IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____ No. 89-2301 _____ LEROY J. PLETTEN, Plaintiff-Appellant, -vs- JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants-Appellees. _____ On Appeal From the United States District Court For The Eastern District of Michigan Southern Division _____ PLAINTIFF-APPELLANT'S BRIEF ON APPEAL ORAL ARGUMENT REQUESTED _____ [10 May 1990] LEROY J. PLETTEN Plaintiff-Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case Number:     89-2301 Case Name:     Leroy J. Pletten v, John O, Marsh, Jr., Secretary, Department of the Army: John Doe, and Jane Doe, Jointly and Severally PRO SE APPELLANT'S BRIEF Directions: Answer the following questions about the appeal to the best of your ability. Use additional sheets of paper, if necessary. You need not limit your brief solely to this form, but you should be certain that the document you file contains answers to the questions below. If you are asking for specific relief such as the appointment of counsel, the provision of transcript at government expense, or leave to proceed without prepayment of filing fees, please make that request at the conclusion of the brief. The Court prefers short and direct statements. Within 28 days you should return your completed brief to: The Office of the Clerk United States Court of Appeals, Sixth Circuit 538 U.S. Post Office, & Courthouse Building Cincinnati, Ohio 45202-3988 (1) Did the District Court fail to consider important grounds for relief? Yes     If so, what grounds? The District Court failed to consider important grounds for relief itemized in the enclosed brief, pages 1 - 19, items a - p. (2) Did the District Court incorrectly decide the facts? Yes     If so, what facts? The District Court decided the facts which must be inferred from its not stating them directly. Actual facts are stated in the enclosed brief, pages 20 - 23, items a - k. 6CA-70 11/89 (3) Do you think the District Court applied the wrong law? Yes     If so, what law do you want applied? The District Court applied the wrong law. What it should have applied is itemized in the enclosed brief, pages 24 - 26, items a - z. (4) Do you feel that there are any other reasons why the District Court's judgment was wrong? Yes     If so, what are they? There are other reasons why the District Court's judgment was wrong, itemized in the enclosed brief, pages 26 - 27, items a - j. (5) What action do you want the Court to take in this case? This Court is requested to take the action listed in the the enclosed brief, page 28, items a - o. (6) Do you think that this court should hear oral argument in this case? Yes     If so, why do you think so? A pre-argument conference or oral argument is requested as the underlying allegations relate to the person of Mr. Pletten. Seeing him in person yourself will confirm to you his ability. (7) Please state if you are requesting leave to proceed without prepayment of filing fees, appointment of counsel, or transcript at government expense. The filing fee has been paid. Appointment of counsel is requested. The 9/14/89 transcript has not been received. I certify that a copy of this brief was sent to opposing counsel via U.S. Mail on the 10th day of May, 1990 /s/Leroy J. Pletten Signature (Notary not required) TABLE OF CONTENTS Page   Table of Authorities ii   1. The District Court Failed to Consider Important Grounds for Relief 1   2. The District Court Incorrectly Decided the Facts 20   3. The District Court Applied the Wrong Law 24   4. There Are Other Reasons Why The District Court's Judgment Was Wrong 26   5. Action Wanted by This Court 28   6. This Court Should Hear Oral Argument 29   7. Requests 29 -i- TABLE OF AUTHORITIES A. B. Small Co., 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589 (1925) 12   Alaniz v. Office of Personnel Management, 728 F.2d 1460 (Fed Cir. 1984) 1, 24   American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) 14   Anthony v. Bowen, 270 U.S.App.D.C.246, 848 F.2d 1278 (1988) 8   Army Decision, Pletten v. Army (4/28/88) 1, 4, 20   Barnhart v. United States Treasury Dept., 588 F.Supp. 1432 (D.C.I.T. 1984) 20   Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) 12   1 Burr's Trial 416 (1807) 17   Ceja v. United States, 710 F.2d 812 (Fed.Cir. 1983) 23   Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926) 12   Doe v. Staples, 706 F.2d 985 (6th Cir. 1983) 12   EEOC Decision, Pletten v. Army (2/23/82) 4, 7, 8, 11, 25, 28   EEOC Decision, Pletten v. Army (3/4/83) 1, 7, 8, 11, 24, 25, 28   EEOC Decision, Pletten v. Army (5/17/89) 6   Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) 12, 21   Hall v. U.S. Postal Svc., 857 F.2d 1073 (6th Cir. 1988) 13, 25   Haskins v. Dept. of Army, 808 F.2d 1192 (6th Cir.), cert. den., 484 U.S. 815 (1987) 8   Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 1000, 88 L.Ed. 1250 (1944) 3, 14, 15, 18, 24   Hotch v. United States, 212 F.2d 280 (9th Cir. 1954) 14, 21 -ii- Int. Un. U.A.W. v. General Dynamics Land Sys. Div., 259 U.S.App.D.C. 369, 815 F.2d 1570, cert. den., 484 U.S. 976 (1987) 5   Levine v. C & W Mining Co., Inc. , 610 F.2d 432 (6th Cir. 1979) 4, 24   Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977), cert. denied, 436 U.S. 904 (1978) 26   McNutt v. Hills, 426 F.Supp. 990 (D.D.C. 1977) 20   Merit Systems Protection Board Decisions, Pletten v. Army 27   Mich. Employment Security Com'n. Decisions, Pletten v. Army 26   Mitchell v. State, 60 Ala. 26 (1877) 5   Miyai v. D.O.T., 32 M.S.P.R. 15 (1986) 21   Moore v. Devine, 780 F.2d 1559 (11th Cir. 1986) 8   Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) 12, 17   N.F.F.E. v. Cheney [280 US.App.DC 164], 884 F.2d 603 (C.A.D.C. 1989) [cert den 493 US 1056; 110 S. Ct. 864 (1990)] 16   National Rlty. & C. Co, Inc. v. Occupational S. & H. R. Com'n., 160 U.S.App.D.C. 133, 142, 489 F.2d 1257 (1973) 2, 14   New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 292 S.W.2d 749 (1956) 3   Nestlerode v. U.S., 74 U.S.App. D.C. 276, 122 F.2d 56 (1941) 5   Nye v. Parkway Bank & Trust Co., 114 Ill.App.3d 272 [70 Ill Dec 40], 448 N.E.2d 918 (1983) 10   Office of Personnel Management Letter (1/30/84) 12, 21, 25   Offutt v. U.S., 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954) 17   People v. General Dynamics Land Systems, 175 Mi.App. 701, 438 N.W.2d 359 (1989) 5   People v. Rich, 414 Mich. 961, 326 N.W.2d 824 (1982) 23, 27   Polk v. Yellow Frt. Sys., 801 F.2d 190 (6th Cir. 1986) 26   Ramey v. Block, 738 F.2d 756 (1984) 13 -iii- Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) 15   Sabol v. Snyder, 524 F.2d 1009 (10th Cir. 1975) 13   Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980) 27   State v. Massey, 20 Ala.App. 56, 100 So. 625 (1924) 5   Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) 18, 21, 26   Tenorio v. N. L. R. B., 680 P.2d 598 (9th Cir., 1982) 4   Texas v. Johnson, 491 U.S. [397], 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) 15, 16   United States v. Barrow, 363 F.2d 62 (3rd Cir. 1963) 10   United States v. Blanton, 719 F.2d 815 (6th Cir. 1983) 17   United States v. Russo, 708 F.2d 209 (6th Cir. 1983) 6   USACARA Report (1/25/80) 4, 27, 28   White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. den., 435 U.S. 908 (1978) 8   UNITED STATES CONSTITUTION   First Amendment 15   STATUTES   Administrative Procedure Act [5 USC § 500 et seq. (1946)] 20   5 U.S.C. 552 28   5 U.S.C. 552.