|Brief to OPM, 27 July 1983, in Continued Opposition to April 1981 Agency Application, Retaliating Against Pletten's Whistleblowing.
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 corruption, secured ex parte, went to the extreme of saying Pletten applied! The record shows he fought continually, and continues to do so, now the year 2001.
For background on his work record, click here.
For background on the unlawful ouster process, see, e.g.,
See also other Briefs, e.g., 21 March 1983, 29 March 1983, 10 Oct 1983, 25 Nov 1983, and 2 Jan 1985; and, e.g., those to EEOC 15 April 1983 through January 2004.
There are so many Briefs, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was and is obstructing.
More in the series will be posted as scanned. The volume is enormous, takes some time.
UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
|JUL 27 1983|
|My Responses and Government "Answers" to OPM Questions||4 - 9
||Introduction to Medical/Public Domain Data on Tobacco||10 - 16
||"what the doctor was saying"—installation confession
|17 - 20
||Compliance with the above data on "what the doctor was saying"
would resolve the matter under AR 1-8 without reaching this
issue (which also shows lack of local specificity)
||Introduction to Smoker Mental Disorders, Impairments, and
|22 - 38
||Data on Radioactivity and Tobacco||39 - 40
||Data on Causes of Smoker Mental Disorders/Brain Damage||41 - 52
||After Insanity/Brain Damage Occurs, Tobacco Produces Physical
Disorders: Gastrointestinal Problems, Emphysema, Tuberculosis,
Heart Trouble, Alcoholism, etc,
|53 - 61
||Smokers are Hazards to Themselves and Others—Insight from
S.F. 171 as Designed by the CSC (now OPM)
|62 - 63
||Smokers foreseeably cause accidents and fires||64 - 70
||Considering smoker brain damage, alcoholism, etc., smokers
foreseably parade bizarre ideas
|71 - 75
||Considering the bizarre nature of smoker ideas, data on pro-
jection, prejudice, and stereotypy provides insight
|76 - 78
||In-depth Overview Analysis of the Legal Implications of Insanity
and Symptoms thereof, as Displayed in the Various Issuances
Which have Given Rise to the Case at Bar
|79 - 94
||Specific Symptoms Provide Insight: Confabulation||95 - 97
||98 - 102
||103 - 104
||105 - 110
||111 - 112
||Smoker Suicide||113 - 114
||My Background Leads Me to Emphasize "Standards" of Various
Types: On Legal Aspects, Psychiatric Aspects, and Criminal Views
|115 - 121
||Smoker Mental Problems Impair/Derange their Ability to Under-
stand that Smoking is Not Part of "Employment," The Critical
Nexus that Points Out Against Whom Adverse Action Lies
|122 - 132
||Data on Benefits of Coming into Compliance with Rules||133 - 136
||Safety Rules Concerning Which Compliance Is a Benefit ||137 - 150
||The Disregard of Safety, and Disregard of Standard/Known
Medical Data is Malpractice by the Installation
|151 - 163
|Page 2 of 453 pages.||Affiant's initials _________|
|Data on Nuisances and Negligence Law Provides Insight||164 - 170
||"Experience" on Smoking, And in the Agency, And the Local
Abuse and Misuse of Such "experience"
|171 - 178
||Based on that "experience," and my Background, I
"articulated" input on compliance (as did USACARA),
and was punished for what was "articulated"
|179 - 186
||Data on the "police power" provides insight, and is foreseeably
referenced herein (foreseeable from the 19 Nov 1976 letter)
|Discharge of a Victim vs. Legal Principles on Not Retreating||196 - 209
||Legal Principles on Criminals Taking The Victim As He Comes"|
—No Support Therein For Adverse Action Against a Victim
|210 - 214
||Data on "Objective Impossibility"—"No Support Therein for
Claims of "hardship," "undue hardship," "cannot," "unreason-
able," lacking "authority," etc. (even if no benefits arose,
and even if costs were more than about de minimis)
|215 - 221
||Smokers, Lying, Falsification, and the Criminal Personality||222 - 233
||Legal Principles on Extortion and Embezzlement—No Support
Therein for the Adverse Action
|234 - 242
||Insight on The Purpose of Rules (Why They Are Issued)||Insight from Legal Principles Against Discrimination, and on
the Fixation on "Accommodation" while Refusing It
|254 - 270
||Constitutional Principles Involved||271 - 278
||Data on "Universal Malice," a Legal Principle Providing No
Support for the Adverse Action
|279 - 300
||Application of Principles of Law on Discrimination and Harm
Directed Against One Person or Group, Which Harms Another,
in the Context of Race, Sex, and Color Discrimination, etc.
