burdens of proof. It claims that nonsmokers are the ones to seek “accommodation,” then refuses it. It ignores that smokers are not to be “accommodated,” and smoking is not to be “permitted,” unless smokers can show that they will not endanger themselves or others (which smokers cannot show). MSPB misconduct on behalf of the installation [TACOM] and on behalf of smoking is clear. [These statements are pre-bribery-pattern awareness].
Page 32 of 70 pages. Affiant's initials _________

Kyriazi v. Western Elec. Co., 461 F.Supp. 894 at 950 (1978), provides insight consistent with related Supreme Court decisions. A “tortious interference with . . . employment” is a separate and additional offense, in addition to the constitutional violations noted in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 [30 L Ed 220] (1886), and Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7 [60 L Ed 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915). Truax, at 10, indicates “that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the” Fourteenth “Amendment to secure,” and citing several precedents extant even at that early time.
Kyriazi, supra, at 950, discusses “tortious interference with . . . employment,” the like situation as here. “Where one intentionally acts to deprive another of an economic benefit, including an employment relationship, the law . . . confers a right of action on the party aggrieved.” That concept of “intentional” or “‘willful’ . . . means no more than that the person charged . . . knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.’ American Surety Co. v. Sullivan, 2 Cir., 1925, 7 F.2d 605 606,” cited in McBride v. U.S., 225 F.2d 249 at 254 (1955). Here, the installation [TACOM] and MSPB have jointly perpetrated “acts to deprive” me “of an economic benefit, including an employment relationship,” as well as the proper status pending correction of a hazard, i.e., excused absence. They have done this by the use of multiple false statements, by ex parte communications, by disregarding the applicable standards of proof, by ignoring the job description and the “employment” “nexus” requirement, etc., etc. Of course, considering the disregard of the multiple concepts and duties which must be met and which were not met by the installation when it ousted me on 17 March 1980, “the action was never commenced,” Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 883 (1980). Since “the action was never commenced,” as a matter of law, my status never was changed off “duty status,” thus avoiding the necessity, if any, for reaching issues of “excused absence.”
Kyriazi, supra. at 950, cites precedents concerning “tortious interference with . . . employment.” The precedents show well-established principles, such that installation [TACOM] and MSPB disregard of them was willful. Kyriazi, supra, cites precedents from 1906 and 1962, i.e., Brennan v. United Hatters of North America, Local No. 17, 73 N.J.L. 729, 65 A. 165 (1906), and Raymond v. Cregar, 38 N.J. 472, 185 A.2d 856 (1962). Brennan indicates that “The common law has long recognized as a part of the boasted liberty of the citizen the right of every man to freely engage in such lawful business or occupation as he himself may choose, free from hindrance or obstruction from his fellow man . . . .” Of course, in the civil service, the prerequisite rules must be followed (advance notice, specifics, right to reply, etc.) before ever reaching issues such as violation of the fundamental right. Here, the installation [TACOM] has not complied with even the civil service rules.
Raymond, supra, discusses “malice that is, ‘the intentional doing of a wrongful act without justification or excuse.’” Endangering people is expressly prohibited by AR 1-8, by OSHA, etc. There is “no justification or excuse” for the endangerment being “permitted.”
Page 33 of 70 pages. Affiant's initials _________

Reprisal and discrimination are apparent in the record. (Discrimination is a concept that is not identical with the concept of accommodation. The local and MSPB innuendos to the contrary do not conform to reality or law. [“The failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination.” Ass’n for Disabled Americans, Inc v Concorde Gaming Corp, 158 F Supp 2d 1353, 1362 n 5 (SD Fla, 2001) (an ADA case).]) The installation [TACOM] terminated me for multiple unlawful reasons. These include anger at my winning the 25 Jan 80 USACARA Report. [Chicago MSPB’s] Mr. [Victor] Russell “minimizes” the reprisal in his 20 June 1983 personal brief on behalf of the installation, including p. 7. The issue is not merely that I “had filed” cases, but that I had prevailed. Of course, Mr. Russell has not “even recognized” that I prevailed. His obliviousness to reality is at that degree of severity. His obliviousness to reality led to his reviving reasons that the installation [TACOM] had abandoned, lack of “authority” and the “unreasonableness” of providing a non-endangering environment as AR 1-8 mandates, without reaching further to issues of OSHA, etc. When the [overt] termination occurred in 1980, the installation “explanation” had deteriorated to the point of barely grunting “cannot” comply. See “Dr.” [Francis] Holt's odd issuances.
Insight on discrimination and reprisal is round in cases such as Coates v. Nat’l. Cash Register Co., 433 F.Supp. 655 at 660-1 (1977), indicating that “The court in Laugesen v. Anaconda Co., 511 F.2d 307 (6th Cir. 1975) adopted a ‘determining factor’ test and explained how” the reviewer “should judge the legality of the employment decision: . . . ‘there could be more than one factor in the decision to discharge him and that he was nevertheless entitled to recover if one such factor was his” cases and especially, his prevailing in the 25 Jan 80 Report “and if in fact it made a difference in determining whether he was retained or discharged’ . . . the court characterized the standard in two ways: (1) ‘in whole or in part . . .’; or (2) ‘one of the reasons’ . . . These instructions comport with previous interpretations of the . . . standard. . . . While the” employer “can discharge its employees, it cannot base the decision about which employee to discharge on” the danger “or on factors created by” it. The danger is common to all. Citing the danger is thus void. It is a nullity as a basis. The common danger is not a basis for singling out me; thus, as no reason has been given, the odd MSPB claims “must . . . be rejected . . . as . . . wrong . . . ‘arbitrary and capricious’ . . . because no reasons for the conclusion were given,” McNutt v. Hills, 426 F.Supp. 990 at 1004 (1977), and other guidance cited therein.
Comparison with a single employee” also endangered “is sufficient” for me to prevail, Clark Oil & Refining Corp. v. Golden [114 Ill App 3d 300; 70 Ill Dec 80], 448 N.E.2d 958 at 964 (1983), citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). Indeed, I have provided overwhelming data on the common danger, not just concerning “a single employee.” For example, note data on the nonsmoker lung cancer rate caused by smokers, “for every 10 cases of lung cancer reported for smokers, there is . . . one case for nonsmokers,” data from G. H. Miller, in The J. of the Indiana St. Med. Ass'n., Vol. 76(2), pp. 121-3, February 1983. Smokers are dangerous to themselves first, in time sequence, since tobacco is inherently dangerous. “‘Every regular cigarette smoker is injured . . . all regular cigarette smokers studied at autopsy show the effects,’” data from [Prof. A. A. White, "Strict Liability of Cigarette Manufacturers and Assumption of Risk," in] the Louisiana Law Rev., Vol. XXIX, p. 607, 1969. Thus, on the above principles alone, a favorable decision is warranted.
Page 34 of 70 pages. Affiant's initials _________

Precedents other discrimination cases provide insight. For example, see Bullock v. Pizza Hut, Inc., 429 F.Supp. 424 (1977). That case provides insight related to the fact that all people need a safe work situation in which hazardous conduct of others is suppressed. Local [TACOM] and MSPB offenders display severe mental derangement when they fixate on me, insanely ignore safety criteria, insanely claim safety criteria are “not relevant,” and insanely insist that safety “be made to jump through the procedural hoops” for reasonable accommodation, higher ideation based on words from Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976). The danger that smokers pose by their conduct is well-known; however, “those individuals who are psychotic (insane in the legal sense of the term) . . . are suffering from a real derangement of their mental lives, so severe that they do not respond to and are not motivated by normal stimuli,” data from Dr. Lyle Tussing, in Psychology for Better Living, 1959 [5th ed., New York: John Wiley], p. 345. MSPB officials do not respond to data on the well-known danger, data showing that smoking is not to be “permitted” under 32 C.F.R. § 203, an initial link in the “series of instructions,” a link that precludes reaching the fragment, “reasonable accommodation,” the last link in the “series,” the one upon which the insane deciding officials fixate.
Everybody is endangered by smoke from tobacco. Col. [John J.] Benacquista has made clear what happened initially. “The job was available. All he [Pletten] had to do was to say, “I agree that this [TACOM] is reasonably free of contaminants.’” (T. 62). Controlling endangerment under AR 1-8 requires no greater “authority” than under the “unqualified and absolute” OSHA safety duty.
I was singled out for “suspension or termination,” as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], p. 6, even though everyone is entitled to a safe job situation in which hazardous behavior of others is suppressed. Cf. Bullock, supra, “We can see no justification for the difference in” reaction to a nonsmoker request “other than” extortion. The symptoms of mental disorder which Mr. Victor Russell presented for examination attempt to provide an explanation. “A short answer to” his symptoms “is that” his claims were “not shown to be the case here. Defendant's stereotyping plaintiff” Leroy Pletten “in this manner is merely a round-about way of saying” maliciously that Pletten is different.
USACARA has already answered the insane delusions installation [TACOM] smokers had and have, and which MSPB has insanely revived. USACARA notes, “the other nonsmokers also have rights even though they have not actively pursued such rights. No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.” The insane raving of local and MSPB offenders singling out Mr. Pletten “is merely a round-about way on saying that” “other nonsmokers . . . have not actively pursued such rights” “because in our society” “other nonsmokers” “are willing to work for less” than compliance with rules such as AR 1-8. Bullock states, “This is clearly an inappropriate factor under the law. Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974); Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970). Thus, the “suspension or termination” was void ab initio. The MSPB symptoms [16 MSPB 88] as recently as 8 August 1983 do not respond to normal stimuli, such as that the installation [TACOM] must sustain its action ab initio.
What “any government installation” has done is thus nonsensical raving on Mr. Russell's part. He should learn to conform to “applicable law and regulation,” Gacayan v. OPM, 5 MSPB 358 (1981). Once he is rehabilitated, perhaps his mind will not wander to “an inappropriate factor under the law.”
Page 35 of 70 pages. Affiant's initials _________