(a)(l) 12, 25   5 U.S.C. 557(c)(A) and (B) 11, 25   5 U.S.C. 706(2)(A) 20   5 U.S.C. 2302(b)(6) 13   5 U.S.C. 7513 2, 3, 4, 13, 15, 20, 21, 24, 28   5 U.S.C. 7902(d) 5, 13, 14, 15, 16, 24 -iv- 28 U.S.C. 144 27   28 U.S.C. 455(a) 27   29 U.S.C. 706(7)(B) 9, 15, 17, 24   42 U.S.C. 2000e-16, note 53 19, 26   CODE OF FEDERAL REGULATIONS   29 C.F.R. 1613.211 et seq. 11, 19, 23, 24   29 C.F.R. 1613.213-218 1   29 C.F.R. 1613.213 4, 11   29 C.F.R. 1613.214, 216, 217, 218, 251 11   29 C.F.R. 1613.403 21, 26, 28   29 C.F.R. 1613.702(f) 13   29 C.F.R. 1910.1000.Z 14, 24   32 C.F.R. 203 6, 14, 16, 24   32 C.F.R. 203.3 5, 14   ARMY REGULATIONS   Army Regulation 385-10 8   Army Regulation 385-10.3-5a. and b. 6   Army Regulation 600-63.4-la. 6   Army Regulation 690-700.751.A-4 11, 25   OTHER REGULATIONS   Federal Personnel Manual Supplement 752-1, S4-2 1, 24   TACOM Regulation 600-5, Para. 10 11, 25   COURT RULE   Sixth Circuit Court Rule 18 29 -v- MISCELLANEOUS REFERENCES   Annot., 20 A.L.R.3d 893 (1968) 13, 25   Black's Law Dictionary 1110 (4th ed. 1968) 5   Diagnostic and Statistical Manual of Mental Disorders, 3rd ed., 1980, Rev. 1987. American Psychiatric Association, Washington, D.C. 9   DuPont [Robert], "Teenage drug use: Opportunities for the pediatrician," 102 J. of Pediatrics 1003 (1983) 9   Elferink [Jan G. R, "The Narcotic and Hallucinogenic Use of Tobacco in Pre-Columbian Central America"], 7 Journal of Ethnopharmacology 111 (1983) 10   General Accounting Office ("GAO") Reports 6, 7   ["Mental Disabilities and Criminal Responsibility"] 79 Michigan Law Review 754 (March 1981) 10   National Institute on Drug Abuse Research Monograph 17 "Research on Smoking Behavior" (1977) 9   USAARL Report No. 86-13 "Smoking and Soldier Performance: A Literature Review" (1986) 9 -vi- (1) Did the District Court fail to consider important grounds for relief? Yes     If so, what grounds? The District Court failed to consider the: (a) Separate and independent incidents on different dates and years cited in the Complaint, Items 7, 9 and 10, at R. 1, App. 6-7, 20. Army assigned different case numbers 78 times, repeatedly recognizing for years the separateness of the incidents. 4/28/88 decision, R. 10, App. 121. The Court failed to estop it from reversing position at this late date, retroactively claiming all are the same incident. They are not the same; Army's own numbering shows that. The sudden position change is a sham "fashioned for the purposes of litigation." Alaniz v. Office of Personnel Management, 728 F.2d 1460, 1465 (Fed Cir. 1984). The District Court made the Alaniz error, "no attempt in the opinion to reconcile" the two agency positions. [TACOM lawyer] Ms. [Kathleen Moro] Nesi (10/10/89 T. 4, App. 165) says "almost identical." That is not "identical." EEOC 3/4/83 explains how to distinquish identical and almost identical. R. 8, App. 108-110. Army did not appeal. That EEOC ruling is the law of the case and is res judicata in Mr. Pletten's favor. Mr. Pletten explicitly denies that they [the incidents] are the same. 10/10/89 T. 7, App. 168. There were "79 different incidents." 10/10/89 T. 12, App. 173. There has been no administrative processing pursuant to 29 C.P.R. 1613.213-218. R. 1, Charge p. 3, App. 21; and 10/10/89 T. 15, App. 176. "Now for them to make a successful motion to dismiss or for summary judgment they have to provide affidavits showing that this case is identical, and one way to do -1- that would be to hand you [the judge] some counsellor (sic) reports where the counselor says these 78 or 79 incidents are all the same. You haven't received that 'cause the process hasn't started." 10/10/89 T. 19, App. 180. Against interest, TACOM's own EEO Manager, Kenneth R. Adier, corroborates this. R. 10, App. 127. His testimony is sought. R. 8, App. 97. (b) Use of reasons not in a 5 U.S.C. 7513 advance notice. Pursuant to Federal Personnel Manual Supplement 752-1, S4-2, "all the reasons" "must" be in the "advance notice." R. 10, enclosure 2, App. 126. 5 U.S.C. 7513 requires reasons to be stated 30 days in advance, not 8 or 10 years afterwards. The advance notice concept is well described thus: "An [employee] is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [hel learns the exact nature of [claims] only after the [decision]," National Rlty. & C. Co. v. Occ. S. & H. R. Com'n., 160 U.S.App.D.C. 133, 143, 489 F.2d 1257, 1267 (1973). (1) There was no 5 U.S.C. 7513 advance notice of the reasons Army told the Court, recorded at R. 7, App. 92. So R. 24, encl. 4, App. 161, requests commencement of the administrative process so Mr. Pletten can begin to reply as 5 U.S.C. 7513 provides. This includes collecting affidavits, as sought by his motion and supporting data. R. 4, App. 75-79. (2) There was no 5 U.S.C. 7513 advance notice of the [perjurious] reasons cited [invented, fabricated, or hallucinated] by Army [lawyer Kethleen Moro Nesi]. 10/10/89 T. 6, App. 167: "As he has shown on one of his own exhibits, he's [said Nesi] gone so far as to call himself a Private Attorney General and file a criminal complaint against one of the parties in order to advance his personal theory of what should be occurring at TACOM. -2- "He has also [said Nesi] gone so far as for one of the individuals at TACOM -- he went to Macomb County Probate Court and took out papers to have him declared incompetent because he was a smoker, and the man had to go there and defend himself. Mr. Pletten decided he should be his guardian." As the Court of Appeals is aware from the record in the companion cases on which defendants' claim of res judicata is based, there is no 5 U.S.C. 7513 advance notice of said reasons. [Ed. Note: Nesi criminally invented, or in the alternative, hallucinated the allegation. If the latter, such a fabrication is tantamount to delirium tremens, i.e., a defense of not guilty by reason of insanity. The Probate Court denied the perjurious/psycho-Nesi claim in a subsequent private letter to Pletten. Nesi had criminally fabricated the entire matter, pursuant to the fact that government attorneys are subject to no enforceable code of ethics in dealing with whistleblowers. My experience confirms that government attorneys are authorized by DOJ policy and practice to commit any/all felonies that they deem will help defeat a whistleblower. In the alternative, if Nesi had been asked by TACOM to make the false allegations, her doing so verifies that DOJ attorneys do not follow the principle that when solicited to violate laws, e.g., to commit perjurious acts via subornation of perjury, "it is the absolute duty of the attorney to refuse to [so] act." State v Collentine, 39 Wis 2d 325, 159 NW2d 50, 53 (1968), cited in Disciplinary Board v Amundson, 297 NW2d 433, 439 (ND, 1980). Additionally, Nesi was disregarding the precedents (including by the Supreme Court!) on the "Private Attorney General" concept, and in a display of blatant fraud and/or attorney malpractice, purporting horror at someone following those precedents!! That [the stating of the new charges by Nesi] requires reversal whether or not Mr. Pletten wants to be allowed to begin his defense against said reasons. (He does; he wants to collect 5 U.S.C. 7513 affidavits. R. 4, App. 75-79.) Absence of a 5 U.S.C. 7513(b)(l) notice of the said R. 7, App. 92, and 10 Oct. 1989 T. 6, App. 167, reasons is fraud. "'Fraud which . . . prevents [Mr. Pletten] from presenting an available defense [is] a proper ground for equitable relief against the judgment,'" New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 519, 292 S.W.2d 749, 752 (1956). That [precedent] in turn relied on [even old precedent] Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 1000, 88 L.Ed. 1250 (1944). Mr. Pletten was prevented from presenting a defense in the prior proceedings against reasons never said in a 5 U.S.C. 7513 notice, reasons that surfaced only after them. The Court should have granted relief from the prior judgments, not given them res judicata effect. (c) Army's pattern of refusing administrative review as described at R. 1, App. 21-22, 40-41; and 10/10/89 T. 9, 11, 15-16, and 19, App. 170, 172, 176-177, and 180. The Court says the 78 incidents are all the same, discharge. T. 24, App. 185. That is impossible. TACOM did not discharge Mr. Pletten 78 -3- times. There is no 5 U.S.C. 7513 notice for "September 5, 1980 . . . August 24, 1981" (the period covered by Army's 4/28/88 decision, R. 10, App. 121). Reversal is warranted on that basis. But assuming arguendo that all 78 are the same, discharge is "the most