|301 - 312
||Principles on Adverse Actions Provide No Support for the Agency
Application/Behavior: Lack of Specificity, Lack of Advance
Notice, Inconsistencies among Agency Witnesses, Installation
Not Complying with the MSPB Claims, "Conduct," etc.
|313 - 334
||Analysis of the Bizarre MSPB Behavior through 18 June 1981||335 - 363
||Further Analysis of MSPB Behavior in Terms of "Standards" |
Such as Law and Psychiatry
|364 - 377
||MSPB Ineptness in the Administrative Context||378 - 393
||MSPB Failure to Apply Jurisdictional Principles of Law||394 - 398
||Insight from Res Judicata and Estoppel Principles of Law||399 - 402
||Prohibited Personnel Practices Summarized||403 - 408
||A "negative defense"||409 - 410
||Under the circumstances, attorney misconduct cases provide insight||411 - 422
||Analysis of Parodi v. MSPB||423 - 424
||MSPB Symptoms/Local Symptoms Not "to be ashamed of"||425 - 430
||Conclusion||431 - 439
||Motions||440 - 453
|Page 3 of 453 pages.||Affiant's initials _________|
||2. Question|| None.
||3. Question|| None.
||4. [Re action taken] retroactively imposed with advance notice not provided, hence no specificity.
||None. “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 (CA 10] 1931). Smoking is not a “selection criterion,” and is not required for “the essentials of the job,” Prewitt v. U.S. Postal Svc., 662 F.2d 292 at 306-308 ([CA 5 1981). As a matter of law, no nexus with “employment” can be shown. Smoking is a disease, not an “employment” matter; note the many cases on smoking in settings other than employment.
SF 171 shows federal policy to protect nonsmokers from smokers–by its question about smoker diseases “which might be a hazard to” nonsmokers, and listing smoker diseases such as “heart disease, a nervous breakdown, epilepsy, tuberculosis, or diabetes.”
|5. Availability of alternatives
such as excused absence pending control/treatment/hospitalization of mentally diseased smokers. ||
Such alternative is clearly available. The installation [TACOM] should have returned me [to duty] as
soon as OPM pointed out the [TACOM] violations. MSPB should have told the installation [TACOM] to halt its violations. It should have implemented the 25 Jan 80 USACARA Report, and AR 1-8 before that. Alternatives much as control of mentally diseased smokers are available; see Rum River Lumber Co. v. State, 282 N.W.2d 882 ([Minn.] 1979). Cf. Spragg v. Campbell [FAA], 466 F. Supp. 658 ([D SD] 1979). On the duty to implement the USACARA Report, see Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980).|
|Page 4 of 453 pages.||Affiant's initials _________|
|Page 10 of 453 pages.||Affiant's initials _________|
“One cigar contains a quantity of nicotine which would prove fatal to two persons if directly injected into the circulation. . . . The literature contains many references to tobacco poisoning where tobacco has been swallowed with suicidal intent, accidental poisonings. . . . Less severe poisonings have been noted by nearly every one upon beginning the use of tobacco, where the peripheral and nauseant actions predominate. Even chronic smokers often experience ill effects and pain from smoking.”William D. McNally provided a review of some of the literature.
||“Death occurred in nearly all of the cases of nicotine poisoning within a few minutes to a few hours, although I find record of one instance in which death did not occur for two days after the drinking of wine in which Spanish snuff had been placed by a practical joker, causing the death of the French poet Santeul.”
||“Fontanelle, Julia: Jour. de Chimie Med., 1836, ii, 652.”
