|Brief to OSC, 30 March 1982, in Continued Effort to Secure Notification of Specificity and of Rights to Review of the TACOM Decision to Terminate, Retaliating Against Pletten's Whistleblowing.
See also other Briefs in the series, e.g.,
21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was obstructing.
The Office of Special Counsel (OSC) forum is notoriously both hostile and under perverted leadership. See, e.g., Julia Davis, "Office of Special Counsel (OSC) - The Dark Legacy" (The Examiner, 23 July 2010). So appeal to it was to no avail.
More briefs in the series of efforts to obtain review on merits to begin will be posted as scanned. The volume is enormous, takes some time.
UNITED STATES OF AMERICA
Office of Special Counsel
MSPB and TACOM disrespect for AR 1-8 and the 25 Jan 80 Grievance Report is, of course, obvious. One disdainful remark against the rules is at p. 4, footnote 4, of the 18 June 1981 bill of attainder. What the Grievance Report uphold, MSPB snubbed. At 12, the Grievance Report rightly noted the decision authority of a "personal determination." MSPB says I merely "claimed." Perhaps MSPB officials are unaware of American legal principles. People make "personal determinations" on who to vote for; such decisions are final and binding and not subject to governmental challenge, disagreement, or interference. The government is compelled to honor such decisions! it has "no choice." People engage in freedom of speech; people engage in freedom of the press. It is deliberate, wanton "overbearing" behavior to trivialise a right as merely what the citizen "claimed." Such remarks are intentionally contemptuous.
Relative to voting, speech, the press, discomfort, unreasonable annoyance, etc.—in America—the way the government is informed is by verbal and/or written notice from the citizen. Discomfort and unreasonable annoyance involve "a personal determination to be made by that individual." That is how violation of that aspect of AR 1-8 is brought to management attention—especially when mentally disordered officials refuse to do studies. The violation is occurring before the report is made to management. Once the report is made, it is management's duty to halt the violation. This is what TACOM and MSPB refuse to do; thus, they fake having done so,
although in a slipshod way, so the falsity of their pretenses is made clear on
review. "Once the conditions . . . are met, the duty . . . is . . . mandatory,"
Matter of Knust, S.D., 288 NW2d 776, at 778 (1980).
An intellectually honest footnote 4 wuld have observed the fact of the non-resolution of the endangerment, discomfort, and unreasonable annoyance, without the use of knowingly offensive word "claimed." The fact of resolution is not apparent from the record; the record shows that endangement, discomfort, and unreasonable annoyance caused by smokers continued. Resolution will be apparent only when I report a halt to such prohibited behavior. Management makes clear the problem is installation-wide; it is not something merely "claimed" by me considering the input however distorted from persons such as Messrs. Holt and Shirock. See p. 22 of ny 9 May 1980 letter to Mr. Baumgaertner; see the information on tihe TACOM refusal to allow me to "come on-post to assess the situation by my 'personal determination.'" Do TACOM and MSPB realise that the previous notices of my "personal determination" have not been honored? that corrective action still has not been begun? Of course.
It is not just MSPB that has ridiculed the Grievance Report and the strong AR 1-8 guidance. The pattern began locally. When officials disagree with rules they are responsible to enforce, the fact becomes evident. Even the tone of voice and facial expression is affected. The hearing will not limit itself to just TACOM officials; the responsible MSPB officials will also be displayed so their attitude will be evident. The rule entitling appellants to a hearing is clear. MSPB nevertheless refused me a hearing; MSPB officials do not want their anti-rule views explicitly revealed. Hearings are the norm in America. The lawbooks are replete with references. A hearing would show multiple violations, and devastate the very initial basis of the TACOM pretenses, i.e., Dr. Holt's March 1980 assertions made contrary to the input from the examining physicians and contrary to the rules and Grievance Report. Striking at the basis is a right even criminals have, Dunaway v. State of New York, 442 US 200 (1979). Here, I am the victim of crimes, many crimes, assault and battery, falsification, etc. as repeatedly indicated. Courts are impatient with victims being mistreated. The government should be setting an example of concern for victims'
rights. Yet this case involves the government as the abuser. This case involves government officials using their jobs for their personal reasons against me.