serious sanction an employer can impose" [so requires] "special care in handling" review, Tenorio v. N. L. R. B., 680 F.2d 598, 602 (9th Cir., 1982). Case processing on removal should have occurred Sept. 5, 1980, the Army's own date. Not doing review is not "special care." Defendants' own count lists 78 separate incidents. Only one could be a discharge 1/22/82, but none of the dates the agency cites at R. 10, App. 121 is 1/22/82. (d) Access to review of the incidents TACOM had committed and intended to commit thereafter was cut off in February 1980 as EEOC found 23 Feb 1982. R. 8, p. 2, App. 102. TACOM cites no compliance with EEOC orders to do administrative processinq. R. 1, App. 25-27, 30-31, 53, 73. Pending commencement of 29 C.F.R. 1613.213 counseling, the [District] Court should have granted relief sought at R. 1, App. 72, 73, and 74; by the time of Mr. Pletten's motion on collecting affidavits, R. 4, App. 75-79, or his motion on enforcing USACARA's 1/25/80 Report, at R. 6, App. 80-85; or by at least the time of R. 20, App. 150-152. This would have the effect of restoring the status quo of February 1980, whether that is deemed "'the last uncontested status which preceded the pending controversy' [or] that which existed immediately prior to the commission of unfair labor practices" (citations omitted), Levine v. C & W Mining Co., Inc., 610 F.2d 432, 437 (6th Cir. 1979). -4- (e) Fact this situation arose from extortion. R. 10, App. 129. Drug abusers' conduct injured Mr. Pletten's co-worker Evelyn Bertram. She filed a workers' compensation claim [OWCP File No. A9-190131 (29 Dec 1977)]; it was granted. The Court found TACOM is "not a fit place for [employees including] the plaintiff to work" (R. 7, App. 92).1 This is admitted against interest by TACOM's own Dr. Francis J. Holt: ". . . mechanical failures happen all the time." (Deposition, page 25). "And there's a hazard for all these other people. Isn't that also true? Yes. Yes. Have you been asked -- People smoking in their vicinity is hazardous to them." (Dep., p. 42). [TACOM's] Dr. [Francis] Holt's 5/23/82 admission confirms that TACOM had not begun to obey 32 C.F.R. 203.3 nor 5 U.S.C. 7902(d), had not begun to eliminate the universal malice hazardous conduct. Instead of obeying these rules against hazardous conduct, TACOM accommodates smokers (a distinct issue other than accommodating Mr. Pletten) ________________________ 1 TACOM's anti-safety policy has led to hazard confirmations by other courts also. Int. Un. U.A.W. v. General Dynamics Land Sys. Div., 259 U.S.App.D.C- 369, 815 F.2d 1570, cert. den., 484 U.S. 976 (1987), and People v. General Dynamics Land Systems, 175 Mi.App. 701, 438 M.W.2d 359 (1989). "Universal malice" encompasses toxics causing "premature death" "without knowing or caring who may be the victim," Black's Law Dictionary 1110 (4th ed. 1968), citing Mitchell v. State, 60 Ala. 26, 30 (1877). "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions," Nestlerode v. U.S., 74 U.S.App. D.C. 276, 279, 122 F.2d 56, 59 (1941). Tobacco universal malice "is not directed to any particular individual, but is general and indiscriminate . . . putting the lives of many in jeopardy . . . without the intent to kill any particular person, but . . . likely to [kill] some one or more persons . . . 'regardless of human life, although without any preconceived purpose to deprive any particular person of life," State v. Massey, 20 Ala.App. 56, 100 So. 625, 627 (1924). -5- and refuses to even consider stopping. Mr. Pletten blew the whistle. TACOM's Colonel John J. Benacquista admits the [extortion] reaction [by Benacquista] that resulted [directed against Pletten] (R. 10, App. 129, paragraph 5): "All he [Pletten] had to do was to say, 'I agree that this [TACOM] is reasonably free of contaminants.'" (4/23/82 Dep. p. 62). despite TACOM's own Dr. Francis Holt saying otherwise and despite Army Regulation ("AR") 385-10.3-5a. and b. guidance "emphasizing personnel responsibility for making . . . reports" "of unsafe or unhealthful conditions." (f) TACOM motive for refusal to allow administrative review to begin. Extortioners are known to have "failed to process grievances," U.S. v. Russo, 708 F.2d 209, 213 (6th Cir. 1983). "Smoking tobacco harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs." AR 600-63.4-la. Smokers causing the hazard "had no legitimate claim" (a 708 F.2d at 215 phrase) to be "permitted" under 32 C.F.R. 203 to smoke as its conditions precedent preclude causing a hazard; so extortion and halting Mr. Pletten's pay was done [committed by TACOM racketeers such as Col. Benacquista and Personnel Officer Edward Hoover, aided and abetted by TACOM attorneys including Emily Bacon] to try to force him [Pletten] "to say, 'I agree that this [TACOM] is reasonably free of contaminants.'" (4/23/82 Benacquista Dep., p. 62,/a>). TACOM officials fear self-incrimination if review occurs, so they prevent administrative review which others receive. (g) Excessive reliance on the negative EEOC decision. R. 1, App. 62-66. [To rebut such excessive reliance, please note that] The Comptroller General, General Accounting Office ("GAO") issued a series of reports on EEO System inadequacies, e.g., lack of counseling, lack of timeliness, lack of solid investigations, and lack of an EEOC follow-up system to assure that agencies do obey EEOC orders when an employee does win. -6- These [GAO] Reports include: "The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminating Employment Discrimination," HRD-76-147 (28 September 1976) "System For Processing Individual Equal Employment Opportunity Discrimination Complaints: Improvements Needed," FPCD-76-77 (8 April 1977) "Further Improvements Needed in EEOC Enforcement Activities," HRD-81-29 (9 April 1981) "Age Discrimination and Other Equal Employment Opportunity Issues in the Federal Work Force," Letter B-205303 (20 November 1981) "EEOC and State Agencies Did Not Fully Investigate Discrimination Charges," HRD-89-11 (October 1988) EEOC system inadequacies connotes that negative decisions occur inappropriately. For Mr. Pletten to have won not just one but two favorable EEOC decisions (those of 2/23/82, R. 8, App. 101-107, and 3/4/83, R. 8, App. 108-110) shows his solid case. It is because his case is solid that defendants refused to obey said EEOC processing orders. How does it [TACOM} get away with this [defying EEOC processing orders]? [Answer:] EEOC has no system to enforce its orders. Charge p. 21, R. 1, App. 39-40, shows that EEOC orders, easily ignored by agencies, are mere paper tigers, a laughingstock to agencies, the U.S. Attorney, and even the District Judge. This lack of an enforcement system undermines the EEOC system, violates public policy favoring administrative review, and undermines respect for the system. Considering the GAO documentation of the obstacles to an employee obtaining a favorable EEOC decision (here, two of them), those two favorable EEOC decisions should be enforced, not ignored and laughed at. -7- (h) Violation of due process which results from TACOM not having even tried to schedule compliance with the 2/23/82 and 3/4/83 EEOC orders. R. 8, App. 101-110. White v. Mathews, 559 F.2d 852 (CA 2, 1977), cert. den., 435 U.S. 908 (1978), shows that mere tryinq (a "glacial pace") to schedule review is not constitutionally adequate. The 2/23/82 and 3/4/83 EEOC decisions set time limits for doing administrative review: 30 days. R. 8, 104, 110. TACOM refusal to comply (1) undermines the system and (2) deprives Mr. Pletten of due process. Processing should be ordered dated as of the date it would have occurred, but for the refusal. R. 1, App. 22, 40, 47, and 53. The Court did not halt the noncompliance.2 It failed to make whole Mr. Pletten, i.e., failed to order compliance to be done as of the date it would have been done but for the non-compliance. (i) Fact this situation arose from Mr. Pletten's AR 385-10 job duty freedom of expression. Good personnel officials such as Mr. Pletten keep aware of professional writinqs. His inoffensive [regulation- and Constitution-authorized freedom of] expression is treated as offensive by non-impartial drug abusers [such as Col. Benacquista, Edward Hoover, etc.]