||“In another instance where death did not occur in a few hours, a child, age three, used for an hour an old pipe for blowing soap bubbles. Symptoms of poisoning developed and the child died on the third day.”|| “Pharm. Jour., 1877, p. 377. ”
||“Sonnenschein (quoted by Weidanz) relates the cases of two suicides in which death took place in three and five minutes respectively after swallowing one or two ounces of tobacco.”||“Weidanz: Heilkunde, Berlin., 1907, pp. 333-390.”
||“Reynolds reports a singular case of nicotine poisoning in which tobacco had been accidentally dropped into food warming on the stove. The food was given twice to a baby five months old, the baby became cyanotic, vomited twice, extremities were cold and clammy to the touch, pulse weak and irregular. Death occurred 13½ hours after the first feeding.”||“Reynolds: Jour. Am. Med. Ass'n., 1914, lxii, 1723.”
||“Huseman cites a case seen by Hellwig of two brothers who died after continuous smoking of seventeen and eighteen . . . pipefuls of tobacco.”||“Husemann: Handbuch der Toxicologie, 1862, p. 481.”
||“In another case a man died in one hour after an enema of two drams of tobacco in eight ounces of boiling water.”||“Edinburgh Med. and Surg. Jour., 1813, ix, 159.”|
|Page 13 of 453 pages.||Affiant's initials _________|
|Page 16 of 453 pages.||Affiant's initials _________|
|Ed. Note: “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.” Association for Disabled Americans, Inc v Concorde Gaming Corp, 158 F Supp 2d 1353, 1362 n 5 (SD Fla, 2001).|
|Page 17 of 453 pages.||Affiant's initials _________|
|Page 18 of 453 pages.||Affiant's initials _________|
|Employer "evidence" subjects for coverage||"evidence"
||A.||"business necessity" aspects to be shown||none
||1. "business necessity" for "permitting" smoking||none
||2. "business necessity" for permitting "discomfort"||none
||3. "business necessity" for permitting endangerment
||4. "business necessity" for condoning disregard
||B.||"job related" aspects to be shown||none
||1. "job related" re "employment" as a matter of law||none
||2. "job related" re job description (fact/law)||none
||3. "job related" under AR 1-8||admissions that smoking is "personal"
||C.||impact "on the operation of its program"|
||1. overall size of the agency's program||none
||2. type of agency operation, including the composition
||3. nature and cost of the accommodation||none|
|Page 21 of 453 pages.||Affiant's initials _________|
|Page 22 of 453 pages.||Affiant's initials _________|
|Page 24 of 453 pages.||Affiant's initials _________|
|Page 25 of 453 pages.||Affiant's initials _________|
'Each of us is capable of coping with a large number of stimuli, invading our being through any of the senses. . . . we would be incapable of carrying on any of our daily activities if even one hundredth of all these available stimuli invaded us at once. So the mind must have a filter, which functions without our conscious thought, sorting stimuli and allowing only those which are relevant to the situation in hand to disturb consciousness. What happened to me . . . was a break-down of the filter, a hodgepodge of unrelated stimuli were distracting me . . .'”
|Page 26 of 453 pages.||Affiant's initials _________|
|Page 27 of 453 pages.||Affiant's initials _________|
|Page 32 of 453 pages.||Affiant's initials _________|
|Ed. Note: Such disordered persons went to the extreme of accusing their victim. “Is it not common knowledge that the belief that others are mentally ill rather than oneself is one of the commonest signs of mental illness?" says Karl A. Menninger, M.D., The Crime of Punishment (New York: Viking Press, 1968), p 99.|
|Page 37 of 453 pages.||Affiant's initials _________|
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|Page 64 of 453 pages.||Affiant's initials _________|
|Page 71 of 453 pages.||Affiant's initials _________|
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|Page 74 of 453 pages.||Affiant's initials _________|
|Page 75 of 453 pages.||Affiant's initials _________|
|Page 76 of 453 pages.||Affiant's initials _________|
|Ed. Note: See People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).|
The inflexibility, and the apathy and indifference to reality, shown by local and MSPB personnel is clear. They refuse “examination of evidence bearing on” the situation, such as “examination” to determine that safety and health standards have been disregarded, that the personal standard envisioned by AR 1-8 has not been effected, that there is no job-related standard for claiming that a non-smoker wanting rules enforced should be declared ill for a medically impossible duration, that time limits are ignored, etc., etc. Indeed, even the 18 June 1981 MSPB assertions are ignored, and there is no “examination” or even response to my inquiries on the matter.
|Ed. Note: MSPB brazenly flouts decades of precedents that agencies must obey their own regulations. Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); California Human Dev Corp v Brock, 246 US App DC 65; 762 F2d 1044, 1049 (1985). See also U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (24 July 1974), and Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959).
