Retaliation is Contrary to the Law's Code of Ethics
To Code of Ethics,
To 18 USC § 241 Principles, Etc.

Part of the Government "Culture" of Terrorizing
Employees, Obstructing Us Doing Our Jobs
So Endangering Americans on a "Universal Malice" Basis

This Specific Case: Termination/Removal
Arises from Agency Reprisal Against
(a) Safety Whistleblowing Authorized by
AR 385-10.3-5a. and b., and
the Inspector General of Army Army Letter;
(b) Grievances Authorized by FPM 771 and CPR 700.771
(c) EEO Class Action Activity Aiding Coworkers
(d) Appeals Authorized by 29 CFR § 1613

The Termination/Removal Was
(1) Part of A Pattern of Gov't Felonies
(2) Part of A Pattern of Harassment
(3) Without Advance (or Subsequent)
Notice of Charges and Specificity
(4) Denial of Right to Reply
(Each Constituting Constitutional and
Statutory Due Process Violations)
(5) Denial of Notice of Appeal Rights
(6) Use of Non-Existent Qualification "Standard"
(A Statutory "Jurisdictional" Violation)
Wherefore Firing Was Void,
And Cannot Lawfully Be Ratified

Contents Affidavit 9 Jan 2004 Brief 12 Jan 2004 Exhibits Reply 11 March 2004 Support Letter, ASH, 6 May 2004 EEOC Decision, 23 Feb 2005 Affidavit 24 March 2005 Petition for Reconsideration 28 March 2005

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 Leroy J. Pletten, Appellant, Docket No. 01A41229 v. Agency No. ARTACOM03FEB0010 R. L. Brownlee, Acting Secretary, Department of the Army, 9 January 2004 Agency. ____________________________________/ AFFIDAVIT IN SUPPORT OF BRIEF STATE OF MICHIGAN ) ) SS COUNTY OF MACOMB ) Appellant Leroy J. Pletten, being first duly sworn, deposes and says that his statements in his Brief on Appeal in this case, are true and correct. 1. In summary, I am an employee of TACOM Department of the Army at its Tank-Automotive Command (TACOM) in Warren, Michigan, no pre-decision notice of charges having been given me. 2. TACOM assigned me personnel and crime prevention functions. I became a whistle blower, filed in safety, Inspector General, and grievance forums, and won a favorable USACARA Report (alluded to by EEOC 23 February 1982, p 2, top (Exhibit 7). 3. USACARA upheld TACOM' authority to cease permitting smoking under Army's pure air rule, AR 1-8 (IAW 32 CFR § 203) without reaching "accommodation issues," as per TACOM Chief Counsel's analysis, AR 1-8 "does give officials the authority to ban smoking" (19 June 1979). 4. Pursuant to verified-by-studies of government-wide pattern of retaliation against employees who do either (file grievance or whistleblower action), TACOM ousted me. It sent no 5 USC § 7513.(b) advance notice of charges, no reasons, no specificity, e.g., no misconduct or job description duties' performance requirements and qualifications unmet or below standards. -1- 5. I did no misconduct; attendance was better than co-workers; appraisals were for acceptable quality work under the performance evaluation law 5 USC § 4304. TACOM gave me awards. 6. TACOM nonetheless claims to have made some decision to terminate me. This was solely due to my refusal to alter anticipated testimony [see Benacquista confession of this], and cease and desist pursuing whistleblowing issues. That was the immediate "proximate cause" for the "decision to terminate" (Exhibits 5, 12, 17) 7. At the time (early 1980) TACOM ordered me out, it did not provide a notice of all review-forum rights so as to make "informed choice." It has never done so thereafter, despite doing various incidents (termination, forced leave, suspension, removal; terms vary as per no notice). 8. At each separate act (termination, suspension, forced leave, removal, separation; agency terms vary absent notice), an agency must notify employee of review forums to enable "informed choice" among them. As per my TACOM job duties, I enforced this concept for others impartially. 9. But for me, TACOM has often denied I have appeal rights, and opposed my every effort to secure review like others. I am NOT re-litigating, but attempting to learn (a) charges and specifics, and (b) forum-review-rights, as done for others. My review-seeking is not re-litigating; rather, it is persistence that TACOM would otherwise commend (if doing this as a job duty for others), my trying to get the notice and review process to begin as for others. Perhaps litigating may later occur, after such notice, though that is doubtful as review would verify the glaring violations. 10. Until TACOM notifies me of appeal rights, I do not know what they are, can only speculate. All I have done was "uninformed," mere guesses, thus void. I deny ever waiving my right to notice, charges, specifics, forum review options, and merits review like others typically receive, as per my years of experience providing same to others. I deny ever making an "informed choice" to seek judicial review, as in my experience, review by investigators occurs first; and, if the investigator did not resolve the matter, by hearing officers thereafter, with court-seeking quite unlikely. 11. Moreover, EEOC verified in Docket Nos. 01800273 et al, p 2 (23 Feb 1982) (Exhibit 7), -2- a decision TACOM did not appeal, that it had cut me off from access to EEO review by Feb 1980. Significantly, that is in the time-frame of Mr. Perez noting the "decision to terminate" (Exhibit 7). 12. I could not make, was not allowed to make, uncoerced free "informed choice" of forum in which to seek review, of which the agency neither notified me, nor allowed me to have access, as EEOC's Mr. Perez then saw, and TACOM EEO officials later admitted against interest. (Ex 7, 12, 17). 13. TACOM alleged 'disqualification.' But in a female co-worker case, Re Bertram, File No. A9-190131, it denied that the matter at issue is in employment, "a condition of her work," or in her job description requirements. For me, it pretends, without notice, the contrary. 14. As a Position Classification Specialist, GS-221-12, I wrote job descriptions. Neither mine, nor anyone else's, has a BFOQ of the type TACOM alleges. 15. In terms of ratifying the TACOM "decision to terminate," I believe that is a void act as per TACOM's having committed constitutional and statutory violations rending the ouster process void, and doubly void, as per TACOM's having not notified me of my appeal rights so as to obtain review, and its having fraudulently denied ability to cease permitting smoking, an authority it has now exercised (Exhibit 6) without even citing any regulatory or statutory basis, the authority is so obvious!. 16. I have never considered the issues "settled," issues of my being terminated, suspended, put on forced LWOP contrary to the agency regulation 600-5.14-28 and 29, terminated, removed. TACOM terms vary as it issued no 30 days advance notice pursuant to 5 USC § 7513.(b). 17. I have continually been seeking review to begin as done for others, e.g., to be told the charges, specifics, to thus enable "reply" as provided for by 5 USC § 7513.(b), time and again, see for example Exhibit 20; and to get processing to begin on my EEO requests for review to commence administratively, pursuant to the then EEO regulation, 29 CFR § 1613, now 29 CFR § 1614. 18. Such review was twice ordered by EEOC, Feb 1982 and March 1983 (Exhibits 7 and 9). 19. I believe a pattern of reprisal exists within the federal civil service, as verified by, e.g., such -3- studies as MSPB's periodic job Retaliation Rate Studies in the 1992 - 2000 era, www.mspb.gov/studies/00decnws.pdf (December 2000) (Exhibit 18). 20. In my years of experience, I have never seen such an extraordinary combination of circumstances, denied notice of charges, denied review rights notice (denied rights provided others), etc. as herein shown, never having seen an employee denied such rights without redress, and devastated in life by this experience extreme retaliation pattern. 21. America is harmed by the practice of retaliation, in terms of federal employees verified fears, e.g., FBI agents' fears, NASA engineers' fears, etc., with respect to, e.g., terrorism and safety deficiencies, e.g., in the Columbia Shuttle incident occurring during the pendency of this case-whistleblowing at NASA apparently was deterred, as shown by the Report at www.caib.us. 22. All copies provided with my filings are true copies. 23. Assuming that TACOM continues its pattern of merely filing attorney pleadings, or nothing, without any first hand evidence under oath, this affidavit is to be accepted as undisputed, see case law, e.g., Ceja v U.S., 710 F2d 812 (CA Fed, 1983) [and Vargas v USPS, Appeal No. 01922245 (1992)]. /s/Leroy J. Pletten Leroy J. Pletten Personnel Office Crime Prevention Officer/Appellant This document was acknowledged and signed by Leroy J. Pletten before me on January 9, 2004. /s/Janice L. Stys Janice L. Stys   NOTARY PUBLIC MACOMB CO., MI MY COMMISSION EXPIRES Nov 20, 2005 -4-

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 Leroy J. Pletten, Appellant, Docket No. 01A41229 v. Agency No. ARTACOM03FEB0010 R. L. Brownlee, Acting Secretary, Department of the Army, 9 January 2004 Agency. ____________________________________/ BRIEF IN SUPPORT OF APPEAL 12 January 2004 Leroy J. Pletten Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 (586) 739-8343 TABLE OF CONTENTS Table of Contents i   Table of Controlling Authorities iii   Statement of Facts 1   Argument   1. Please Apply Pertinent Legal Standard in Your Review 5   2. EEOC Has Authority to Grant Relief Pursuant to Inherent Agency Authority, Also Note the Various Criteria of FRCP 60(b) 5   3. The Background Shows A Pattern of Agency Lawlessness 7   4. The Agency Committed Fraud By Promising EEO Review Without Any Intention of Carrying Out That Promise 9   5. The Agency Committed Fraud Preventing My Defense 9   6. The Agency May Claim I'm on Disability Retirement But Such Remarks Are Prejudicial and Premature 10   7. The Extraordinary Circumstances Include An EEOC Role 11   8. It Is No Longer Equitable That the Ouster Decision Have Prospective Application, While Other Employees Ousted Without Due Process Notice of Charges Remain on Rolls 12   9. It Is No Longer Equitable That the Ouster Decision Should Have Prospective Application, See Unjust Discharge Criteria 14   10. It Is No Longer Equitable That the “Decision to Terminate” Should Have Prospective Application Pursuant to the 5 USC § 552 Jurisdictional Bar 16   11. It Is No Longer Equitable That The Termination Have Prospective Application, See Accommodation vs Pure Air Criteria 19   12. It Is No Longer Equitable That The “Decision to Terminate” Have Prospective Application Absent Compliance With Conditions Precedent (Notice of Charges and Specifics Enabling Reply) 21 -i- 13. It Is No Longer Equitable That The “Decision to Terminate” Should Have Prospective Application Where TACOM Denied Me “Informed Choice” To Even Commence Review 22   14. It Is No Longer Equitable That The “Decision to Terminate” Should Have Prospective Application Where There Has Been Intervening Change in the Legal Atmosphere 24   15. It Is No Longer Equitable That The “Decision to Terminate” Should Have Prospective Application, In Context of the Proper Reaction to Tobacco Hazard--To Discipline Smokers, Not Personnel Office Staff Reporting Their Hazardous Behavior 28   16. It Is Extraordinary That the Agency Did Not Abide By Its Own Guidance and Data in Doing The Better Practice To Not Hire/Enlist Smokers in the First Place 30   17. In Total Context, The Ouster Process Was Void 32   18. It Is No Longer Equitable That The “Decision to Terminate” Have Prospective Application, In Context of All These Facts and Precedents, re Which for Others On Even One Aspect, The Government Does A “Confession of Error” 33   19. The Agency Did Not Make Subordinate Findings of Fact 33   Conclusion 34 -ii- TABLE OF AUTHORITIES Case Law   Advance Notice Requirement Federal Employee Cases 12-13, 15, 28   Aiken v Wisconsin, 195 US 194; 25 S Ct 3; 49 L Ed 154 (1904) 24   Aiken v Obledo, 442 F Supp 628 (ED Cal, 1977) 18   Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975) 17   Albaugh v Abbott, 253 Mich 588; 235 NW 263 (1931) 20   Aldred's Case, 9 Coke 48 (England, 1610) 20   Anderson v Butz, 550 F2d 459 (CA 9, 1977) 18   Anderson v Dept of Transp, F.A.A., 46 MSPR 341 (1990) 5, 13   Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962) 34   Austin v State of Tennessee, 101 Tenn 563; 48 SW 305 (1898) aff'd 179 US 343 (1900) 7, 30   Basinger v OPM, 5 MSPR 210 (1981) 21   Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956) 12   Berends v Butz, 357 F Supp 143 (D Minn, 1973) 18   Bevan v N.Y. St. T. R. System, 74 Misc 2d 443; 345 NYS2d 921 (1973) 10, 18   Bishop v E. A. Strout Realty, 182 F2d 503 (CA 4, 1950) 9   Blanchard v St. Paul Fire & Marine Ins Co, 341 F2d 351 (1965) cert den 382 US 829 6, 10, 25, 32   Boilermakers v Hardeman, 401 US 233; 91 S Ct 609; 28 L Ed 2d 10, 21 (1971) 12   Bolling v Dept of Navy, 43 MSPR 668 (1990) 19   Bond v Vance, 117 US App DC 203; 327 F2d 901 (1964) 21 -iii- Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986) 18   Boyce v U.S., 211 Ct Cl 57; 543 F2d 1290 (1976) 15   Brown v U.S. Postal Service, 47 MSPR 50 (1991) 19   B.T.C. v Norton C.M.C., 25 F Supp 968 ([WD Ky] 1938) 23   Byrd v Campbell, 591 F2d 326 (CA 5, 1979) 15   Camfield v U.S., 167 US 518; 17 S Ct 864; 42 L Ed 260 (1897) 20   Caprin v Harris, 511 F Supp 589 (D ND NY, 1981) 32   Carreno v Dept of Army, 22 MSPR 515 (1984) 3, 8, 23   Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986) 22   Christianson v Snohomish Health District, 133 Wash 2d 647; 946 P2d 768 (1997) 20   Clark v U.S., 162 Ct Cl 477 (1963) 15   Cleveland Bd. of Ed. v Loudermill, 470 US 532; 105 S Ct. 1467, 64 L Ed 2d 494 (1985) 6   Coleman v Darden, 595 F2d 533 ([CA 10] 1979) [cert den 444 US 927; 100 S Ct 267; 62 L Ed 2d 184 (1979)] 16   Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964) 14   Deak v Pace, 88 US App DC 50; 185 F2d 997 (1950) 12   Dept of Health, Educ and Welfare, Social Sec. Admin. and AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (1982) 20, 25   Discipline of Smokers vs Personnel Office Employees Case 28-30   Douglas v Veterans Admin., 5 MSPR 280 (1981) 14   Enrich v Touche Ross & Co, 846 F2d 1190 (CA 9, 1988) 18   Equity Cases 24   Family Independence Agency v Kucharski, 468 Mich 202; 661 NW2d 216 (2003) 10 -iv- Fletcher v Rylands, LR 3 HL 330 (1866) 20   Francisco v Campbell, 625 F2d 266, 269-70 (CA 9, 1980) 15   Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975) 18   Giles v U.S., 213 Ct Cl 602; 553 F2d 647 (1977) 15   Glus v Eastern District Terminal, 359 US 231; 79 S Ct 760; 3 L Ed 2d 770 (1959) 23   Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969) 33   Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964) 14   Hall v U.S. Postal Service, 857 F2d 1073 (CA 6, 1988) 17   Hardison v Gledhill, 72 Ga App 432; 33 SE2d 921 [1945] 21   Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238; 64 S Ct 991, 88 L Ed 1250 (1944) 5, 9, 12   Haines v Kerner, 404 US 519; 92 S Ct 594; 30 L Ed 2d 652 (1972) 5   Hardison v Gledhill, 72 Ga App 432; 33 SE2d 921 [1945] 33   Historic Green Springs, Inc v Bergland, 497 F Supp 839 (ED Va, 1980) 18   Hotch v U.S., 212 F2d 280 (CA 9, 1954) 18, 23   Howard v U.S., Civ. LV-77-219 RDF (D Nev, 3 July 1980) (Mem. Order at 9) 15   In re Oliver, Bkrtcy, Minn, 38 B.R. 245 [1984] 21   In re United Corporation, 249 F2d 168 (CA 3, 1957) 33   Int'l UAW v General Dynamics LS Div, 259 US App DC 369; 815 F2d 1570 (1987) 8   Johnson v Dept of Labor, 26 MSPR 447 (1985) 23   Johnson Waste Materials v Marshall, 611 F2d 593 (CA 5, 1980) 5   Jones v J. J. Security, 767 F Supp 151 (ED Mich, 1991) 28   Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898) 9 -v- Locker v American Tobacco Co, 194 F 232 (SD NY, 192) 25   Long v Air Force, 683 F2d 301 (CA 9, 1982) 12   Mallett v Taylor, 78 Or 208; 152 P 873 (1915) 20   Malone v Colyer, 710 F2d 258 (CA 6, 1983) 5   Mandel v Nouse and TACOM, 509 F2d 1031 (CA 6) cert den 422 US 1008 (1975) 13   Marquette Corp v Priester, 234 F Supp 799 (D SC, 1964) 5, 11   McCahill v Commercial Ins Co, 179 Mich App 761; 446 NW2d 579 (1989) 9, 11   Miyai v Dept of Transp, 32 MSPR 15 (1986) 23   Money v Anderson, 93 US App DC 130; 208 F2d 34 (1953) 12   Montgomery Ward Bureau of Labor, 16 FEP 80; 280 Or. 163; 570 P2d 76 (1977) 6   Morton v Ruiz, 415 US 199; 94 S Ct 1055; 39 L Ed 2d 270 (1974) 18   Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954) 12   National Realty & Const Co Inc v Occupational Safety & Health Review Commission, 160 US App DC 133; 489 F2d 1257 (1973) 25   New York Life Ins Co v Nashville Trust Co, 200 Tenn 513; 292 SW2d 749 (1956) 9   New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875; 14 L Ed 178 (1898) 21   Newton Co v Erickson, 70 Misc 291; 126 NYS2d 949 (1911) 8, 23   Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964) 34   Onweiler v U.S., 432 FSupp 1226 (D ID, 1977) 18   Pence v Langdon, 99 US 578; 25 L Ed 420 [1879] 22   People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975) 8   People v General Dynamics LS Div, 175 Mich App 701;4238 NW2d 359 (1989) 8   People v Gorney, 99 Mich App 199; 297 NW2d 648 (1980) lv app den 410 Mich 911 (1981) 33 -vi- Piccone v U.S., 186 Ct Cl 752; 407 F2d 866 (CA Fed, 1969) 10   Reilly v Grayson, 157 F Supp 2d 762 (ED MI, 2001) aff'd 310 F3d 519 (CA 6, 2002) 19   Rex v White and Ward, 1 Burr 333 (King's Bench, 1757) 20   Rex v Neil, 2 Carr & Payne 485 (England, 1826) 20   Saint Elizabeth Hospital v U.S., 558 F2d 8 (CA 9, 1977) 18   Scharf v Dept of Air Force, 710 F2d 1572 (CA Fed, 1983) 9, 23   SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) 12, 34   Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) 23   Shimp v New Jersey Bell Telephone Co, 145 N J Super 516; 368 A2d 408 (1976) 20   Siemering v Siemering, 95 Wis 2d 111; 288 NW2d 881 (Wis App, 1980) 21   Spencer v Toussaint, 408 F Supp 1067 (ED Mich, 1976) 32   Stack v Boyle, 1342 US 1; 72 S Ct 1; 96 L Ed 3 (1951) 19   Stalkfleet v U.S. Postal Service, 6 MSPB 536 (1981) 16   State of Missouri vx rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938) 20   Stewart v Wyoming Cattle Ranch Co, 128 US 383; 9 S Ct 101; 32 L Ed 439 [1888] 22   Sabol v Snyder, 524 F2d 1009 (1975) 16   Stevenson v Golden, 279 Mich 710; 276 NW 848 (1938) 23   Stumbo v Seabold, 704 F2d 910 (CA 6, 1983) 10   Sullivan v Dept of Navy, 720 F2d 1266 (CA Fed, 1983) 6, 10, 13, 21, 33   Taubman Co v Webfeats, 319 F3d 770 (CA 6, 2003) 18   Taylor v Meirick, 712 F2d 1112 (CA 7, 1983) 12   Teamsters v U.S., 431 US 324; 97 S Ct 1843; 52 L Ed 2d 396 (1977) 8, 13, 22, 24 -vii- Tenorio v NLRB, 680 F2d 598 (CA 9, 1982) 11   Texaco Inc v U.S., 217 Ct Cl 416; 579 F2d 614 (1978) 24   Trowbridge v City of Lansing, 237 Mich 402; 212 NW 73; 50 ALR 1014 (1927) 20   Tucker v U.S., 224 Ct Cl 266; 624 F2d 1029 (1980) 15   U.S. v Bausch & Lomb Optical Co, 321 US 707, 64 S Ct 805; 88 L Ed 1024 (1944) 24   U.S. v Cirami, 563 F2d 26 on remand 92 FRD 483 (CA 1, 1977) 5, 11   U.S. v City of Chicago, 549 F2d 415 (CA 7, 1977) 17   U.S. v Graham, 688 F2d 746 (CA 11, 1982) 33, 35   U.S. v. Hayes Int'l Corp., 415 F2d 1038 (CA 5, 1969) 34   U.S. v Kibler, 667 F2d 452 (1982) 8   U.S.v Philip Morris, Inc et al., CA 99-2496 (GK) (filed 22 September 1999 24   U.S. v Russo, 708 F2d 209 (CA 6, 1983) 33   U.S. v $3,216.59 in U.S. Currency, 41 FRD 433 (DC SC, 1967) 5, 11   U.S. v Wilford, 710 F2d 439 (CA 6, 1983) 8   Virgil v Andrus, 667 F2d 931 (CA 10, 1982) 18   Washington v Dept of Army, 813 F2d 390 (CA Fed, 1987) 21   Watkins v City of Memphis, 373 US 531; 83 S Ct 1314 (1963) 20   W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498 (CA 4, 1973) 18   White v Mathews, 559 F2d 852 (CA 2, 1977) cert den 435 US 908 (1978) 9   Wilson v Turnage, 791 F2d 157 (CA Fed, 1986) 24   Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984) 15, 27, 33 -viii- Federal Laws   5 USC § 552.a(1) 17, 18, 23   5 USC § 2302.(b)(6) 16   5 USC § 7513.(b) 1-4, 13, 21, 26, 33   5 USC § 7902.(d) 24, 28, 30   29 USC §§ 651-678 1   29 USC § 706(7)(B) 7     Federal Rules of Civil Procedure   Fed.R.Civ.P 12(h)(3) 18   Fed.R.Civ.P 60(b) 4-6, 32     Federal Regulations   5 CFR § 731.202(c) 15   5 CFR § 752.404(a) 12   5 CFR § 831.1206(a) 10   29 CFR § 1607.5(b)(3) 17   29 CFR § 1613/1614 2, 4, 10-11, 17, 22, 34-35   29 CFR § 1910.1000 1, 7, 17   32 CFR § 203 (also known as Dept of Defense Instruction 6015.18) 1, 20, 25, 31   CSC Board of Appeals and Review, Memorandum No. 2 15   Federal Personnel Manual 751 and 752-1 15-16, 27 -ix- Michigan Laws   MCL § 750.27, MSA § 28.216 1, 8, 17, 24, 25   MCL § 750.213, MSA § 28.410 8     Defense, Army, and TACOM Regulations   Army Regulation 1-8 (on smoking conduct) 1, 19-21, 24-25, 28, 30   Army Regulation 385-10.3-5a (on reporting hazards) 7   Dept of Defense Instruction 6015.18, 32 CFR § 203 (on smoking conduct) 1, 20, 25, 31   TACOM-R 190-4 (anti bringing personal property and drugs onto premises) 1, 8, 25   TACOM-R 600-5.14-27 to 29 (banning forced leave with pay (LWOP)) 21     Miscellaneous References   American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (DSM-III) (1980) 32   Army Aeromedical Research Laboratory Report No. 86-13, Smoking and Soldier Performance (June 1986) 30-31   Army Anti-Tobacco Proclamation (17 April 1986) 31   Black's Law Dictionary 9, 18, 21-24, 32   Blumrosen, Alfred W., et al., “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 California Law Rev (#3) 702-731 (May 1976) 20   Columbia Shuttle Crash Investigation 26-27   Department of Health, Education and Welfare (U.S.), National Institute on Drug Abuse (NIDA), Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581 (1977) 32   Department of Health, Education and Welfare (U.S.), International Classification of Disease, 9th ed. (ICD-9) (1980) 32 -x- Devine, Thomas M. and Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection,” 4 Antioch Law J 5-71 (Summer 1986) 26   Devine, Thomas M. and Donald G. Aplin, “Whistleblower Protection--Gap ween Law and Reality,” 31 Howard Law J (#2) 223-239 (1988) 26   Devine, Thomas M , “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent,” 51 Admin Law Rev (#2) 531-577 (1999) 26-27   Harper's Code of Hammurabi §§ 53-54 20   Jaffe, Prof. Jerome H. M.D. (Columbia University), “Tobacco Use as a Mental Disorder: The Rediscovery of a Medical Problem” (1977) 32   Kohn, Stephen M. and Michael D. Kohn, “An Overview of Federal and State Whistleblower Protection,” 4 Antioch Law Journal 99-152 (Summer 1986) 26   Kwitney, Jonathan, The Crimes of Patriots (New York: W.W. Norton & Co, 1987) 7   Lander, Meta, The Tobacco Problem, 6th ed (Boston: Lee and Shepard, 1885) 30   MSPB Retaliation Rate Study (December 2000) 6, 26, 34   Toledo Blade (October 2003 Army Personnel Crimes Series) 7   New York Times (28 Dec 2003 Army Personnel Crimes) 7   Weis, William, Ph.D., 60 Personnel Journal (Issue #3) 164 (March 1981) 31   Weis, William, Ph.D. and Bruce W. Miller (NY: Prometheus Books, 1985) 32 -xi- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 Leroy J. Pletten, Appellant, Docket No. 01A41229 v. Agency No. ARTACOM03FEB0010 R. L. Brownlee, Acting Secretary, Department of the Army, 9 January 2004 Agency. ____________________________________/ BRIEF IN SUPPORT OF APPEAL STATEMENT OF FACTS Appellant Leroy J. Pletten is an employee of the Department of the Army, TACOM, Warren, Michigan. Assigned building was No. 230, in southwest periphery (see map, Exhibit 1). The TACOM Personnel Office of which I was one member had about 100 employees; each of us did our assigned share. Pletten had a record of awards for excellent work and attendance (never sick leave). Pletten (with support of immediate supervisor Jeremiah H. Kator) filed reports to safety and Inspector General personnel, of misconduct by TACOM managers. They were allowing spreading of hazardous chemicals such as carbon monoxide (42,000 ppm says Surgeon General Report data on cigarette emissions) in violation of 29 CFR § 1910.1000 maximums in the 50-100 range, tantamount to driving 42,000 violating lower speed limit). TACOM's own Command Physician, Dr. Francis J. Holt, verified the bad TACOM ventilation system, “. . . mechanical failures happen all the time [p 25 line 16],” resulting in “hazardous to them [TACOM employees p 42]”. Rather than solve the hazard, as TACOM's own Industrial Hygienist Edwin Braun had recommended “over and over and over again” as pertinent ventilation equipment was “outmoded” so air became “stagnant” [p 17 line 25] and “hell” [p 18 line 2], TACOM ousted Pletten in reprisal for his for having successfully reported the hazard to “all [p 42 line 14].” The ouster was without 5 USC § 7513.(b) advance notice. 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). Pletten also filed in the EEO class action system (reference Exhibit 5) on behalf of self and affected co-workers endangered by the widespread violations (as per the behavior at issue being, said Surgeon General, major cause of disease, i.e., of preventable handicaps). The behavior involved danger from which numbers of employees were costing money, e.g., by extra absenteeism, and behavioral problems, as smoking behavior is linked in medical findings to abortions, alcoholism, drug abuse, etc. (Exhibit 3). Rules such as 32 CFR § 203; 29 USC §§ 651 - 678; MCL § 750.27, MSA § 28.216; Army Regulation 1-8, TACOM-Reg 190-4, 5 USC § 7902.