. When [the EEOC 29 CFR § 1613 review process that begins with] EEO counseling begins, the counselor will ________________________ 2 Ordering compliance should have occurred as "a federal employee can request a federal court to enforce a favorable EEOC order." Haskins v. Department of Army, 808 F.2d 1192, 1199 (CA 6), cert. den., 484 U.S. 815 (1987). Moreover, "the applicable federal regulations and case law . . . require that the district courts enforce final EEOC decisions favorable to federal employees when requested to do so." Moore v. Devine, 780 F.2d 1559, 1560 (CA 11, 1986). This case in effect is coming "to court seeking interlocutory supervision of the administrative processing of his discrimination claims . . . to force investigation." Anthony v. Bowen, 270 U.S.App.D.C.246, 250, 848 F.2d 1278, 1282 (1988). -8- find that TACOM drug abusers (who pose a danger just as 29 U.S.C. 706(7)(B) contemplates and so forbids) punish him for his [regulation- and Constitution-authorized freedom of] expression. They are offended that he says smoking is cited in the Diagnostic and Statistical Manual of Mental Disorders, 3d. ed., 1980, pages 159-160, 176-178. Mr. Pletten offends drug abusers [such as Col. Benacquista and Edward Hoover] by citing data on smoking as a gateway drug. In U.S. National Institute on Drug Abuse (NIDA) Monograph 17 (1977), then Director William Pollin, M.D., says why NIDA gives "increased priority to" smoking. There are "several reasons: the increasing identification of smoking as a prototypic addiction, the status of smoking as a gateway drug to use of stronger or illicit drugs, and our focus on substance abuse as a generic phenomenon that includes tobacco." 3 (Page vi) He [Pletten] offends [reviewing-official druggies] by citing Army USAARL Report No. 86-13, "Smoking and Soldier Performance: A Literature Review" (1986): "[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services." (Page 149) ________________________ 3 William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973-1977), in "Teenage drug use: Opportunities for the pediatrician," 102 J. of Pediatrics (Issue 6) 1003-1007 (June 1983), says at pages 1004-1005 "All drug use is positively correlated with all other drug use, so persons who use tobacco, for example, are more likely to smoke marijuana than those who do not use tobacco. . . . these relationships are quantitative: those who use large amounts of marijuana are more likely to use heroin than are those who use marijuana infrequently, whereas those who have never used marijuana virtually never use heroin at all. . . . many who start with one drug do go on to other drugs. Conversely, decisions not to use a particular drug predict subsequent decisions not to use other drugs in the sequence. . . . Put simply, prevention means stopping the progression of the drug-dependence process at each stage, experimentation, occasional use, regular use, and dependent use." -9- That Mr. Pletten cites smoking's role in alcoholism, discipline and druq abuse problems offends TACOM drug abusers. That is why they commit reprisal, e.g., 79+ incidents 1979 - 1981, and continue to commit incidents, e.g., the false statement at 10/10/89 T. 6, App. 167: "He has also gone so far as for one of the individuals at TACOM--he went to Macomb County Probate Court and took out papers to have him declared incompetent because he was a smoker, and the man had to go there and defend himself. Mr. Pletten decided he should be his guardian." 4 That [new charge against Pletten of which there was no 5 USC § 7513.(b) notice, and constituting a perjurious claim by TACOM attorney Kathleen Moro Nesi] forces Mr. Pletten to "prepare a defense aqainst accusations known to be untrue by the accuser," Nye v. Parkway Bank & Trust Co., 114 Ill.App.3d 272, 448 N.E.2d 918, 919, n. 2 (1983). The pattern of incidents (extortion, lying, etc.) and "the activities of the participants in the criminal venture could not have carried on except as the result of a preconceived scheme or common understanding," U.S. v. Barrow, 363 F.2d 62, 64 (3rd Cir. 1963). Mr. Pletten offends TACOM drug abusers by his keeping current on personnel issues, which is what personnel officials of his grade [civil service rank] are supposed to do. ________________________ 4 A drug abuser "devoted to the narcotic and hallucinogenic use of tobacco" for its "mind-altering properties" (words from Jan G. R. Elferink, 7 Journal of Ethnopharnacology 111 (1983)) may well have hallucinated that non-event. But the choice of where to verbalize hallucinations (to a psychiatrist while seekinq treatment, or to a judge during a case where the drug use is the issue) is revealing. The record (R. 14, disqualification motion, brief paqes 4-14, not in Appendix) quotes medical data on smoker mental disorder, includinq rebelliousness and retaliation propensities. 79 Michigan Law Review 754 (March 1981) says "criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned." A counselor will find that descriptive of the pattern of incidents, including this one. -10- (j) Agency malfeasance, nonfeasance, misfeasance, fraud, malice, and lack of good faith intended to deprive Mr. Pletten of legal rights as cited at R. 1, App. 34-39. The status quo was destroyed February 1980 by [TACOM] cutting off [Pletten's] access to 29 C.F.R. 1613.211 et seq. review for past and intended incidents. (Others have review.) There is a pattern to prevent Mr. Pletten from being allowed to present his case. Defendants deny input opportunity set by 5 U.S.C. 557(c)(A) and (B) as noted at R. 1, App. 22-25 and 53; consolidate cases, contrary to time limit rules in 29 C.F.R. 1613.251 as noted at R. 1, App. 32-34 and 53; and cite items that are non-existent and/or not provided to him, but are filed ex parte as noted at R. 1, App. 21, 31-32, 42-43 and R. 20, App. 140-142. This [pattern of acts] is [committed so as] to continue the pattern of disparate treatment, rule violations, and reprisal, as noted at R. 1, App. 27-28. Review is refused [violating 29 CFR 1613 clauses]: no pre-complaint counseling and interviews (213), final counselor interviews (214), complaint investigations (216), adjustments and offers of hearing (217), and hearings (218). R. 1, Charge, p. 3, App. 21. This was called to the Court's personal attention. 10/10/89 T. 15, App. 176. The Court erred by not restoring the February 1980 status quo [p 4] and by not ordering administrative processing to commence. (k) The 2/23/82 and 3/4/83 EEOC decisions (R. 8, App. 101-110) say to obey in 30 days. TACOM Reg. 600-5, Para. 10 and AR 690-700.751.A.4 (cited at R. 1, App. 22) require "expedited" action and "adherence to the letter and spirit of Federal government policy," and discipline [of agency personnel violating EEO time limits and other rules] for noncompliance. Mr. Pletten -11- relied/relies on each such rule. But defendants treat each as "so vague and indefinite as really to be no rule or standard at all." A. B. Small Co., 267 U.S. 233, 239, 45 S.Ct. 295, 297, 69 L.Ed. 589 (1925), in Doe v. Staples, 706 F.2d 985, 988 (6th Cir. 1983). Their doing that deprives Mr. Pletten of due process. By neither obeying nor enforcing each rule, they treat each as so vague that "men of common intelligence must necessarily guess at [each's] meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), cited in Doe, 706 F.2d at 988. Defendants deny Mr. Pletten administrative review. How? By their own disobedience of the rules and EEOC orders. "To decide the case we need look no further than the maxim that no man may take advantage of his own wrong." Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 762, 3 L.Ed.2d 770, 772 (1959). There has been no notice that reliance on administrative review rules would result in denial of administrative review. As Mr. Pletten relied on these rules to his detriment, defendants should be estopped from disregardinq them. (1) Lack of jurisdiction under 5 U.S.C. 552.(a)(1) as prior decisions were premised on a non-existent, unpublished qualification standard. The Court at R. 7, App. 92, failed to defer to Office of Personnel Management's denial of a tobacco qualification standard at R. 10, App. 128. Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), rejects secret eligibility rules. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) uses 5 U.S.C. 552.(a)(1) to invalidate an unpublished qualification -12- standard, the same defect as here. There was no 5 U.S.C. 7513 advance notice citing any unmet qualification. (When counseling begins, the counselor will also find that Army issued him [Pletten] a [qualifications] waiver in 1977 when assigning him to the job [from which now "disqualified"). Ramey v. Block, 738 F.2d 756, 762 (1984), says "the Secretary must generate specific standards . . . and apply them in a uniform fashion . . . 'determination of eligibility cannot be made on an ad hoc basis.'" Hall v. Postal Service, 857 F.2d 1073, 1078-9 (1988), requires a job description link. A counselor will find none, and will find as a natter of law (1) there can be no tobacco qualification and (2) misuse of the word "employment" as noted at R. 1, App. 28-30, 53, 61, responding to the misuse at R. 10, App. 121. Smoking is not in employment. Annot., 20 A.L.R.3d 893 (1968). So it cannot measure job performance, handicap or accommodation "with respect to employment." 29 C.F.R. 1613.702(f). Tobacco smoke is not job "essential functions." When "individualized inquiry" on job description requirements begins pursuant to Hall, 857 F.2d at 1078-9, smoking will not be found in any job description. The counselor will find it [tobacco smoke] is not in "the requirements for any position," 5 U.S.C. 2302(b)(6). An ad hoc standard was fabricated for Mr. Pletten, not Evelyn Bertram. Army assigns employees, e.g., Mr. Pletten, job requirements writing duties, so knows "job requirements and qualifications had never been formally changed," Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir. 1975). Col. Benacquista admits "personal habits," not requirements (Dep. p. 25). 5 U.S.C. 7902(d) and 32 C.F.R. -13- 203.3 forbid hazardous conduct; they do not require it. A requirement's existence and publication are conditions precedent to an alleged disqualification. Absence of either is "a jurisdictional point," Hotch v. U.S., 212 F.2d 280, 281 (9th Cir. 1954). The Court lacked jurisdiction to say what it said at R. 7, App. 92. It should not have given such statements res judicata effect. Instead, pursuant to Hazel-Atlas, 322 U.S. 238, it should have granted relief against them. (m) Fact that Mr. Pletten's [regulation- and Constitution-authorized freedom of] expression is based on law. Safety is "above all other considerations," as "Congress itself defined," Am. Tx. Mfrs. Inst. v. Donovan, 452 U.S. 490, 509, 101 S.Ct. 2478, 2490, 69 L.Ed.2d 185, 202 (1981). The Supreme Court rejects duplicative balancing. (Balancing is a word that drug abusers use to mean refusal to "eliminate" hazards.) Donovan is a clear, unambiguous rejection of what the Court said at R. 7, App. 92. 5 U.S.C. 7902(d) is even stronger written than the law in Donovan. It has no limiting words. Both require: A workplace cannot be just 'reasonably free' of a hazard.'" Nat'l. Rlty., 160 U.S.App.D.C., 141, 489 F.2d, 1265. R. 7, App. 92, finds the drug abuser theory at TACOM, "balance . . . between smokers and nonsmokers . . . to permit supervisors to designate . . . smoking areas" though 5 U.S.C. 7902(d), 29 C.F.R. 1910.1000.Z, and 32 C.F.R. 203 do not authorize balancing of hazards. A counselor will find that balancing is the drug abuser theory arising from long use of mind-altering drugs. Drug abusers [including those in the judiciary] find drug abuse "reasonable." Drug abusers find what "Congress itself defined" ["unqualified" and "absolute" safety duty] unreason- -14- able. Action to "eliminate work hazards" is Congress' theory, the law's theory, the command of 5 U.S.C. 7902(d). To the non drug abuser such as Mr. Pletten, Congress's theory (law) is by definition "reasonable." Its 5 U.S.C. 7902(d) says "eliminate" hazards, not balance the desires of drug abusers and the views of those such as Mr. Pletten who express support for 5 U.S.C. 7902(d) and obedience to it. Congress' theory uses the word "eliminate." That is the right [the only] balance on hazardous conduct. To reinforce the point, Congress' theory at 29 U.S.C. 706(7)(B) also opposes balancing drug abuser desires to be dangerous. There was no 5 U.S.C. 7513 advance notice saying the drug abuser balancing theory; the law forbids it. Mr. Pletten relies on the rule of law ["eliminate" hazards, not "balancing"]. Thus he was prevented from responding. Pursuant to Hazel-AtIas, 322 U.S. 238, principles, the Court should have granted relief from the prior rulings, not given them res judicata effect. (n) Fact that the First Amendment protects [regulation- and Constitution-authorized freedom of] expression on control of drug abusers' hazardous conduct pursuant to job duty support of rules of law at least as much as it protects flag burning, Texas v. Johnson, 491 U.S. [397], 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), or pro-assassination talk, Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Mr. Pletten is a personnel official, part of management. Rankin, 483 U.S. at 384 balances interest in freedom of speech and employer interest in maintaining efficiency and discipline. Mr. Pletten and the employer have an identity of interest. -15- Mr. Pletten does what personnel officials are to do: guote, express, support the employer's own writings and rules. In N.F.F.E. v. Cheney, 884 F.2d 603 (C.A.D.C. 1989), "The Army argued that compulsory [drug] testing was justified by compelling governmental interests in the safety, security, and integrity of its workforce" (607). "The Army's compelling interest in preventing drug use . . . carries a collateral interest in ensuring effective detection" (614). Once EEO counseling begins [i.e., once the only jurisdictionally-valid-as-first-sought review process begins], the counselor will find that Mr. Pletten's [regulation- and Constitution-authorized freedom of] expression on smoking [especially on its role as gateway/starter drug] is supportive of Army's "interest in ensuring effective detection." The [TACOM and local judge] drug abuser theory (held by defendants here) cited at 884 F.2d at 608, n. 7, opposes Supreme Court precedent for lack of "'reasonableness,'" the same objection made to Mr. Pletten's reliance on 5 U.S.C. 7902(d) and 32 C.F.R. 203 incorporation of safety as a condition precedent. A counselor will find that the drug problem, to which nonsmokers are virtually immune, is compounded, drug cases proliferate, and judicial economy is impaired when expression of data from professional writings [including on tobacco's role as gateway/starter drug] is punished. Texas, 491 U.S. [397], 109 S.Ct., 2545, 105 L.Ed.2d, 360, again rejects acts to "prescribe what shall be orthodox." At TACOM, it is not "orthodox" to express the hazard, the rules, and smoking's role in discipline, alcoholism, and drug-abuse problems. Col. Benacquista gives the drug abuser theory: "It doesn't make sense to have a Command getting involved in the personal habits of its employees" (Dep. p. 25). Drug abusers [such as him and druggie judge accomplices and accessories] feel compliance is unreasonable, demand "balancing" (meaning not "getting involved" in enforcement), and commit -16- felonies to impose their "personal theory of what should be occurring at TACOM." (Compare 10/10/89 T. 6, App. 167.) The Court should have denied res jadicata effect to the prior orders as they fail to enforce constitutional rights. (o) Lack of impartiality underlying the matter. Drug abusers misrepresent Mr. Pletten's pro-rule expression as theory/asking accommodation for himself, not halt of their unlawfully granted accommodation. 