Kyriazi v. Western Elec. Co., 461 F.Supp. 894 (1978), provides insight, based on the similarities with the case at bar. At 914, “Were this merely a case based on statistics, we would already be satisfied that the plaintiff has discharged” the “burden” of proof; indeed, under Teamsters” v. U.S., 431 U.S. 324, 97 S.Ct. 1843 (1977), “a statistical showing such as this would compel that result.” Here, the data shows the “universal malice” of smoking and its effects on people in terms of causing disease. Moreover, the data shows AR 1-8 as evidence that endangerment is foreseeably widespread. Worse, the installation [TACOM] has not “even recognized” the guidance, as EEOC noted 8 April 1983. There is no compliance [at TACOM] for anybody, thus confirming far more than I need show, merely “Comparison with a single employee,” Clark Oil & Refining Corp. v. Golden [114 Ill App 3d 300; 70 Ill Dec 80], 448 N.E.2d 958 at 964 (1983).
Kyriazi, supra, continues, “we have before us the rare case in which the plaintiff, in addition to the . . . evidence” by a “statistical case, has produced direct evidence of discriminatory intent.” Plaintiff here has done more than provide the Court with cold statistics; she has exposed the very attitudes which produced those statistics in the first place.” AR 1-8 is based on “cold statistics” of endangerment, discomfort. and other violations caused by smokers. The record shows the “very attitudes which produced” the need for AR 1-8 “in the first place,” i.e., the claims that suppressing the hazard is somehow “unreasonable,” “cannot” be done, and/or that “authority” is somehow mysteriously lacking for doing what the rule mandates.
At 924, Kyriazi, supra, indicates, “It is perfectly permissible . . . to establish a claimed act of discrimination against that individual” (me, for example) “by first demonstrating a general discriminatory intent against the class to which that individual belongs. Such evidence would be a piece in a mosaic which, along with other evidence, could establish the veracity of the individual's claims.” Also, “Hostility to a class of persons as a whole . . . can indeed be inferred by proven discriminatory acts directed against an individual member of that class.” Here, of course, these principles work both ways. The installation [TACOM] has not “even recognized”its duties to the “class” of nonsmokers, and to me. Indeed, even when the criteria are called to installation [TACOM] attention by agency representatives (e.g., by the 25 Jan 80 USACARA Report), the installation “failed to abide by” it, as EEOC noted 23 February 1982 [Dockets 01800273 et al], and confirmed 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], stating that the installation “does not argue nor does the record support that it ever complied . . . or even recognized” the agency's “own regulations.” The “mosaic” has already been established by EEOC, by USACARA before it, and by AR 1-8 even before the Report. The “general discriminatory intent” is evident from the denunciations of AR 1-8, the USACARA Report, etc., in terms of lack of “authority,” their “unreasonableness,” and the grunted “cannot.”
Considering what USACARA and EEOC have already found, “the burden then shifts to the employer to prove that a class member” (e.g., me) “was not discriminated against,” Kyriazi v. Western Elec. Co., 465 F.Supp. 1141 (1979), referencing Franks v. Bowman, 424 U.S. 747 [96 S Ct 1251; 47 L Ed 2d 444] (1976).
Page 36 of 70 pages. Affiant's initials _________

(pp 37-48)

The medical and psychiatric data on smoker behavior provide insight on the misconduct of the offenders. The danger from insane people, from alcoholics, from depraved people, etc., as linked with smoking, is noted in numerous court precedents, as based on established medical data. The law that applies is well-established. "There is no dispute about the law in Michigan applicable to this case. It was held in Bradley v. Stevens (1951) 329 Mich. 556, headnote 2, 46 N.W.2d 382,
'An employer who knew or should have known of his employee's propensities and criminal record before commission of an intentional tort . . . would be liable for damages . . . .' The principle is stated in 34 A.L.R.2d 390 . . . Negligence; selection or retention of employee. . . . an employer must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons" on "the premises" of "the employer," Hersh v. Kentfield Builders, Inc., 385 Mich. 10, 189 N.W.2d 286 (1971).

Concerning a smoker, "it cannot be said that he is a person of normal sensibilities," Aldridge v. Saxey, 242 Ore. 238, 409 P.2d 184 (1965). AR 1-8 and 32 C.F.R. 203 are based on the agency "experience" that smokers are not people "of normal sensibilities," i.e. they foreseeably endanger, discomfort, and harm, and abuse others--to such an extreme extent that a regulation devoted to the purpose of controlling smokers became necessary. The DSM-III shows that smoker mental disorder is "obviously widespread." The offenders are clearly defying "experience," including "experience" brought to their attention by me.
In this case, both "the selection" and the "retention" of smokers is wrong. The "experience" with smoker insanity and alcoholism is significantly of greater duration in time than the start of the employment of any smoker or deciding official whose behavior is at issue. See data from Dr. Benjamin Rush from 1806, in The Lancet in 1857, in JAMA in 1899, from Dr. John H. Kellogg in the 1920's, etc. The disregard of such "experience" shows "intransigence . . . before this suit was filed," words from Claiborne v. Illinois Cent. R. R.. 583 F.2d 143 at 154 (1978). The disregard of such "experience" as AR 1-8, the 25 January 1980 USACARA Report, the MESC decisions, the EEOC decisions, etc., thereafter shows not only "intransigence" but also "malice." In Claiborne, the pattern was sufficiently clear that "malice" was evident, without having to reach the fact of "universal malice," wherein "Malice is presumed," Nestlerode v. U.S., 122 F.2d 56 at 59 (1941). In this situation, the "selection" and "retention" of the smokers and deciding officials whose behavior is at issue shows "intransigence" and "malice" under both the Claiborne and the Nestlerode criteria. A smoker is not "a person of normal sensibilities," Aldridge, supra.
As noted in Hersh, supra, in Michigan, "The employer's knowledge of past acts of impropriety, violence, or disorder on the part of the employee is generally considered sufficient to forewarn the employer." Here, AR 1-8, my "personal determination," and the vast evidence showing a hazard "forewarn the employer." Thus, the employer is "liable for damages." Cf. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (1967).
Page 49 of 70 pages. Affiant's initials _________