These precedents show that it is well settled that an agency is bound by the regulations it has promulgated, even though absent such regulations the agency could have exercised its authority to take the same actions on another basis, and that the agency must abide by its regulations as written until it rescinds or amends them.
It is characteristic of the criminally insane that they are unable “to appreciate the wrongfulness of [their] conduct,” and “to conform [their] conduct to the requirements of the law,” says People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).
The pre-reasonable accommodation process has not started; the 25 Jan 80 Grievance Report on the personal standard envisioned by AR 1-8 has not been implemented; local management in “the agency failed to abide by” it [as EEOC said].
|Ed. Note: The accommodation process presumes compliance with other rules, i.e., does not serve as a pale substitute for it, contrary to the TACOM and MSPB position.|
When in reaction [to the non-compliance, as EEOC noted], “appellant filed even more EEO complaints,” “miscalculations” [as EEOC noted] that suggest acalculia resulted [at TACOM], as did “the agency's decision to terminate” me [as cited by EEOC's Perez] in reprisal.
|Page 77 of 453 pages.||Affiant's initials _________|
|Page 78 of 453 pages.||Affiant's initials _________|
|Page 79 of 453 pages.||Affiant's initials _________|
|Page 83 of 453 pages.||Affiant's initials _________|
|Page 90 of 453 pages.||Affiant's initials _________|
“1. Slow, insidious beginning of the illness.
“2. Absence of precipitating factors or easily ascertainable psychological causes.
“3. Blunting of affect and marked schizoid type of personality.
“4. General attitude of defiance toward doctors and nurses.
“5. Attempt to blame others and exonerate oneself. This criterion is not always valid.
“6. Acceptance of one's illness or resignation to being sick. This trait belongs more properly to advanced stages of schizophrenia.”
|Page 91 of 453 pages.||Affiant's initials _________|
|Page 93 of 453 pages.||Affiant's initials _________|
|Page 95 of 453 pages.||Affiant's initials _________|
||The employee is ready, willing, and||There is a hazard.
||able to work.|
|Page 97 of 453 pages.||Affiant's initials _________|
|‘In the normal thinking process, the numerous actual and latent images combine to determine each association. In schizophrenia, however, single images or whole combinations may be rendered ineffective, in an apparently haphazard fashion. Instead, thinking operates with ideas and concepts which have no, or a completely insufficient, connection with the main idea and should therefore be excluded from the thought-process. The result is that thinking becomes confused, bizarre, incorrect, abrupt.’”|
| 'My thoughts get all jumbled up. I start thinking or talking about something but I never get there. Instead, I wander off in the wrong direction and get caught up with all sorts of different things that may be connected with the thing I want to say but in a way I can't explain. . . .
‘My trouble is that I've got too many thoughts. You might think about something, let's say that ashtray and just think, oh! yes, that's for putting my cigarette in, but I would think of a dozen different things connected with it at the same time.’”
|Page 98 of 453 pages.||Affiant's initials _________|
|Ed. Note: Victor Russell's symptom pattern defies decades of case law that agencies MUST comply with their own rules before they can proceed, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).
Note the rule of law on a person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”--People v `, 115 Mich App 263; 320 NW2d 238 (1982).
|Page 99 of 453 pages.||Affiant's initials _________|
|Fragments||The fragments ignore reality (rules and evidence in the record as a whole).
||MSPB repeatedly relies on Dr. Holt's “legal opinions” on the lack of “authority.”
||Dr. Holt is not an “expert” witness on law. Even if he were, his “opinion of the law is both incompetent and irrelevant.” People v. Matulonis, [115 Mich App 263] 320 N.W.2d 238 (1982). Moreover, Dr. Holt's symptoms include disconnection from, and unresponsiveness to “normal stimuli,” such as the 19 June 1979 legal opinion, the 25 Jan 80 USACARA Report, AR 1-8 and 600-20, the AR 385 series, and principles of law such as on safety, malpractice, mental illness, negligence, nuisances, crimes, etc. Also, the USACARA analysis is not only res judicata, it is also the “law of the case.”