29 U.S.C. 706(7)(B). Pursuant to Morton, 415 U.S. 199, no secret law can make pro-rule expression an accommodation request. Talking for rules is what personnel officials do; it is our job. Non drug abusers respond by obeying; drug abusers respond with ad hominem attacks. Smoking is the recognized medical condition [see reputation data], not nonsmoking. Drug abusers are not impartial so misrepresent who has the "condition" to accommodate as evident at R. 7, App. 92. "A fair trial in a fair tribunal is a basic requirement of due process.' . . . Chief Justice Marshall in 1 Burr's Trial 416 (1807) [distinguishes] light impressions which may fairly be supposed to yield to the testimony [from] 'these strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.'" U.S. v. Blanton, 719 F.2d 815, 830, n. 3 (6th Cir. 1983). Drug abuse is a closed mind, a formed opinion, to use a drug despite even voluminous evidence. TACOM drug abusers "identify offense to self with obstruction to law." Offutt v. U.S., 348 U.S.11, 13, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). Treating Mr. Pletten's Pletten's [regulation- and Constitution-authorized freedom of] expression as "offense to self," TACOM drug abusers cited no "physical condition" basis for the -17- acts upheld at R. 7, App. 92. TACOM's own Dr. [Francis] Holt refutes it: "Medically disqualified? We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working" (Holt Dep. p. 10). "And there's a hazard for all these other people. Isn't that also true? Yes. Yes. Have you been asked -- People smoking in their vicinity is hazardous to them. Have you been asked for medical disqualification for any of those other people [named]? No." (Holt's 5/23/82 Dep. p. 42.) When counseling begins, a counselor will find that said others similarly situated were not accused as was Mr. Pletten. Why not? They were not doing the pro-rule [regulation- and Constitution-authorized freedom of] expression he was. [Ed. Note: In The Tank Automotive News, 7 Jan 1980, Vol X (Issue # 26), p 2, was a question on whether employees feared reprisal for giving their views in the newspaper. The editor, Frank Gaal, Jr., lamented that nobody answered the question; none of those whom he surveyed would answer. Fear of TACOM's policy of reprisal was clearly rampant at TACOM, understandably so, as mine is an example of said policy. "The proof of the [reprisal] pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).] Drug abuser views are strong, deep, resistant to change, not impartial, and permeate all the ad hominem decisions. They do not change (e.g., hallucinating an entire case, cause of action, defense burden, people involved, court name, court location, travel involved, etc.) even though there is no evidence for said multiple hallucinations. (Page 10 above [Kathleen Moro Nesi's psycho-allegations for which no 5 USC 7513.(b) notice exists]). The pattern in this case is overwhelming in showing violations compounded by refusal of review since February 1980. "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the [non-compliance] policy was in force, was made in pursuit of that policy." Teamsters v. U.S., 431 U.S. 324, 362, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). For lack of impartiality, including the failure of the judge [Anna Diggs Taylor] to act on Mr. Pletten's disqualification requests (R. 14, App. 135-141; and R. 27, App. 163-164), the Court should have granted relief from the prior orders pursuant to Hazel-Atlas, 322 U.S. 238, not given them res judicata effect. -18- (p) The "issues have" not "been decided before." 29 C.F.R. 1613.211 et seq. conditions precedent to Court jurisdiction do not exist. Defendants at R. 10, App. 121, do not claim to have donw administrative review. That TACOM cut off access in Feb. 1980 to administrative review is conclusive that it has not begun. Case law at note 53, 42 U.S.C. 2000e-16 shows that Courts lack jurisdiction before administrative processing. TACOM denies that Mr. Pletten "filed any formal EEO complaints with the Tank Command." R. 10, App. 127. Ms. Nesi's unsworn assertion (10/10/89 T. 23, App. 184) that the "issues have been decided before" does not refute her client. She cited no evidence: no counselor reports, no EEOC hearing transcripts, nothing. The Court could not have ruled on Mr. Pletten's case. He has not been allowed to present it verbally to a counselor yet, much less, in writing. The Court could not rule on a case that has not been presented. The very fact it ruled on accommodation (not an issue Mr. Pletten intends to say to a counselor) shows the Court had not heard of and was unaware of his intended case. Once counseling begins, the counselor will be the first to hear his case--as the 29 C.F.R. 1613.211 et seq. [EEOC] system says. It does not say, tell a judge first, then a counselor. It has a different sequence. The Court never had jurisdiction to issue what it relies on to allege res judicata. So if the Court did rule on any issue(s), such rulings are dicta lacking res judicata effect. -19- (2) Did the District Court decide the facts? Yes If so, what facts? The Court made no directly stated findings of fact. [Ed. Note: It proceeded entirely by assumption, assuming, assuming, all the way]. This is a common pattern. R. 1, App. 22-23. Thus, by speculation, findings of fact must be inferred: "No reasons were given [so the rulings and failures to rule must also be rejected . . . as 'arbitrary' and 'capricious' within the meaning of 5 U.S.C. 706(2)(A) because no reasons for the conclusion were given." (citation omitted). McNutt v. Hills, 426 F.Supp. 990, 1004 (D.D.C. 1977) (a) The Court evidently treated as one incident all the separate and independent incidents on different dates and years identified at Items 7, 9 and 10 of Complaint. R. 1, App. 6-7, 20. Defendants [at TACOM] admitted different dates "September 5, 1980 . . . August 24, 1981" in its 4/28/88 decision, p. 1, R. 10, App. 121. They assigned different case numbers, recognizing separateness. The Court made no fact findings warranting treating separate matters as one, thus no basis for failing to estop the [TACOM] position reversal now retroactively saying they [the separate cases] are all the same, without 5 U.S.C. 7513 advance notice of this change in position. (b) The Court failed to make a fact finding on the ex parte communication cited at R. 20, App. 140-142. "The Administrative Procedure Act [5 USC § 500 et seq. (1946)] contains strong condemnation of ex parte communications," Barnhart v. U.S. Treasory Dept., 588 F.Supp. 1432, 1436 (D. C.I.T. 1984). (c) The Court [Anna Diggs Taylor] evidently assumed there is no basis for her [Taylor's] disqualification as requested by R. 14, App. 135-141 and at R. 27, App. 163-164. -20- (d) The Court evidently assumed there was 5 U.S.C. 7513 notice for its findings at R. 7, App. 92. There was not. (e) The Court evidently assumed its prior Orders were based on actual qualification requirements. This is denied by OPM. R. 10, App. 128. That is "a jurisdictional point," Hotch, 212 F.2d, 281. (f) The Court evidently assumed Mr. Pletten received 29 C.F.R. 1613.403 data and collected affidavits, so did not act on the request for same at R. 4, App. 75-76. But this is error. "The agency in this case has not shown--or even alleged--that it ever notified the appellant of his right to file an appeal or of any limitations on that right . . . it evidently has maintained consistently that the appellant has no appeal rights," Miyai v. D.O.T., 32 M.S.P.R. 15, 20 (1986). Notwithstanding what an employee (e.g., Mr. Pletten) filed, or tried to file, absent the required informing by the agency, "The Board has held . . . that [same] does not constitute