(d) etc., had been written to prevent such effects; but TACOM management disagreed with them, refused to -1- enforce, much less obey them. Other employees (e.g., persons filing Worker Compensation claims such as Evelyn Bertram, due to being injured by the behavior at issue), were deterred by agency hostility "culture" into not reporting the violations. Pletten's citing TACOM violations was confirmed by the Army's Civilian Appellate Review Agency (USACARA) investigator Norma Kennedy, a fact verified by you at EEOC (Dockets Nos. 01800273 et al, p 2 top) (Exhibit 7). Pletten made clear he'd use the supportive USACARA investigator findings in the EEO system to aid his co-workers. (Investigators did double duty, investigating both personnel and EEO matters). In reprisal for Pletten's success with the Investigator, and to obstruct Pletten's EEO class action activity on behalf of coworkers, agency management forthwith made (without Pletten's supervisor Kator's support) a “decision to terminate,” observed by EEOC's Henry Perez, Jr. (Exhibit 5). Note also that management committed extortion and embezzled Pletten's pay to force him to stop [whistleblowing], see admission by TACOM Colonel John J. Benacquista (Exhibit 8). The Army ex parte made the extraordinary termination decision summarily (a) without citing any Pletten misconduct, malperformance, mal-anything re identified conduct or job standards and (b)without providing Pletten the condition precedent required constitutional due process and 5 USC § 7513.(b) 30 days advance notice of charges. [Due process of law is traceable back at least to the Magna Carta (1215).] Without notice of what to defend, Pletten was thus refusal [refused and] obstructed from his constitutional and statutory right to reply BEFORE the decision was made. As the agency, TACOM, did not do an advance notice, the government has felt free to give varied explanations thereafter of when and why the ouster. Amazingly, a most extraordinary occurrence, the agency has alleged, for example, Pletten's inability to do the job—the job he had been performing for years with a record of awards! The personnel job involved speaking and writing memoranda of personnel matters. The record of Pletten's writing alone, after the “decision to terminate,” would convince anyone he can still write! (Pletten also received unemployment compensation, something by law (MCL 421.28(1)(c)—"able and available" requirement) not allowed a person genuinely unable to work), further corroborating the extraordinary circumstances. Worse, even more extraordinary and exceptional, to further obstruct justice, to obstruct Pletten even obtaining review of the “decision to terminate,” TACOM did not notify Pletten of his review rights (Exhibits 2 and 19), but instead mostly denied he had any. It obstructed Pletten from review in the EEO forum, a fact verified by you at EEOC in (Docket Nos. 01800273 et al, p 2, top, Exhibit 7). Having dealt with USACARA investigators of personnel and EEO cases throughout his career, Pletten preferred them and their data-development competence and analytical skills, so naturally had began seeking review of the pre-ouster incidents and then the ouster, in the EEO 29 CFR §1613 forum. The agency essentially admits this, see the post-dismissal chronology reported by the agency EEO Office to local EEOC as starting 30 October 1979 (Exhibit 17). (Note that the letter does not claim to have ever allowed EEO review to proceed beyond counseling, into investigation and hearing, notwithstanding the then 29 CFR § 1613, now 1614, mandate to do so.) The EEOC forum was in fact closed to Pletten in the crucial decade, as EEOC verified in Docket Nos. 01800273 et al, p 2, top, and TACOM confesses against interest (Exhibits 12 and 17). -2- With the EEO forum closed to him, Pletten subsequently tried in the MSPB forum. But TACOM obstructed him getting review there either, arguing that MSPB lacked jurisdiction, see Pletten v Army, 7 MSPR 13 (1981). (In fact, a later precedent would confirm MSPB's lack of jurisdiction when the employee has filed first in the EEO forum, Carreno v Dept of Army, 22 MSPR 515, 518 (1984)). TACOM did not want Pletten to get review, period. The TACOM purpose was to extort him into silence, to embezzle his pay, to force that (Exhibit 8). Allowing review would overturn that illegal purpose. With respect to Pletten's violations-reporting and class action (note EEOC letter, Exhibit 5), the agency retaliated with more incidents than just the ouster; and Pletten filed EEO complaints on those incidents also. The agency rejected all without investigation, sometimes even without counseling. EEOC on 23 February 1982 (Docket Nos. 01800273 et al, (Exhibit 7) ordered review on merits. The agency defied EEOC and its order, has never done the review-on-merits ordered. This refusal continued despite the Deputy Commanding General David W. Stallings promising Pletten that his appeals would be processed as Legal Office said (Exhibit 6). This written 29 Jan 1982 promise was after Pletten had filed for review in the EEO forum against the ouster; and just weeks before the 23 Feb 1982 EEOC order to do processing. (Docket Nos. 01800273 et al, Exhibit 7). Pletten relied on the General's word that processing would occur as said by the TACOM Legal Office (Emily Bacon) to the Investigator. Pletten did not suspect the General had lied, committed fraud, an extraordinary thing. In Pletten's experience in Dept of Army, a General's word was good. But fraud, lying, is what the General's word turned out to be, unless EEOC orders TACOM to do as promised, what I had just again requested, and what EEOC would days later be ordering. With the normal review processed closed, the government has felt free to retroactively alter its stories justifying the ouster, eventually (among various claims not put into a 5 USC § 7513.(b) notice) going so far as to allege Pletten's inability to work and a supposed “disability retirement”. What turned out to be TACOM's permanent refusal of review in the EEO forum with investigators in the process with which Pletten was familiar, has continued to date, despite my every effort (and they have been many) to get the promised review to begin. The refusal has now continued for an extraordinary amount of time. Pletten has periodically provided updated data for inclusion in file (reply and review) once same is allowed. That is the situation giving rise to the present case. The instant situation arose when Pletten was called for Macomb County Circuit Court jury duty December 2002, performed it to Jury Commission satisfaction, showing him to be in fact able to perform duty notwithstanding TACOM's claims, and provided such data to the agency for inclusion in the file and action, with request for action (Exhibit 20). When no response came, Pletten filed for EEO counseling to begin on this immediate matter and the pattern. The agency stalled and obstructed, did not allow counselor to meet Pletten in-person, and (after the half-hearted "counseling" which may not even record my claims nor proffered evidence) did not send notice for going forward until months later, as the record shows. -3- TACOM currently refuses to send me a copy of the Counselor Report, despite repeated requests, as per agency policy alluded to by its Colonel Larry Wigner on 24 July 1980, "the Command will no longer respond to" me, confirming refusal to allow me to reply to the ouster nor have EEO review of same. (Agencies control the counselor and investigation process, and can, and here easily do, prevent normal review ever occurring by invariably refusing to "accept" a case for processing, thus forever preventing development of the record by an investigator, the system I am trained in and have, by experience, confidence in). I hope the Counselor included in Report in case file to be sent EEOC, the appropriate data, but not having seen it, do not know. The TACOM refusal-of-review process documented by TACOM's own EEO Officer, Gonzellas Williams, 26 Feb 1996 (Exhibit 17), does claim having talked with Pletten “nineteen different occasions following his dismissal . . . . October 30, 1979 . . . .” Williams did not claim that the Army had allowed more review on merits than that--talk! (Williams called it "counseled"!!!) Significantly, it corroborates the 23 Feb 1982 EEOC finding that TACOM cut off Pletten's access to review, during the entire crucial period of the ouster process according to one of TACOM 's own versions (that the process occurred in the 1980 - 1982 period). Despite Pletten's many requests for EEO review to commence in that crucial period, TACOM itself by its own admission against interest, shows refusal. He did not claim TACOM had over obeyed the 23 Feb 1982 EEOC order (Exhibit 7). The Army clearly has no intention of ever complying by its terms. This refusal occurs despite its own General David W. Stallings and Legal Office promising me EEO review as sought (Exhibit 6). Note that in any response the agency may make, it may argue that with Pletten cut off from access to the EEO 29 CFR §1613 system, he later sought review from the Merit Systems Protection Board (MSPB) and courts. It will omit to mention its fraud forcing me to do that, and the extraordinary and exceptional aspects such as its having refused me "informed choice" to do so, thus no jurisdiction by same, as NEVER my freely made "informed choice." Not until the "informed choice" process is allowed to proceed, by the administrative EEO forum being opened for me, and investigation and hearing as done for others on request, and not until then, will it be legitimate to say, someday in future, that I shall then in future have gone to such forums. (I do not anticipate that ever occurring, as I expect to prevail on merits without going past the EEO administrative stages of investigation, hearing, decision, as per the entire matter ab initio constituting fraud by agency, "error of law" (and constitutional law), and "extraordinary and exceptional circumstances." Lack of 5 USC § 7513.(b) notice prima facie voids the ouster. As EEOC ordered review in Dockets Nos. 01800273 et al (Exhibit 7), of the ouster, etc. (which TACOM may claim it did-without citing names of any investigator or hearing officer, as there were none), this case is tantamount to a Federal Rule of Civil Procedure (FRCP) 60(b), especially (4), (5) and (6) request concerning what happened and/or it is an independent action on point. The bottom line is, EEOC attorneys and personnel office/human resources staff surely know that no federal employee can legally be ousted as I was, without notice of charges, without opportunity to reply to the unknown charges, without notice of review rights. Such is extraordinary and aexceptional. -4- ARGUMENT 1. PLEASE APPLY PERTINENT LEGAL STANDARD IN YOUR REVIEW. As the agency has cut off my pay, embezzled it to pressure me to cease and desist (Exhibit 8), I am near destitute, lack an attorney, and am obstructed in presenting my side without one. Pursuant to case law such as Haines v Kerner, 404 US 519, 520; 92 S Ct 594, 595; 30 L Ed 2d 652 (1972), pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers"). See also Malone v Colyer, 710 F2d 258, 260 (CA 6, 1983) ("the allegations in pro se complaints must be taken as true and construed in favor of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976).") Please apply this concept. 2. EEOC HAS AUTHORITY TO GRANT RELIEF PURSUANT TO INHERENT AGENCY AUTHORITY, ALSO NOTE THE VARIOUS CRITERIA OF FRCP 60(b) Administrative agencies have authority to reconsider decisions on their own initiative as long as proper notice is given and the right is reasonably exercised. The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be "the right result." Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). This authority exists even when there have been court proceedings, as the Anderson decision notes. Anderson is based on a line of cases such as Hazel-Atlas Glass Co v Hartford Empire Co, 322 US 238, 244; 88 L Ed 1250; 64 S Ct 997 (1944). Assuming arguendo that the agency processed the 23 Feb 1982 Order (Exhibit 7), as ordered (which it did not not--no investigation or hearing ever occurred, and the agency can cite no names of investigators, hearing officers, etc.), and somehow there was a ruling against me, this concept applies. A federal court reopening guideline, Federal Rule of Civil Procedure, FRCP 60(b), lists reasons, e.g., (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial (here, the Macomb County jury duty aspect Exhibit 20); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) when it is no longer equitable that a judgment should have prospective application, and (6) "any other reason justifying relief from the operation of the judgment." This rule authorizing relieving a party or a legal representative from a final judgment or order for any reason justifying relief is to be liberally applied in a proper case, that is, in a case involving extraordinary circumstances or extreme hardship. U.S. v. Cirami, 563 F2d 26, on remand 92 F.R.D. 483 (CA 1, 1977); Marquette Corp v Priester, 234 F Supp 799 (D SC, 1964); U.S. v $3,216.59 in U.S. Currency, 41 F.R.D. 433 (D SC, 1967). A liberal construction of this rule is particularly appropriate where equitable considerations are involved. Johnson Waste Materials v Marshall, 611 F2d 593 (CA 5, 1980). -5- The "right result" when there has been no due process notice under 5 USC § 7513.(b) is to follow case law such as [Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965) and] Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains "on the rolls"), and rule accordingly. Not doing so destroys employee career, finances, family, a situation clearly inequitable and an extreme hardship to me. Ed. Note: Per Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965), "The rule has been firmly established in pay cases 'that lawful administrative action depriving claimant of a procedural right voids the action and leaves the plaintiff to his money otherwise due, until (at the least) proper procedural steps are completed [citations omitted] . . . . These references [cited by the agency] do not mean that the agency's action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission suspends the final operative effect of the initial decision. It follows that an employee who has been deprived of a procedural right by the Commission [board] must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due." Per Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972), job discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses.' Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891." This "right result" concept is especially pertinent as providing advance notice is a constitutional duty, Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985), to avoid precisely such inequities. It is extraordinary to be ousted without the agency notifying the accused employee of the charges in advance, and allowing opportunity to reply before decision is made (Exhibits 5, 12, 17). It is especially extraordinary on a "qualifications" charge as unmet non-requirements [here, for tobacco smoke in job site air] "can never prevent performance of the job," see the principle at Montgomery Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977) Note the federal qualifications' writing agency, Office of Personnel Management, denial of a qualification requirement for smoking (Exhibit 10). TACOM had fraudulently acted as though such a requirement existed. It is extraordinary for a federal agency with a large personnel (human resources) office such as TACOM had, reviewing employee qualifications continually, to fraudulently invent a qualification requirement which its own job analysis personnel know they never demand of any other employee. Subd. (b)(4) to (6) of FRCP 60(b) providing for relieving party from a final judgment if it is void, if it is no longer equitable that judgment should have prospective application or for any other reason justifying relief from operation of judgment, is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965), cert den 382 US 829; 86 S Ct 66; 15 L Ed 2d 73. A judgment condoning firing an employee without notice is clearly an "erroneous" one not to be enforced. EEOC is requested to apply this concept. I am suffering extreme hardship, loss of career, finances, family, in deep debt. And the "extreme hardship" goes deeper. The nation is suffering from the rampant "culture" of anti-federal employee activity, notoriously the employee fear to report problems that would lead to the February 2003 Columbia Shuttle explosion, and resultant CAIB report (see http://www.caib.us) citing the hostility "culture" at NASA. Note also the fear at FBI leading to failure to prevent 9/11, and the widespread civil service fear to raise the issue of violations, as the retaliation rate study shows (Exhibit 18, also at http://www.mspb.gov/studies/00decnws.pdf , page 5). Federal employees are deterred by the fact a. that NO LAW Congress passes for us has worked in violations-reporting situations, b. we each are the guinea pig to show such ineffectiveness in our own case, until c. the next employee protection law is passed, and d. adjudicators invariably find yet another alleged loophole to deny relief, and e. Congress supposedly again "fix the problem" for future whistleblowers while, f. adjudicators leave the past ones out-of-remedy. -6- MSPB reports that many employees dare not take that risk (Exhibit 18). Widespread fear of reprisal deters whistleblowing, on safety/EEO matters as here, or whatever, and endangers the public. Reprisals are NOT being deterred. What IS being deterred is whistleblowing, e.g., not just at TACOM re admittedly bad ventilation, but at FBI re terrorism, NASA re Shuttle deficiencies, etc., with the result that Americans are injured or killed. This deterrence by fear will continue unless relief is provided, and made clear to federal employees generally, that when a situation occurs of being ousted without notice, without charges, without notice of all review rights, and with every effort to attain review obstructed, redress will be provided as a matter of law, equity, and justice. 3. THE BACKGROUND SHOWS A PATTERN OF AGENCY LAWLESSNESS. This situation began a. by TACOM hiring smoker applicants contrary to (i) 29 USC § 706(7)(B) principles against hiring those who "constitute a direct threat to property or the safety of others" and (ii) Civil Service Hiring Standard Form 78, Certificate of Medical Examination, precluding hiring applicants with "medical findings which . . . would make him a hazard to himself or others," e.g., smokers. Smoking is widely recognized as a hazard, pursuant to Surgeon General Reports showing cigarettes' carbon monoxide emissions at 42,000 ppm vs 29 CFR § 1910.1000 safe limit in 50-100 ppm range; hence, Army used to be a leader in not hiring smokers, see Austin v Tennessee, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703 (1898) aff'd 179 US 343 (1900); Army knows that "if the military [would still] restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services," says Army Aeromedical Research Laboratory Report No. 86-13, Smoking and Soldier Performance (June 1986), p 149 (e.g., rapes, Exhibit 15). b. with Army's own Regulation ("AR") 385-10.3-5a. and b. "emphasizing personnel responsibility for making . . . reports" "of unsafe or unhealthful conditions," but with no system in place to protect employees from reprisal for making such reports; c. by ousting anti-drug smuggling whistleblowers, says Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (NY: Norton, 1987), pp 51-52 (Exhibit 11), relevant as tobacco use is medically recognized as starter drug (Exhibit 3), and the Army policy was ousting Army's own investigators when they reported drug smuggling by Army personnel; d. by the agency policy of not prosecuting crimes by its personnel, as cited by, e.g., the recent series, "Buried Secrets, Brutal Truths" (Toledo Blade, 10 October 2003) (Exhibit 23). See also "Report on Brutal Vietnam Campaign Stirs Memories," by John Kifner (New York Times, 28 Dec 2003): the atrocities were not by a "'rogue' unit." No, the personnel "were under orders to do it." "Nicholas Turse, a doctoral candidate at Columbia University, has been studying government archives and said they were filled with accounts of similar atrocities. "I stumbled across the incidents The Blade reported," Mr.Turse said by telephone. "I read through that case a year, year and a half ago, and it really didn't stand out. There was nothing that made it stand out from anything else. That's the scary thing. It was just one of hundreds." -7- The "only soldier officially punished was a sergeant who reported the decapitation of an infant to his superiors."--Phillip Galley, "My Lai not the only atrocity in Vietnam," The Macomb Daily, p 9A (17 Nov 2003). In view of this recent media discovery of the agency policy of not adhering to the rule of law, not even criminal law, it is clear there was and is agency policy/orders to violate the rules of law cited herein, an extraordinary combination of circumstances to say the least-a rogue agency. “The proof of the 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) e. by cigarette smuggling onto TACOM premises in violation of MCL § 750.27, MSA § 28.216 (banning deleterious cigarettes from Michigan), and by TACOM's own TACOM-R 190-4, banning drugs and discouraging personal property being brought on-post; f. by extortion (violating MSA § 28.410, MCL § 750.213) that I alter anticipated testimony, cease and desist exposing a natural and probable consequence of cigarette smuggling, a contaminated environment. (Exhibit 8, lines 23-25). Change testimony, or have pay embezzled and become destituted: that was the choice. Case law precludes requiring such a choice, e.g., People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975) ("whether she was going to testify"); U. S. v Wilford, 710 F2d 439 (CA 8, 1983) (forced union dues payments); U.S. v Kibler, 667 F2d 452 (1982). Employees cannot legally be coerced in such ways. g. by the policy of allowing air-borne hazards to continue, to the extent that an employee was killed at the TACOM Tank Plant, see People v General Dynamics Land Sys Div, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990), and Int'l Un, UAW v General Dynamics Land Sys Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976 (1987). "One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal." Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (1911). It is inequitable, extraordinary and exceptional to continue prospectively not "eradicating the evils" affecting me: "[W]here a distribution system [here, cigarette smuggling in violation of Michigan law MCL §750.27, MSA § 28.216 with TACOM even allowing sales and use of the contraband substance on-premises despite the agency's own rules] exists . . . which is illegal . . . where that illegality necessarily persists in part . . . subsequent [actions], otherwise valid, should be cancelled, along with the invalid arrangements, in order that the ground may be cleansed effectually from the vice of the former illegality. Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole." U.S. v Bausch & Lomb Optical Co, 321 US 707, 724; 64 S Ct 805; 88 L Ed 1024 (1944) (numerous citations omitted). -8- 4. THE AGENCY COMMITTED FRAUD BY PROMISING EEO REVIEW WITHOUT ANY INTENTION OF CARRYING OUT THAT PROMISE. TACOM Deputy Commanding General David W. Stallings promised Pletten his appeals would be processed (Exhibit 6). As the agency controlled access to the 29 CFR §1613 EEO forum, that was a most significant promise, of the highest magnitude. This written 29 Jan 1982 promise was after Pletten had first filed in the EEO forum against the ouster; and just before the 23 Feb 1982 EEOC order to do processing (Docket Nos. 01800273 et al, Exhibit 7). This precluded MSPB jurisdiction, Carreno v Dept of Army, 22 MSPR 515, 518 (1984). (Cf. 7 MSPR 13 (18 June 1981)). Pletten relied on the General's promise (confirming that of the Legal Office). However, TACOM has never allowed counseling, investigation, hearing, to occur in the EEO forum, and has for decades resisted all my efforts to attain fulfillment of the promise, and EEOC's own order immediately following, to my extreme detriment and undue hardship. The word of a General being "intentional perversion of truth" (Black's Law Dictionary, 6th ed (1990), p 660, terminology) is indeed extraordinary. White v. Mathews, 559 F2d 852 (CA 2, 1977), cert den 435 US 908 (1978), shows that even agency trying (at "glacial pace") to schedule review is not constitutionally adequate. Pletten did "rely on what had been told him." "There is nothing in law or in reason which requires one [here, Pletten] to deal as though dealing with a liar or scoundrel [Stallings], or that denies the protection of the law to the trustful [Pletten] who have been victimized by fraud . . . it was never any credit to the law to allow one who had defrauded another to defend on the ground that his own word should not have been believed." Bishop v E. A. Strout Realty, 182 F2d 503, 505 (CA 4, 1950). It is clear that TACOM had no intention of doing as Gen. Stallings promised (and its own rules provide; no Army rules say, defy EEOC decisions!!); "a promise made without any intention of per-forming it [is] one of the forms of actual fraud," Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898). TACOM's EEO Office confirms the fraud (Exhibit 17), access denial in the crucial decade. The agency "extreme and outrageous . . . conduct [arises] from the abuse of a relationship which puts [the agency] in a position of actual or apparent authority . . . or gives [the agency] power to affect [appellant's] interests," McCahill v Commercial Ins Co, 179 Mich App 761, 768; 446 NW2d 579, 582 (1989). 