Nye v. Parkway Bank & Trust Co. [114 Ill. App. 3d 272, 70 Ill. Dec. 40], 448 N.E.2d 918 (1983) provides insight on the reprehensible MSPB behavior pattern. The intentionally false claims made by local [TACOM] and MSPB offenders are evident throughout their issuances. USACARA on 25 January 1980, and EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], noted falsehoods by installation [TACOM] and MSPB offenders. “Dr.” [Francis J.] Holt, and Col. [John J.] Benacquista and Mr. [Edward E.] Hoover, as a part of a criminal extortion/embezzlement plan, made false statements. Initially, it was the responsibility of Martin Baumgaertner to issue a proper decision. USACARA had just rejected the installation [TACOM] claims on lack of authority, and on the unreasonableness of compliance with AR 1-8. USACARA had noted the proper standard (“necessary”) and the full “authority.” However, Mr. Baumgaertner intentionally refused to do his duty. “Malice is presumed,” Nestlerode v. U.S. [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).
Nye, supra, at 919, n. 2, indicates, “it strikes us as highly irregular and inequitable to expect a defendant to prepare a defense against accusations known to be untrue by the accuser.” Mr. Baumgaertner's personal low morals are such that he sustained a refusal to even consider my case properly, even though the installation position was “known to be untrue by the accuser” installation [TACOM], as its false claims had just been rejected, and reprisal against me for showing up [blowing the whistle on] the falsity of the installation [TACOM] position was obvious. USACARA had found full “authority” to suppress the endangerment; EEOC [Docket 03.81.0087, 83 FEOR 3046] likewise noted that “Clearly, the agency had the authority . . . .” It is well established that employers take reprisal when their misconduct is pointed out; “certain individuals view the advance of equality” for nonsmokers “as a threat to be opposed,” thus, they have “exposed individuals” such as me ‘to serious harm. Harassment was routine; more serious threats and physical injury were not uncommon,” Novotny v. Grt. Am. Fed. Sav. & L. Ass'n., 584 F.2d 1235 at 1237 (1978). Thus, Mr. Baumgaertner's reference to “other avenues for redress” was clearly unresponsive to normal stimuli.
Mr. Baumgaertner's “morals” (“ethical controls”) show impairment as is foreseeable from data on “permanent destruction of brain tissue . . . Where the damage is severe,” data from Dr. James C. Coleman in Abnormal Psychology and Modern Life [Scott, Foresman & Co], 5th ed., 1976, pp. 460-1. His impaired ethical controls resulted in this finding by EEOC, “Petitioner was not afforded an opportunity to present his evidence in a hearing before the official.” p. 3, since Mr. Baumgaertner relied solely on ex parte communications. Mr. Baumgaertner's malicious behavior violated “‘A fundamental requisite of procedural due process . . . according to the general law or established rules,’” Nye, at 919.
He violated the due process “guaranteed by section 1 of amendment XIV of the Federal Constitution . . . The record is replete with examples of a . . . procedure so lacking in the fundamental principles of our system of justice that the procedure must be condemned as a denial of due process rights.” Of course, in addition, Mr. Baumgaertner violated 5 C.F.R. § 1201.24(c), “an appellant has a right to a hearing.” He also disregarded the fact that in Mosely v. Navy, 4 MSPB 220 (1980), a hearing was held “on July 10, 1979,” i.e., long before Mr. Baumgaertner’s odd issuance. Ms. Ersa H. Poston signed that decision; thus, on 18 June 1981 [6 MSPB 626; 7 MSPR 13], the disregard of the Mosely precedent was malicious; and the brazen reference to it, while ignoring the hearing cited therein, is particularly malicious. Malice is not only presumed, it is confirmed, since “the case was not concluding regarding” my “defense,” yet MSPB issued “decisions” (i.e., their personal symptoms) anyway.
Page 50 of 70 pages. Affiant's initials _________

(pp 51-53)

Mr. Victor Russell does not respond to and is not motivated by normal stimuli such as what I “articulated.” See Mr. Russell's confession of unresponsiveness in his 20 June 1983 output, p. 8. His unresponsiveness clearly is based on his self-inflicted delusion that the pertinent rules, including the “conditions precedent” and “subsequent”' must “be made to jump through the procedural hoops for” his personal odd ideas of what “reasonable accommodation” is, cf. Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976). The record shows that local and MSPB offenders “are psychotic (insane in the legal sense of the term) . . . suffering from a real derangement of their mental lives, so severe that they do not respond to and are not motivated by normal stimuli,” data from Psychology for Better Living, 1959, by Dr. Lyle Tussing, p. 345. Thus, they have not demonstrated “substantial capacity to appreciate the wrongfulness of” their “conduct,” and have not demonstrated “substantial capacity . . . to conform” their “conduct to the requirements” involved, People v. Matulonis, 115 Mich.App. 263, 320 N.W.2d 238 (1982). For example, they have not “even recognized” criteria of AR 1-8, as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], even though both I and USACARA (on 25 January 1980) have brought such criteria to their attention.
“It is well settled that equity does not require a useless act,” Montgomery v. Cook, 76 N.M. 199, 413 P.2d 477 at 482 (1966). I admit that local and MSPB offenders “are . . . like cattle, sitting around until someone tells them what to do next,” a description of “mentally sick” people from Dr. Tussing, supra, at 361-2. Thus, much has been “articulated” to them. However, they have not “even recognized,” and “do not respond to and are not motivated by” it. It would be “a useless act” for me to “articulate” more and more for such “mentally sick” people, when their past behavior shows unresponsiveness, and when their conditions foreseeably deteriorate, due to lack of mental health treatment. In addition, it is clear that the local and MSPB offenders have not recovered. Recovery will foreseeably produce responsiveness in them.
What was “articulated” was ignored, based on the “general atmosphere of discrimination” and opposition to rules, Sweeney v. Bd. of Trustees of Keene St. College, 604 F.2d 106 at 113 (1979). The installation [TACOM] hostility to AR 1-8 is substantially worse than the employer misconduct in Sweeney. See the hostile management attitude discussed in that case, and in Sweeney v. Bd. of Trustees of Keene St. College, 569 F.2d 169, especially 179 (1978). Sweeney was not fired; the discrimination against her was limited to non-promotion and related aspects. And see evidence for showing employer claims to be “a pretext,” e.g., “general practice,” “prior treatment of the plaintiff, and statistics,” criteria from McDonnell Douglas Corp. v. Green, 411 U.S. 792 at 804-5 (1973). This case shows that the rules have not “even” been “recognized” for nonsmokers in general, much less for me; repeated disregard of rules; multiple use of false statements by both local and MSPB offenders; overruling evidence, etc., etc., combined with data on smoking as unsafe for everyone. The claims by local and MSPB offenders are “pretexts” not merely on discrimination, but they have also crossed the line into criminal misconduct, including but not limited to falsifications, extortion, embezzlement, etc. Their claims are “pretexts” even if excused absence were not the proper response in a hazard. Disregard of what was “articulated” is part of the pattern, including the crime pattern.
Page 54 of 70 pages. Affiant's initials _________

In situations where severe brain damage, for example, is evident, an impaired orientation for reality and time is foreseeable. Malice foreseeably produces behavior tantamount to “symptoms” typical in brain damage. Psychosis also produces unresponsiveness to reality. Part of reality is what a person in an adverse action situation has “articulated.” Where the person has “articulated” much, indeed so much that reprisal has occurred concerning what was “articulated,” a denial that anything has been “articulated” is not foreseeable by such person even though the employer of the person making the denial is responsible, cf. McAfee v. Travis Gas Corp., 153 S.W.2d 442 (1941).
In the situation at bar, I have “articulated” much. USACARA on 25 January 1980 also “articulated” ideas under AR 1-8 and AR 600-20. MESC “articulated” that Dr. Holt had overruled the medical evidence. EEOC has “articulated” much, particularly in terms of guidance that the installation [TACOM] and MSPB should begin to comply with the rules, and conform to the facts. Others have also “articulated” as well, for example, Mr. Adler, OPM, etc. Affirmative action should begin--that is the thrust of the data from Mr. Adler and from OPM, especially its 17 September 1981 note, “Reasonable accommodation not shown.”
MSPB and local offenders display behaviors and symptoms which “make them seem feeble-minded,” data from Dr. Lyle Tussing, in Psychology for Better Living, 1959, p. 357. The record is replete with examples which local and MSPB offenders have presented for examination. Mr. Russell's 20 June 1983 claim, p. 8, is a prime example. Rules are to be enforced regardless of whether someone “articulates” them. The police enforce rules everyday; that example shows that policemen do not need private citizens to have “articulated” to them, quotes from law books. Mr. Russell's severe symptoms that “seem feeble-minded” clearly arise from his self-inflicted delusion that regular rules must “be made to jump through the procedural hoops for” “accommodation,” higher ideation from Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976). USACARA displayed the mental capacity to make distinctions among rules on 25 January 1980. On 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], EEOC expressly referred to AR 1-8 and “accommodation” as separate matters. However, in schizophrenics, “clarity of thought is lost,” [says] Dr. Tussing, at 357. Mr. Russell does not display “clarity of thought.”
Installation [TACOM] offenders have not “even recognized” the basic rules. Thus, “the party who is guilty of the first breach” “cannot maintain an action against the other for a subsequent failure,” data from Buckman v. Hill Milit. Academy, 223 P.2d 172 at 174 (1950). The only “breach” is by the installation [TACOM] and MSPB; it is not me who has not “even recognized” the rules. Moreover, “It is well settled that equity does not require a useless act,” Montgomery v. Cook, 413 P.2d 477 at 482 (1966). Smoker mental disorders are “obviously widespread,” as the DSM-III notes. People such as Mr. Hoover, Dr. Holt. Ms. Averhart, etc., who have not demonstrated the mental capacity to even recognize the rules, clearly have not demonstrated the mental ability to comprehend higher ideation, such as “reasonable accommodation” principles. They have not complied with the first aspects in the “series of instructions.” My making additional “articulations” above and beyond the many, many already submitted (and unanswered) would be “a useless act.” The insane “do not respond to and are not motivated by normal stimuli,” [says] Dr. Tussing, p. 345, i.e., what has already been “articulated,” which they have not “even recognized.”
Page 55 of 70 pages. Affiant's initials _________