an informed election under section 7121 when the agency failed to afford the employee proper notice of his potential avenues of recourse." [TACOM's] "complete failure to provide these [due process] procedural protections . . . constitutes harmful error." "To decide the case we need look no further than the maxim that no man may take advantage of his own wrong." Glus, 359 U.S., 232, 79 S.Ct., 762, 3 L.Ed-2d, 772. "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the [non-compliance] policy was in force, was made in pursuit of that policy." Teamsters v. U.S., 431 U.S., 362, 97 S.Ct., 1868, 52 L.Ed.2d 396. Since the pattern of [TACOM] denying Mr. Pletten administrative review is clear and undisputed, the Court made no finding of fact showing administrative review had occurred. -21- (g) The Court evidently assumed despite the foregoing facts that there were cases of which it had had jurisdiction warranting the Order of Reassignment at R. 13, App. 132, and so could issue the Order of Reference at R. 12, App. 134, and the Briefing Schedule at R. 11, App. 133, notwithstanding the facts at Mr. Pletten's disqualification requests at R. 14, App. 135-141 and R. 27, App. 163-164; and notwithstanding the contrary information at Mr. Pletten's motion to reconsider the reassignment at R. 16, App. 142-143, motion to reconsider the order of reference at R. 15, App. 144-145, motion to reconsider briefing schedule at R. 17, App. 146-147, motion to strike defendants' dismissal motion or, alternatively, for summary judgment at R. 10, App. 114-131, and interim answer at R. 24, App. 157-161. (h) The Court evidently found other facts than in Mr. Pletten's motion to strike defendants' dismissal motion, or, alternatively, for summary judgment, at R. 10, App. 114-131, and his interim answer at R. 24, App. 157-161, which gave facts why the Court should not invoke res judicata except in Mr. Pletten's favor. The Court must have assumed other facts. But it made no express findings. (i) The Court evidently found factual defendants' claims in the motion to dismiss at R. 7, App. 86-96. No evidence shows an identity of issues, as administrative review has not begun. (j) The Court evidently assumed something concerning Mr. Pletten's motion on reprisal and upcoming OWCP hearing at R. 19, App. 148-149. -22- (k) The Court evidently assumed something about TACOM's own Industrial Hygienist's finding at R. 10, encl. 14, App. 131, that "From a health and ventilation point of view therefore any office in [Mr. Pletten's assigned] Bldg 230 would be acceptable for Mr. Pletten to work in." The Court did not make a finding on Mr. Pletten's acceptance at R. 10, end. 13, App. 130. Refusal of 29 C.F.R. 1613.211 et seq. review has been the pattern since February 1980. Mr. Pletten's statements on its absence are undisputed, "uncontested," and should have been accepted, as in Ceja v. U.S., 710 F.2d 812, 813 (Fed. Cir. 1983). [Ed. Note: EEOC later followed the Ceja concept on dealing with undisputed data in terms of sworn statement: Vargas v USPS, Appeal No. 01922245 (1992).] Defendants at R. 22, App. 153-154 and R. 23, App. 155-156, successfully arranged for R. 26, the order denying Mr. Pletten opportunity to present his evidence. The foregoing showing of lack of fact findings arises from their success at preventing input of evidence. People v. Rich, 414 Mich. 961, 326 N.W.2d 824, 825 (1982) says "It was improper for [defendants] to argue the implications of the failure of [Mr. Pletten] to produce witnesses when [they] had successfully opposed [his] efforts to subpoena those witnesses." The [District] Court's entire decision rests on defendants' success (which has been a continuous success since February 1980) in preventing Mr. Pletten from presenting his case. Defendants' prevention of his input clearly was more successful than he was at the 10/10/89 hearing. T. 7-22, App. 168-182. Clearly, remand is warranted for fact finding and for restoration of the February 1980 status quo. -23- (3) Do you think the District Court applied the wrong law? Yes If so, what law do you want applied? The Court applied res judicata. To do so, it assumed --the cases were the same --the case had been heard. As the foregoing shows, those were erroneous assumptions. What it [the District Court] should have done was to apply: (a) The EEOC decision of 3 March 1983 on distinguishing identical cases from non-identical cases. Page 1 above. (b) Alaniz, 728 F.2d, 1465 principles. Page 1 above. (c) 29 C.P.R. 1613.211 et seq. on counseling. (d) estoppel principles halting agency reversal of position from admitting separate incidents to denying it. Page 1. (e) 5 U.S.C. 7513 on absence of advance notices. Page 2. (f) Federal Personnel Manual Supplement 752-1, S4-2 on collection of 5 U.S.C. 7513 affidavits. Page 2. (g) Equitable relief concepts from Hazel-AtIas, 322 U.S. 238. Pages 3, 14, 15, and 18. (h) Status quo and interim relief concepts from Levine, 610 F.2d, 437. Pages 4 and 11. (i) 5 U.S.C. 7902(d); 29 U.S.C. 706(7)(B); 29 C.P.R. 1910.1000.Z, and 32 C.F.R. 203 on eliminating hazards, not balancing; and on not accommodating drug abusers; instead of applying ill-fitting accommodation concepts to Mr. Pletten in a universal malice situation. Pages 5, 6, 9, 14, 15, and 16. Against interest, Mr. Pletten's superviser Carma Averhart (4/23/82 Dep., p. 73) denies considering accommodation: -24- "Well, I don't believe the question was what can we create but that it is what we can work with that [already] exists here [at TACOM]. "Well, how do you define reasonable accommodation? "I haven't really thought about defining reasonable accommodation." "Did you consider Mr. Pletten handicapped? "I don't know. I don't really think of it in that sense." (Dep. p. 73). (j) Case law (at page 8, note 2 above) to order the commencement of compliance with the 23 Feb. 1982 and 3 March 1983 EEOC processing orders. R. 8, App. 101-110. Said decisions should have been treated as res judicata in Mr. Pletten's favor. (k) Due process constitutional rights on timely case processing. Page 8 above. (1) Freedom of expression constitutional rights. Pages 8-10, and 14-17 above. (m) 5 U.S.C. 557(c)(A) and (B). Page 11 above. (n) TACOM Reg. 600-5, Para. 10 and AR 690-700.751-A.4. Page 11 above. (o) Unconstitutional vagueness concepts. Page 12 above. (p) 5 U.S.C. 552.(a)(1). Pages 12, 14, 17 and 21 above. (q) Deference concepts concerning OPM denial of a job requirement. Page 12 above. (r) Job description review guidance of Hall, 857 F.2d, 1078-9. Page 13 above. (s) Data on "employment" from Annot., 20 A.L.R.3d 893. It is ill-fitting to make a non-employment safety case an accommodation case. A request to revoke unlawful accommodation of drug abusers is not an accommodation request. Page 13 above. -25- (t) Constitutional impartiality concepts. Pages 17-18. (u) Pattern concept of Teamsters, 431 U.S., 362. Page 18. (v) Case law on court jurisdiction in advance of administrative review at note 53, 42 U.S-C. 2000e-16. Page 19. (w) Dicta concepts. Page 19 above. (x) Concept of arbitrary and capricious. Page 20 above. (y) Guidance against ex parte communications. Page 20. (z) 29 C.F.R. 1613.403 on forum choice. Page 21. (4) Do you feel that there are any other reasons why the District Court's judgment was wrong? Yes   If so, what are they? (a) It failed to apply Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977) against forever barring review of separate matters because of failure to prevail on some other separate matter (which the Court lacked jurisdiction to deal with absent administrative review having first occurred). R. 1, App. 48. As the Court granted a "forever bar," TACOM refuses to do review of the false claims of 10/10/89, T. 6, App. 167, pages 2 and 10 above. (b) It failed to apply res judicata in Mr. Pletten's favor based on Michigan Employment Security Commission decisions in his favor. Polk v. Yellow Frt. Sys., 801 F.2d 190, 192-193 (6th Cir. 1986). Res judicata has been applied by the Court selectively, adversely to Mr. Pletten, disregarding decisions in his favor, indicative of bias and prejudice. (c) It failed to apply guidance on dealing with underlying -26- regulatory and other defects in the agency case and action pattern, before dealing with other issues. R 1, App. 49-50. (d) It [the District Court] failed to apply Army rules on implementing USACARA Reports R. 6, App. 80-85. Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980). (e) It relied on MSPB decisions which were irrelevant. R. 1, App. 54-58. (f) It rejected the case before allowing Mr. Pletten to present it. R. 1, App. 50-52. Rich, 414 Mich. 961. [P 23.] (g) It failed to cause decisions to be made as of the [retroactive] date they should have been made but for the [TACOM] refusal of processing. R. 1, App. 67-68. Page 8 above. (h) It failed to rule on the pattern of misconduct actually cited in the Complaint. R. 1, App. 6-7, 67-74. (i) Judge Anna Diggs Taylor failed to disqualify herself or to rule at all pursuant to motions on non-impartiality. R. 1, 70-71; R. 14, App. 135-141; R. 27, App. 163-164. This fails to adhere to 28 U.S.C. 455(a) wherein it is mandatory that "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. 144 adds a promptness responsibility, "such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." Judge Taylor did not "disqualify" herself, nor "proceed no further" notwithstanding the obligation for same. (j) It failed to rule on or denied Mr. Pletten's motions. All should have been granted. -27- (5) What action do you want the [CA 6 Appeals] court to take in this case? (a) Apply all the foregoing facts, laws and rules. (b) Void the application of res judicata. (c) Grant relief from the prior Orders. (d) Declare the lack of a 5 U.S.C. 7513 advance notice. (e) Declare the lack of 29 C.F.R. 1613.403 data. [See p 21.] (f) Declare the lack of jurisdiction to issue prior orders on all grounds cited including on 5 U.S.C. 552 and absence of administrative processing grounds. (g) Declare that issues have not yet been identified administratively, so Court rulings having occurred on merits were without jurisdiction and premature. (h) Order administrative review to begin. (i) Order implementation of the 1/25/80 USACARA Report. (j) Order implementation of the 2/23/82 and 3/4/83 EEOC decisions ordering case processing to commence. (k) Order disqualifications, including of Judge Taylor. (1) Declare the cases to be separate and independent. (m) Order a halt to speculation as to what Mr. Pletten will say and relief he will seek once administrative review begins. (n) Order compliance with all laws and rules herein cited. (o) Order restoration of the February 1980 status quo, interim relief, and restoration to duty status, pending commencement of the above. -28- (6) Do you think that this Court should hear oral argument in this case? Yes If so, why do you think so? A pre-argument conference pursuant to Sixth Circuit Rule 18 will help obtain settlement. Where the underlying allegations relate to the person of Mr. Pletten, your seeing him yourself will assure you of his immediate ability to return to duty. (7) Please state if you are requesting leave to proceed without prepayment of filing fees, appointment of counsel, or transcript at government expense. The filing fee has been paid. Appointment of counsel is requested. The 9/14/89 transcript [by Magistrate Carlson] has not been received [and never was]. I certify that a copy of this brief was sent to opposing counsel via U.S. Mail on the 10th day of May, 1990. Respectfully submitted,   Leroy J. Pletten LEROY J. PLETTEN Plaintiff-Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343 -29- UNITED STATES COURT OF APPEALS SIXTH CIRCUIT LEROY J. PLETTEN, Plaintiff - Appellant, vs. Civil No. 89-2301 JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants - Appellees. _________________________________________________/ APPELLANT'S DESIGNATION OF APPENDIX CONTENTS Plaintiff-Appellant, pro se, pursuant to Sixth Circuit Rule 11(b), hereby designates the following filings in the district court's record as items to be included in the joint appendix: DESCRIPTION OF ENTRY DATE RECORD ENTRY NO.   Complaint 6/15/89 1   Plaintiff's proposed temporary restraining order to implement USACARA Report 6/15/89 1   Plaintiff's proposed temporary restraining order to implement EEOC decisions 6/15/89 1   Plaintiff's proposed temporary restraining order on returning plaintiff to duty 6/15/89 1   Plaintiff's motion for interim order to direct defendants to allow plaintiff to start collecting affidavits and, alternatively, for an order that he remains on defendants' rolls as a matter of law, with list of enclosures and proposed orders 7/05/89 4   Plaintiff's motion for interim order to direct defendants to abide by USACARA Report and to enforce and obey safety rules (including 5 U.S.C. 7902(d)) with enclosure list and proposed orders 7/05/89 6 -1- Defendants' motion to dismiss or in the alternative, for summary judgment 8/04/89 7   Plaintiff's motion for order for taking of depositions of appropriate Army EEO officials, with enclosure list, enclosures 1 and 2, and proposed order 8/09/89 8   Plaintiffs motion for order to preclude defendants from referring to alleged prior Court decisions, with issue 8/09/89 9   Plaintiff's motion to strike defendants' motion (#7) to dismiss or for summary judgment, or, alternatively, for summary judgment, with proposed orders, enclosure list and enclosures 1-3, 5, 11, 13-14 8/14/89 10   ORDER reassigning case from Judge Horace W. Gilmore to Judge Anna Diggs Taylor 8/16/89 13   ORDER setting briefing schedule and hearing date on defendants' motion (#7) to dismiss or for summary judgment 8/17/89 11   Order referring plaintiffs motions (#8) for depositions and (#9) to preclude reference to alleged prior Court decisions to Magistrate Thomas A. Carlson for hearing and decision 8/17/89 12   Plaintiffs motion to disqualify Judge Taylor, to take her deposition, and for prospective disqualification of any smoker from being assigned judge in this case, with proposed orders 8/25/89 14   Plaintiff's motion to reconsider Order (#l2) of reference to Magistrate 8/25/89 15   Plaintiffs motion to reconsider Order (#l3) reassigning case to Judge Taylor 8/25/89 16   Plaintiff's motion to reconsider Order (#11) setting briefing schedule and hearing date 8/25/89 17   Plaintiff's motion for order protecting against reprisal and misconduct related to upcoming OWCP hearing 9/01/89 19 -2- Plaintiff's motion for remand based on ex parte communication and to direct commencement of counseling and processing, with ex parte admission 9/10/89 20   Defendants' response to plaintiff's motion (# 8) for depositions 9/11/89 22   Defendants' response to plaintiff's motion (#9) to preclude reference to alleged prior Court decisions 9/11/89 23   Plaintiff's interim response to Defendants' motion (#7) to dismiss or in the alternative, for summary judgment 9/12/89 24   9/14/89 Hearing Transcript Excerpt -- --   Magistrate's ORDER denying plaintiff's motion (#8) for depositions and motion (#9) to preclude reference to alleged prior Court decisions 9/14/89 26   Plaintiff's affidavit for recusal of Judge Taylor and for prospective disqualification of any smoker from being assigned judge in this case 9/28/89 27   10/10/89 Hearing Transcript Excerpt 10/09/89 --   ORDER granting defendant's motion (#7) to dismiss Complaint 10/16/89 30   Plaintiff's Notice of Appeal 11/09/89 31 Respectfully submitted,   Leroy J. Pletten LEROY J. PLETTEN Plaintiff-Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343 -3- [Ed. Note: Decision: Pletten v Marsh, 920 F2d 933; 1990 WL 200328 (Table) (CA 6, 12 December 1990) cert den Pletten v Marsh, No. 90-7944; 501 US 1221; 111 S Ct 2836; 115 L Ed 2d 1005; 59 USLW 3838 (mem, 17 June 1991) reh den. Pletten v Marsh, 501 US 1280; 112 S Ct 35; 115 L Ed 2d 1116 (mem, 20 September 1991).