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Tobacco as a factor in mental illness has been recognized for some time. Dr. [Matthew] Woods in 1899 called attention to the fact that smoking “causes insanity.” The ICD-9-CM and the DSM-III  continue the recognition of smoking as related to mental illness. Dr. Tennant  and others have noted the link with alcoholism, another drug related behavior disturbance harmful to self and others. Dr. Kellog  cited [100% correlation] data on smoker dementia praecox (schizophrenia). Data on schizophrenia [thus] provides insight into the smoker behavior directed against nonsmokers such as me.
Insight on schizophrenia is provided in the book, Introduction to Psychology 3rd edition [New York: Harcourt, Brace & World, 1962], by Ernest R. Hilgard. At 525, the book states that “Schizophrenic reactions, by far the most common disorders among hospitalized mental patients, are so named because they represent a lack of harmony or split between aspects of personality functioning; (schizo derives from a Greek root meaning 'split or divided').” Such is “common” just as smoking has become common. The book continues, “The split is particularly noticeable between emotion and conduct . . . . Very often the patient withdraws from reality into a world of his own. The patient may have hallucinations . . . The disorder may manifest itself as early as childhood or late in life, though the most common time of incidence is in late adolescence and early adult life.“ Smokers retreat from the reality that smoking is harmful. They refuse to consider that the harm is both physical and mental. Their judgement is so severely impaired that they do not even recognize the impairment [anosognosia]. It thus is no surprise that they retaliate so savagely against me for citing the facts about their behavior. The “time of incidence” is also insightful—the same timeframe as smoking begins.
At 525, the book provides other illuminating data. “Paranoid reactions are characterized by persistent systematized delusions. Delusions differ from hallucinations in that they are false beliefs rather than false sense perceptions. The paranoid person may react entirely normally except when his delusions are touched upon . . . . Delusions often take the form of either delusions of grandeur (the patient believes he is Napoleon) or delusions of persecution (the patient has suffered at the hands of his enemies). Paranoid symptoms are common in some types of schizophrenia . . . The delusions of grandeur are elaborate rationalizations, and the delusions of persecution are clearly projections.”
The data on paranoid reactions is most insightful. The delusions are of a continuing thing, even for years, since they are “systematized.“ TACOM [smoker management] employees [e.g., Edward E. Hoover, John J. Benacquista, Francis J. Holt, Emily S. Bacon] thus insist I am unfit for duty in advance for years. Their paranoia arises from their obvious and stated belief that stopping endangerment and discomfort violates smokers' presumed “rights,” even though endangering and discomforting others is expressly disallowed by AR 1-8. Smoker delusions of grandeur involve their view that they can overrule grievance reports, laws, regulations, examining doctors, and everybody who disagrees with them. In a disturbed “world of his own,” each deciding smoker in a “systematized” way displays his own particular delusion or hallucination as his “world of his own” needs. Managers have delusions of grandeur [or paranoia] that they can pretend they have no authority to resolve the matter. Non-doctors [e.g., Hoover, Benacquista, MSPB and court adjudicators, etc.] have delusions of grandeur that they can disregard the examining physicians.
Delusions of persecution are evident when smokers insist that halting the endangerment or discomfort is an “undue hardship” or somehow “cannot” be done. Such claims “are elaborate rationalizations” or “projections” as the circumstances and a hearing can show. Since such claims are from a “world of his own,” clues to the disorganized thinking process are evident in the inconsistencies, double standards, refusals to consider evidence, actions contrary to evidence, non-responsive to input, disregrard of rules, etc. Placing claims in both the accomplished and “undue hardship” categories are other clues.
according to p 2 of 9
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Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”
Dr. Tussing indicates that “The second noticeable characteristic of the behavior of schizophrenics is a certain lack of harmony, integration, and coordination between their emotional and rational or intellectual activities.” That fact can provide insight into the [TACOM smoker] use of [falsified, altered, lowered] TLVs vs. AR 1-8 criteria; insistence the environment is safe while claiming it is not safe enough to let me return; placing data in both the completed and “undue hardship” categories simultaneously; etc. Dr. Tussing notes that “The third symptom that seems to characterize all schizophrenic patients is a gradual mental deterioration.” That [psychiatric fact] helps show why the reprisal pattern has intensified. That [psychiatric fact] helps show why TACOM and MSPB assertions become more and more strange and farther and farther from reality.