(pp 56-58)

Local [TACOM] and MSPB offenders have paraded their multiple symptoms, including but not limited to fantasies, fragmentation, confabulations, delusions, paranoia, impaired orientation for reality, etc. The testimony and issuances (which they falsely claim to be official “decisions” such as from MSPB) of such persons are, of course, inadmissible for any purpose, except for a showing of their symptoms. Various court decisions have shown that unreliable witnesses are unacceptable. Due to the nature of brain damage, words such as “‘infinitely less reliable’” than the testimony of sane people come to mind; cf. State v. Mack, 292 N.W.2d 764 at 768. n. 7 (1980). Thus, as long ago as my first appeal to MSPB, I objected to the admissibility of testimony from people such as E. Hoover and F. Holt. Due to the symptoms displayed by MSPB, the objection has never been formally ruled on. Clearly, confabulators are sticking up for each other, here, the local-MSPB team effort to oppose AR 1-8, and other rules that are to be obeyed, prior to ever reaching issues of “accommodation” of a non-job-related “handicap” perceived erroneously/insanely to preclude employment.
“Anyone who smokes is nuts,” as Ellen Goodman noted in Newsday, p. 47, 9 June 1981. The “universal malice” of smoker brain damage is clear. The ravings of alcoholics/smokers are inadmissible. See People v. Harper, 111 Ill.App.2d 204. 250 N.E.2d 5 at 6 (1969). “In Townsend v. Sain, 372 U.S. 293. 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), it was held that a confession obtained while under the influence of drugs was inadmissible. . . . The reasons for denying admission may be said to vary but the results seldom do.” Brain damage arises from “the influence of drugs.” Smoking produces mental disorder on an “obviously widespread” basis, as the DSM-III [p. 178] notes. The brain damage exists even after the most recent “act” of smoking, for example. a witness might not smoke or drank while testifying; a deciding official might not smoke or drink on the job while writing a decision. But the record shows that the symptoms come to the forefront in the instances and testimony. Confabulations, paranoia, and delusions are evident, for example.
Harper, supra, continues, “Thus, in some cases admissibility seems to have been denied on the grounds of inadequate foundation or inadmissibility for want [lack] of proof of reliability (Orange v. Commonwealth, 191 Va. 423, 61 S.E.2d 267 (1950); State v. Hudson, 289 S.W. 920 (Mo. 1926)), or that the . . . results would be hearsay and self-serving declarations (see People v. McNichol, 100 Cal.App.2d 554, 224 P.2d 21 (1950), People v. Cullen, 37 Cal.2d 614, 234 P.2d 1 (1951)). In Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (1951), the court excluded . . . such . . . on the grounds that such . . . had not attained scientific recognition or dependability . . . To the same effect. see Merritt v. Commonwealth, 386 S.W.2d 727 (Ky. 1965); State v. Levitt, 36 N.J. 266, 176 A.2d 465, 91 A.L.R.2d 1112; Jones on Evidence, 5th Ed., sec. 435. Results from brain damage have “not attained scientific recognition or reliability.” The essence of brain damage is unreliability, due to its very nature, and its impact anywhere in and through the brain. That is why commitment proceedings are authorized and extant, based on the foreseeable odd behavior of smokers, for example, see Rum River Lumber Co v. State, 282 N.W.2d 882 (1979).
Page 59 of 70 pages. Affiant's initials _________

The local [TACOM] and MSPB confabulations, falsehoods, delusions, etc., are inadmissible. It is not only that local and MSPB offenders display multiple symptoms of mental illness, the record also shows fraud, e.g., the 18 June 1981 [6 MSPB 626; 7 MSPR 13] issuance “made without any intention of performing it . . . one of the forms of actual fraud,” Langley v. Rodriguez, 122 Cal. 580, 55 P. 406 at 431 (1898). In this case of local and MSPB offenders, psychiatric disorders are evident as the underlying cause of the bizarre and delusional claims. [This statement is pre-bribery-pattern awareness].
Inadmissibility of local [TACOM] and MSPB assertions is based on well-established legal principles. MSPB “suggestibility” is clear throughout the record. MSPB offenders lack the mental capacity “to determine from the content of” local confabulations. delusions, evidence, and testimony, “which parts of it are historically accurate, which are entirely fanciful, and which are lies,” data from State v. Mack, 292 N.W.2d 764 at 769 (1980). MSPS offenders lack the ability to distinguish truth from insane delusions, including claims of “actions” which “were not even attempted,” data from EEOC [Docket 03.81.0087, 83 FEOR 3046], 8 April 1983, p. 5. MSPB offenders do not display “substantial capacity to . . . conform . . . conduct to the requirements of the law” and the series of instructions at issue, People v. Matulonis, 115 Mich. App. 263, 320 N.W.2d 238 (1982).
By its very nature, the effects of brain damage are unreliable. Brain damage from smoking and alcoholism are common; the symptoms are apparent throughout the record––in the odd and delusional assertions from MSPB, and from local [TACOM] offenders. The pattern is evident from the very start of the case. It extends to the very current date, up to and including the odd [16 MSPB 88] 8 August 1983 assertions from Robert E. Taylor. He clearly does not display the capacity to confirm to reality, or even to remember reality well enough to describe it accurately. Fragmentation is a clear symptom of his. Note his fragmented “summary” (using the word loosely) of my position. Note that he does not display any insight at all on the existence of AR 1-8. He clearly has a problem with a “series of instructions.” He refers to the 8 April 1983 EEOC letter [Docket 03.81.0087, 83 FEOR 3046], but does not display responsiveness to its “normal stimuli” such as reference to AR 1-8 and the 25 January 1980 USACARA Report.
See State v. Hurd, 173 N. J. Super. 333, 414 A .2d 291 (1980), “once a subject has become contaminated by suggestion or coercion, it cannot be reversed.” Local [TACOM] and MSPB offenders have taken no “safeguards” at all. But Hurd, at 294, indicates guidance “that a number of safeguards must be taken in order to reduce as much as possible the possibility of confabulation and fantasy being offered as memory,” for use as testimony or “decisions” such as from MSPB. Here, the record demonstrates no psychiatric treatments of MSPB and local [TACOM] offenders. No “safeguards” have been taken. None were taken in advance. None were taken even after my 7 July 1981 acceptance of the 18 June 1981 MSPB claims [6 MSPB 626; 7 MSPR 13, rev’d and rem’d 83 FEOR 3046, supra.]
MSPB offenders display fragmentation and paranoia “having a strong tendency to represent fantasy as though it were fact,” Hurd, at 300. The record shows that “once a subject has become contaminated . . . it cannot be reversed,” p. 297. The MSPB decision precess is clearly “contaminated” “to represent fantasy as . . . fact.”
Page 60 of 70 pages. Affiant's initials _________

Confabulation is defined as “The filling in of memory gaps with false and often irrelevant details,” in the book, Abnormal Psychology and Modern Life, 5th edition, 1976, p. 740, by Dr. James C. Coleman. In situations of “permanent destruction of brain tissue . . . Where the damage is severe . . . symptoms typically include . . . a tendency to confabulate, that is, to ‘invent’ memories to fill in gaps,” data from pp. 460-461.
Confabulations are unacceptable as evidence. Data on the inadmissibility of evidence from persons known to confabulate, or where confabulation is foreseeable, is contained in State v. Mack, 292 N.W.2d 764 ([Minn.] 1980). At 768-769, “Most significantly, there is no way to determine from the content of the ‘memory’ itself which parts of it are historically accurate, which are entirely fanciful, and which are lies.” Thus, “lt would be impossible to cross-examine such a witness in any meaningful way.”
At 769, “The crux of the problem is . . . a memory of perceptions which neither were nor could have been made” in objective reality. “Neither the person . . . nor the expert observer can distinguish between confabulation and accurate recall in any particular instance.” Confabulation has no “scientific reliability.” The essence of confabulation is evident from the word “‘invent’” due to the inherent nature of brain damage.
Mack, supra, cites Frye v. United States [54 App. D. C. 46], 293 F. 1013 (D.C.Cir. 1923), and “the standard of scientific reliability necessary for admissibility . . . .” Confabulations are inherently unreliable, hence, inadmissible. What is unreliable is inadmissible and “‘has no place in the law.’ People v. Ebanks, 117 Cal. 652, 49 P. 1049 (1897). See State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950),” Mack, at 770. Such clear judicial rejection of what is unreliable brings to mind the analysis that “Tobacco, in short, is under the ban,” State v. Olson, 26 N.D. 304, 144 N.W. 661 (1913). The “tendency to confabulate” is likewise “under the ban,” i.e., evidence from persons with “a tendency to confabulate” is inadmissible.
Mack, supra, at 771, cites Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974), “‘Most experts agree that . . . evidence is unreliable because a person . . . can manufacture or invent false statements. . . . also subject to heightened suggestibility.’ 214 Va. at 715, 204 S.E.2d at 419.” The nature of confabulation clearly involves thoughts that “manufacture or invent false statements.” Since such results are inherent in confabulation, it is not necessary to reach the issue that in “permanent destruction of brain tissue . . . Where the damage is severe . . . Symptoms typically include . . . Impairment of inner reality and ethical controls––with lowering of behavioral standards . . . ,” data from Coleman, supra. The “tendency to confabulate” is already inherently unreliable. and hence inadmissible, even without the added risk from the “Impairment of . . . ethical controls.” In either situation, these words provide insight, “It would be impossible to cross-examine such a witness in any meaningful way,” Mack, at 769. Since “the ordinary ‘indicia of reliability’ are completely erased,” the conclusion of inadmissible ab initio is clearly appropriate, considering “the standard of scientific reliability necessary for admissibility.”
Page 61 of 70 pages. Affiant's initials _________