5. THE AGENCY COMMITTED FRAUD PREVENTING MY DEFENSE. The agency not providing me a 5 U.S.C. 7513(b) notice of charges, of forum options, and of pretending review would occur which it intended not to do (Exhibit 6)--each aspect is fraud, and fraud of a specific type, the kind preventing me from presenting my case in freely chosen forum chosen with free and uncoerced "informed choice," with proper truthful information, Scharf v Air Force, 710 F2d 1572 (CA Fed, 1983). Ed. Note: Note that TACOM including its Deputy Commander, BG David Stallings, had lied, had alledged it would process my requests for review. "The doctrine of clean hands requires [action] to avert further injury to the public . . . the mere fact that information is available, or even that it is actually heard or read, does not mean that it is effectively understood. A man who hears a hundred 'yeses' for each 'no,' when the actual odds lie heavily the other way, cannot be realistically deemed adequately informed." Here TACOM regularly lied, pretended processing would occur, when in fact it is now clear that TACOM was committing fraud, promising what there was no intent to ever perform or allow (review in the EEOC forum, i.e., counseling, investigation, hearing, like others receive on request). "Any time the uncleanness of . . . hands . . . comes to [adjudicator] attention . . . the [adjudicator] is required to act sua sponte . . . on account of the public interest . . . for the advancement of right and natural justice." Robinson v American Broadcasting Companies, 328 F Supp 421, 422, 424-426 (D ED Ky, 1 June 1970) affd 441 F2d 1396, 1399 (CA 6, 30 April 1971). "'Fraud which . . . prevents [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 SW2d 749 (1956), relying on Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 US 238 (1944). -9- Upholding an ouster under these fraudulent circumstances is an erroneous judgment as per the Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965) criteria; and that listed in Black's Law Dictionary, 6th ed (1990), p 660, and definitely unjust and contrary to law and Congressional intent. It is extraordinary for an agency to not state the charges to enable the accused to reply, to refuse access to one of the 29 CFR §1613.403 now § 1614.203(b) forum options, to pretend it will make the closed-off forum (the EEO forum) after. Significantly, the agency controls access to that forum, by allowing or obstructing access to investigation and hearing, the normal review allowed for others. 6. THE AGENCY MAY CLAIM I'M ON DISABILITY RETIREMENT BUT SUCH REMARKS ARE PREJUDICIAL AND PREMATURE. I repeatedly returned to duty paralleling Bevan v N. Y. St. T. R. System, 74 Misc 2d 443; 345 NYS2d 921 (1973) (another employee ousted over a non-requirement). I remain ready, willing, able, and eager to return to duty, as examining doctors find (Exhibits 13, 14), and provide repeated findings likewise time and again. I periodically send RTD reminder to TACOM as per that fact. Though TACOM may claim otherwise (and has made such claim ex parte with an adjudicator, see Exhibit 25) I have not applied. The pertinent regulation, 5 CFR § 831.1206(a), specifies that an applicant "must submit to OPM the following forms included in Standard Form 2824 . . . 2824A . . . 2824B . . . 2824C . . . 2824D . . . 2824E," etc., which documentation package I refused to "submit." I refused despite the ongoing embezzlement of my pay to extort me (Exhibit 8). Nonetheless, TACOM may make such a claim. I deny it in advance. Significantly, pursuant to 5 CFR 831.1205(c)(1), "OPM will cancel any disability retirement when a final decision of an administrative authority or court reverses the removal action and orders the reinstatement of an employee to the agency rolls." Ed. Note: Employer "'protestations or repentance and reform timed to anticipate or blunt the force of a lawsuit offer insufficient assurance that the practices sought to be enjoined will not be repeated.'" Rowe v General Motors Corp, 457 F2d 348, 359 (CA 5, 1972), citing Cypress v Newport News General and Nonsectarian Hospital Assn, 375 F2d 648, 658 (CA 4, 1967). Here, this was neither 'protest' nor 'reform,' but additional employer retaliation up to and including but not limited to what is undisputed to be blackmail, bribery, fraud, and obstruction of justice. This refers to TACOM having filed the application as a part of its pattern of racketeering. Note OPM's well-reasoned opposition to the TACOM claims. OPM supported Pletten's ultra-documented superior-quality work record and ability. So TACOM citing such a status as a way of "justifying" the ouster and bolstering its case, is prejudicial, tantamount to calling my position a "cock and bull" story, unacceptable argumentation as per case law such as Stumbo v Seabold, 704 F2d 910, 912 (CA 6, 1983). And in view of my appeal pending (stalled due to continuing refusal to process the review request on merits), I expect to prevail ab initio against the agency-filed application (OPM was supportive of my position). Once review is allowed to commence, I will cite case law such as Piccone v U.S., 186 Ct Cl 752; 407 F2d 866 (1969) (separation of an employee for disability is premature while appeals are in process, as mine were) [People v George, 399 Mich 638; 250 NW2d 491 (1977) (no lower jurisdiction while appeal pending at higher level)]; and Family Independence Agency v Kucharski, 468 Mich 202; 661 NW2d 216; Lexis 939 (2003) (overturning an adoption while parental rights had not been terminated); such over-eager rush to judgment is "not permitted to proceed . . . where the parent's appeal remains pending" (here, my appeal remains pending). Yet TACOM rushed to oust me; incidently, Gen. Stallings committed fraud on that point too (Exhibit 6), wrongly pretending prior receipt of an OPM 5 CFR § 1206 decision! Even if he had had it, it had not been provided me, corroborating that I was denied the right to reply to the ex parte evidence TACOM was alleging existed. Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983). -10- 7. THE EXTRAORDINARY CIRCUMSTANCES INCLUDE AN EEOC ROLE Among the extraordinary circumstances of this case are such EEOC-related matters as: 1. EEOC had no follow-up system in 1982-1983 to assure agency processing as orderd in Dockets Nos. 01800273 et al, p 2 top, and Request No. 05820275 (Exhibits 7 and 9). 2. EEOC was not doing timely adjudication for years, as per the 1979/1980 incidents/cases not dealt with and decided even procedurally until 1982 3. EEOC did not provide adequate notice of rights, omitting to cite need to name agency head, an error of omission in Dockets Nos. 01800273 et al, and Request No. 05820275 (Exhibits 7 and 9), that undermines ability to seek court redress if desired. 4. EEOC has no "recall" system, unlike private enterprise which "recalls" defective items, i.e., EEOC has no system to correct decisions such as mine which gave inadequate notice of court rights, by issuing corrected, revised more complete decisions to individuals involved. Ed. Note: This deficiency arose from EEOC's high caseload and lack of trained staff. See Quarles v Philip Morris, 271 F Supp 842 (ED VA, 1967). EEOC has subsequently remedied these deficiencies for others, while leaving me in the lurch. By having so often appealed to EEOC (e.g., Exhibits 7 and 9), I show my reliance on EEOC's review forum choice being made available. I relied on EEOC to (a) assist, (b) be timely (here when most needed, during the decade wherein the ouster was occurring and I was cut-off from access to EEO forum by TACOM's refusal to allow access, Exhibits 12, 17) with an ouster among the reprisals at issue, (c) at least have a follow-up system for its own decisions, and (d) give adequate rights notice. TACOM has taken advantage of EEOC's systemic omissions. It has treated EEOC orders as a joke, given less respect than the processing of toilet paper supply orders (those orders it processes!). Ed. Note: See pertinent precedent, Jackson v Concord Co, 54 NJ 113; 253 A2d 793 (2 June 1969): in-person and "telephone inquiries [were] met with a succession of incredible excuses and evasive replies about the status of his application, a tactic obviously designed to discourage him from pursuing the [matter]," p 796. And "a . . . business [EEO review system] could not possibly survive if all potential customers were treated as this complainant was," p 796. "this denial was effected by a deliberate policy of delay, hindrance, excuses, evasions and antagonism virtually amounting to outright rejection . . . Certainly the [anti-discrimination] policy and requirements cannot be [lawfully] thwarted by any kind of indirection and attempted subtlety. Dilatory or evasive conduct toward a member of a class which the statute is designed to assist and protect is a badge of unlawful discrimination," p 796. And "when such a course of conduct appears, a strong case is made out, and respondent has a heavy duty to justify his actions. The effort of these respondents was indeed feeble and utterly unconvincing." p 796. And "such discrimination is regarded as a public wrong and not merely the basis of a private grievance," p 798 (citation omitted). The goal is "to eradicate the cancer of discrimination," p 799. "Even in the case of an individual complainant, it is plain that the public interest is also involved. Discrimination, by its very nature, is directed against an entire class in the particular circumstances and wrongful conduct against a complaining individual is indicative of such a state of mind in the worongdoer against the class. Common knowledge and experience dictate the conclusion, for example, that an apartment owner found to have discriminated because of race in one instance may well have discriminated, and proposes to discriminate, against all others of the class seeking [rights]," p 799 (citation omitted). This "extreme and outrageous . . . conduct [of treating EEOC orders with contempt arises] from the abuse of a relationship which puts [the agency] in a position of actual or apparent authority . . . or gives [the agency] power to affect [appellant's] interests [by defying EEOC decisions for him]," McCahill v Commercial Ins Co, 179 Mich App 761, 768; 446 NW2d 579, 582 (1989). Hence, there has been no processing (i.e., investigation, hearing) within the time-frame EEOC directed, and 29 CFR § 1613 specified (180 days from o/a 23 February 1982 and 4 March 1983, Exhibits 7 and 9). TACOM makes a mockery of the EEO process of appealing to EEOC and prevailing. No EEOC decisions in my case matter, except ones that TACOM likes. Had TACOM had the moral conscience and decency to have complied with EEOC's orders, we would not be where we are now. So exceptionally flouting repeat EEOC orders is shocking to the conscience, extraordinary, especially as discharge, "the most serious sanction an employer can impose," requires "special care in handling" review, Tenorio v N.L.R.B., 680 F2d 598, 602 (CA 9, 1982). Extraordinary circumstances are among the type warranting relief. U.S, v. Cirami, 563 F.2d 26, Marquette Corp, 234 F Supp 799, U.S. v $3,216.59 in U.S. Currency, 41 F.R.D. 433, supra . -11- The "tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public." Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238, 246; 64 S Ct 991, 88 L Ed 1250 (1944). “A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965).” Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983). 8. IT IS NO LONGER EQUITABLE THAT THE OUSTER DECISION HAVE PROSPECTIVE APPLICATION, WHILE OTHER EMPLOYEES OUSTED WITHOUT DUE PROCESS NOTICE OF CHARGES REMAIN ON ROLLS. Due process includes the right to notice, and to reply, prior to decision. Even slaves had a right to proper notice of charges! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1861): The right to a properly drafted statement of charges is “a substantial right . . . and not a mere question of form or proceeding.” It is extraordinary, shocking to conscience, to refuse me that right. It is undisputed that Defendant did not issue a “statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts,” Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971) before “decision to terminate” (Exhibits 5, 12, 17). This is so despite Congress, to protect the public by precluding agencies from doing unjust, discriminatory, unreasoned, or reprisal terminations of employees, having required agencies to state in writing the basis for even proposing an ouster 30 days in advance. 5 USC § 7513.(b). A notice must: a. comply with 5 CFR § 752.404(f) Ed. Note: 5 CFR 752.404(f) is a constitutional due process rule saying inter alia: "In arriving at its decision, the agency shall not consider any reasons for action other than those specified in the notice of proposed action. . . ." When noncompliance is evident, reversal and starting anew is to occur. Shelton v EEOC, 357 F Supp 3, 8 (D. Wash, 1973) aff'd 416 US 976 (1974). by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983); SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) ("judge the propriety of action solely by the grounds invoked"; not by “counsel's post hoc rationalizations"; but only by what is “given"); b. say more than conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954); c. enable more than “general denials,” Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950); d. list witnesses and say “the names . . . places . . . dates” of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being: (i) “lengthy and detailed,” Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956); (ii) “numerous examples of specific errors,” Long v Air Force, 683 F2d 301 (CA 9, 1982); -12- (iii) “item by item,” Mandel v Nouse and TACOM, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975). TACOM knows this, but here did none of this. Pursuant to Smith v Dept of Interior, 9 MSPR 342, 344 (1981), an agency must provide “specific examples” of “alleged performance deficiencies” “to meet the 'specificity' test” as “[a] notice of proposed adverse action is required to be specific enough so that the employee is presented with sufficient information to enable him or her to make an 'informed reply.' S. Rep. No. 95-969, 95th Cong., 2d Sess. 50 (1978), U.S. Code Cong. & Admin. News 1978, p 2723, Report of the Senate Committee on Governmental Affairs." TACOM has never provided me such specificity, thus precluded me replying. As a matter of equity, and to show the extraordinary and exceptional circumstances, note the long line of case law that proper 30 days advance notice of charges must be given for an ouster to be upheld, e.g., Hart v U.S., 148 Ct Cl 10, 16-17; 284 F2d 682, 686-687 (1960); Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Service, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985) [Passmore v DOT, FAA, 31 MSPR 65 (13 June 1986); Valentine v D.O.T., 31 SPB 358 (11 August 1986)]; Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991); and Comptroller decisions, e.g., [37 Comp Gen 160] 38 Comp Gen 203; 39 Comp Gen 154; and 41 Comp Gen 774, cited in FPM Supp 752-1, S1-6c(4)(c) - (d) (4 Feb 1972). The bottom line is, showing how exceptional and extraordinary is what TACOM did, and wants to be allowed to get away with, nobody ousted without 5 USC § 7513.(b) notice fails to win! Why exception here? Answer: the pattern of reprisals against whistleblowers (Exhibit 18) that MSPB cites. "The proof of the 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). The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). Here, an ouster without notice of charges, without providing specifics to which to reply before the “decision to terminate” is made (verified at Exhibits 5, 12, 17), is clearly NOT “the right result." As a matter of equity to deal with extraordinary combination of circumstances, please help. It is not equitable to prospectively continue my extraordinary and exceptional status as not on the rolls, when all others' precedents show otherwise: that any other federal employee ousted without notice, without due process of law, in short, remains “on the rolls.” [Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965) and] Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains “on the rolls"). -13- 9. IT IS NO LONGER EQUITABLE THAT THE OUSTER SHOULD HAVE PROSPECTIVE APPLICATION, SEE UNJUST DISCHARGE CRITERIA. Here by TACOM's own subsequent “confession against interest” (Exhibits 12 and 17, of ouster time frame verified earlier by EEOC's Henry Perez, Jr., Exhibit 5) was no “advance notice” to which I could reply, present a defense, to the “decision to terminate.” No “just cause” existed by any criteria, private or federal. I had excellent performance, attendance, conduct, awards, recognition, better than others. TACOM had not applied any discharge criteria, not a. the private enterprise seven point criteria of Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964), Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964) (1) Forewarning employee of possible consequences of conduct (No, not done here) (2) The allegedly violated rule or order must be reasonably related to orderly, efficient, and safe operations (No, no rule has been cited that I “violated") (3) Before administering discipline, employer is to investigate whether employee did, in fact, violate or disobey the rule or order (No, no investigation occurred) (4) Employer investigation must be conducted fairly and objectively (5) In investigation, employer must obtain sufficient evidence or proof that employee was guilty as charged. (No, as OPM denies a requirement exists, (Exhibit 10) (6) Employer must apply its rules, orders, and penalties evenhandedly and without discrimination (I was singled out as I reported the hazard its Dr. Holt and E. Braun cited, p 1 above) (7) Degree of discipline must be reasonably related to seriousness of offense and employee's record. (No. Pletten committed no offense; TACOM issued no notice citing any) "'No' answer to one or more normally signifies that just and proper cause did not exist." Ed. Note: Pursuant to Cooper v US [Navy], 639 F2d 727, 730 (Ct Cl, 17 Dec 1980), "the decision to remove plaintiff [Cooper] was based on barebones conclusions . . . The Government made no effort to go beyond the arrrest records; it undertook no independent fact-finding investigation [beyond the local police]. As if to add insult to injury, the Government's [non-police] investigator [who merely photocopied the local police data] failed himself to take the stand at plaintiff's hearing." "DIS did not deign to take the statement of a single witness." "the Government's failure to conduct an adequate investigation prior to plaintiff's removal was inexcusable." The dissent at p 722 favored no remand for more facts to give the agency a second chance to prove case, instead saying: "The law requires that there be sufficient evidence at the time of determination by administrative proceedings." B. the twelve point civil service criteria of Douglas v Vet. Adm., 5 MSPR 280, 305-306 (1981) (1) Nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated (No, no offense was cited) (2) Employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position (3) Employee's past disciplinary record (None, my record was clear) -14- (4) Employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. (Work and attendance were above-norm) (5) Effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties (No offense) (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. (Singled out in reprisal for citing hazard its Dr. Holt and E. Braun knew of, p 1) (7) Consistency of the penalty with any applicable agency table of penalties (No) (8) Notoriety of the offense or its impact upon the reputation of the agency (No offense) (9) Clarity with which the employee was on notice of any rules violated in committing the offense, or had been warned about the conduct in question (No notice of non-existent offense) (10) Potential for the employee's rehabilitation (None needed, no offense was committed) (11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. (Agency was violating its own rules as own staff Holt and Braun knew, p 1) (12) Adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others; and citing 5 C.F.R. §§ 731.202(c); Federal Personnel Manual, ch. 751, subch. 1-2 Dec. 21, 1976); CSC Board of Appeals and Review, Memorandum No. 2; Francisco v Campbell, 625 F2d 266, 269-70 (CA 9, 1980); Howard v U.S., Civ. LV-77-219 RDF (D Nev, 3 July 1980) (Mem. Order at 9); Giles v U.S., 213 Ct Cl 602; 553 F2d 647, 650-51 602 (1977); Boyce v U.S., 211 Ct Cl 57; 543 F2d 1290, 1294 (1976); Tucker v U.S., 224 Ct Cl 266; 624 F2d 1029, 1034 (1980); Byrd v Campbell, 591 F2d 326, 331 (CA 5, 1979); Clark v U.S., 162 Ct Cl 477, 485 (1963) c. the five-point criteria of Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984). (1) Where the agency engaged in a “prohibited personnel practice” (5 §§ 7701(g)(l)) (here using a qualification “requirement” it knows does not exist, and applied to no other employee) (2) Where the agency's action was “clearly without merit” (5 § 7701(g)(l)), or was “wholly unfounded,” or the employee is “substantially innocent” of the charges brought by the agency (no charge of any misconduct was made in any advance notice). (3) Where the agency initiated the action against the employee in “bad faith,” including: a. Where the agency's action was brought to “harass” the employee; b. Where the agency's action was brought to “exert improper pressure on the employee to act in certain ways” (here, extortion, Exhibit 8). -15- 4. Where the agency committed a “gross procedural error” which “prolonged the proceeding" or “severely prejudiced” the employee (no pre-decision advance notice, Exhibit 5) 5. Where the agency “knew or should have known that it would not prevail on the merits” when it brought the proceeding. (The agency knew, as evidenced by its cutting off access to an entire review forum, EEOC's, for the decade, Exhibits 12 and 17, and as evident throughout) Ed. Note: Pursuant to Wyle v R. J. Reynolds Industries, Inc, 709 F2d 585 (CA 9, 30 June 1983), when an organization law firm engages in deliberate ignorance of facts, that is deemed equivalent of knowledge; as failure to investigate binds it to the underlying misconduct. "Removal" is defined as “A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault," according to Federal Personnel Manual Supplement 296-33, Subchapter 35, Glossary, page 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications requirements, and/or performance standards involved as allegedly having been willfully violated, and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in conduct. Clearly, as Pletten had done nothing where he was “at fault," the agency could provide, and did provide, no 30 days advance notice, or even a retroactive one, alleging such. 10. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE" SHOULD HAVE PROSPECTIVE APPLICATION PURSUANT TO THE 5 USC § 552 JURISDICTIONAL BAR. My actual issues are as delineated herein. But to obstruct focus on them, TACOM fraudulently twisted the focus. It alleged as a cover story, the deleterious cigarette smoke issue, and treated it as an uncontrollable Bona Fide Occupational Qualification (BFOQ) requirement; and further, that Pletten des not meet that qualification requirement! The[r]e is no such requirement, the qualifications writing agency, Office of Personnel Management denies it (Exhibit 10). Even if the TACOM claim were somehow true, “the job requirements and qualifications [of my job description, shared with others] had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975). Once review begins (closed to me during the entire decade at issue, see Exhibits 12 and 17), once review occurs and does “examine the position descriptions," does look for “legitimate job requirements," pursuant to law and precedents such as Coleman v Darden, 595 F2d 533 ([CA 10] 1979) [cert den 444 US 927; 100 S Ct 267; 62 L Ed 2d 184 (1979)], Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981), review will find tobacco smoke is not, never was, “in the requirements for any position." TACOM using a non-existent BFOQ is a prohibited personnel practice, violating 5 USC § 2302(b)(6). Ed. Note: "The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the [unequal] treatment." U.S. v Jacksonville Terminal Co, 451 F2d 418, 449 (CA 5, 1971). "Elusive, purely subjective standards must give way to objectivity." Brown v Gaston Co Dye Mach Co, 457 F2d 1377, 1382 (1972). See also Prewitt v Postal Service, 662 F2d 292, 306-8; 27 EPD 32,251 (CA 5, 5 Nov 1981). It makes key points including: noting when a matter is not required for "the essentials of the job" employer "duty to make a reasonable accommodation . . . where [employer] predicated the refusal to employ on [handicap]" and Prewitt's showing that except for handicap, Prewitt was qualified, as making a "prima facie" case. Here of course, the "handcap" claim is nonsense. It was invented long after the "decision to terminate" (Exhibit 5). A discrimination victim can use inferential proofs of discriminatory motive, as in Sweeney v Bd of Trustees of Keene St. College, 569 F2d 169 (CA 1, 1978), others of her qualifications were promoted. Here, others with my qualifications were retained and promoted. Recall the qualifications writing agency (OPM) denial, (Exhibit 10. OPM is the same agency doing the study (at www.fhcs.opm.gov) finding foreseeable high employee quit rate due to a significant rate of poor management in the civil service. In such environment, it is inequitable to ratify poor management, prospectively disqualify me on a non-existing BFOQ. Using real BFOQ's is a basic civil rights principle. -16- Significantly, no such requirement as TACOM alleges is published. Publication, notice, is jurisdictional. 5 USC § 552.