Dr. Tussing notes that “Hallucinations, particularly of hearing and vision, are fairly common during the early stages . . . disorganized experience . . . clarity of thought is lost in the confusion. His explanations for his behavior are fragmentary and have a dreamlike quality. Another aspect of schizophrenic behavior that is frequently mentioned is its apparent inappropriateness.” This [psychiatric fact] sheds insight into the varied [TACOM, MSPB, and court] explanations given from time to time as to the basis for not letting me work; inconsistency between thoughts in decision correspondence as though the author could not recall one idea to the next; delusions that studies under AR 1-8 criteria have occurred; etc. P. 357 continues “. . . schizophrenia is generally broken down in subgroups: simple, hebephrenic, catatonic, and paranoid. Any two or more of these may occur at the same time or successively in the same person. Such combinations are generally referred to as dementia praecox mixed. . . .” The change in assertions from time to time may be the product of such deteriorations or variations.
At 357, “Simple cases are marked by their apparent and long-lasting deterioration and scarcity of acute psychotic symptoms. Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.” The adverse effects of smoking on intelligence has long been noted. Smoker incapacity to comprehend that a smoky work environment can cause a development or worsening of health is obvions. Incapacity to comprehend that pre-17 Mar 80 events could lead to the post-17 Mar 80 events is also clear. MSPB displays clear unwillingness to consider such cause and effect aspects. Smokers rarely are capable of stopping smoking and thus normally remain hooked for life—“slow-motion suicide.” The “seem feeble-minded rather than psychotic” insight by Dr. Tussing is most illuminating. When a decision is merely arbitrary and capricious as not based upon reasons, such a thing can be committed by honest (but sane) error. Cf. McNutt v. Hills, 426 F. Supp. 990 ([D DC] 1977). A one-time error can happen. But here, the pattern for years and years raises deeper questions, Why are TACOM and MSPB assertions the way they are?
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The DSM-III and ICD-9 cite tobacco dependence. The 1980 Transactions of the Society of Actuaries shows smoker deaths from mental illness at a rate higher than that of nonsmokers. Smoking “causes insanity” as Dr. Woods noted in 1899. Dr. Kelloggs's book on Tobaccoism or How Tobacco Kills cites smoker dementia praecox (schizophrenia). Insight on schizophrenia is provided by authors Allen D. Calvin, et al., in their 1961 book Psychology [(Boston: Allyn & Bacon, 1961)]. At 430, the authors indicate that “The commonest of psychoses, and by all means the state involving the greatest deviation in thinking, contact with reality, emotion, and overt behavior, is schizophrenia.”
The book continues, “In schizophrenia, reality orientation is especially weak; the patient lives in a world of fantasy.” Smokers fantasize that harm will not befall them; i.e., that they are somehow unique. People with delusions thus are clearly projecting uniqueness delusions they have by pretending that I am unique. At 430, the authors continue, “The schizophrenic patient seems to have reacted to a threatening reality by creating for himself a more comfortable make-believe world. The existence of this fantasy world is shown in delusions and hallucinations, both common in schizophrenia.” The “threatening reality” of tobacco-induced “slow-motion suicide” is cited by the many reports of the Surgeon General, the warning on each pack of cigarettes, and by the very existence of AR 1-8. In the fantasy world of schizophrenic delusions, the “more comfortable make-believe world” does not contain such threats. Such facts help shed light on the fact the decision materials from TACOM and MSPB officials do not even allude to such data. MSPB decisions do not even acknowledge the bare existence of AR 1-8. They certainly do not acknowledge the duties AR 1-8 prescribes. The AR 1-8 threat to the “make-believe world” is dismissed summarily [by] with assertions of “undue hardship.” The claim is an obvious “fantasy”; the 25 Jan 80 USACARA Report does not provide the slightest basis for belief that AR 1-8 goals constitute an “undue hardship.”