In situations involving an insane. drunk, or otherwise deviant presiding official, bizarre symptoms are foreseeable and the employer is responsible, even though a victim such as myself does not foresee how the mental derangement or other deviance will be manifested, cf. McAfee v. Travis Gas Corp. [134 Tex. 314], 153 S.W.2d 442 (1941). Symptoms such as “extreme suggestibility” in the context of long-term alcoholism, for example, are discussed in the professional literature, such as Abnormal Psychology and Modern Life, 5th ed., 1976, by Dr. James C. Coleman, at 419. When an issuance, such as on 20 June 1983, reflects suggestibility, especially in the midst of multiple other symptoms, the employer is responsible for the misconduct, in this case, for the misconduct committed by Mr. Victor Russell.
Mr. Russell's symptoms such as suggestibility are evident in his 20 June 1983 issuance which he has presented, voluntarily, for examination. Note the confession that he has paraded on p. 9, as juxtaposed with data from p. 7. Mr. Russell claims that Dr. Holt, whose own symptoms of mental illness render his views inadmissible, “establishes the required nexus.” Mr. Russell's mental health is clearly such that he lacks substantial capacity to recognize that F. Holt has not provided any “nexus” at all with “employment.” Mr. Russell's symptoms including his suggestibility (and susceptibility to agency misuse of psychiatric data on the prevalence of mental disorder, including foreseeably among MSPB personnel) lead him to ignore the evidence that F. Holt's odd behavior is and was “in retaliation for the appellant having filed complaints and grievances with his agency,” including on F. Holt's malpractice and symptoms.
Dr. Holt overruled the medical evidence “in retaliation” for data cited by me concerning his misconduct. He is a smoker, and “Anyone who smokes is nuts,” data from Ellen Goodman, in Newsday, 9 June 1981, p. 47. He is an example of that well-established fact.
Mr. Russell's suggestibility arises from his lack of substantial capacity to conform to rules or even to take account of the job description, much less the “higher ideation” concept of “employment.” Mr. Russell simply rubber-stamped the [schizophasic] word salad that emanated from Dr. Holt. The “nexus” with “employment” is the critical nexus for determining employee status. Mr. Russell's suggestibility is such that he, too, has issued a “word salad,” senselessly malassociating principles from external hazards (which are to be suppressed) into a weird concoction such that he ignores the “conduct” and cites “endangering the health and safety of the individual or others,” without displaying substantial capacity to comprehend the bizarre juxtaposition he has paraded. See his odd reference to Stalkfleet v. U.S. Postal Service, 6 MSPB 536 (1981). That case does not relate to external hazards caused by others. Mr. Russell does not display substantial capacity to comprehend that fact.
The hazard is a common one [universal malice]. The hazard is to be suppressed. Dr. Holt overruled the medical evidence showing my ability to work. Dr. Holt did that “in retaliation” for my citing rules. Mr. Russell displays suggestibility when he disregards that fact. Mr. Russell's suggestibility on this paint is consistent with his suggestibility on the claims on “authority” and on “reasonableness” as the standard. His claims were rejected by USACARA, based on rules cited as long ago as in my 2 June 1979 grievance, p. 6, citing FPM Suppl. 532-1, S8-7, on “elimination or reduction to the lowest level possible of all hazards . . .” The words are based on the “authority” to do this; and note the word “possible,” not “reasonable.”
Page 62 of 70 pages. Affiant's initials _________

MSPB officials starting with Martin Baumgaertner display symptoms of such severity as to make clear that they “cannot differentiate beween . . . fantasy” and reality, insight from People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 at 310 (1982). Hence, just as local [TACOM] “action was never commenced” as a matter of law, likewise MSPB “action was never commenced,” higher ideation from Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 889 (1980). Smoking is “inherently dangerous” to all nonsmokers. There is no basis for singling me out––none, except reprisal, so as to let the installation continue in its non-compliance with AR 1-8. When local and MSPB deciding officials are insane, drunk for years and to the extreme that suggestibility is evident, depraved, and/or otherwise deviant, it is foreseeable that their behavior would reflect disconnection from the body of medical knowledge; the employer is responsible even though an individual victim such as myself does not foresee such hideous mental derangement and/or other deviance as local [TACOM] and MSPB offenders have paraded; cf. McAfee v. Travis Gas Corp. [137 Tex 314]. 159 S.W.2d 442 (1941).
The medical evidence from the examining physicians repeatedly shows my ability to work, the common danger, and the duty to provide a safe job situation, by controlling the dangerous co-workers. The medical data does not show that smoking is a part of my job; it is clear that competent doctors recognize that smoking is not part of “employment.” However, the installation [TACOM] “doctor,” F. Holt, is a smoker; hence, he is foreseeably insane.
“Anyone who smokes is nuts,” Ellen Goodman, Newsday, 9 June 1981, p. 47. “Dr.” Holt is a prime example. He is disconnected from reality. He lacks substantial capacity to comprehend that smoking is not part of “employment.” He lacks substantial capacity to respond to and be motivated by the fact that the danger is a common danger. The symptoms of mental derangement as paraded by MSPB offenders include singling me out for abusive behavior. Cf. Gonzales, supra, at 311, wherein a court is cited as having erroneously accepted input “based solely on the testimony of . . . an employee” who was not impartial. Here, “Dr.” Holt is clearly not impartial; indeed, he is foreseeably insane. “Undoubtedly everybody” locally and at MSPB “was desirous of confirming in their own minds that” the adverse action against me should be sustained. That fact would account for the severity of the symptoms of mental derangement as paraded by Victor Russell. He displays disconnection from the 25 January 1980 USACARA analysis. He fails to comprehend the MESC rejection of “Dr.” Holt's behavior of overruling the evidence on my ability to work. Mr. Russell's symptoms are so severe that he “cannot differentiate between . . . fantasy” (denials of “authority” and claims of “unreasonable” to comply with AR 1-8) and reality (i.e., that the real standard is what is “necessary” to suppress the endangerment).
Mr. Russell's poor mental health is such that he does not even refer to my reliance on the USACARA analysis. His sentence,”I find such reliance well founded” (p. 5), does not refer to my reliance on USACARA, but to “Dr.” Holt's overruling the medical evidence. Mr. Russell's personal mental problems are such that he is disconnected from the evidence of what I relied on, and thus re-“articulated.” USACARA “articulated” the reality (on “authority” and on what is “necessary”) first. Then, I relied on that fact.
Page 63 of 70 pages. Affiant's initials _________