(a)(1). This law is followed for others, not me (Exhibit 10). (I asked OPM under the Freedom of Information Act (FOIA) preparatory to 29 CFR § 1613 case review starting. I expected (due to Stallings' fraud (Exhibit 6) and the presumed force of the EEOC processing orders (Exhibits 7 and 9), that review would soon occur in the 29 CFR §1613 forum as sought, promised, ordered!) But unbeknownst to me, TACOM would obstruct me getting such review by EEOC unlike others, Exhibits 12 and 17. TACOM foresaw that EEOC would enforce BFOQ law, so to prevent that, TACOM would violate any rule, any EEOC order, to obstruct justice, to obstruct the review I sought. TACOM fabricated the BFOQ issue from smoker preferences. Mere personal preferences are a banned BFOQ preference pursuant to a. Michigan's cigarette ban, MCL § 750.27, MSA § 28.216 (banning deleterious cigarettes, the source of deleterious cigarette emissions such as carbon monoxide at 42,000 ppm says Surgeon General data, whereas the 29 CFR § 1910.1000 legal maximum is in the 50 - 100 ppm range), and b. basic civil service and civil rights law, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 cert den 404 US 950 (1971). Personal preferences lack legal standing as BFOQs. Any claim tobacco smoke is a BFOQ “suffers from a further inadequacy in that it failed to comply with 29 C.FR § 1607.5(b)(3), which requires that criteria used to predict job performance 'must represent major or critical work behaviors as revealed by careful job analysis.'" Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, “Job-relatedness can only be determined where the criteria for selection are clearly identified." That means “individualized inquiry" on job description requirements, Hall v Postal Service, 857 F2d 1073, 1078-9 (CA 6, 1988). TACOM did none, no “job analysis," “inquiry." BFOQ's must be applied across the board, not to one person (Pletten, in disparate treatment). BFOQ's must be stated in advance, not fabricated retroactively, i.e., be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v City of Chicago, 549 F2d 415, 429-434 (CA 7, 1977). There are minimal medical requirements for personnel work, due to the nature of the desk job. Those few are limited to use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. All of them TACOM's own Dr. Francis Holt certified Pletten meets! Review by an Army Investigator or by EEOC will show such facts in minutes. No wonder TACOM denies Pletten such review for a decade, Exhibits 12 and 17. Each would see that in Michigan especially, smoking is not, cannot be, a BFOQ. Deleterious cigarettes are illegal pursuant to law MCL § 750.27, MSA § 28.216. Far from finding deleterious cigarette smoke a BFOQ, each would find it is result of illegal smuggling. Please take administrative notice that no federal employee has ever, but me, been accused of having a ''presence of tobacco smoke'' qualification requirement--accused without the right to reply, as per TACOM not providing me a notice of charges, specifics, to which to reply. -17- 5 USC § 552.(a)(l)(C) - (D) makes publication of a qualification requirement “jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986). Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule. See Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has done this violation before); Onweiler v U.S., 432 F Supp 1226, 1229 (D ID, 1977); Berends v Butz, 357 F Supp 143, 154-158 (D Minn, 1973); Anderson v Butz, 550 F2d 459 (CA 9, 1977); Dean v Butz, 428 F Supp 477, 480 (D HAW, 28 Feb 1977); St. Elizabeth Hospital v U.S., 558 F2d 8, 13-14 (CA 9, 1977); Aiken v Obledo, 442 F Supp 628, 654 (D ED Cal, 1977); Historic Green Springs, Inc v Bergland, 497 F Supp 839, 854-857 (D ED Va, 1980); Vigil v Andrus, 667 F2d 931, 936-939 (CA 10, 1982). Others similarly situated are not treated like me, an inequity. TACOM disqualifying me on a non-BFOQ (on same job description as co-workers!), is inconsistent, needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984). Please take official notice that no tobacco qualification “requirement" exists for anyone. Please take official notice of the OPM Denial Letter (Exhibit 10). The TACOM story to the contrary was invented purely ad hoc, invented solely for me. EEOC would reject TACOM's story, hence, TACOM's determination to not allow me EEOC review, obstruct that up-front, Feb 1980, Exhibit 7, p 2 (top). “Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127. I repeatedly return to duty as per Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) (case of employee also falsely accused of not meeting non-existent qualification requirement!). In interim, I continue following last assignment--get out! (An area employee also being retaliated against, had been assigned to count ceiling tiles!! no end of management creativity to retaliate!!) And to benefit the government by advancing my skills, I continue performing typical personnel (now called “human resources") duties of a prior TACOM job assignment, as evident here, analysis of job situation with respect to pertinent personnel and related regulations and laws. And per the assigned “Crime Prevention" function, I analyze the subject matter data that has progressively developed on underlying prevention for maximum cost and human effectiveness. The lack of a qualification requirement of record (much less, notice thereof!), is a jurisdiction issue. Federal subject matter jurisdiction presents an issue which [is] raiseable by a party or adjudicator at any time. Enrich v Touche Ross & Co., 846 F2d 1190 (CA 9, 1988); Fed. R. Civ. P. 12(h)(3). A challenge to subject matter jurisdiction may be made at any time, even after disposition, and even collaterally. Fed.R.Civ.P. 12(h) and 60(b)(4); Taubman Co v Webfeats, 319 F3d 770, 773 (CA 6, 2003). It is not equitable, but is extraordinary and exceptional, to ratify an agency ultra vires act so clearly outside agency jurisdiction. -18- 11. IT IS NO LONGER EQUITABLE THAT THE TERMINATION HAVE PROS- PECTIVE APPLICATION, SEE ACCOMMODATION VS PURE AIR CRITERIA. My actual issues were/are no notice, due process, specifics, charges, right to reply, review forum-rights-access like others, violation of laws and agency rules, etc. So TACOM, to divert attention off the “decision to terminate" noted by April 1980 by EEOC's Henry Perez, Jr. (Exhibit 5), changed the issues, change them to pretend the issue was “accommodation." And claimed it can't! In law, of course, “accommodation" issues are not the case-in-chief, but “affirmative defense" to an extant advance notice, Bolling v Navy, 43 MSPR 668, 671 (1990); Brown v Postal Service, 47 MSPR 50, 59 (1991). Here, no such notice exists, so the “accommodation" issue is a fraud, scam. I was out-performing co-workers as shown by my record of awards; no “accommodation" is needed for superior performers. And examining doctor denies need for it (Exhibits 13-14). Moreover, the “accommodation" concept is NOT designed to condone contaminated air (which is in turn a result of cigarette smuggling violating MCL § 750.27, MSA § 28.216 (Michigan deleterious cigarette ban law)), banned by Army Reg 1-8, the issue over which the extortion occurred (Exhibit 8). The Michigan case of Reilly v Grayson, 157 F Supp 2d 762 (ED MI, 2001) aff'd 2002 FED App 0397P; 310 F3d 519 (CA 6, 2002), confirms the issue was never “accommodation," but uncontaminated air, a by-product of violations of the deleterious cigarette ban MCL § 750.27, MSA § 28.216. The Court analysis parallels my situation: "This was a case that did not have to be. The record in this case covers more than five years [mine, 24] of activity, from filing to decision after trial . . . Early on in the case, had Grayson, Daniels, or Cross, or better yet, one of their lawyers, taken a moment to reflect on what was going on, and simply taken steps to [provide] Reilly [a smoke-free area] (or at least given him the clear opportunity to reject a transfer), the result likely would have been much different. Instead, Grayson, Daniels, and Cross, or perhaps their lawyers, were determined to mount a Stalingrad-like defense, ignoring the allegation of the complaint, as well as the view of the magistrate judge. In contrast, Bolden, when alerted to issues in the case, immediately saw what needed to be done to resolve Reilly's situation and ordered [it]." Reilly, 310 F3d 519. It is not equitable that the Constitution's Eight Amendment (no cruel and unusual punishments) should be invoked for prisoners, while leaving my punishment in place prospectively, due to TACOM's "Stalingrad-like" hostility to Army's pure air policy, AR 1-8. TACOM's Chief of Staff felt AR 1-8 "doesn't make sense"! (Exhibit 8). How awful, the rule treating employees as good as prisoners!!! (See similar principle in Stack v Boyle, 342 US 1; 72 S Ct 1; 96 L Ed 3 (1951) ("traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction," in bail context. Here, by TACOM doing the punishment first, ouster-without-notice, “Stalingrad-like," my ability to present my issues (including to rebut the “accommodation" scam") is hampered, by income and credibility loss, etc.). -19- DOD's policy 32 CFR § 203 and Army's AR 1-8 [issued under Army Secretary Clifford L. Alexander, Jr., former EEOC Chairman] track to precedents such as Camfield v United States, 167 US 518, 522-523; 17 S Ct 864; 42 L Ed 260 (1897), which says: "There is no doubt of the general proposition that a man may do what he will with his own, but this right is subordinate to another, which finds expression in the familiar maxim, 'Sic utere tuo ut alienum non laedas.' His right to erect what he pleases upon his own land will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors. Ever since Aldred's Case, 9 Coke, 48 [1610], it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants." This anti-nuisance rights concept in turn goes back to cases such as Rex v White and Ward, 1 Burr 333 (KB, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air"), and just before DOD's Aug 1977 32 CFR 203, Shimp v N J Bell Tele Co, 145 N J Super 516; 368 A2d 408 (1976). It paralleled the Dept of Health, Education and Welfare (now Health and Human Services) regulation; see analysis at DHEW, Soc Sec Admin and AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (1982), on ease of enforcement. "At least since the time of the Assyrian king Hammurabi, a person has not been able to use land in a way that causes injury to another. See Mallett v. Taylor, 78 Or. 208, 213, 152 P. 873 (1915)," Christianson v Snohomish Health District, 133 Wash 2d 647; 946 P2d 768 (1997). Mallett v Taylor adds, “the law is practically the same to-day as it was in the year 2250 B.C.," and citing Harper's Code of Hammurabi, §§ 53-54, and a then recent reiteration, Fletcher v Rylands, LR 3 HL 330 (1866), among many others. These precedents parallel Michigan's, e.g., Trowbridge v City of Lansing, 237 Mich 402, 405; 212 NW 73, 74; 50 ALR 1014 (4 Feb 1927) ("the garbage itself . . . is a nuisance per se. It is malodorous, and the quality is persistent") [Tobacco smoke emissions are smokers' garbage, i.e., what they are emitting, throwing away]; and Albaugh v Abbott, 253 Mich 588, 592; 235 NW 263, 264 (27 Feb 1931) ("Garbage is a nuisance per se.") That judge inspected on-site; please do likewise for me. It is extraordinary, exceptional, inequitable for TACOM, EEOC, MSPB, and much of the U.S. to now be having this right, while continuing prospectively the hardship-to-do-it claim for me alone, and leave me fired for having blown the whistle on TACOM's defiance of 32 CFR § 203, AR 1-8, etc. Ed. Note: "The fact that an agency has established a rule requiring the accommodation requested by the complainant is strong, if not overwhelming, evidence that the accommodation does not constitute an undue burden on the agency," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Milit Law Rev 143, p 33 of 39, n 172 (Fall 1987). Here, Pletten is not asking for accommodation, but for implementation of the USACARA Report specifying to do the rule compliance in its own right. Under Army Reg CPR 700.771, compliance was mandatory. Spann v McKenna, 615 F2d 137 (CA 3, 1980). Note Agostini v Felton, 521 US 203 (1997) providing for reversal after many years, as per intervening decisions, the prior decision was no longer good law. The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be "the right result." Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). Rights are present rights, for the here and now. The legal answer is not, as TACOM gave, 'if you don't like it here, get out.' Rights are for where we are, to be enforced and obeyed here. State of Missouri ex rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938); and Watkins v City of Memphis, 373 US 531; 83 S Ct 1314 (1963). Likewise say Alfred W. Blumrosen, et al., “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 California Law Review (#3) 702-731 (May 1976) (the right to safety is where you are, not elsewhere). Ed. Note: The gross procedural abuses (no compliance with rules, no compliance with USACARA Report, no notice for firing, no opportunity to reply pre-decision, etc.) are themselves discriminatory acts, Cohen v Austin, GSA, 833 F Supp 512 (ED Pa, 1993) (case deemed not “mixed," but on procedural errors constituting discrimination). See also Jackson v Concord Co, 54 NJ 113; 253 A2d 793 (2 June 1969), supra. Job discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses.' Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891," says Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972). -20- 12. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE"         HAVE PROSPECTIVE APPLICATION ABSENT COMPLIANCE WITH CONDITIONS PRECEDENT (NOTICE OF CHARGES AND SPECIFICS ENABLING REPLY). Until agency issues notice, an allegedly terminated employee remains one, as the ouster is constitutional violation, statutory violation, void. Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). The employee stays “on the rolls . . . until proper procedural [due process] steps are taken toward removing . . . him. In that situation, the merits of the adverse action are wholly disregarded." [And see Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965)]. Similarly, spouses remain married until proper divorce papers occur. Siemering v Siemering, 95 Wis 2d 111, 115; 288 NW2d 881, 883 (Wis App, 1980). The “condition precedent not having been met, the action was never commenced." Thus it cannot be, or remain, ratified. Until the “condition precedent" for status change occurs, the status quo ante (employment, marriage, etc.) remains in full force and effect. Please apply this doctrine. I look forward to returning to duty, remain ready, willing, able and eager to do so, and do personnel and crime prevention functions in interim, preparatory to such return, so oft sought. The “condition precedent" concept (one event MUST precede another to preclude voidness of the subsequent event) is well-established. The concept is traceable back to precedents applied in a significant case on-point, New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875, 883; 14 L Ed 178 (1898) ("the obligation [here, ouster] is suspended until" compliance). (Exhibit 6 defies this). Showing the extraordinary, inequitable, and exceptional nature of TACOM's ousting me, this notice and compliance principle is being adhered to for everyone civil-service-wide except me, e.g., Basinger v OPM, 5 MSPB 210 (1981) (action “cannot be effected if there is a lack of compliance with departmental regulations" [here, AR 1-8, and the regulations implementing the Constitution's due process criteria and laws such as the 30 days notice law, 5 USC § 7513.(b)]. TACOM did for a time, use a pretext, forced leave, as its cover story to conceal the ouster subsequently admitted by its own staff (Exhibits 12 and 17), an admission fraudulently concealed for years. But, significantly, the agency's own regulation bans forced leave (TACOM-R 600-5.14-27 to 29, Exhibit 4). The forced leave ban had been adopted to prevent just such situations as mine. A female employee had been put on forced leave against her will due to her medical condition [pregnancy]. TACOM wrote the rule to expressly bar forced leaves, then immediately violated it for me! Ed. Note: Pletten appealed in the TACOM EEO forum and was refused access. Subsequent jurisdiction-less appeal (jurisdiction-less under 29 CFR 1613.403) to the MSPB resulted in this: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Milit Law Rev 143, p 35 of 39, n 206 (Fall 1987). Pertinent precedents disallow “approved leave" as a basis for discipline. Bond v Vance, 117 US App DC 203, 204; 327 F2d 901, 902 (1964); Washington v Army, 813 F2d 390, 394 (CA Fed, 1987). Absent notice, absent agency obeying own rules, absent jurisdiction, ouster is void, cannot be ratified, as per the definition of “void," Black's Law Dictionary (6th ed, 1990), p 1573: “Null, ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it is intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924 [1945]. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. In re Oliver, Bkrtcy. Minn., 38 B.R. 245, 248 [1984]." Ed. Note: This principle has long been established as applicable to personnel actions. They are void when there has been substantial procedural violation. See, e.g., Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Leone v U.S., 203 Ct Cl 334 (1974); Jones v U.S., 203 Ct Cl 544 (1974); Gratehouse v U.S., 206 Ct Cl 288; 512 F2d 1104, 1108 (1975) cert den 434 US 955; 98 S Ct 480; 54 L Ed 2d 313 (1977); and Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965). “The rule has been firmly established in pay cases 'that lawful administrative action depriving claimant of a procedural right voids the action and leaves the plaintiff to his money otherwise due, until (at the least) proper procedural steps are completed [citations omitted] . . . . [the] references [cited by the agency] do not mean that the agency's action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission [or Board] suspends the final operative effect of the intial decision. It follows that an employee who has been deprived of a procedural right by the Commission must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due." -21- Such words describe a termination without notice. It has “no legal force or binding effect; unable, in law, to support the purpose for which it is intended." Please do not ratify this void act. These facts are controlling facts; each “necessarily renders all of the other facts immaterial." Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986). It is inequitable to continue my punishment prospectively under such extraordinary circumstances. 13. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE" SHOULD HAVE PROSPECTIVE APPLICATION WHERE TACOM DENIED ME “INFORMED CHOICE" TO EVEN COMMENCE REVIEW. It is undisputed that TACOM cut me off from access to EEOC review, Feb 1980. See EEOC Dockets 01800273, et al. (Exhibit 7). TACOM did not appeal or seek reconsideration. Note the significant, crucial time frame, the time of the “decision to terminate" (Exhibit 5). Note by its own Gonzellas Williams (Exhibit 17), the absence of claim of having allowed me EEO counseling during the crucial decade of the termination process and desperate efforts to get review to commence. Sadistically, TACOM refused to allow access to EEO counseling until AFTER it could then allege, “hah, hah, res judicata, you've lost your right to review." So it refused to ever allow review to proceed to investigation and hearing stages-though routinely allowed to others. "In the law of estoppel, 'silence' implies knowledge and an opportunity to act upon it. Pence v. Langdon, 99 U.S. 578, 581, 25 L.Ed. 420 [1879]; Stewart v. Wyoming Cattle Ranch Co., 128 U.S. 383, 9 S.Ct. 101, 32 L.Ed. 439 [1888]."--Black's Law Dictionary (6th ed, 1990), p 1382. TACOM is estopped from alleging compliance with EEOC's orders (Exhibits 7, 9). It never allowed it. For example, there has been no investigation and hearing dealing with the newsletter denunciation (witnesses Frank Gaal and Fred Grosby); the medical officer misconduct (witness Francis J. Holt, M.D.); the telephone case (witness Carma Averhart); the medical aid denial (again, Dr. Holt); the wrong information to MSPB case (witnesses Norma Kennedy, Edward Hoover, Emily Bacon, Edwin Braun, Jeremiah Kator, James H. Long); the performance appraisal case (witnesses Carma Averhart and Edward Hoover); the forced off-base case (termination) (witnesses Dr. Holt, Edward Hoover, Emily Bacon, Col. John Benacquista); non-implementation of AR 1-8 (witnesses Edwin Braun, Evelyn Bertram, Dennis Tracy); and the refusals to counsel (witness Kenneth R. Adler). Such review was vital to show the pattern of retaliation. TACOM knew an investigator would develop, assemble, the witness data in a timely manner, thus corroborate my showing the “decision to terminate" (forced-off-base) was retaliatory, and pattern of a pattern of TACOM misconduct. "The proof of the 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). The agency does not even claim to have provided notice of all forum rights IAW 29 CFR §1613.403, now §1614.302(b) (Exhibit 19), much less, of how to proceed under such a severe restraint (denial of access to an entire review forum), during the crucial decade. Wherefore, I have never had "informed choice" since then. -22- Note the requirement to provide such data, not just as a matter of human dignity, but as per due process and case law, e.g., Scharf v Air Force, 710 F2d 1572 (CA Fed, 1983). Indeed, even were the agency to claim I chose some “forum" (MSPB's) anyway, thereafter, doing so was not my “first action," hence depriving MSPB of jurisdiction, Carreno v Dept of Army, 22 MSPR 515, 518 (1984). There certainly is no “jurisdiction" for such egregious departure from published regulations as here! neither notice of rights nor allowance of the “forum" chosen! So this is also jurisdictional, § 10 (pp 16 - 18) case law incorporated here by reference. 5 USC § 552.(a)(l)(C) - (D) makes publication of federal rules, including review rights, “jurisdictional," Hotch v U.S., 212 F2d 280 (1954). Absent notice of review forum rights, and absent genuine opportunity to use the forum chosen, the proceedings heretofore (which TACOM will foreseeably voluminously cite! In response to this appeal and brief) are without jurisdiction for them, and are thus void, void ab initio. "The agency 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 MSPR 15, 20 (1986). Johnson v Dept of Labor, 26 MSPR 447, 449 (1985) says an agency must “afford appellant proper notice of her potential avenues of redress"; without that, “even appellant's action in filing an appeal to the Board did not constitute an informed election." Here, without notice of rights, going to both MSPB and Court itself were without uncoerced “informed choice." "Quod ab initio non valet in tractu temporis non convalescet, That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time."--Black's Law Dictionary (5th ed, 1979), pp 1126-1127. Johnson, supra, 26 MSPR 447, arose in context of construing what employee choice of redress came first, under 5 USC § 7121(d), which provides in pertinent part: "An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the parties' negotiated procedure, whichever event occurs first." No choice except a void one can occur until after being notified by the agency of what the choices are. Here is yet another TACOM statutory violation. In equity, a party, here TACOM, cannot ignore and violate rules, then expect adjudicator to affirm! See, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Glus v Eastern Dist Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), B.T.C. v Norton C.M.C., 25 F Supp 968, 969 ([DWD Ky] 1938). “No one may take advantage of his own wrong," Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938). "One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal." Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (1911). -23- "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." Aiken v Wisconsin, 195 US 194, 205-206; 25 S Ct 3, 6; 49 L Ed 154, 159 (1904). "Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole. U.S. v Univis Lens Co, 316 US 241, 254; 62 S Ct 1088, 1095; Ethyl Gasoline Corp v U.S., 309 US 436, 461; 60 S Ct 618, 627. Cf. Standard Oil Co v U.S., 221 US 1, 78; 31 S Ct 502, 523; 34 LRA (NS) 834; Ann Cas1912D, 734; U.S. v Union Pac R Co, 226 US 61, 96; 33 S Ct 53, 61; U.S. v Union Pac R Co, 226 US 470, 476, 477; 33 S Ct 162, 165 (1913); . . . U.S. v Bausch & Lomb Optical Co, 321 US 707, 724; 64 S Ct 805; 88 L Ed 1024 (1944). "The proof of the pattern or practice [of refusing me review, and of a deterring retaliation rate civil-service-wide, Exhibits 7, 17, and 18] supports an inference that any particular decision [to commit a like offense], 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). Here are so many violations it is a burden to list all, they are so extraordinary and exceptional, that it is inequitable to ratify them prospectively, especially in view of the void aspects cited herein. 14. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE" SHOULD HAVE PROSPECTIVE APPLICATION WHERE THERE HAS BEEN INTERVENING CHANGE IN THE LEGAL ATMOSPHERE. There has been “intervening change in the legal atmosphere that it renders the bar of collateral estoppel [prior decisions] inapplicable in this case," a concept from Texaco Inc v U.S., 217 Ct Cl 416; 579 F2d 614 (1978), cited in Wilson v Turnage, 791 F2d 157 (CA Fed, 1986), a federal employee case. A. Fraud. The Department of Justice cites significant fraud by tobacco companies in its tobacco costs recovery lawsuit, US v Philip Morris, Inc. et al., CA 99-2496 (GK) (22 Sep 1999) (Complaint) www.usdoj.gov/civil/cases/tobacco2/complain.pdf and (Appendix) www.usdoj.gov/civil/cases/tobacco2/appendix.pdf, concerning illegal tobacco selling practices. Had there been no illegal selling, not just here violating Michigan's MCL § 750.27, MSA § 28.216, but also nationally, there would have been no resultant contaminated air situation re which the extortion occurred, thus no issue of it being an “undue hardship" to enforce the provisos of Army Regulation 1-8 or federal safety law, 5 USC 7902(d) directing eliminating hazards. (Exhibit 8). "Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. . . . Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time."