At 430, the Psychology authors note that “Lack of appropriate emotionality is also present—the patient weeps over trivialities and is unmoved by tragic events.” The lack of proportion is obvious in the TACOM and MSPB behavior. The documents focus on “trivialities” such as supposed requests made, while utterly ignoring the multiple regulatory duties. Trivia is made grossly disproportionate in the smoker fantasy world. At 430, “Thinking may be seriously disturbed, waking-thought processes resemble those in a dream or, it is hypothesized, those of an infant.” Smoking is not allowed to cause even so “subjective” a thing as mere “discomfort.” Yet smokers and decisions insist that AR 1-8 guidance is wrong; they disagree with it, and they demand I be declared unfit for duty in advance. The “threatening reality” of having to obey rules is too terrifying to them. The idea of providing a proper environment is declared an “undue hardship” or “cannot” be done for the sake of their “make-believe world.” At 430, the book notes that “Marked distortions of normal behavior appear in the form of odd stereoyped gestures and in disturbances of speech.” Smoking comprises a series “of odd stereotyped gestures.” The DSM-III notes such “highly overlearned” behavior.
At 430, “The patient seems farthest from normal in hebephrenic schizophrenia. His symptoms include a slow and gradual deterioration of personality. The adult hebephrenic exhibits a great deal of silly behavior . . . Speech deteriorates to the point where it resembles a 'word salad.' Peculiar mannerisms develop, and hallucinations are common.” When decision correspondence contains thoughts strewn together without regard for consistency, the concept of “word salad” sheds insight. Difficulty speaking [aphasia] sheds light on why [TACOM smoker] management refuses to begin the process of reasonable accommodation for me. Uncommunicative smokers are being overaccommodated in their [tobacco-caused brain damage] handicap.
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Army did not write a regulation saying, Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. However, the installation [TACOM] and the MSPB have made clear that they feel that is the meaning of AR 1-8. The guidance that AR 1-8 in fact provides is “unqualified and absolute.” Any number of measures may and must be taken to achieve the criteria. The 25 Jan 80 Grievance Report in my favor by USACARA makes clear that there is no limit. None of the claims by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] on what the installation purportedly has done were true. But suppose all the MSPB claims were true. The test of whether the regulatory goals are met was simply ignored by MSPB. Instead, it used an irrelevant test, “reasonable accommodation.” Even then, it simply invented “undue hardship” ideas. MSPB acted on an empty record.
A proper decision would simply note that endangerment is evident; therefore, the agency action involves non-compliance with its own rules.
A proper decision would simply note that a medically impossible duration is involved; therefore, the action is clearly a suspension, without any of the required advance notice and reply rights.
A proper decision would simply note that the installation [TACOM] has not provided specific facts to support its claims. Re studies––what items, when, by whom, what equipment, what standards, how are they relevant, why did the Examiner 25 Jan 80 disagree, what relevance to AR 1-8, what relevance to FPM Suppl. 752-1 [5 CFR § 752], etc. There are not specifics for the claims. Moreover, considering the inadequacies of TACOM behavior, it is clear that there was not compliance from the [November 1977] time of issuance of AR 1-8 until at least years later, if at all. And considering smoker mental disorders and alcoholism, it is not realistic to think that compliance suddenly began to happen once management decided that getting rid of me would be an easy way out. I ask questions that local officials do not want asked. They do not want a hearing.
Michigan law provides pertinent insight. Michigan courts take note of Prosser, Torts (4th ed.), Section 105, pp. 885-886, summarized as follows:
|“1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact. 2. Knowledge or belief on the part of the defendant that the representation is false—or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’”
The elements of fraudulent misrepresentation go on to provide more data. In Cormack v. Am. Underwriters Corp, 94 Mich. App. 379, 288 N.W.2d 634, the Prosser “definition is supported by Michigan case law. See, Graham v. Myers, 333 Mich. 111, 52 N.W.2d 621 (1952), Michael v. Jones, 333 Mich. 476, 53 N.W.2d 342 (1952) . . . Rose v. Wertheimer, 11 Mich.App. 401, 161 N.W.2d 406 (1968).”