The word salads and “jumbled” claims of MSPB offenders are inadmissible. See principles of law such as are contained in People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981) [aff'd 415 Mich 615; 329 NW2d 743 (1982)]. Courts do not want in the record the “fantasies, and confabulations” of persons with “heightened suggestibility,” such that they display or parade a “tendency . . . to respond in a way which he believes” someone ''desires,” p. 309. Those words aptly describe MSPB symptoms. MSPB offenders have “jumbled” various principles together, in a weird [schizophasic] word salad. As a part of their derangement, they have “jumbled” basic rules in an effort to make them “jump through the procedural hoops for” “reasonable accommodation” criteria; cf. Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976).
Mr. Victor Russell has “jumbled” the fact of the external hazard, with the criteria for dealing with “reasonable accommodation” situations and dangers extant under those rules. He has insanely “jumbled” the “reasonable” criteria of one law, into a situation of safety where the actual duty is “unqualified and absolute.” He has “jumbled” a precedent citing need to analyze job descriptions, into a situation where a nexus with “employment” has not even been shown. What he has done is “to respond in a way which he believes the” installation [TACOM] “desires.” Thus, Mr Russell's behavior shows the lack of his own “substantial capacity . . . to conform his conduct to the requirements” involved, and lack of “substantial capacity to appreciate the wrongfulness of his conduct,” People v. Matulonis, 115 Mich. App. 263, 320 N.W.2d 238 (1982).
Smoking produces brain damage; hence, it “has not achieved sufficient scientific acceptance to allow the admission of testimony” or MSPB decisions “affected by the process,” Gonzales, supra, at 309. Due to the nature of brain damage, such cannot be provided, even if installation [TACOM] smokers were to attempt to provide such data. Moreover, “scientific recognition . . . must be established by disinterested experts and not by those intimately linked to the” behavior at issue, p. 308. Smokers become deranged from smoking; their views are of no value except to show their own derangement for which their hospitalization (voluntary or involuntary) is appropriate, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979).
Local [TACOM] and MSPB behavior shows a pattern of confabulations, falsehoods, impoverished ideation, lack of orientation for time, etc. It is clear “that once a” person has smoked regularly “for at least several weeks, his judgment and “his recollections have been so contaminated that he is rendered effectively incompetent to testify.” Smokers “being extremely suggestible, graft onto their memories fantasies.” They become so deranged they “cannot differentiate between a true recollection and a fantasy.” Smoking “is tantamount to the destruction or fabrication of evidence.” Such data is obtained by juxtaposing Gonzales, supra, at 310, with the medical data on smoker mental disorders, and with the symptoms as paraded by local [TACOM] and MSPB offenders. People such as Ronald Wertheim, Robert Taylor, Victor Russell, etc., clearly lack substantial capacity to “differentiate between . . . fantasy” and reality. They “cannot differentiate.” They are “extremely suggestible.” Their issuances are “so contaminated” with fantasy that they are “effectively incompetent” as evidence of actual MSPB issuances, once rational people are assigned to decide my first appeal (31 March 1980). Until rational people are assigned, MSPB “action was never commenced” as a matter of law, Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 883 (1980).
Page 64 of 70 pages. Affiant's initials _________

The testimony of smokers (including but not limited to Dr. F. Holt, E. Hoovers R. Shirock, C. Averhart, etc.) is inadmissible. See pertinent legal principles on confabulation, suggestibility, etc., as noted in cases such as People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981), and State v. Mack, 292 N.W. 2d 764 (1980). “Dr.” [Francis J.] Holt is so out of touch with reality that he lacks substantial capacity to distinguish between relying on medical data, and overruling it. His behavior is foreseeable from a person who has become deranged from smoking. Mr. [Edward E.] Hoover lacks substantial capacity to recognize reality, such as proper leave status in a hazard, the presence of other position classifiers, the lack of specificity, the lack of a nexus with ''employment'' (including duties and “environment”), the termination he imposed in 1980, etc. Ms. Averhart does not even display the capacity to understand the November 1981 letter she issued. Mr. Shirock is so out of touch with reality that he lacks substantial capacity to even recognize safety rules, and the fact that tobacco smoke is inherently dangerous. These tragic individuals are evidence that “Anyone who smokes is nuts,” data from Ellen Goodman, in Newsday, 9 June 1981, p. 47.
Smoking “causes insanity,” as has been noted by persons such as Dr. Samuel Solly (1857), and Dr. Matthew Woods (1899). Cf. the 1980 DSM-III. The fact that people become “deranged” from smoking is well-established. Indeed, that fact has been known longer than has, for example, the value of penicillin.
The testimony of smokers is inadmissible “because” no “foundation” has “been established concerning the scientific acceptance of the effect of” smoking, including but not limited to effects produced such as insanity, alcoholism, brain damage, hemorrhages in the brain, etc., higher ideation from Gonzales, supra, at 308-9, n. 1. In fact, since smoking causes insanity and organic mental disorder, no “scientific acceptance” can be provided; thus, neither the installation [TACOM] nor MSPB has provided any evidence at all to show the reliability of local and MSPB assertions. Moreover, they cannot provide evidence of “scientific acceptance” or reliability, because their claims are not reliable, and are not true. Indeed the claims are knowingly and intentionally false. See the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], claims were made by MSPB of “actions” that “were not even attempted.” Each MSPB claim “made without any intention of performing it is one of the forms of actual fraud,” Langley v. Rodriguez, 122 Cal. 580, 55 P. 406 at 407 (1898). The 20 June 1983 issuance from Victor Russell confirms, nay, reconfirms, the fraud by MSPB.
Smoking causes brain damage and “organic mental disorder” and “has not achieved sufficient scientific acceptance to allow the admission of testimony affected by the process,” Gonzales, at 309. Smoking produces “a condition of altered consciousness marked by heightened suggestibility. . . . Indeed, there is a tendency . . . to relate false memory . . . distinct experiences are jumbled and recalled as one, fantasies, and confabulations . . . This problem is exacerbated significantly by the tendency of” each mentally ill MSPB deciding official “to respond in a way which he believes the” installation [TACOM] “desires.” The pattern of symptoms from MSFB shows “heightened suggestibility,” “false memory,” “jumbled” claims, “fantasies, . . . and confabulations.” For example, Mr. [Ronald P.] Wertheim’s [6 MSPB 626, 7 MSPR 13] symptoms “jumbled” claims of a ban on smoking, cited on one page, with claims that such would be an “undue hardship,” on another page, of the same “decision.”
Page 65 of 70 pages. Affiant's initials _________

The pattern of symptoms of mental disturbance paraded by local [TACOM] and MSPB offenders is inadmissible, except for corrective actions against the persons displaying the symptoms of mental disorder. The inadmissibility applies (as a matter of orientation for time) ab initio, from the very first case, and the bizarre word salad from Martin Baumgaertner. As the installation input from mentally ill smokers was inadmissible ab initio, “the action was never commenced,” Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 883 (1980). Later word salads from persons (locally and at MSPB) displaying their own symptoms of mental disorder, were not able to display the ability to react to such normal stimuli. For example, see the symptoms of mental disorder paraded on 20 June 1983 by Victor Russell. His impairment for time, for example, is so severe that he cited different reasons for the adverse action, than the installation used in March 1980: that fact confirms that the installation behavior is void ab initio.
The word salads, confabulations, ravings, delusions. falsehoods, etc., that have been paraded by local [TACOM] and MSPB offenders are inadmissible. The insane behavior displayed by local and MSPB offenders is revealing on the health of the makers of such assertions; such word salads provide no data at all on the proper status of a person when there is a hazard. The severity of the mental derangement displayed by local and MSPB offenders is such that they do not respond to and are not motivated by normal stimuli, such as the fact that the proper status is excused absence, especially when a hazard “cannot” be corrected, when correction is “unreasonable,” or when “authority” is lacking, e.g., inclement weather, broken water mains, building collapse, etc., and other situations with which federal employees (including me) are familiar.
Michigan follows well-established principles in its analysis that input (testimony, issuances such as “decisions” which are in reality the insane delusions of brain-damaged, drunk, or otherwise deviant MSPB offenders, and other “evidence”) from persons who confabulate or are otherwise unreliable for truth, is inadmissible. MSPB has repeatedly demonstrated that its “issuances” are unreliable, and reflect the symptoms of mental disorder of their issuers. See the bizarre issuances, for example, from Ronald Wertheim [6 MSPB 626; 7 MSPR 13, rev and rem via Docket 03.81.0087, 83 FEOR 3046], Robert Taylor [16 MSPB 88], etc., etc. Michigan guidance is found in cases such as People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (1980); People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); and People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981), affirmed 415 Mich. 615, 329 N.W.2d 743 (1982).
The reason that the the testimony of smokers is inappropriate arises from the inherently dangerous nature of smoker behavior, especially from the “organic mental disorder” effects. Brain damage from smoking, whether or not combined with alcoholism and/or other consciousness-altering behaviors, produces problems, indeed (as the record shows here, and. as EEOC confirmed 8 April 1983), “substantial problems with confabulation, fantasy, and distortion,” Gonzales, supra, 310 N.W.2d, at 313. The effects of brain damage include fixating claims “into a permanent pattern,” “unshakeable . . . immune to all cross-examination. . . . prone to ‘freeze’ if it is compatible with the subject's prior prejudices, beliefs, or desires,” Gonzales, at 312. Such data provides insight on the symptoms of mental derangement displayed by MSPB officials, even after EEOC on 8 April 1983 [via Docket 03.81.0087, 83 FEOR 3046] called their errors of fact to their attention. Even then MSPB did not retract; see Robert Taylor's pattern of symptoms [16 MSPB 88] he has paraded.
Ed. Note: This type mental disorder sysmptom is also evident in the subsequent confabulation, hallucination, delusion, by Messrs. Jones, Ryan, and Celebrezze, that the employee after 24 Oct. 1984 and before Sep. 1985 "then filed an application for disability retirement." The real truth is that the agency, TACOM, had applied, that OPM had rejected its application, and that the employee had both solicited and then supported OPM's decision, and still supports it decades later, in 2010. The three federal judges clearly falsified, and they may have an insanity defense for their having done so.