--Black's Law Dictionary (5th ed, 1979), pp 1126-1127. -24- A litigant can show as part of the evidence in his/her own case, the guilt of others so as to show a pattern. Locker v American Tobacco Co, 194 F 232 (SD NY, 1912). It is not equitable for the government to be arguing the tobacco issue in fraud terms while leaving me prospectively ousted for rest of life, due to past consequences of that very fraud over which the government is itself litigating B. TACOM Now Bans Smoking. TACOM made the “decision to terminate"(compare Exhibits 5 and 8) me on the pretext that it simply could not cease permitting smoking behavior, that doing so would somehow be an “undue hardship." No matter that its own agency rules did not allow smoking conduct (e.g., 32 CFR § 203, AR 1-8, TACOM Regulation190-4) nor does Michigan law, MCL § 750.27, MSA § 28.216, by its precluding the deleterious product even being in the State. TACOM has now vacated the claimed basis for having ousted me. After terminating me, it later decided to follow the cited guidelines after all (Exhibit 16). It was no hardship at all, much less an “undue" one. The authority and ability to do this is so obvious, TACOM did not even bother to cite an authority for taking the smoke-free action! Ed. Note: Indeed, the agency even has authority to ban its personnel from off-post smoking, e.g., at lodging facilities! See Charlie Coon, "Army to ban smoking at lodging facilities worldwide," Stars and Stripes (Monday, January 10, 2005). You at EEOC likely have substantial smoke-free working conditions yourself. Yet, TACOM will undoubtedly be replying to this Brief by asking you to uphold an action premised on “it can't be done"! This type of “erroneous judgment" as per the Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965) reference to when the authority to reconsider exists, is applicable here. Please do not sit in your smoke-free work area and uphold decision saying it can't be done, too “undue hardship." TACOM ignored the health of its own workforce for years, until confident it had beat me at MSPB and in court, it then decided to follow the 32 CFR § 203 and AR 1-8 guidelines after all It [EEOC] decided to follow the pure air rule that EEOC had noted had been flouted for me when I won the 'arbitration' [Investigator Norma Kennedy Report] EEOC alludes to, telling TACOM to comply with AR 1-8 (Exhibit 7, p 2, top). TACOM decided to solve the contaminated air situation it had committed the extortion (Exhibit 8) against me for refusing to stop blowing the whistle on. No big “undue hardship"! The agency knew it always had adequate authority in this matter, National Realty & Const Co Inc v O.S.H.R.C., 160 US App DC 133; 489 F2d 1257 (1973), had lied about lacking it! AR 1-8 paralleled the Dept of Health, Education and Welfare (now Health and Human Services) regulation; see analysis at DHEW, Soc Sec Admin and AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982), confirming ease of enforcement, an analysis near identical to that of Investigator Kennedy as alluded to by EEOC in its 23 February 1982 decision, p 2, top (Exhibit 7). TACOM had looked every adjudicator (where I'd without “informed choice" notice) sought aid (Investigator, Inspector General, EEOC, MSPB and Court) in the eye and fabricated, knowingly making false fraud claims of “undue hardship"! Now admits, No hardship! Never was! Hah-hah! We at TACOM just invented that story for the Pletten case. Forget that claim, once we beat Pletten!-- The “hah-hah" approach in dealings with adjudicators-a clear, blatant, prima facie indicator of fraud. Having vacated its pretextual position, TACOM's smoking ban vacates the basis for having terminated me. It is inequitable to prospectively keep me ousted for life, to ratify forever a TACOM viewpoint TACOM itself no longer holds. I look forward to returning to duty. -25- C. Wider Awareness of Danger of Abusing Whistleblowers. In the years since the “decision to terminate" noted by EEOC's Henry Perez, Jr. 9 April 1980 (Exhibit 5), society has become more aware of the dangers to society of the rampant reprisal against whistleblowers. The prevalence of reprisal has been documented by the Merit Systems Protection Board, for example, its Retaliation Rate Study (December 2000) (Exhibit 18, www.mspb.gov/studies/00decnws.pdf). Seven - twelve per cent report retaliation, meaning hundreds of thousands of incidents. The subject matter has been documented by law review writers, for example: Stephen M. Kohn and Michael D. Kohn, “An Overview of Federal and State Whistleblower Protection," 4 Antioch Law Journal 99-152 (Summer 1986) Thomas M. Devine and Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection," 4 Antioch Law J 5-71 (Summer 1986) Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection--Gap Between Law and Reality," 31 Howard Law J (#2) 223-239 (1988). Thomas M Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent," 51 Admin Law Rev (#2) 531-577 (Spring 1999) Ed. Note: See also David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979). Ewing gives the following examples, the "recipe," for how federal managers deter whistleblowing via a wide range of reprisals against high integrity employees, to harass or get rid of them (thus as a "natural and probable consequence," endanger American safety and lives): 1. transfer to irrelevant assignment 2. abolish the whistleblower's job 3. refuse to provide pertinent records 4. file false charges 5. cause high legal bills 6. falsely accuse of insanity 7. cut their budget 8. transfer away their co-workers 9. close his office without warning 10. deprive of promotion See examples in various federal agencies, e.g., the FBI, cited by Peter Lance, 1000 Years for Revenge: International Terrorism and the FBI: The Untold Story (New York: Regan Books, August 2003). Lance shows that even FBI agents are TERRIFIED by their agency, far more scared of it than of terrorists! After all, terrorists cannot destroy their careers, reputations, families, finances! The ONLY time an employee can dare to safely 'blow the whistle' is ONLY when he/she has become retirement-eligible! Note that so a civil servant can at last become safe and free to defend the public, the importance of reaching “the point in the Bureau [government agency] where [the employee] was considered KMA. 'It stands for Kiss My Ass,' said [employee] Predtechenkis candidly. . . . I could retire at the end of the day if I wanted to. It's a comforting feeling. . .” (p 172). And, “To hear that from a decorated Bureau veteran is an indication of the atmosphere of fear that exists among FBI street agents today--the fear that expressing even modest disagreement with a supervisor, or staying loyal to an asset the way Nancy Floyd did, might result in an investigation with career-ending implications” (p 172). “Ironically, like Nancy Floyd, Smith found himself spending as much time battling his own agency and enduring the stress of office politics as he did chasing the bad guys” (p 214). With whistleblowers under constant attack, the Army was impacted. For example, the Army enlisted “Ali Mohammed, the traitorous ex-Egyptian Army officer who had become a U.S. Army sergeant and served as an instructor in the Special Operations Warfare School at Fort Bragg while working for al Qaeda," p 373. “At the same time he was instructing Green Berets at Fort Bragg . . . he was commuting . . . to train the . . . . 'jihad army.' He used his knowledge of Special Forces operations techniques to train the top commanders of al Qaeda in Khost, Afghanistan, along with elite members of bin Laden's own bodyguard in Sudan. . . . 'The fact that Osama [bin Laden] was able to put an operative like him into a Special Forces training school should have been a screaming alert to the community,' said one intelligence operative," p 374. But with nobody daring to “blow the whistle," who'd do the “alert?" The article, “C.I.A. Was Given Data on Hijacker Long Before 9/11,” by James Risen and Eric Lichtblau (New York Times, 24 Feb 2004), shows what happens due to fear-induced civil service paralysis of action: “American investigators were given [by German investigators] the first name and telephone number of one of the Sept. 11 hijackers two and a half years before the attacks on New York and Washington, but the United States appears to have failed to pursue the lead aggressively. . . . The Germans considered the information on Mr. Shehhi particularly valuable, and the [9/11 investigating] commission is keenly interested in why it apparently did not lead to greater scrutiny of him.” “After FBI Special Agent Robert Wright reported weak-nesses within his antiterrorism unit, the bureau launched four retaliatory investigations designed to harass and silence him. According to Wright, 'Sept. 11 is a direct result of the incompetence of the FBI's International Terrorism Unit,'” say Nick Schwellenbach and Lauren Robinson of POGO, “U.S. intelligence on shaky ground with weak protection for workers” (Detroit Free Press, 21 Nov 2004, p 3M). “As Coleen Rowley and other whistle-blowers recently told Congress, 'It is unrealistic to expect that government workers will defend the public if they can't defend themselves.'” “Richard Levernier, a 22-year employee at the Energy Department, reported serious security breaches he found while evaluating nuclear weapons sites. He was stripped of his security clearance — effectively fired. Reflecting on his experience, Levernier said, “'I would not do it again, even though I truly believe it [reporting security breaches] was the right thing to do.'” Note also the book by Prof. David Ray, Griffin, The New Pearl Harbor: Disturbing Questions about the Bush Administration and 9/11 (Northampton, Mass.: Olive Branch Press, March 2004) and Interview, saying, e.g., “Members of the FBI, the CIA, and other intelligence agencies have taken oaths to not reveal things they’ve been told not to reveal . . . and if they violate this oath, repercussions may occur. You have a wife and children, and somebody says to you, “If you go public with that I cannot guarantee the safety of your family.” Would you go public with that? You have to choose between your family’s welfare and the welfare of the nation, and your story might not do that much good. You might just be denounced as a conspiracy kook. The press would ignore you, belittle you. People might look into your past and find that you had done some things you’re not so proud of. People would learn very quickly to keep their mouths shut.” In fact, the threat of reprisal is real, common, throughout Federal Civil Service, not only in these agencies, documented by the government itself, along with bragging about its win record against employees, at www.mspb.gov/studies/00decnws.pdf. "Embarrassment and humiliation denote shame, disgrace, degradation, distress, anguish, etc. See Perkins v Ogilvie, 148 Ky. 309, 146 S.W.2d 735 (1912)," cited in Ky Com on Human Rights and Cooper v Fraser, 625 SW2d 852 (Ky, 1981). [See Concept Details]. It is firm government policy and practice to shame, disgrace, degrade, distress and otherwise abuse whistleblowers, and, as with the abused Mrs. Cooper, supervisor "had fired her for her own benefit"!! In attacking a whistleblower, federal managers policy, practice, formula, recipe, is to: "go well beyond merely defeating a whistle blower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with work record (and law)] the better . . . ."--Devine and Aplin, “Whistleblower Protection--Gap Between Law and Reality," supra, p 226. Ed. Note: Retaliators also commit felonies including 18 USC § 2112 (robbing personal property) 18 USC § 1951 (extortion) 18 USC § 661 (embezzlement and theft) 18 USC § 654 (conversion of property of another) 18 USC § 641 (theft of public property) 18 USC § 1111 (foreseeable deaths) 18 USC § 201 (bribery) 18 USC § 371 (conspiracy) The FBI cannot protect its own whistleblower-employee from management reprisals, so does not protect whistleblowers in other agencies, meaning, it never enforces these laws against criminal bosses. That is the formula ["recipe"] for how TACOM did me. Since my personnel job had long been preparing 30 day advance notices pursuant to 5 USC § 7513(b) to employees accused of violating rules, and since I never used a sick day ever (I had received awards for that record, it is so unusual, vs numbers of employees who use sick leave even when they not sick, misusing “sick leave" as extra vacation in effect! And TACOM had had me write up people like that!!), therefore, for maximum retaliatory effect, for terrorizing the workforce purposes, TACOM ousted me pursuant to the wrongful ouster formula: (1) without following the 5 USC § 7513(b) mandated 30 days advance notice requirement, (2) by violating its own rules itself, and (3) claiming I am always too sick to work! Society has also seen scandals such as at Enron, and the explosions of the Challenger and Columbia NASA Shuttles. Society has seen the fear among federal employee engineers who dared not report problems in advance, concerning the Columbia shuttle which blew up on re-entry in February 2003, for fear of the reprisal that is rampant (Exhibit 18). When CAIB investigators sought input, I responded (Exhibits 21-22). The CAIB Report, www.caib.us , cites the bad government, NASA, “culture." -26- Note the news Tuesday, 4 Feb 2003, that Space Shuttle Program Manager Ronald Dittemore said, originally, no federal employee engineer had had any reservations about the analysis of the data on the damage that occurred when the shuttle took off (about 20 inches of foam insulation fell off, potentially damaging shuttle heat tiles). No whistleblowing concern by any employee was expressed on the record. But two days later, Dittemore was saying: "Now I am aware, here some two days later, that there have been some reservations expressed by certain individuals, and it goes back in time." And, he professed to lament that the concerned people “didn't come forward." No doubt they didn't! Not in a rampant hostile anti-whistleblower “culture."Employees who become “whistleblowers" reporting suspected hazards, are widely known to be oft retaliated against, punished, suspended, fired. Employees say so themselves when surveyed (Exhibit 18) A reprisal pattern that is notorious as to so terrorize federal employees that deaths occur, became evident to society. Now in society there is concern, in view of such incidents and the 9/11 tragedy wherein FBI whistleblowers complaint was of being unheeded. Moreover, the years since the “decision to terminate" noted by EEOC's Henry Perez, Jr. 9 April 1980 (Exhibit 5), as indicated by Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent," supra, a new Whistleblower Protection Law has been passed. In view of these circumstances heightening societal awareness, and change in legal atmosphere, to one of concern, it is inequitable to prospectively keep me punished, for life. I am not a criminal, with crimes warranting life sentence. D. TACOM Misuse of Terms Without Notice: TACOM has at last admitted, to Senator Carl Levin (Exhibit 19), using interchangeably the terms “termination" (general term) and “removal" (specific term). "Removal" is defined as “A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault," according to Federal Personnel Manual Supplement 296-33, Subchapter 35, Glossary, page 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications requirements, and/or performance standards involved as allegedly having been willfully violated, and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in conduct. Note the definition of “removal," including the concept of discipline-warranting “fault" by the employee. TACOM issued me no notice defining any “fault" by me warranting discipline, but nonetheless calls my ouster a “removal." TACOM's Exhibit 19 admission of using inconsistent terms should not be ratified, Yorkshire v MSPB, 746 F2d 1454, 1457, n 4 (CA Fed, 1984). -27- The two different personnel terms must be distinguished, not muddled as TACOM did. In the years since the “decision to terminate" noted by EEOC's Henry Perez, Jr. (Exhibit 5), a federal precedent accepting this concept arose, Jones v J. J. Security, 767 F Supp 151, 152 (ED Mich, 1991): "While removal, like discharge, results in separation, it is a quite different action. Separation by discharge is through the power of discipline. Separation because of ineligibility [disqualification] is not because of discipline at all. It is like a circuit judge having to vacate his office because he moved from his residence within the circuit. It is the non-existence of a sine qua non to employment." The agency denied me the right to reply, never having specified which (removal or disqualification) it meant, by its using both terms interchangeably. The legal atmosphere has changed, more favorable to enforcing the requirement for advance notices. See advance notice precedents that have arisen in the years since the “decision to terminate" noted by EEOC's Henry Perez, Jr. 9 April 1980 (Exhibit 5), include e.g., Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Service, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985); Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v General Services Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Services, 772 F2d 856 (CA Fed, 1985); Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991), etc. In view of the changes in legal atmosphere, it is inequitable that the discipline without advance notice, against me should be retained prospectively, ratified in essence as a life sentence. 15. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE" HAVE PROSPECTIVE APPLICATION, IN CONTEXT OF THE PROPER REACTION TO TOBACCO HAZARD--TO DISCIPLINE SMOKERS, NOT PERSONNEL OFFICE STAFF REPORTING THEIR HAZARDOUS BEHAVIOR. TACOM's approach is extraordinary and inequitable in being so aberrant from the norm, and its own rules, e.g., AR 1-8, and federal safety laws such as 5 USC § 7902.(d) banning hazards, on firing the perpetrators of hazards, not the personnel workers who report them. Reporting violations is our personnel job! See precedents, e.g.: Columbian Rope Co v United Farm Equipment and Metal Workers, 7 Lab Arb (BNA) 450 (1947) Standard Oil Co v Central States Petroleum Union, 19 Lab Arb (BNA) 795 (1952) Cit-Con Oil Corp v Oil, Chemical & Allied Workers Int'l Union, 30 Lab Arb (BNA) 252 (1958) U.S. Industrial Chem Co v Int'l Union of Op Engineers, 64-2 Lab Arb Awards (CCH) § 8481 (1964) -28- Caraco Ship Supply v Amalgamated Meat Cutters and Butcher Workmen of North America, 64-3 Lab Arb Awards (CCH) § 8961 (1964) (supervisor had permitted employees to smoke; he was then fired for his dereliction of duty; TACOM management was doing like misconduct) U.S. Powder Co, Division of Commercial Solvents Corp v Int'l Union of District 50, United Mine Workers of America, 67-2 Lab Arb Awards (CCH) § 8454 (1967) Ward Furniture Mfg Co v United Furniture Wrkrs of Am, 68-2 Lab Arb Awards (CCH) § 8702 (1968) Royce Chemical Co v Oil, Chem and Atomic Workers Int'l Union, 70-1 Lab Arb Awards (CCH) § 8138 (1969) U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Division v Int'l Woodworkers of Am, 70-1 Lab Arb Awards (CCH) § 8340 (1970) A. E. Staley Mfg Co v Int'l Union, Allied Industrial Workers of Am, 71-1 Lab Arb Awards (CCH) § 8203 (1971) Hercules Inc v Int'l Chemical Workers, 74-2 Lab Arb Awards (CCH) § 8487 (1974) Illinois Fruit & Produce Corp v Int'l Bro of Teamsters, Chauffeurs, Whsmn and Helpers of America, 66 Lab Arb (BNA) 498 (1976) Wisconsin Steel Coal Mines of Int'l Harvester Co v Progressive Mine Workers of America, 76-2 Lab Arb Awards (CCH) § 8348 (1976) Gladieux Food Service v Int'l Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (1978) (contractor food services employee fired for causing a hazard, smoking within short distance of passenger plane during or shortly after the refueling process) Bostik West, Division of USM Corp v Oil, Chemical and Atomic Workers Int'l Union, 78-2 Lab Arb Awards (CCH) § 8545; 71 Lab Arb (BNA) 954 (1978) Consolidation Coal Co, Robinson Run Mine, Jones Run Portal v United Mine Workers of Am, 82-2 Lab Arb Awards (CCH) § 8600 (1982) Olin Corp, McIntosh Plant v Int'l Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) § 8521; 81 Lab Arb (BNA) 644 (1983) Golden v Communication Technology Corp, 36 E.P.D. § 35,095 (ND Ga, 1985) Moore v Inmost Corp, 608 F Supp 919 (WD NC, 4 April 1985) Cricket v Eckerd Drugs of North Carolina, Inc, 615 F Supp 528 (WD NC, 1985) -29- Grusendorf v City of Oklahoma City, 816 F2d 539; 2 IER Cases (BNA) 51 (CA 10, 17 April 1987) ("We need look no further . . . than the Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health," thus upholding firing smokers for endangering themselves by smoking) ADM/Growmark River Systems, Inc v Int'l Longshoremen's Ass'n, Local 1765, 99 Lab Arb (BNA) 1033 (1992) Century Products Co v Int'l Ass''n of Machinists, District No. 28, 101 LA (BNA) 1 (1993) (smoker carrying cigarette on “automatic pilot" [addiction] is not a defense, as is no distinction from carrying it consciously in violation of the rule) Robertson v Fiore, Case No. 94-5485 (CA 3, NJ, 16 Aug 1995) (smoker fired on charges including endangering the facility by his smoking) Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (1996) (smoking is not a protected handicap, so smoker can be fired) Clark County School District v Education Support Employees' Ass'n, 108 LA (BNA) 1125 (1997) (school bus driver discharged for allowing children to smoke on bus, and other misconduct) Town of Plymouth v Civil Service Commission and Rossborough, 426 Mass 1; 686 NE2d 188 (1997) It is extraordinary and inequitable for an employer to be so aberrant from the norm, and its own rules, e.g., AR 1-8, and federal safety laws such as 5 USC § 7902.(d) banning hazards, on firing the perpetrators of hazards, not the personnel workers who report them. Reporting violations is our personnel job! Ed. Note: “The tobacco industry is the greatest killing organization in the world. The harm done by all the armies in the world combined, will not begin to equal the damage inflicted upon the human race by the combined activity of the cultivators, manufacturers, and distributors of tobacco.”—Dr. Jesse M. Gehman, Smoke Over America (East Aurora, N.Y: The Roycrofters, 1943), p 216. "Tobacco alone is predicted to kill a billion people this [21st] century, 10 times the toll it took in the 20th century, if current trends hold," says the Associated Press article, "Tobacco could kill 1B this century," The Detroit News, p 4A (11 July 2006). Details are at "American Cancer Society CEO Urges United States to Do More to Win Global War Against Cancer in Address to National Press Club" (26 June 2006). "Tobacco producers are "terrorists", Seffrin tells Israel Cancer Association," The Jerusalem Post (31 March 2005): "All those involved in the production and marketing of tobacco products are 'terrorists', declared Dr John Seffrin, president of the American Cancer Society and elected president of Geneva-based International Union Against Cancer (UICC)." 16. IT IS EXTRAORDINARY THAT THE AGENCY DID NOT ABIDE BY ITS OWN GUIDANCE AND DATA IN DOING THE BETTER PRACTICE TO NOT HIRE/ENLIST SMOKERS IN THE FIRST PLACE. The agency knows the better practice, not to hire smokers in the first place. The agency had a record of leadership in not hiring smokers, see Austin v Tennessee, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703 (1898) aff'd 179 US 343 (1900). Army knows its own data says that "if the military [would still] restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services," says Army Aeromedical Research Laboratory Report No. 86-13, Smoking and Soldier Performance (June 1986), p 149. Army knows that “So imperious is the appetite [addiction], that during our civil war [1861-1864] men were sometimes shot by the enemy [Confederates] simply because they would strike a light and smoke. And many risked capture in their perilous search after what smokers call “a little fire," says Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1885), 6th ed, p 289. -30- A World War II Army Pamphlet, “Combat Tips for Fifth Army Infantry Replacements" in Italy (US Army, 1945), had warnings including this: "'Smoking is another thing to be careful about. In the words of a captain, 'Too many men are careless about cigarettes when they think they are far from Jerry [Nazi soldiers]. All we shoot at after dark is lights, and it is the same with Jerry.' Don't smoke at night out of doors . . .'"--USAARL Report No. 86-13, supra, p 128. And, “given the persistent drive [addiction] for tobacco in the [addicted] user . . . it is reasonable to assume unnecessary exposure to enemy fire occurred in order to satisfy [the addiction] for tobacco, with frequent tragic consequences."--USAARL Report No. 86-13, supra, pp 12-13. Secretary of the Army John O. Marsh, Jr., and Chief of Staff General John A. Wickham, Jr., cited “the problem of tobacco use." They issued a formal "Proclamation" (17 April 1986) saying "Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination, and resistance to cold weather injuries. Moreover, it increases susceptibility to disease. It has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage." "Every Army member is charged to make this goal a reality. All of us have a clear responsibility in making this happen," as "caring leadership dictates that we demonstrate a sincere, unambiguous concern for the health and safety of those entrusted to our care." "Anecdotal evidence indicates craving for cigarettes in some individuals deprived of smoking is so intense it can be used to extract information. In a program designed to train soldiers to withhold information from the enemy, at least one 'captured' soldier, who was deprived of tobacco for a few [hours] by his captors, actually compromised unit security in return for tobacco."