The 18 Jun 81 MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] admits only “some analysis.” Based on that, MSPB did not even bother looking for reprisal, when it should have been obvious to MSPB that only reprisal (personal reasons for smoking) causes the situation. MSPB alleges “reasonable attempts to accommodate” without regard for mandatory regulatory guidance. AR 1-8 does not say “attempt” to achieve the goals. It says—do it. This is the Army we are talking about. “Attempts” to obey rules are not listed. AR 1-8 does not say “attempts” to “take affirmative action,” “Full cooperation,” “be controlled in accordance with,” etc. The word “will” appears quite often in AR 1-8; the word “attempts” is an MSPB invention. MSPB does not just act on an empty record; it defies what evidence it did allow into the record. “Smoking will be permitted only if” goals are met.
MSPB knows better. That is why, on page 4, it did not stop with citing the guidance by the doctor on achieving the regulatory goals against endangerment, etc., but dredged up a stale grievance, closed but not implemented. The doctor stuck to the goals; I had provided motivating data on consequences of prior non-compliance.
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The lack of “a sufficient basis of information to make” representations (scienter) meshes effectively to control TACOM and MSPB misconduct with the U.S. v. Olivares-Vega, 495 F.2d 827 (1974) “full equivalent of knowledge” data. This further meshes with the guidance “where a witness knowingly fabricates details in order to strengthen his credibility as such,” U.S. v Blackmon, 24 F.Supp. 830 (1938), aff'd 108 F.2d 572 (1940). The lack of relevant studies, disregard of the examining physicians, disregard of “personal determinations” and other "The agency does not argue nor does the record support that it ever complied with the recommendations of the Grievance Report guidance, failure to identify and control mentally disordered/alcoholic smokers, violation of basic constitutional rights, disregard of civil service and installation rules, etc., etc., make clear that this is no longer merely a civil case. The full power of governmental control mechanisms are vital to measures against government officials for their methods in handling the case to this point. In my 6 Nov 81 letter to the local FBI, “it is understood that from time to time, management and employees may disagree.” Likewise with MSPB. “But is never permissible for management to simply fabricate things.” Likewise with MSPB.
Many ways are recognized to show a hazard exists. TACOM and MSPB are intentionally limiting the range of methodology to only TLV’s without evidence to do so, and indeed contrary to the evidence. The 25 Jan 80 Grievance Report and the examining doctors have made the facts clear. Dr. Holt has too, in substance. Mr. Shirock is evidently backing off from his claims. What are ways to show a hazard? See 64 Cal. Law Rev. 702 at 715 (1976). Examples include: government-compiled statistics . . . injuries that were redressed by workman’s compensation . . . a safety standard . . . a published study . . . apparent to the ‘ordinary person.’” All of these exist. There are thousands of studies on the matter. There have been compensation cases, as Mr. Grimmett’s 10 Oct 1979 memo makes clear––“at least several employees have filed claims stemming from smoking-related conditions.” The installation [TACOM] legal office on 1 Aug 1979 noted that “no asthmatic should be within 25 feet of a smoker.” AR 1-8 is not protection just for me. AR 1-8 is a standard that prohibits precisely the endangerment that is happening. American Smelting & Refining Co. v. Occ. Safety & Health Rev. Commission, 501 F.2d 504 (1974), provides insight into the concept on what is “apparent.”
Out of control smokers have hurt themselves and others and property as Court records around the nation show. The problem of smoking behavior has been noted for centuries. Dr. William H. Stewart, Surgeon General in 1967, indicated that the health hazard “is flat, scientific fact.” He indicated that "establishing it and demonstrating it is no longer our goa1.” What is the matter with MSPB and TACOM officials? Are they so arrogant they feel everybody is wrong but them?
Management has intentionally singled me out for abuse. MSPB has intentionally refused a hearing to show this fact. In 16 Archives of Environmental Health 443 (March, 1968), ill effects from tobacco smoke are shown to be common. Bad effects occur in both allergic and nonallergic persons. The article “Tobacco and the Nonsmoker” by Frederick Speer notes common complaint such as eye irritation. coughs, headache, and nasal symptoms. The article notes that “the many individuals who develop symptoms from tobacco smoke need the understanding and support of the physician in helping them to avoid its noxious effects.” Note “the many.” In my case, I need government compliance with criminal law. A halt to the multiple falsifications by itself will provide relief.
Please arrange compliance with the criminal law.
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