Page 66 of 70 pages. Affiant's initials _________

On 20 June 1983, Mr. Victor Russell [MSPB, Chicago] provided his symptoms for examination. His symptoms include fragmentation, impoverished ideation, suggestibility, etc. For example, note his bizarre assertions on the subject of “authority” to suppress the hazard, a hazard repeatedly noted in the midst of symptoms opposed to suppressing the hazard. Delusions of grandeur in overruling rules and laws, as well as the 25 January 1980 USACARA Report, are evident in Mr. Russell's symptoms. It is not his place to redecide my grievance which resulted in the USACARA analysis; see Spann v. McKenna, 615 F.2d 137 (1989), as based on the Army Regulation involved, once a grievance report is issued and decided. Moreover. the Report “should have been given due regard by” Mr. Russell, words from In Re United Corp., 249 F.2d 168 (1957).
Mr. Russell's fragmentation and suggestibility are evident from his reliance on the delusions and confabulations of Dr. Holt, who had not even displayed any awareness of the rules, the Report, or even the right to reasonable use of official time for case processing. (T. 79 and 115). Dr. Holt has “paranoid delusions” (T. 52). As Dr. Holt has a result of his own “paranoid delusions,” and Col. Benacquista's extortion directed against me, he overruled the medical data on my ability to work, which has resulted in the multiple insane delusions elapsing that the issue is “whether the appellant is a handicapped person for whom a reasonable accommodation can be made,” symptoms of Robert Taylor, 8 August 1983 [16 MSPB 88], p. 3. The “paranoid delusions” of Dr. Holt have thus surfaced the fragmentation of Mr. Taylor.
Mr. Russell's symptoms about “authority” reflect his suggestibility. He is disconnected from reality, so his assertions are nonsensical ravings. USACARA has already confirmed the full “authority” to ban smoking, even if it had been “permitted” properly initially, which it was not. Smokers did not show that they would not endanger people. In mental disorder such as Mr. Russell displays, the odd fixations serve to distract attention off the real issues. Such misconduct is foreseeable since “actions resulting from mental discase are often purposeful, intentional, and ingeniously planned,” Mich. Law Rev., Vol. 79(4), March 1981, p. 754.
Suggestibility is evident in Mr. Russell's odd views on “authority.” His symptoms reverse reality and twist it nonsensically. The employer is responsible even though the victim (such as me) does not foresee such bizarre symptoms in a deciding official. McAfee v. Travis Gas Corp. [137 Tex. 314], 153 S.W.2d 442 (1931). The issue on “authority” is that the government “is powerless to circumvent” safety “by adopting less than the most protective feasible standard.” 617 F.2d., at 663,” Am. Textile. Mfrs. Inst. v. Donovan, 452 U.S. 490, 69 L.Ed.2d 185 at 199 (1981). There is no “authority” to “permit” hazards. The odd denial of authority to suppress hazards reflects disconnection from reality, as well as suggestibility, and delusions of grandeur. OSHA “is remedial and preventative in nature,” REA Express, Inc. v. Brennan, 495 F.2d 822 (1974).
AR 1-8 and 32 C.F.R. § 203 are also remedial and preventive in nature. “A statute which is remedial in nature should be liberally construed,” Rutherford v. Am. Bank of Commerce, 565 F.2d 1162 at 1165 (1977). USACARA already did that; however, in mental illness, efforts of deciding officials to re-decide (mis-decide) matters are foreseeable, and evident. Considering Spann, supra, it should not be necessary for me to have to defend and re-defend the USACARA Report; yet that is what I must do considering the delusions of grandeur involved in the brazen disregard of what USACARA has already noted.
Page 67 of 70 pages. Affiant's initials _________

The odd MSPB behavior pattern from 1980 - 1983 culminating in the 17 March 1983 issuance [13 MSPB 252; 14 MSPR 636] “is expressed with great sincerity,” words from the book, Understanding and Helping the Schizophrenic, 1979, by Dr. Silvano Arieti, p. 5. “It is important . . . to keep in mind that when a statement or a belief that seems absurd to us is expressed with great sincerity and even defended by the patient, it is not done . . . simply because the patient wants to be irrational or difficult.” The bizarre MSPB behavior pattern includes insistence that actions were taken which in fact/reality “were not even attempted,” words from the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], p. 5.
When the irrational MSPB behavior was called to its attention, MSPB had “even defended” its odd behavior. One of the bizarre MSPB remarks that purportedly “defended” the weird behavior was the odd 17 March 1983 reference to “a presumption of honesty and integrity.” Claims such as that disregard reality such as that there had been no hearing, the “presumption” does not apply to criminal offenses, the “presumption” does not shelter repeated refusal of correction, etc. Citing such assumption without a hearing parades delusions of grandeur, i.e., ability as a mind reader of what the makers of the outrageously false assertions were “thinking.”
“A schizophrenic . . . may become confused if asked to follow a series of instructions,” words from K. Bernheim and R. Lewine, in their 1979 book, Schizophrenia: Symptoms, Causes, Treatments, 1979. The cited “presumption” is at the end process after “a series of” determinations and events. The 17 March 1983 claim disregarded the prior aspects, before such conclusion could even be considered for issuance in a decision. One of the prior, prerequisite aspects is a determination on the mental health of the makers of the odd, disconnected, contradictory, false and otherwise deviant claims that had emanated from MSPB. The evidence of record showed multiple symptoms paraded by MSPB offenders. The evidence is consistent with data on mental illness, alcoholism, depravity, and other deviance. The 17 March 1983 claim about “a presumption of honesty and integrity” is clearly premature. It is premature in the extreme, which prematurity is consistent with data on disorientation for time. [See, e.g., data TACOM’s non-compliance with the requirements for a 30 days advance notice of charges before ousting an employee.]
Moreover, even if the claim/“presumption” were valid, which it is not, such fact would simply show consistency with medical data on “great sincerity” as discussed above. In such situations, the offender foreseeably lacks the mental capacity to have other than “great sincerity.” Moreover, there is also data that “actions resulting from mental disease are often purposeful, intentional, and ingeniously planned,” data from Mich. Law Rev., Vol. 79(4), p. 754, March 1981. In either case, the person is not acting “to conform his conduct to the requirements of the law” and is not displaying “substantial capacity to appreciate the wrongfulness of his conduct,” words from People v. Matulonis, 115 Mich. App. 263, 320 N.W.2d 238 (1982).
In mental disease, a pattern of weird behavior is foreseeable. The record shows such, emanating from MSPB in my case. A similar, recent, like disregard of reality is evident and was overruled in Horne v. M.S.P.B. [221 US App DC 381], 684 F.2d 155 (1982). A pattern is clear.
Page 68 of 70 pages. Affiant's initials _________