--USAARL Report No. 86-13, supra, p 128. "Blood flow to the brain is critical for effective neural functioning and behavior. The diminution of such blood flow with long-term smoking may reduce cognitive performance."--USAARL Report No. 86-13, supra, p 158. And "smoking detracts from learning . . . ."--USAARL Report No. 86-13, supra, p 83. "Smoking also discloses soldier positions, starts fires, and contributes to the cause of vehicular accidents. Smokers also are much more likely than nonsmokers to use other drugs and to get into trouble."--USAARL Report No. 86-13, supra, p 7. "The problems of smoking and the healing of wounds and for rapid restoration of blood to deprived tissues have tremendous implications for military personnel who are likely to receive battlefield injuries. Large military implications exist for the slow clearance of particles from the lungs by smokers given the heavy levels of smoke and dust on . . . battlefields. . . ."--USAARL Report No. 86-13, supra, p 158. "Working and smoking don't mix," says Dr. William A. Weis, 60 Personnel Journal (Issue #3) 164 (March 1981). Moreover, in 1977, when the Department smoking policy materials (32 CFR § 203 and AR 1-8) were being developed, tobacco use was simultaneously in process of being classified medically as no mere habit, but as "mental disorder." -31- The government in 1977 was in process of publishing the fact that if the public knew of smoking as a mental disorder, not a habit, that would have a major impact on the public perception of smokers ("a profound effect upon the reputation of this behavior"), says the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (1977). That government publication also had an article by Prof. Jerome H. Jaffe, M.D. (Columbia University), "Tobacco Use as a Mental Disorder: The Rediscovery of a Medical Problem," at pp 202-217. The government and American Psychiatric Association list smoking as a mental disorder, not mere habit--in the International Classification of Disease, 9th ed. (ICD-9), and the Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (DSM-III), both then (1977) in process. Judicial notice was soon taken, Caprin v Harris, 511 F Supp 589, 590 n 3 (D ND NY, 1981). Guidance on not hiring smokers was published in The Smoke-Free Workplace by William L. Weis and Bruce W. Miller (NY: Prometheus Books, 1985), pages 101-106. It cites court precedents such as Spencer v Toussaint, 408 F Supp 1067 (ED Mich, 1976). Smoking was listed in the International Classification of Diseases (1980), p 231, as "tobacco use disorder" in the "mental disorders" section. Smoking has been listed in the "organic mental disorders" section of the Diagnostic and Statistical Manual of Mental Disorders since 1980. Spencer "ruled that excluding people with a history of mental illness is not unreasonable." Army knows smokers pose a foreseeable disproportionate discipline problem. See background for AR 1-8 at (Exhibit 8. It is extraordinary that an agency should not act on its own and government data, and when the behaviors it professes to wish to prevent do occur, it fires the personnel employee doing his job of reporting same. Please do not affirm such extraordinary aberration. 17. IN TOTAL CONTEXT, THE OUSTER PROCESS WAS VOID. In this combination of extraordinary circumstances, no advance notice of charges or appeal rights, agency concealment of truth, obstructing access to my EEOC forum choice, not honoring agency's own promises of EEO case processing, defying EEOC orders for review, no jurisdiction due to non-publication of the qualifications and process used, etc., the ouster was void. And the stack of my "uninformed choice" efforts at getting review that the agency will foreseeably cite in reply to this brief, were void. This concept applying, e.g., FRCP 60(b)(4) on relieving party from a final judgment if it is void, if it is no longer equitable that judgment should have prospective application, is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965), cert den 382 US 829. A judgment condoning firing an employee without notice is clearly an "erroneous" one not to be enforced. "Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time."--Black's Law Dictionary (5th ed, 1979), pp 1126-1127. -32- Taking corrective action as requested herein, will apply the definition of "void," Black's Law Dictionary (6th ed, 1990), p 1573: "Null, ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it is intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924 [1945]. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. In re Oliver, Bkrtcy. Minn., 38 B.R. 245, 248 [1984]." 18. IT IS NO LONGER EQUITABLE THAT THE "DECISION TO TERMINATE" HAVE PROSPECTIVE APPLICATION, IN CONTEXT OF ALL THESE FACTS AND PRECEDENTS, RE WHICH FOR OTHERS ON EVEN ONE ASPECT, THE GOVERNMENT DOES A CONFESSION OF ERROR. When precedents arise, as so many did during the pendency of my situation, the government as a matter of integrity files a "Confession of Error," e.g., in U.S. v Graham, 688 F2d 746 (CA 11, 1982). For others, the government even calls attention to extortion refusing "to process grievances." U. S. v Russo, 708 F2d 209, 212 (CA 6, 1983). Here, there is both extortion (Exhibit 8), and EEOC findings of similar-to-Russo processing refusal (Exhibits 7 and (9). The criminality of the underlying extortion (Exhibit 8) produces results in me typical of crime victims, "interference with the victim's ability to conduct a normal life, . . . . absence from the workplace," People v Gorney, 99 Mich App 199, 207; 297 NW2d 648, 651 (1980) lv app den 410 Mich 911 (1981). It is inequitable to prospectively continue my life sentence punishment simply because TACOM refuses to admit any error of law or inequity. 19. THE AGENCY DID NOT MAKE SUBORDINATE FINDINGS OF FACT. The immediate agency decision on appeal is conclusory. It did not follow case law. For example, an agency must say in the decision the basis for its conclusions; there is to be no speculation; even proper reasons are not to be implied; reject the improper processing (here no hearing nor investigation) due to the unfairness. Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969). Agency decisions must make findings on all material issues; reasons must be clearly enunciated; each disregard of its own staff writings must be explained. In re United Corporation, 249 F2d 168 (CA 3, 1957). The agency does not do this. It does not even acknowledge the material by its own EEO Officers refuting its January 1982 story (Exhibits 12 and 17), much less, that of the corroborative impartial memo of that era, by EEOC's Henry Perez, Jr. (Exhibit 5). Pursuant to Yorkshire v MSPB, 746 F2d 1454. 1457 n 4-5 (CA Fed, 1984), inconsistency means the employee is to prevail. Here it is crucial inconsistency, going to the heart of the voidness, the lack of 5 USC § 7513(b) 30 days advance notice of charges, and the non-notification of my rights of appeal. An ouster without advance notice is a constitutional and statutory due process notice violation, and void. Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). The employee stays "on the rolls . . . until proper procedural [due process] steps are taken toward removing . . . him. In that situation, the merits of the adverse action are wholly disregarded." [And see Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965)]. -33- An absence of required findings requires reversal, even if there may allegedly or actually be evidence in the record to support proper findings. Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962). And SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947), says to "judge the propriety of action solely by the grounds invoked"; not by "counsel's post hoc rationalizations"; but only by what is "given." An agency is not [to] put you, EEOC, the higher level agency, in the position of speculating as to the basis for its conclusion; you must know what it means first. Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964). Wherefore, please reverse and remand for investigation and hearing. CONCLUSION "[I]rreparable injury should be presumed from the very fact that the statute[s cited herein have] been violated." U.S. v. Hayes Int'l Corp., 415 F2d 1038, 1045 (CA 5, 1969). The criminality of the underlying situation (Exhibit 8), produces results in me typical of crime victims, "interference with the victim's ability to conduct a normal life, . . . . absence from the workplace," People v Gorney, 99 Mich App 199, 207; 297 NW2d 648, 651 (1980) lv app den 410 Mich 911 (1981). Too, here, the nation is harmed by the rampant reprisal against whistleblowers, including EEO whistleblowers such as myself (Exhibit 18, at www.mspb.gov/studies/00decnws.pdf), of which my case is one example, not to mention destruction of my career, family, finances. All of this is inequitable, extraordinary, exceptional. Ed. Note: Per Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972), job discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses.' Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891." WHEREFORE, Appellant moves 1. EEOC make findings of fact, seriatim, on the extortion, and on the constitutional and statutory violations in the absence of notice at each step of the ouster process, absence of forum notice, each voiding "informed choice," thus voiding each subsequent step ab initio; 2. Tell the agency is must not refuse access to the EEO forum as it has been doing since February 1980 (Exhibit 7, page 2, top); 3. EEOC to make findings of fact on the changed legal circumstances; 4. Tell Respondent agency to provide me specifics, then if it does, to consider my reply, then if it still ousts me, to notify me of ALL my rights so I can make uncoerced, "informed choice"; 5. Specify that the notice of rights must be made effective as of the earliest date its own people (e.g. Gonzellas Williams and Kenneth Adler, Exhibits 12 and 17 as verified by EEOC's Henry Perez, Jr., Exhibit 5) cite, so that I can make initial 29 CFR § 1614.203(b) "informed choice" of forum in which to appeal, to either EEOC or MSPB, without being obstructed by TACOM's "jurisdiction" denial as MSPB's decision notes (Pletten v Army, 7 MSPR 13, 18 June 1981)); -34- 6. Alternatively, that EEOC tell TACOM to notify me of any reopening rights forums wherein to present the new evidence cited herein including changed national circumstances, including the Shuttle Disaster of February 2003 and subsequent www.caib.gov Report which focused national attention on the "culture" of intimidation of federal employees, of which I am one recipient; the purpose of actually notifying me of such rights so that I cease guessing and exercising uninformed choices, as uninformed "choices" are no choices at all. 7. Alternatively, remand to MSPB, so that it can hear the case unobstructed by TACOM "jurisdiction" denials, and/or itself order No. 4 above (direct tell to notify me of 29 CFR 1614.203(b) forum choice rights so I can make an unobstructed choice). 8. And/or tell TACOM to provide a "confession of error" as per the precedent of U.S. v Graham, 688 F2d 746 (CA 11, 1982). Ed. Note: In the procedural posture of the case, attempting to get review to begin [under agency fraud-caused circumstances where agency alleges review has been completed(!)], I was deterred from raising such "relief" issues as noted by case law, e.g., Coates v National Cash Register Co, 433 F Supp 655 (WD Va, 1977) [cf. 561 F2d 982], e.g., damages including back pay and emotional distress; reinstatement with all accrued benefits; accelerated training so as to be at level comparable to younger employees, etc. For "damages" background, click here. 9. Lastly, if there is some actual or apparent failure to articulate this matter on my part, please treat this appeal as per Argument 1 above (on pro se complaints review) and remand for investigation and hearing to develop the record. Respectfully,       /s/Leroy J. Pletten Leroy J. Pletten Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 (586) 739-8343 -35- EXHIBITS 1. Map of TACOM (Pletten's Assigned Bldg 230, at Southwest Periphery) 2. Lack of Notice Summary 3. Summary of basis for agency having issued AR 1-8 under 32 CFR § 203, e.g., Tobacco Effects, Alcohol, abortion, etc. 4. TACOM Reg. 600-5.14-27 et seq. banning forced Leave Without Pay (LWOP) (Jan 1980) 5. EEOC Letter (Perez) Showing Termination Decision Already Made (9 April 1980) 6. General David Stallings Letter promising EEO review (29 Jan 1982) 7. EEOC Decision, Dockets 01800273 et al, Ordering Processing (23 Feb 1982) 8. Benacquista Deposition re Extortion Confirming Above, pp 25, 62 (23 April 1982) 9. EEOC Decision, Docket 05820275, Ordering Processing (3 March 1983) 10. OPM BFOQ Denial Letter (30 Jan 1984) 11. Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (NY: Norton, 1987), pp 51-52 12. TACOM Management Finally Admits Feb 1980 Ouster, Without EEO Review (16 Nov 1990) 13. Medical Letter Verifying Work Ability (5 Dec 1990) 14. Medical Letter Verifying Accommodation Never Needed (21 Aug 1991) 15. Article, "Rape rampant in military," Detroit News, p 5A (12 May 1995) 16. TACOM Smoking Cessation Without Pretense of Undue Hardship" (P-93-71, 20 April 1993) 17. TACOM EEO Officer Letter Citing Counseling Oct 1979 on, not in the crucial decade, sig- nificantly, and not claiming TACOM ever allowed investigation and hearing (26 Feb 1996) 18. Retaliation Rate Study Article by MSPB (www.mspb.gov/studies/00decnws.pdf) (Dec 2000) 19. Agency Admits to Sen. Levin Not Telling Me EEO Review Rights re Ouster (15 May 2001) 20. Transmittal of Jury-Duty Related Data and Action Request (30 December 2002) 21. Whistleblower Letter to CAIB investigating NASA (24 March 2003) 22. CAIB Answer (Docket Ser CAIB/157 (26 March 2003) 23. Toledo Blade Article on Army Crime Pattern, www.toledoblade.com/apps/pbcs.dll/section?Category=SRTIGERFORCE (10 Oct 2003) 24. New York Times Article on Army Crime Pattern, http://www.nytimes.com/2003/12/28/national/28TIGE.html?th (28 December 2003) 25. Request for counseling with respect to newly-created evidence of TACOM ex parte contact with adjudicator in effort to uphold the ouster (5 January 2004) -36- Exhibit 1 U.S. Army TACOM Note Bldg 230 (Item 1), Pletten's Jobsite, at Southwest Corner of TACOM 1 - Bldg 230 14 - Bldg 8 26 - Bldg 3 2 - Bldg 219 15 - Bldg S-40 27 - Bldg 1 3 - Bldg. 200D 16 - Bldg 7 28 - Bldg 2 4 - Bldg 200C 17 - Bldg 4 ANNEX 29 - Bldg T-12 5 - Bldg 200B X-RAY LAB 30 - Bldg T-13 6 - Bldg 200A 18 - Bldg 23 31 - Bldg T-14 7 - Bldg 212 19 - Bldg 6 32 - Bldg T-15 8 - Bldg 201 20 - Bldg T-54 33 - Bldg T-16 9 - Bldg 203 21 - Bldg T-55 34 - Bldg T-21 & T-22 10 - Bldg 205 22 - Bldg 5 35 - Bldg T-17 11 - Bldg 215 23 - Bldg 9 36 - Bldg T-20 12 - Bldg 227 24 - Bldg 10 37 - Bldg T-19 13 - Bldg 233 25 - Bldg 4 38 - Bldg T-18 Exhibit 2 Data on Lack of Notice An agency issued 30 days advance notice of charges, as mandated by Constitutional Due Process, and 5 USC § 7513.(b), PRIOR TO the “decision to terminate” as recorded by agency's own witnesses, EEO Officers Kenneth Adler and Gonzellas Williams (Exhibits 12 and 17) with the “decision to terminate” having been noted by EEOC's Henry Perez, Jr., in that era (Exhibit 5) DOES NOT EXIST An agency post-advance-notice document, pursuant thereto, and PRIOR TO the “decision to terminate” being put in effect DOES NOT EXIST An agency notice informing Pletten of all rights of review/appeal IAW 29 CFR § 1613.403 now § 1614.302(b) invariably included with such decisions automatically for all other employees being ousted. "An aggrieved person may initially file a mixed case complaint with an agency, pursuant to this part, or (s)he may file a mixed case appeal directly with the MSPB, pursuant to 5 CFR 1201.151, but not both. An agency shall inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination either orally or in writing, during the processing of the action, of his/her right to file a mixed case complaint, if the employee believes the action to be based, in whole or in pact, on discrimination, or to file a mixed case appeal with the MSPB. The person shall be advised that (s)he may not initially file both and that whichever is filed first (the mixed case complaint or the appeal) shall be considered an election to proceed in that forum. For the purposes of this subsection, filing of a mixed case complaint occurs when the complaint is filed with an appropriate agency official, in accordance with [Sec.] 1613.214 (a)(3) of Subpart B of this part" DOES NOT EXIST The above extraordinary and exceptional facts of omission of condition precedent events, and refusal to provide same continuing now for near 24 years, despite my voluminous follow-ups and efforts to obtain such data, are controlling events, precluding proceeding to next step. Without advance notice having FIRST been issue PRIOR TO a “decision to terminate” (as identified by Henry Perez, Jr., Exhibit 5); as “Last employed February, 1980” (as identified by TACOM's Kenneth Adler, Exhibit 12), as “dismissal” (as identified by TACOM's Gonzellas Williams, (Exhibit 17), an agency cannot proceed on to the next step. Without such pre-decision proceedings, when an agency does not provide employee with notice of rights of review, precluding “informed consent” data, each omission or refusal “necessarily renders all of the other facts immaterial.” Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986). Similar applies in, for example, divorce. An “I divorced you,” without the prerequisite due process and documentation, is void. Siemering v Siemering, 95 Wis 2d 111, 115; 288 NW2d 881, 883 (Wis App, 1980). The "condition precedent not having been met, the action was never commenced." With federal employees, the supposedly fired employee remains “on the rolls.” Such extraordinary notice flaw “divests the removal . . . of legality, leaving the employee on the rolls of the employing agency and entitled to his pay . . .,” Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). [And see Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965)]. Exhibit 3 Background for Army Regulation 1-8 (1977) on Smoking Conduct The Department of Defense issued Instruction 6015.18, 32 CFR § 203 directing it. Army had a record of bad experience with smoking conduct. Smoking was medically recognized as inherently hazardous conduct, pursuant to Surgeon General Reports showing cigarettes' carbon monoxide emissions at 42,000 ppm vs 29 CFR § 1910.1000 safe limit in 50-100 ppm range. Army issued AR 1-8. It paralleled the Dept of Health, Education and Welfare (now Health and Human Services) regulation; see analysis at DHEW, Soc Sec Admin and AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (1982), showing ease of enforcement. Army had a record of leadership in not hiring smokers due to their bad health even while young, see Austin v Tennessee, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703 (1898) aff'd 179 US 343 (1900). Army knows that "if the military [would still] restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services."--Army Aeromedical Research Lab Report No. 86-13, Smoking and Soldier Performance (June 1986), p 149. "Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent."--McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991), aff'd and rem 509 US 25; 113 S Ct 2475; 125 L Ed 2d 22 (1993). "Nearly all alcoholics, recovered or otherwise, are heavy smokers."--Arthur Cain, M.D., The Cigarette Habit: An Easy Cure (NY: Dolphin Books, 1964), p 4. "[S]moking, even in what is called a moderate degree . . . acts as an inducement to drinking--thus becoming the source of intemperance, and all its accompanying evils. It is notorious that the practices are, almost without exception, inseparably associated."--Surgeon John Lizars, The Use and Abuse of Tobacco (Edinburgh: 1859), pp 50-51. "[T]he antidotal effect of tobacco makes drinking of stimulating liquors the natural consequence of smoking."--Dr. Albert L. Gihon, in The Surgeon General's Report (1881). Verified since: "Smoking prevalence among active alcoholics approaches 90%."--J. T. Hayes, et al., "Alcoholism and Nicotine Dependence Treatment," 15 J. of Addictive Diseases 135 (1996). Tobacco use is medically deemed the starter, gateway, drug, the typical first/initial harmful drug used. The Supreme Court, Robinson v California, 370 US 660, 670 (1962), had said, "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway." Then Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (NY: Funk & Wagnalls, 1953), p 196, had said "all" drug addicts are smokers. Ed. Note: See Robert A. Hamilton, "Navy Breaks Up Drug Ring; 18 Sailors Face Charges: Eight Based In Groton Among Those Netted After 3-year Probe," Navy/Defense/Electric Boat (26 Feb 2004): "Eighteen nuclear-trained sailors, including eight from the Naval Submarine Base, have been charged with using or selling drugs, including Ecstasy, LSD, cocaine, methamphetamines and marijuana, the Navy said. The nine sailors court-martialed so far have been sentenced to as much as 30 months in prison and the forfeiture of up to $3,000 in pay. Two others have been kicked out of the Navy." Such incidents are preventable, by using the applicable hiring criteria cited in USAARL Report No. 86-13 (1986) and predecessors and precedents. Tobacco use was in 1977 in process of being classified as no mere habit, but "mental disorder," and that if the public knew smoking is a mental disorder, not a habit, that would have a major impact on the public perception of smokers ("a profound effect upon the reputation of this behavior"), says the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (1977). That volume also included an article by Prof. Jerome H. Jaffe, M.D. (Columbia University), "Tobacco Use as a Mental Disorder: The Rediscovery of a Medical Problem," at pp 202-217. Note both the government and the American Psychiatric Association list smoking as a mental disorder, not mere habit--in the International Classification of Disease, 9th ed. (ICD-9), and the Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (DSM-III). Judicial notice was soon taken, Caprin v Harris, 511 F Supp 589, 590 n 3 (D ND NY, 1981). "As early as 1902 Ballantyne had found an increase in the abortion rate in French and Austrian women working in tobacco factories."--Beulah R. Bewley, "Smoking in Pregnancy," 288 Brit Med J (#6415) 424-426 (11 Feb 1984). About "fifty-three per cent. of . . . abortions . . . are due to tobacco. . . . inhalation of [second-hand] tobacco smoke by pregnant mothers when sitting among smokers is sufficient to cause fatal poisoning of the fœtus."--Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: Churchill, 1912), p 238. So tobacco had a record of significantly leading to abortion, p 184, terminating about 1/7 of live-births, p 177. "The smoking mother is . . . 80 percent more likely than the nonsmoker to have a spontaneous abortion."--Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 162. Exhibit 4 18 JAN 1980 TARCOM-R 600-5 SPMM Chapter 14 C56 LEAVE WITHOUT PAY (LWOP) 14-27. Definitions. A temporary non-pay status and absence from duty during regularly scheduled work hours granted/approved at the employee's request. 14-28. Policy. a. Supervisors may not direct the use of leave without pay (LWOP). Leave vithout pay may be charged only upon an employee's request or consent. Hovever, such consent is understood when an employee applies for and is granted another type of leave vhere leave balance(s) are insufficient to cover. The only exception is when the Commander authorizes excused absence for reasons beyond management control and an employee is not eligible for excused absence. (See "Excused Absence," page 23). b. The only employees to whom leave vithout pay is a matter of right are disabled veterans. Such entitlement ia limited to use for necessary medical treatment as explained on page 10. c. Requests for leave vithout pay, particularly for extended periods, will be carefully examined to assure that their value offsets administrative coats and operating inconveniences. d. Leave vithout pay vill be granted only when there is reasonable assurance of return to duty after the absence. e. LWOP vill not be granted to extend beyond an employee's separation date. f. If an employee applies for and is granted LWOP the period of leave may not at any time thereafter be converted to annual or sick leavef except for disability retirement and employee compensation cases, when claims are disallowed. 14-29. More Than 30 Days. a. Extended leave vithout pay (more than 30 days) vill be processed as follows: (1) The employee will address a request in vriting to his/her supervisor, containing: (a) Dates of absence required. 