||MSPB repeatedly relies on Dr. Holt's insistence that I am not “ready, willing, and
able to work.||Dr. Holt's symptoms of non-responsiveness to “normal stimuli” produced his overruling the medical evidence, which emphasizes my ability to work. Dr. Holt’s symptoms include his odd view that smoking is part of employment (duties, environment, etc.), contrary to law. His delusions of grandeur concerning his own legal expertise confirm that the installation misconduct is void ab initio. He admits that he overruled the medical evidence by his confession of ignorance of the USACARA Report.
||MSPB ignores Dr. Holt's confession of ignorance of the USACARA Report, which ignorance led him to overrule the medical evidence on my ability to work, based on his own view of law.
||Dr. Holt's ignorance of the rules of law is massive. The severity of his symptoms of obliviousness to reality is evident from the fact that the 25 Jan 80 Report has been brought to his attention from the very beginning. His unresponsiveness to “normal stimuli” is clear.
||MSPB ignores the many cases on smoking, the OSHA “general duty,” and other rules, when it limits itself to the “legal opinions” of incompetent witnesses.
||MSPB claims to be relying on AR 1-8, which assertion is, of course, false. But taking MSPB offenders at their word, their disregard of the multiple court precedents on smoking (in this case on smoking) is clearly fragmented and impoverished. Such symptoms are
foreseeable in brain damage, even though a victim does not foresee those symptoms, McAfee v. Travis Gas Corp., [137 Tex 314] 153 S.W.2d 442 (1941).
||MSPB emphasizes the negative. ||MSPB ignores all the things that “can” and “must” be done, and uses multiple falsifications, based on the malice against the laws.
|Page 103 of 453 pages.||Affiant's initials _________|
|Page 104 of 453 pages.||Affiant's initials _________|
|Page 105 of 453 pages.||Affiant's initials _________|
|Page 106 of 453 pages.||Affiant's initials _________|
|Installation Claim:||Lack of Authority||Unreasonable
||USACARA Response:||Full Authority||Whatever is Necessary|
|Page 108 of 453 pages.||Affiant's initials _________|
|Page 109 of 454 pages.||Affiant's initials _________|
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|Page 112 of 454 pages.||Affiant's initials _________|
|Page 113 of 454 pages.||Affiant's initials _________|
|Page 115 of 454 pages.||Affiant's initials _________|
|AR 1-8 Range of Equitable Balance||OSHA Range||5 USC § 7902||Police Power Range
||Unreasonable Discomfort Endangerment
Area not “even recognized”
as EEOC noted 8 Apr 83
[Docket 03.81.0087, 83 FEOR 3046]
|“unqualified and absolute” safety “adjective" to “prevent a likelihood of harm”: “a different balance would be inconsistent”
||“eliminate work hazards and health risks”
||smoking “is so limited by” the multiple restrictions “that a ban” “does not violate” any legal principle, but is indeed in conformity
with the multiple limitations, or any of them|
|“In sum, to accept the” installation's disregard of the criteria, even without reaching the evidence that the installation “failed to abide by” guidance to comply, and to condone a “decision to terminate,” disability retirement,” or any unfavorable status (disregarding excused absence pending compliance “would open a door to complete abrogation of this policy which would be illogical in the extreme.”
In addition, “Workmen are not employed to smoke,” so there are no “job related” “physical criteria” upon which to base any “service deficiency.” When behavior is personal, moreover, adverse action is not allowed. A hazard situation involves excused absence. It is evident that the “decision to terminate” me is defective on so many points, that its being overturned on any basis, obviates any need to reach other bases for overturn. For example, the fraud by the installation in seeking OPM involvement in the misconduct, when the “decision to terminate” was decided a year previous, is an example of misconduct that need not be reached, as such is nothing but simply another aspect of the misconduct overall, albeit warranting reversal on its own.
|Page 116 of 454 pages.||Affiant's initials _________|
|tobacco organic mental disorder||Smoking “causes insanity”—Woods