In re King [114 Ill App 3d 346, 70 Ill. Dec. 9], 448 N.E.2d 887 (1983), provides insight on insanity. When juxtaposed with Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979), concerning “a mentally ill and dangerous” smoker and the medical evidence on mental illness among smokers as “obviously widespread” [DSM-III, p. 178], it is clear that controlling smokers is both “reasonable” and “necessary,” and the “authority” exists to do so [see, e.g, AR 600-20.2-1, 32 CFR § 203, AR 1-8, 29 CFR § 1910.1000, 29 USC §§ 651-678, National Rlty. & C. Co, Inc v Occ. Safety & Health Rev Comm., 160 US App DC 133, 140; 489 F2d 1257, 1264 n 27 (1973), etc.]. Controlling smokers has an added benefit, of reducing alcoholism, considering the “well-established association between smoking and drinking,” noted by Dr. Joseph Stokes III, in The New Engl. J. of Med., Vol. 308(7), p. 393, 17 February 1983. Cases on hospitalized alcoholics provide insight based on the “clinical impression that almost all hospitalized alcoholics are heavy smokers,” cited by Dr. R. J. Walton [“Smoking and Alcoholism: A Brief Report“], in the Am. J. of Psychiatry, Vol. 128(11), pp. 1455-6, May 1972. Dr. Walton was a supervisor at a “U.S. Army Health Clinic,” and thus provides “experience.”
King “was committed.” He “had a history of alcohol abuse.” “'Dr. Gerson Kaplan . . . examined King . . . His diagnosis was that King had an 'anti-social personality disorder with a history of alcoholism, psychosis. and brain damage.’ . . . My diagnosis is anti-social personality disorder. . . . the defendant is dangerous to others. . . . 'anti-social personality disorder, is one of the psychiatric diagnoses . . . listed in all text books on psychiatry. So from that viewpoint it is a mental illness,’” pp. 888-9.
Smoking is “an independent illness,” noted in the Mich. Law Rev., Vol. 81(1), pp. 237-258 at 241, November 1982. Symptoms at the early stages are evident after only “at least several weeks,” as cited in the DSM-III, p. 159. With longer use (the situation with the smokers who have produced the situation at bar), smoking has long been recognized “as one of the causes of insanity,” such that smokers “become deranged from smoking tobacco,” noted by Dr. Samuel Sally, in The Lancet, Vol. 1 for 1857, p. 176, 14 February 1857.
The record shows the danger to nonsmokers in general and to me; AR 1-8 is based on the common danger which smokers pose. Under EEO criteria, for me to prevail, I need only show “Comparison with a single employee,” Clark Oil & Refining Corp. v. Golden [114 Ill App 3d 300; 70 Ill Dec 80], 448 N.E.2d 958 at 964 (1983). and cases cited therein. Clearly, I have far more than met any “burden of proof” whereas the installation [TACOM] has not shown the various elements necessary for it to even initiate the case, e.g., has not even begun to show a nexus with “employment,” etc. The record shows that smokers are both mentally ill and dangerous. Indeed, it shows that smoker views are not even admissible.
The record shows that there is no dispute on the matter of smoker mental disorder. Indeed, there can be no dispute, as a matter of fact, since smoking as a cause of insanity is well-established, as has been known far longer than, for example, penicillin. As a matter of law, the issue of smoker mental disorder is also beyond dispute, as untimely, and for other reasons. Considering the danger admitted by the MSPB issuance of 20 June 1983 (“proof positive that” smokers are “in fact dangerous”), the duty to enforce AR 1-8 criteria against the danger “must outweigh” views “of the individual” smoker, higher ideation from King, supra, at 890, citing Lublin v. Central Islip Psychiatric Center [43 N.Y.2d 341, 401 N.Y.S.2d 466], 372 N.E.2d 307 (1977). It is up to the smoker “to show that he no longer constitutes a danger to himself or others.”
Page 69 of 70 pages. Affiant's initials _________

The claims and issuances from local and MSPB offenders are inadmissible. They are tainted by the effects of smoking, a behavior that results in organic mental disorder. See cases such as People v. Gonzales, 108 Mich.App. 145, 310 N.W.2d 306 (1981) [aff 'd, 415 Mich. 615, 329 N.W. 2d 743 (1982)]. There is no basis “to allow the admission of testimony affected by the process,” p. 309. There is no basis “to allow the admission of” the assertions and gruntings of “Dr.” [Francis J.] Holt issued in March 1980, the materials from Mr. [Edward E.] Hoover in March and April 1980, etc. As the evidence provided by the installation [TACOM] is inadmissible, the case is void ab initio, i.e., “the action was never commenced,'' Siemering v. Siemering [95 Wis 2d 111, 115], 288 N.W.2d 881 at 833 (1980).
The case “was never commenced,” as “an insufficient foundation was established to allow admissibility,” Gonzales, supra, at 309, n. 3. “Dr.” Holt, Mr. Hoover, and other smokers do not “qualify as . . . disinterested and impartial.” Their personal behavior is at issue. They have demonstrated by their malice that they will resort to intentional misconduct in an effort to continue their behavior, which is a mental disorder. Smoking is a disease, a mental disease, not “a science,” and not even “an ‘art.’”
Insane, drunk, or otherwise depraved or deviant MSPB deciding officials would foreseeably sustain an action that “was never commenced,” even though the victim of such misconduct would not foresee such misconduct, cf. McAfee v. Travis Gas Corp. [137 Tex. 314], 153 S.W.2d 442 (1931). Ii is evident that the installation [TACOM] is taking advantage of agency “experience” on smoker mental disorder and alcoholism, etc., in its dealings with MSPB offenders. Deciding officials who are unresponsive to normal stimuli would foreseeably sustain an action that “was never commenced.” Deciding officials would foreseeably “consolidate” such non-cases, i.e., have them “jumbled” together, as Mr. Robert Taylor has done, on 8 August 1983. See other “consolidations” which have “jumbled” cases together, i.e., Mr. [Ronald P.] Wertheim's behavior 18 June 1981 [6 MSPB 626; 7 MSPR 13, rev and rem via Docket 03.81.0087, 83 FEOR 3046], Mr. [Victor] Russell's behavior 20 June 1983, etc. MSPB “clarity of thought” is lost when matters are “jumbled” / “consolidated.” When cases are “jumbled” together, “there is a tendency . . . to relate false” claims, to refuse retractions, and to relate “fantasies, and confabulations,” Gonzales, supra, at 309. Mentally ill deciding officials, of course, would foreseeably not want to issue corrections––due to their malice. “This problem is exacerbated significantly by the tendency of” MSPB officials “to respond in a way which” they believe the installation “desires.”
MSPB offenders display suggestibility. Such fact is in marked contrast to data in Harding v. State [5 Md.App. 230], 246 A.2d 302 (1968) [cert. denied 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969)], cited in Gonzales, supra, at 311, wherein no “improper suggestions” were noted. Here, of course, the installation [TACOM] engaged in numerous ex parte communications with MSPB officials, and provided significant false data on actions supposedly taken, but which the written “record would indicate . . . were not even attempted,” as noted by EEOC [Docket 03.81.0087, 83 FEOR 3046], 8 April 1983, p. 5. Telephonic ex parte communications between local and MSPB offenders are particularly improper, and indeed, are malicious, as denying my right to specificity and to reply, even more grotesquely than did the written ex parte communications. MSPB suggestibility (including suggestibility to false verbal assertions) is clear. Hence MSPB decisions are inadmissible, just as the local input is likewise inadmissible.
Page 70 of 70 pages. Affiant's initials _________

Motions	2 - 5
Introduction to the Inadmissibility of Local/MSPB Input, so that delay to "await the outome of the" alleged "MSPB cases" is improper	6
Data on "conditions precedent" and "subsequent," the disregard of which corroborates that MSPB offenders lack the mental ca- pacity to be "considering" any "cases," hence, no delay is appropriate	7 - 15
Data on Local and MSPB Falsification Behavior	16 - 21
Their Disregard of Rules to "Disrupt the Status Quo"	22
Their Disregard of Principles of Discrimination (as distinct from "accommodation") of other EEO Cases	23 - 36
MSPB Fixation on the "hoops" of "accommodation," data which also shows MSPB mental lackings to be "considering" any "cases," thus, there is no "command of law" to "await the outcome"	37 - 38
MSPB Disregard of/Unresponsiveness to Normal Stimuli: Safety	39 - 40
MSPB Symptoms of Unresponsiveness to Normal Stimuli such as on "Job Requirements," Even When MSPB employees allude to the Concept, Which Unresponsiveness Emphasizes the Severity of their Mental Problems as Displayed	41 - 44
Smoking "causes insanity," hence Dr. Holt's misconduct is "foreseeable" as a matter of law (re malpractice, negligence, and/or other misconduct)	45 - 46
Smoker Behavior as Foreseeable: Suicide, Alcoholism, etc.	47 - 48
Negligence in Selection/Retention, such that both employers (the installation and MSPB) are liable for their employees' misconduct as evident in the alleged "cases" and here, etc.	49
Denial of Due Process; Refusal to Go by the authorized "personal determination"; and lack of "compelling reasons"	50 - 53
MSPB Disregard of What was "articulated"	54 -55
MSPB fragmentation and like symptoms	56-58
Due to MSPB symptoms, including the displayed confabulations, MSPB behavior is personal, not official, and inadmissible in any event, based on well-established precedents on excluding confabulations	59 - 67
Conclusion	68 - 70
Enclosures

Assertions of the Confabulator		Reality
“repeated stabbings”		“only a single deep cut”
“black Yamaha”		“maroon Triumph”
“at the Embers . . . ordered pizza”		“Embers restaurants do not serve pizza”
“‘Dave’ as being ‘around’ 5'1" . . . a tattoo on his left arm”		“David Mack is 5' 8" and has no tattoos on either arm.”

Assertions of MSPB Confabulators		Reality
repeated claims of “improved” conditions		"not even attempted”
“health standards”		“not . . . any OSHA standard . . . to cover tobacco smoke”
“prohibited smoking in the entire Civilian Personnel Division”		“not even attempted”
the ''undue hardship" claims		"not substantiated by the agency”; claims were sua sponte from MSPB, i.e., confabulated, as “The agency does not argue” it.
eliminating endangerment under AR 1-8 is “unreasonable”; AR 1-8 "doesn't make sense”		the standard is what is "necessary”
Dr. Holt “relied on” medical data.		Dr. Holt overruled the evidence.