19 Exhibit 4 Ed. Note: The agency knows, from cases such as Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958), that it has long been the law, that agency action cannot lawfully be "accomplished through the violation of a controlling regulation," Piccone v U.S., 186 Ct Cl 752, 762; 407 F2d 866, 871 (1969), relying on Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957). Here the violation is blatant; it is malicious, deliberate, wilful, forced LWOP over my strong opposition, done to intimidate all employees: no rule (no matter how clear) can protect from reprisal. Exhibit 5 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION First National Building Suite 600 Detroit Michigan 48226 Telephone 226-7636 April 9, 1980 IN REPLY REFER TO: EEO CLASS COMPLAINT OF Pletten, Leroy Charge No: 054-O8O-X0009 Mr. Leroy J. Pletten 8401 18 Mile Road Apt. 29 Sterling Heights, Michigan 48078 Dear Mr. Pletten: Pursuant to your letter of April 2, 1980, you appear to be somewhat confused as to my present involvement with your complaint. Let me attempt to enlighten you on some procedural matters. On the 7th of March 1980, the agency sent this agency a letter requesting the Complaints Examiner issue a recommended decision on whether to accept, reject or cancel your complaint. Thus, at this point of the proceedings I am not concerned so much with the merits of your complaint as I have been requested to render an opinion on whether you have sufficient standing to act as the agent for the proposed class. You must realize that your mere request to act as class agent will not suffice without a further showing that you comply in all respects with 29 CFR § 1613.601 et seq. Futher be advised that I am not now in a position to interfere with or disrupt the agency's decision to terminate you. Should I find at a subsequent hearing, if and when it is held, that members of your proposed class have been discriminated against, then and only then will I be authorized to recommend corrective action. [Ed. Note: I filed on 'individual case' basis for review, not awaiting the 'class action' process. Agency obstruction of justice, refusing to process same, occurred, and still continues. The cut-off of access to EEOC review was later cited by HQ EEOC, in its 23 Feb 1982 decision, which TACOM did not appeal. Therefore, should you remain sincere [Ed. Note: now that you've been terminated and will have your own reinstatement as your priority] in your decision to pursue a class action complaint, you should familiarize yourself with the applicable law and procedures. Sincerely yours, Henry Perez, Jr. Henry Perez, Jr. Complaints Examiner HPJ/ca cc: Mr. Kenneth R. Adler EEO Officer Department of the Army U.S. Army-TARCOM Warren, Michigan 48090 Exhibit 6 DEPARTMENT 0F THE ARMY UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND WARREN, MICHIGAN 48090 DRSTA-A 29 JAN 1982 Mr. Leroy Pletten 8401 18 Mile Rd., Apt. 29 Sterling Heights, Michigan 48078 Dear Mr. Pletten: Reference is made to your DF dated 18 January 1982 concerning the decision to separate you from Federal service by letter dated 14 January 1982. Your request that the separation be stayed is denied for the following reasons: a. All regulatory requirements concerning advance notice, opportunity to reply and decision, have been met. You have been advised of your rights of review. b. An agency must retain an employee for whom it has initiated application for disability retirement until it receives the intial decision of the Associate Oirector for Compensation, 5 CFR 831.1206. We have received such decision and therefore have complied with the regulations concerning disability retirement in cases involving separation for medical disqualification. c. Your pending appeals will continue to be processed. Your separation was effective at close of business 22 January 1982. Please refer to the letter of 14 January 1982 for information relating to your rights of review. Sincerely,       /s/ David W. Stallings DAVID W. STALLINGS Brigadier General, USA Deputy CG for Readiness Ed. Note: The letter was lying. There had been no regulatory compliance, e.g., no notice of the alleged 5 CFR 831.1206 letter, and NO notice of right to appeal to EEOC. TACOM had no intention of ever allowing my "pending appeals . . . to be processed." The lying is blatant, malicious, deliberate, done to intimidate all employees: no laws and no rules (no matter how clear) can protect from reprisal. DEPARTMENT 0F THE ARMY U.S. ARMY CIVILIAN APPELLATE REVIEW AGENCY 210 NORTH 12TH ST. ST. LOUIS, MISSOURI 63101 08 JUN 1981 PECA REPORT 0F CANCELLATION in the COMPLAINT OF MR. LEROY J. PLETTEN, US-ARMY TANK-AUTOMOTIVE COMMAND, WARREN, MICHIGAN I. INTRODUCTION Mr. Leroy J. Pletten, Position Classification Specialist, GS-221-12, Position and Pay Management Branch, Civilian Personnel Division, Directorate for Personnel Training and Force Development, US Army Tank-Automotive Command (TACOM), Warren, Michigan, filed thirteen formal complaints dated 25 August, 5, 7, 8, 10, 12, 13, 14, 15, 16, 20, 21, and 22 September 1980, respectively (Exhibit l). Mr. Pletten alleged that he is physically handicapped with an asthmatic condition. He further alleged that this condition is aggrevated by ambient tobacco smoke. As corrective action, Mr. Pletten requested that all smoking at TACOM be banned along with a list of other requests outlined in each of the individual complaints. Mr. Pletten did not elect to be represented for the purpose of presenting his complaints. The complaints were received in USACARO - St. Louis, Missouri on 7 and 10 November 1980 by transmittal letters dated the same (Exhibit 2). The complaints were assigned to the undersigned Investigator on 20 January 1981 (Exhibit 3). Due to the [alleged] similarity of complaints submitted by Mr. Pletten, the complaints were combined under Federal Personnel Manual Letter 713-38, dated 31 May 1977. II. BASIS FOR CANCELLATION A. On 29 May 1981, Ms. Emily Bacon, TACOM Legal Office Representative [ex parte] contacted Mr. Lyle H. McFarlin, Director, USACARO, St. Louis Office, by telephone. According to Ms. Bacon, the Command requested that all outstanding complaints 05-81-029-E 08 JUN 1981 PECA Report of Cancellation in the Complaint of Mr. Leroy J. Pletten, US Army Tank-Automotive Conunand, Warren, Michigan filed by Mr. Pletten be returned for consolidation by the Equal Employment Opportunity Commission (EEOC) in an upcoming hearing on similar matters as alleged. B. Mr. Pletten's formal complaints and all related documents are being returned to the Command Equal Employment Opportunity Office in accordance with paragraph A. above. Further investigation is herewith cancelled. /s/Jonell Y. Calloway 4 Inclosures JONELL Y. CALLOWAY As Stated in Attached Index Investigator USACARO - St. Louis   APPROVED: /s/Lyle H. McFarlin LYLE H. MCFARLIN, Director   USACARO - St. Louis w/ Exhibit 6 Ed. Note: Why 13 cases?: 13 incidents. Why filed in such short-time frame? TACOM had refused to do timely processing, as incidents occurred over long period, instead stalled, bunched them all up. Real issues were, e.g., (a) TACOM defying the rules (b) TACOM defying the instructions to comply (USACARA Report, 1-25-1980) (c) TACOM defying the millenia of pure air rules (d) TACOM firing me in reprisal for whistleblowing, etc. Note that the phone call was done without notice, i.e., ex parte, in violation of due process. There was NO "upcoming hearing." Bacon and TACOM refused to ever schedule one. Reference US v John Gotti, et al., 771 F Supp 552 (ED NY, 1991) (preclusion of Mafiosi attorney due to acting more as a consigliere" or "house counsel" principal than attorney role). Note that "A criminal organization has no legal right to continuous advice on how to [commit crimes, e.g.] evade arrest and increase illegal profits" and that "A lawyer who provides ongoing legal assistance to a cocaine cartel [a continuing criminal enterprise] is acting, in effect, as a 'consigliere' to a criminal conspiracy." See Prof. Alan M. Dershowitz, Letters to a Young Lawyer (Basic Books, 2001), pp 53-54. See People v Paasche, 207 Mich App 698, 702; 525 NW2d 914, 917(1994) “[t]he crime-fraud exception to the attorney-client privilege is predicated on the recognition that where the attorney-client relationship advances the criminal enterprise or fraud, the reasons supporting the privilege fail.” Although public policy demands clothing communications between an attorney and his/her client with a privilege, “it is [well] settled under modern authority that the [attorney-client] privilege does not extend to communications between attorney and client where the client's purpose is the furtherance of a future intended crime or fraud.” 1 Kenneth S. Broun et al., McCormick on Evidence § 95, at 380 (John W. Strong ed., 5th ed. 1999) (footnote omitted). Thus, “[o]ne of the more important exceptions to the attorney-client privilege is the 'crime-fraud' exception.” Grassmueck v. Ogden Murphy Wallace, 213 F.R.D. 567, 572 (W.D. Wash. 2003). Under this exception “if such communications were made in order to perpetrate a [crime or] fraud on justice, they are not privileged[.]” Syl. pt. 2, in part, Thomas v. Jones, 105 W. Va. 46, 141 S.E. 434 (1928). As noted by Justice Cardozo, “[a] client who consults an attorney for advice that will serve him in the commission of a [crime or] fraud will have no help from the law.” Clark v. United States, 289 U.S. 1, 15, 53 S. Ct. 465, 469, 77 L. Ed. 993 (1932). See also In re Grand Jury Investigation, 772 N.E.2d 9, 21 (Mass. 2002) (“No public interest is served by permitting a client to use the attorney-client privilege to help him or her break the law.”). Courts have recognized that “[t]he crime-fraud exception to the attorney-client privilege is predicated on the recognition that where the attorney-client relationship advances the criminal enterprise or fraud, the reasons supporting the privilege fail.” People v. Paasche, 525 N.W.2d 914, 917 (Mich. Ct. App. 1994). “It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the 'seal of secrecy' between lawyer and client does not extend to communications 'made for the purpose of getting advice for the commission of a fraud' or crime.” United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 2626, 105 L. Ed. 2d 469 (1989) (citations omitted). See also In re Grand Jury Proceedings, 183 F.3d 71, 76-77 (1st Cir. 1999) (“[W]e exclude from the privilege communications made in furtherance of crime or fraud because the costs to truth-seeking outweigh the justice-enhancing effects of complete and candid attorney-client conversations.”); United States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997) (“The crime-fraud exception removes the privilege from those attorney-client communications that are 'relate[d] to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.'”); In re Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir. 1996) (“While there is a societal interest in enabling clients to obtain complete and accurate legal advice . . . there is no such interest when the client consults the attorney to further the commission of a crime or fraud.”). cited in concurrence in State of West Virginia ex rel. Medical Assurance of West Virginia, Inc. v. The Honorable Arthur M. Recht, Judge of the Circuit Court of Ohio County, the Estate of Marjorie I. Verba, by Sally Jo Nolan, Executrix The crime-fraud “exception applies even if the attorney is unaware of the client's criminal or fraudulent intent, and applies of course where the attorney knows of the forbidden goal.” Ocean Spray Cranberries, Inc. v. Holt Cargo Sys., Inc., 785 A. 2d 955, 959 (N.J. Super. Ct. Law Div. 2000). See also United States v. Hodge & Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977) (“The crime or fraud exception applies even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose.”); Freedom Trust v. Chubb Group of Ins. Cos., 38 F. Supp. 2d 1170, 1171 (C.D. Cal. 1999) (“[T]he lawyer does not have to be aware of the fraud for the crime-fraud exception to apply.”); In re National Mortg. Equity Corp. Mortg. Pool Certificates Litig., 116 F.R.D. 297, 300 (C.D.Cal. 1987) (“[T]he party seeking disclosure need not show that the attorney knowingly participated in the crime or fraud.”). Thus, “[t]he determining factor is not the attorney's intention or actions; for purposes of analyzing the crime-fraud exception, the attorney's conduct and motive is irrelevant.” In re Grand Jury Investigation, 772 N.E.2d 9, 25 (Mass. 2002). Further, “[t]he client need not succeed in committing the intended crime or fraud in order to forfeit the attorney-client privilege. The dispositive question is whether the attorney-client communications are part of the client's effort to commit a crime or perpetrate a fraud.” First Union Nat'l Bank v. Turney, 824 So. 2d 172, 187 (Fla. Dist. Ct. App. 2001) Note how easily the employee right to review was summarily cancelled! By phone, not even in writing! Neither the "Investigator" nor "Director" verified Bacon's claim of "upcoming hearing." Regardless, both Calloway and McFarlin knew the claim was false. Investigation occurs BEFORE hearing. The Investigation Report serves as basis for hearing! assembles the evidence! What "hearing" occurs without the evidence?! This misconduct violating the rule of law deprives the employer, the U.S. government, the taxpayers, the employee, of "honest services." By law, 18 USC §§ 1341, 1343, and 1346, mail fraud defrauding employer of "honest services" is illegal. The term “‘honest services’ can include ‘honest and impartial government.’”—U.S. v Brumley, 116 F3d 728, 731 (CA 5, 1997) cert den 522 US 1028; 118 S Ct 625; 139 L Ed 2d 606 (15 Dec 1997). “A [retaliator against whistleblower] defendant may be prosecuted for deprivation of honest services [even] if he [the retaliator] has [not a single illegal intent but] a dual intent, i.e., if he is found to have intended both a lawful [as retaliators allege] and an unlawful purpose to some degree.”—U.S. v Wood-ward, 149 F3d 46, 71 (CA 1, 1998), cert den 525 US 1138; 119 S Ct 1026; 143 L Ed 2d 37 (22 Feb 1999). The Dept of Justice prosecutes others, but as per DOJ policy and practice, it does not prosecute when the crime occurs by managers against whistleblowers. Emily Bacon had lied earlier too: Note her 14 May 80 statement, “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations . . . .”   (something never done nor intended to be done). As per DOJ practice and policy of non-prosecution, DOJ had provided her immunity for repeat lying, mail fraud. DISPOSITION FORM REFERENCE OR OFFICE SYMBOL| SUBJECT                     |                     |     DRSTA-ALS       | Return to Duty                     | TO Dir of Pers, Tng & Force   FROM Leroy J. Pletten      7 July 1981    Dev (AMSTA-A)                  (DRSTA-ALS) 1. Reference 18 Jun 8l Opinion and Order [6 MSPB 626, 7 MSPR 13] by the Merit Systems Protection Board. That Order indicates that the installation [TACOM] has done the following: a. “conducting an air content study of appellant's immediate work area to determine toxic substances present”; b. “prohibiting smoking in the entire Civilian Personnel Division”; c. “relocating his office to improve air quality”; d. “initiating an educational program to discourage smoking within the general workforce”; e. “posting notices banning smoking in areas such as elevator, auditoriums, appellant's office and cafeterias”; f. “conducting periodic air quality surveys of appellant's immediate work area to insure compliance with health standards; and” g. “advising fellow workers and visitors not to smoke in appellant's presence.” 2. When these assertions are “treated most favorably” to resolution and installation good faith, I am delighted. 3. Accordingly, if the installation has accepted the [6 MSPB 626, 7 MSPR 13] Opinion and Order, I will return to duty within seven (7) days of your receipt of this notice. /s/ Leroy J. Pletten Leroy J. Pletten Position Classification Specialist DA FORM 2496 w/ Exhibit 6 Ed. Note: The MSPB Opinion and Order (6 MSPB 626, 7 MSPR 13) by Ronald P. Wertheim and Ersa H. Poston was lying. No such actions had occurred. Much is what I had requested, but TACOM had refused. It is MSPB policy and practice to lie. TACOM had no intention of doing these things that MSPB had invented, fabricated, criminally falsified. TACOM knew the MSPB claims were false (had arranged them ex parte), and hence did not even answer my above acceptance! Instead, it issued even harsher ouster documentation! The MSPB lying in published decisions of record is blatant, malicious, deliberate, done to intimidate all federal employees: to assure they realize that no rules, no laws (not even criminal laws against falsification and mail fraud), can protect from reprisal. "It should . . . . make you more suspicious of all legal and judicial institutions. Trust no one in power, including — especially — judges. Don't take judicial opinions at face value. Go back and check the transcript [record]. Cite-check the cases. You will be amazed how often you will find judges 'finessing' the facts and the law. Too often, legal observers take as a given judges' intellectual honesty."—Prof. Alan M. Dershowitz, Letters to a Young Lawyer (Basic Books, 2001), p 11. P 80 notes that pro-government lying is common, rampant. For more on judges lying, falsifying, so as to "reach" a pre-determined decision, see, e.g., Malcolm B. E. Smith, "Concerning Lawful Illegality," 83 Yale Law J. 1534 (1974) Malcolm B. E. Smith, "May Judges Ever Nullify the Law?," 74 Notre Dame L.R. (#5) 1657-61 (June 1999) Malcolm B. E. Smith, "Do Appellate Courts Regularly Cheat?," 16 Crim. Jus. Ethics 11-19 (2, Summer/Fall 1997) Sanford H. Kadish and Mortimer R. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford, CA.: Stanford Univ Press, 1973). A “reputation . . . for truth and veracity . . . so notoriously bad that [a lawyer is] not to be believed under oath [surely, in decisions]” is to be disbarred, not be a lawyer anymore, says the Michigan Supreme Court, In the Matter of Mills, 1 Mich 392, 398 (1850). Instead of overturning misconduct, MSPB upholds it, and invents new lies in the process. The "natural and probable" consequence is what we see happen: employees terrified at NASA, CIA, FBI, etc., to do their job, thus paralysis of action even on critical life-and-death matters. DISPOSITION FORM REFERENCE OR OFFICE SYMBOL | SUBJECT | | DRSTA-ALS | Re 14 Jan 82 Letter TO Dep CG for Readiness     FROM Leroy J. Pletten       18 Jan 82    (AMSTA-CD)                     (AMSTA-ALS) 1. Your hasty 14 Jan 82 letter is a surprise considering that opportunity for reply has not yet been granted. The requested data is needed so that I can begin the process of obtaining affidavits. You indicate you “have allowed an additional five (5) working days for any reply relative to that material.” The material requested has not been received, with one minor exception. Major aspects sach as backup material on the nature of the 27 Mov 8l letter have not yet been received. Ihe USACARA-obtained affidavits have not been provided for me to review in the event they are relevant. Etc. Etc. 2. As you and/or your staff know, my appeals to be allowed to return to duty are still in process. So are many other cases. Ihe OPM action allegedly the basis for the 27 Mov 8l letter is in appeal [to obtain a Return to Duty Order]. I am sure you are familiar with the pitfalls of precipitous local action such as the 27 Nov 8l and 14 Jan 82 letters reveal. 3. You are undoubtedly aware of the [5 U.S.C. § 7902(d) and 29 §§ 651 - § 678] duty to eliminate hazards, an “unqualified and absolute duty,” not just reasonable, Nat'l Rlty & Const. Co., Inc. v. OSHRC [160 U.S.App.D.C. 133], 489 F.2d 1257 at 1265 (1973). MSPB 18 Jun 8l and 9 Mov 8l purport that the hazard bas been resolved; if this is true, please instruct that I be returned to daty at once. 4. If the [MSPB] claims are untrue, please be advised that my appeals are still in process. IAW Piccone v. U.S. [186 Ct.Cl. 752], 407 F.2d 866 (1969), separation of an employee for alleged disabillty is premature while appeals are in process. That case involved only one appeal in process (disahility retirenent); my case involves multiple appeals and cases in process, including but not limited to disabillty retirement appeal. My compensation case for the past harm and the appeals re the present situation are also in process. 5. IAW the guidance on [scienter] full equivalence of knowledge, you and your staff are presumed to be famliar with all the law and the facts. (Of course, you all have actual knowledge.) 6. Please stay your action pending grant of opportunity for reply, and pending action on the appeals and cases as per cited case law. 7. Your cooperation and assistance will be deeply appreciated. Sincerely yours, /s/Leroy J. Pletten Leroy J. Pletten Pos Class Spec DA FORM 2496 w/ Exhibit 6 Exhibit 7 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON, D.C. 20506 Leroy Pletten, )      Docket Nos. Appellant ) 01800273 01810324 ) 01810321 01810555 v. ) 01810322 01810887 ) 01810323 01811012 Department of the Army, ) 01812239 Appellee. ) DECISION INTRODUCTION Leroy Pletten (hereinafter referred to as appellant) timely initiated appeals to the Equal Employment Opportunity Commission from the final decisions of the Department of Army (hereinafter referred to as agency) rendered in all the above reference appeals as indicated in the Appendix, concerning his allegations of discrimination based upon [perceived, non-job-related] physical handicap (asthma) in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq and based upon reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. These appeals are accepted in accordance with EEOC Order No. 960, as amended. BACKGROUND Beginning in 1979, appellant filed a series of formal complaints of discrimination with the agency, alleging that actions of the agency discriminated against him on the basis of his handicapping condition [not enforcing / obeying its own pure air regulation, AR 1-8 issued pursuant to 32 CFR § 203] and in reprisal for filing EEO complaints. At the time of his first [whistleblowing to Safety Office] complaint, appellant was employed by the agency as a position classifer specialist, GS-12. [He never used sick leave.] In the summer of 1979, he was discovered to be suffering from acute asthma attacks brought on by contact with cigarette smoke. He made numerous requests of the agency to accommodate his handicap [NO, in reality, to enforce the above cited DOD and Army-incorporated pure air rules AR 1-8 and 32 CFR § 203], to include improving the [outmoded] ventilation system of his building, a smoke-free office to work in and prohibiting other -2- employees from smoking within 25 feet of appellant. [His supervisor, Jeremiah Kator, agreed, but higher management forbad him to act.] When he [Pletten] failed to obtain the accommodations [enforcement actions] he believed to be necessary for his handicap [compliance with the above-cited rules], appellant sought EEO counseling and filed formal complaints. Simultaneously, he filed a labor grievance which was arbitrated in January, 1980 [in fact, adjudicated by the Army's own Civilian Appellate Review agency (USACARA)] with a recommendation of ways the agency had to accommodate appellant [enforce its own "pure air rights" rules]. When the agency failed to abide by the arbitration [USACARA Report], appellant filed even more EEO complaints. In none of the appeals pending before this Commission did the agency ever consider the merits of appellant's allegations. All of the complaints were rejected for the reasons stated in the Appendix. The record indicates that as early as February, 1980 [the "decision to terminate" time observed by EEOC's Henry Perez, Jr.], appellant was denied EEO counseling and prevented from filing further complaints. As indicated in the Appendix, the agency failed to provide this Commission with several complaint files and the only information concerning these complaints was supplied by appellant and must be accepted by this Commission as uncontradicted. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. 1613.212 and .709(a) provide for the establishment by the agency for regulations for the acceptance and processing of complaints of discrimination based upon physical handicap and reprisal. The Regulations further provide that federal agencies upon the filing of such complaints must conduct an investigation into the allegations raised in the complaint, 29 C.F.R. 1613.216, conduct a hearing on those allegations, if desired by the complain[an]t, 29 C.F.R. 1613.217(b)(i) and render a decision thereon, 29 C.F.R. 1613.221(1). A review of the record in Docket No. 01800273 establishes that appellant filed a formal complaint of discrimination alleging that in an agency's publication derogatory references were made to his physical handicap. The appellant's complaint properly alleges a basis of discrimination reocognized by the Regulations. The agency improperly rejected appellant's complaint on the basis it did not come within the purview of the Regulations. The agency, therefore, must accept the complaint for investigation and decision thereon. In all of appellant's complaints, he asserts that the agency was discriminating against him as an asthmatic nonsmoker who could not tolerate smoke in his work environment and, moreover, that the agency failed to accommodate his handicap [enforce / obey the pertinent agency and other rules]. Under the applicable EEOC Regulations 29 C.F.R. 1613.214(a)(1)(ii) an agency may accept a complaint for processing only if -3-the complainant has brought to the attention of an EEO counselor the matter thought to be discriminatory within 30 calendar days from the date of the alleged discrimination occurred. It is a well recognized equitable principle that this time limit must be extended if appellant alleges and can show a continuing pattern of discrimination. As the court in Laffey v. Northwest Airlines, 567 F.2d 429, 13 FEP Cases 1068 (D.C. Cir. 1976) notes " . . . where, as here, discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within (the time period) of filing charges, the filing is timely." Id. , 13 FEP Cases at 1100. See also, Cedeck v. Hamiltonian Federal S&L Assn., 551 F.2d 1136, 14 FEP Cases 1571 (8th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219, 15 FEP Cases 377 (5th Cir. 1977); and, Rich v. Martin Marietta Corp., 552 F.2d 333, 11 Fep (sic) Cases 211 (10th Cir. 1977). It is clear that appellant was alleging a continuing pattern of discrimination against him because of his handicap. It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection. See Appendix, Docket Nos. 01810323, 01810321, 01810555 and 01810324. In view of the foregoing, this Commission must conclude the agency's rejection of all appellant's complaints were erroneous on the grounds given. In that it appears that appellant was alleging a continuing pattern of discrimination and in that some of the agency's rejection of his complaints were based on the wrong information and in that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints and seek counseling, the Commission holds that all the above references cases must be reversed and rescinded [remanded] (sic)for further processing in accordance with EEO Regulations 29 C.F.R. 1613.211 et seq. CONCLUSION Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is to reverse the final agency decisions in all the instant cases which rejected appellants' complaints for the reasons indicated and rescind (sic) said complaints for further processing in accordance with this decision. Upon reprocessing said complaints, the agency may consider the consolidation of all the instant cases. -4- IMPLEMENTATION OF THE COMMISSION DECISION Under EEOC regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant. ATTORNEY'S FEES If appellant has been represented by a member of the Bar, appellant shall be awarded attorney's fees under 29 C.F.R. § 1613.271(c). The attorney shall submit to the agency within twenty (20) days of receipt of this decision, the documentation required by 29 C.F.R. §1613. 271(c) (2). The agency shall process the claim within the time frames set forth in § 1613.271(c)(2). NOTICE OF RIGHT TO FILE A CIVIL ACTION Pursuant to 29 C.F.R. §1613.282, the appellant is hereby notified that this decision is final and that he has the right to file a civil action on the Title VII claim in the appropriate U.S. District Court within thirty (30) days of the date of receipt of this decision. APPOINTMENT OF COUNSEL If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require. NOTICE OF RIGHT TO REQUEST REOPENING The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: -5- 1. New and material evidence is available that was not readily available when the previous decision was issued; 2. The previous decision involves an erroneous interpretation of law or regulations or misapplication of established policy; or 3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. This notice is in accord with 29 C.F.R. Section 1613.235. The agency's attention is directed to 29 C.F.R. Section 1613.235(b) for time limitations on agency requests to reopen. FOR THE COMMISSION:    FEB 23 1982 /s/Nestor Cruz Date Nestor Cruz, Director Office of Review and Appeals -6- APPENDIX APPEALS OF LEROY PLETTEN EEOC DOCKET Number Date of Formal EEO Complaint Date of Formal Agency Decision Date of Appeal Brief Description of Complaint Reason for Agency's Rejection 1. 01800273 2/ 11/07/79; amended 11/23/79 12/19/79 12/26/79 Publication of article agency's newsletter Not within purview 2. 01810321 9/11/80 11/06/80 11/18/80 Misconduct by medical officer against appellant Untimely presented to EEO counselor 4/ 3. 01810322 9/17/80 11/05/80 11/18/80 Denial of telephone services Untimely presented to EEO counselor 4/ 4. 01810323 9/06/80 11/05/80 11/18/80 Denial of medical aid in dispensary Untimely presented to EEO counselor 4/ 5. 01810324 9/9/80 11/05/80 11/18/80 Wrong information conveyed to Merit Systems Protection Board Untimely presented to EEO counselor 4/ 3/ 6. 01810555 9/19/80 12/22/80 1/9/81 Performance appraisals Untimely presented to EEO counselor 6/ 7. 01810887 9/18/80 1/16/81 2/04/81 Appellant forced off base Untimely presented to EEO counselor 5/ 8. 01811012 1/15/81 4/2/81 4/8/81 Agency's failure to implement no smoking regulations Untimely presented to EEO counselor 5/ 9. 01812239 1/ 2/ 1/21/81 5/12/81 and 5/15/81 5/19/81 Refusal by agency to accept complaint Untimely presented to EEO counselor 10. 018112239 1/ 2/ 1/20/81 5/12/81 and 5/15/81 5/19/81 Refusal to provide EEO process to appellant Untimely presented to EEO counselor 5/ 11. 018112239 1/ 2/ 4/26/81 5/12/81 and 5/15/81 5/19/81 Refusal to provide EEO Counseling Untimely presented to EEO counselor 5/ -7- 1/Complaints consolidated under this case number. 2/ No agency file ever received in this case 3/ No copy of final agency decision ever received in this case. 4/ Erroneous calculation by agency of thirty day period prior to counseling. 5/ Event giving rise to complaint occurred when agency refused to accept additional complaints from appellant. 6/ Final agency decision cites erroneous date of alleged discriminatory act on appellant's formal complaint. Exhibit 8 Background on Extortion TACOM's own Command Physician, Dr. Francis J. Holt, said of the outmoded TACOM ventilation system, ". . . mechanical failures happen all the time," resulting in "hazardous to them [TACOM employees]." TACOM's own Industrial Hygienist Edwin Braun was recommending "over and over and over again" for improvements as the pertinent ventilation equipment was "outmoded" so air became "stagnant" and "hell" [Braun's words]. Smokers were using devices (cigarettes) producing hazardous chemicals such as carbon monoxide (42,000 ppm says Surgeon General Report data on cigarette emissions) in violation of 29 CFR § 1910.1000 maximums in the 50-100 range, tantamount to driving 42,000 violating lower speed limit. Various employees including personnel office co-worker due to second-hand smoke filed for and received a tobacco-caused injury claim under the Workers' Compensation system, for example, Matter of Bertram, OWCP File No. A9-190131 (29 Dec 1977). Pletten was a witness in her case. The hazard was confirmed by the Army's Civilian Appellate Review Agency (USACARA) investigator Norma Kennedy (25 January 1980), Report No. 05-80-001-G. 5 USC § 7902(d) directs that: "The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his agency, encourage safe practices, and eliminate work hazards and health risks." TACOM's own Chief Counsel Richard T. Tarnas said 19 June 1979, "Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction [if, e.g., causes] endanger life or property, cause discomfort or unreasonable annoyance to non-smokers, or infringe upon their rights." The right to pure air concept traces back to precedents such as Aldred's Case, 9 Coke 48 (1610), Camfield v United States, 167 US 518, 522-523; 17 S Ct 864; 42 L Ed 260 (1897), Rex v White and Ward, 1 Burr 333 (KB, 1757), and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air"). 32 CFR § 203 and AR 1-8 were issued promptly after the smoke-free rights case, Shimp v N J Bell Tele Co, 145 N J Super 516; 368 A2d 408 (1976). TACOM Chief of Staff Colonel John Benacquista against interest admits personally disagreeing, defying AR 1-8, "It doesn't make sense to have a Command getting involved in the personal habits of its employees . . . ." and requiring a quid pro quo of Pletten to keep his job, "All he had to do was to say, 'I agree that this is reasonably free of contaminants.'" Precedents such as People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975) and U.S. v Wilford, 710 F2d 439 (CA 8, 1983) preclude such demand. By law, 18 USC §§ 1341, 1343, and 1346, fraud defrauding employer of "honest services" is illegal. The term "honest services" can include "honest and impartial government."--U.S. v Brumley, 116 F3d 728, 731 (CA 5, 1997) cert den 118 S Ct 625; 139 L Ed 2d 606. "A defendant may be prosecuted for deprivation of honest services [even] if he [e.g., a retaliator] has [not a single illegal intent but] a dual intent, i.e., if he is found to have intended both a lawful [as retaliators allege] and an unlawful purpose to some degree."--U.S. v Woodward, 149 F3d 46, 71 (CA 1, 1998), cert den 119 S Ct 1026; 143 L Ed 2d 37. 1 Q No, that's true. No, I did, and you answered it 2     correctly I am sure. 3 Q The question is what was your relationship 4     with General Decker as to this issue? 5 A This was discussed on a regular basis several times in 6     what was called Command group meetings; generally every 7     evening somewhere between 5:00 and 7:00 at night where 8     we would discuss the day's actions. And those would be 9     discussed at that time. 10 Q And did he follow along with this as it was going on? 11 A Yes. All done ex parte, no notice provided to Pletten, denying him the right to reply. 12 Q Did he have you issue a directive for the entire Command 13     with regard to smoking? 14 A I don't believe so. 15 Q Did you ever issue a directive to the Command? 16 A A directive signed by me? 17 Q Or by anybody from the Command group? 18 Not to my knowledge, no. 19 Why not? 20 I didn't think it was necessary. 21     It doesn't make sense to have a Command 22     getting involved in the personal habits of its employees, 23     you know, as a Command policy letter. Ed. Note: This dissent, insubordination against the rule of law, deprives the employer, the U.S. government, the taxpayers, of "honest services," both his and victim's. By law, 18 USC §§ 1341, 1343, and 1346, mail fraud defrauding employer of "honest services" is illegal. The term “‘honest services’ can include ‘honest and impartial government.’”—U.S. v Brumley, 116 F3d 728, 731 (CA 5, 1997) cert den 118 S Ct 625; 139 L Ed 2d 606. “A [retaliator against whistleblowers] defendant may be prosecuted for deprivation of honest services [even] if he [the retaliator] has [not a single illegal intent but] a dual intent, i.e., if he is found to have intended both a lawful [as retaliators allege] and an unlawful purpose to some degree.”—U.S. v Woodward, 149 F3d 46, 71 (CA 1, 1998), cert den 119 S Ct 1026; 143 L Ed 2d 37. The Dept of Justice prosecutes others (e.g., civil servants, as in U.S. v James J. Smith, for such crimes, but as per DOJ policy and practice, it does not prosecute when the crime occurs by supervisors against whistleblowers. 24 Q Doesn't AR 1-8 require that you look at your Command with 25     regard to compliance with that regulation? -Benacquista -25- Exhibit 8 1 Q You said something to the effect that you 2     wouldn't direct a person to go back to work where he 3     thought there was a hazard, where that would be unsafe 4     for him. Q 5 Can you repeat what you said in that nature? 6 A If we are going to get into that I would like to go back 7     and hear what the whole line of questioning was. 8 Q Well, I'm not sure we can do that. 9     Well, let's go back—no, let's not. It's 10     quite a ways back. 11 Q We were talking previously about why you 12     didn't just order him back to work. Why wouldn't you say, 13     "Look, we've done all this work and you should go back 14     to work"? 15 Q     Why wouldn't you do that? 16 A His contention was that that was a hazard and that he 17     required a smoke-free environment. 18 A     We had acknowledged and transmitted a 19     number of times that the environment in the building was 20     considered reasonably free of contaminants, you know. 21     Why would I want to go around and tell 22     somebody, "You have got to go back in there"? That is 23     a personal judgment on his own part. The job was available. 24     All he had to do was to say, "I agree that this is 25     reasonably free of contaminants." Ed. Note: Extortion as defined by Michigan law MCL 750.213, e.g., to change anticipated testimony, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975). To effect the extortion, he altered, overruled, the doctors' statements, Tr. at 13. The goal was to pressure Pletten, as per his work ethic and pay being embezzled, into withdrawing his request for compliance with the AR 1-8 criteria, and the USACARA Report. - Benacquista -62- Exhibit 8 Exhibit 9 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON, D.C. 20506 IN THE MATTER OF THE ) REQUEST TO REOPEN BY ) ) v. ) Request No. 05820275 ) LEROY PLETTEN ) ) ACCEPTANCE OF REQUEST TO REOPEN On July 2, 1982, Leroy Pletten (hereinafter referred to as appellant) filed a request with the Equal Employment Opportunity Commission to reopen and reconsider its decision in Leroy Pletten v. Army, Appeal No. 01801850 dated May 18, 1981. EEOC Regulation 29 C.F.R. Section 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Under the Regulation, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written evidence or argument which tends to meet one or more of the regulatory criteria. The Commission has carefully reviewed appellant's request to reopen its decision and the entire appellate record. Based on this review, the Commission finds that appellant's request does establish one of the regulatory criteria of Section 1613.235. In Docket No. 01801850, the Commission affirmed the agency's rejection of appellant's complaint because it contained identical allegations raised in a previous complaint. Appellant argues that this finding was an erroneous interpretation of fact and that his complaint should be processed. A review of the appellate file shows that the agency's final decision concerns a complaint filed by appellant on July 11, 1980 in which he allèges that the agency had discriminated against him because of his handicap Request No. 05820275 -2- According to the counselor's report, the agency had taken certain action to accommodate appellant's condition in February 1980, vhich he believed to have been inadequate. This allegation was the main thrust of his complaint. The only synopsis of appellant's earlier complaint filed in June, 1980 was revealed in the EEO counselor's report. The counselor indicated that there appellant vas complaining about the agency's failure to accommodate his handicap and its action in December, 1979, declaring him unfit and sending him home. The agency's final decision states that this prior complaint was at this time accepted for processing and being investigated. On appeal appellant asserts that the instant complaint although grounded upon the same basis of discrimination, i.e. physical handicap, concerned a separate incident and should have been accepted for processing. The Commission takes administrative notice of our decision issued February 23, 1982, which includes Docket Nos 01800273, 01810321, 01810322, 01810323, 01810324, 01810555, 01810887, 01811012 and 01812239. Our decision reversed all of these cases on procedural grounds finding that the agency erred in refusing and failing to process appellant's complaints. Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart. The Commission therefore finds that the agency erred in rejecting appellant's complaint filed July 11, 1980. The agency's final decision is hereby reversed and the case remanded for investigation in accordance vith the applicable EEOC Regulations. The agency may consolidate this case to the extent it is possible vith the other complaints referred to above pending before the agency. CONCLUSION Based upon a review of the record and in light of appellant's request to reopen and reconsider our previous decision in Docket No. 01801850, it is the decision of this Commission to accept appellant's request to reopen. Furthermore, the Commission finds that our previous decision erroneously affirmed the agency's rejection of appellant's complaint and is, by virtue of this decision, reversing the agency's final decision in this matter. The case is remanded to the agency for further processing as discussed herein. Request No. 05820275 -3- IMPLEMENTATION 0F THE COMMISSION DECISION Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission. 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant. NOTICE OF RIGHT TO FILE A CIVIL ACTION Pursuant to 29 C.F.R. Section 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on the Rehabilitation Act claim in the appropriate United States District Court within thirty (30) days of the receipt of this decision. APPOINTMENT OF COUNSEL If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action wichout the payment of fees, costs or security. Any such arequest must be made within the above referenced 30 day time limit and in such form and manner as the court may require. FOR THE COMMISSION: 3/4/83 /s/Treva McCall DATE Executive Secretary for the Commission Exhibit 9 Exhibit 10 United States Office of Personnel Management Washington, D.C. 20415 JAN 30 1984 In reply refer to Your reference Mr. Leroy J. Pletten 8401 18 Mile Road 29 Sterling Heights, Michigan 48078 Dear Mr. Pletten: This is in reply to your Freedom of Information request dated December 12, 1983, and received in this office on January 23, 1984. A copy of your letter was forwarded to this office for reply to those items pertaining to qualification requirements since this office has responsibility for the development of qualifications standards. Specifically, you requested a copy of any and all qualification requirements issued by OPM that require smoking as a condition of Federal employment. You asked that this include qualification requirements in Handbook X-118 as well as any OPM may have issued or may be using that are not a part of the X-118 system. You also requested that if there are no such requirements that we so state. This office is not aware of any qualifications standards issued or in use by OPM that require the ability to smoke. As a consequence, we cannot fill your request for copies of such material. Sincerely,       /s/Joseph W. Howe Joseph W. Howe Assistant Director for Standards Development and Security Review Exhibit 10 OFFICE 0F THE ASSISTANT SECRETARY 0F DEFENSE WASHINGTON, OC 20301-1400 PUBLIC AFFAIRS 29 JAN 1991 Ref: 91-FOI-0021 Mr. Leroy J. Pletten 8401 18 Mile Road, #29 Sterling Heights, Michigan 48313-3042 Dear Mr. Pletten: This is in reply to your Freedom of Information Act request of January 2, 1991 "for a copy of any qualification requirements that require ability to smoke . . ." Our interim reply of January 14, 1991, under the above FOI reference number, applies. We have been advised by the Office of the Assistant Secretary of Defense (Force Management and Personnel), that a search of files there located no record responsive to your request. Fees associated with processing your request have been waived in this instance. Sincerely,       /s/W. M. McDonald W. M. McDonald Director Freedom of Information and Security Review w/ Exhibit 10 Exhibit 11 Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (New York: W. W. Norton, 1987) Golden Arm, made heroin addiction a stark nightmare to more millions. Soon, criminologists and police chiefs everywhere were blaming addicts, desperate for money to buy a fix, for the soaring national crime rate and the resultant spread of fear through American cities and suburbs. Knowledge that Chiang and his KMT were constructing the world's preeminent heroin factory to support their cause would have flabbergasted almost everyone. So would the knowledge that the heads of the American Legion and the Freedoms Foundation—the very soul of American anticommunism—would help run a bank for the heroin trade (even if Generals Cocke and Black were, as they have said, unwitting of Nugan Hand's dope deals). If such shocking news about the Kuommtang could be kept secret for twenty or thirty years, one has to wonder what might have gone on with Nugan Hand in the 1970s—or what might be going on now—that is similarly being kept secret. At any rate, the events described here all did happen. Officially, they happened only for the purpose of helping our "friends," the KMT, who never had a realistic chance of overthrowing Mao Tse-tung's new mainland government anyway. If the petty harassment of Mao justified starting a new heroin trade, soon there was a much bigger stake. There was the Vietnam War. From 1954, with the arrival of General Edward G. Lansdale and his crack teams of CIA operatives, the United States slowly took over from France the conduct of a war against various Indochinese independence movements. The French, McCoy shows, had cooperated in the export of Golden Triangle heroin through Saigon in order to keep the cooperation of the corrupt local elite. Corsican gangsters even arrived from halfway around the world to smooth out logistics. This intermingling of heroin traders and the government of South Vietnam only intensified under American administration, McCoy shows. He makes clear that Ngo Dinh Nhu, brother of the U.S.-selected and U.S.-installed President Ngo Dinh Diem, got rich trading dope, as did other U.S.-backed Vietnamese leaders. The real expansion of opium production, however, was in the mountains, where the U.S. military mission had suddenly discovered some important potential allies. These were the Montagnard (or Hmong, or Meo) tribesmen, constantly lauded by U.S. Government spokesmen and the U.S. press during the Vietnam War as "heroic," "pro-Western" and "our allies." And it's true that the Montagnards fought harder and more loyally with U.S. forces than did other South Vietnamese. -50- But our brave new allies happened to live on prime poppy-growing land. As U.S. aid and advisors came, landing strips were built for the ClA's special short-take-off and -landing craft. The opium trade grew proporrionately. By McCoy's and many other, first-hand, accounts, opium was regularly flown out on flights of the ClA's Air America (formerly Civil Air Transport). The Montagnard villages flourished, as intended. But a lot of opium wound up as heroin on the streets of the United States. Some was sold directly to American G.I.'s in Vietnam. Addiction plagued the U.S. forces, to the point of reducing their fighting capacity, and when the men came home their addiction came with them. Some of the Air America crews made a lot of money on this trade. Wilfred P. Deac, senior public relations man for the Drug Enforcement Administration, offers this explanation today: "Their mission was to get people to fight against the Communists, not to stop the drug traffic." Adds DEA Far East regional director John J. O'Neill, "The kind of people they were dealing with up there, the whole economy was opium. They were dealing with the KMT and the KMT was involved in heroin. I have no doubt that Air America was used to transport opium." Joe Nellis, of the special Congressional investigation: "The CIA did help bring some very powerful cheap heroin into Vietnam out of the Shan States, the northern states of Burma . . . for radio communications, intelligence. In return for that intelligence, the CIA winked at what went in its airplanes." A former military intelligence noncom tells of a 1960 operation in which an airstrip was hastily built on Borneo as a transfer point for goods going into and out of Vietnam. Curious about the cargos that were being dropped off by the first planes out of Vietnam, awaiting shipment back home, he says he pried open a crate that was labeled "munitions" but was suspiciousiy light of weight. It was filled, he says, with parcels wrapped in manilla paper. Opening one, he says, he found small plastic bags of a white powder that he has no doubt was heroin. The U.S. Government not only promoted this drug traffic, it intervened to make sure the traffic wouldn't be discovered. A former officer who did criminal investigations for the Pentagon in the Vietnam theater, and who now works on the staff of the inspecter general for a major federal agency, vividly remembers political interference with criminal justice. "Some of the times when you'd be running a criminal investigation, say narcotics, you'd find out that Inspecter -51- So-and-so of your national police is involved in this," the former officer says. "You investigate it up to a point and then you can't go any further," he says. "It would go to our headquarters and then it would go to Washington and nothing would ever happen. The intelligence gleaned from these people was more important than stopping the drug traffic." At least that's what he was told. For many, letting the drug traffic go was also more profitable than stopping it. Another former officer from the army's Criminal Investigation Division recalls a mammoth heroin scheme he and his colleagues uncovered by accident. He says he and four others from his unit were investigating corruption in the sale of supplies to commissioned- and noncommissioned-officers' clubs. The corrupt U.S. and Vietnamese officers they caught tried to bargain away jail terms by describing the heroin traffic involving Vietnamese politicians and senior U.S. officers. The reports checked out, the investigator says. The investigator, now a stockbroker, says that his investigation group filed reports to the Pentagon revealing that G.I. bodies being flown back to the United States were cut open, gutted, and filled with heroin. Witnesses were prepared to testify that the heroin-stuffed soldiers bore coded body numbers, allowing conspiring officers on the other end, at Norton Air Force Base in California, to remove the booty—up to fifty pounds of heroin per dead G.I. The army acted on these reports—not by coming down on the dope traffickers, but by disbanding the investigative team and sending them to combat duty, the former investigator says. Other reports corroborate the use of G.I. bodies to ship dope back to the United States via military channels. This was the prevailing atmosphere when Michael Jon Hand arrived in Indochina. -52- CHAPTER FOUR The Education of a Banker Michael Hand was born in the Bronx, December 8, 1941. His father, a New York civil servant, still lives in a condominium in Queens, but absolutely will not discuss his son, or anything else, with reporters. Visitors are barred from the building by locked doors and security guards. A sister, reportedly severely handicapped, is also said to live in the New York area. Hand is said to have sent home money for her care regularly over the years. The old Bronx neighborhood is now a slum, but when Hand was young it was upper middle class, and his high school, De Witt Clinton, was considered one of the city's best. He graduated 248th in a class of 695, won a scholastic achievement award, was appointed student prefect, and was starring receiver and defensive back on the football team. He passed every class he took, and was noted for exceptional character, courtesy, cooperation, and appearance. His IQ registered an also exceptional 131. Graduating in 1959, he stated that his ambition was to become a forest ranger. Shortly afterward, his mother died in a fall from a third-floor window; the question of accident or suicide was never resolved.(1) ____________________________________ (1) Thanks to an unidentified researcher for the National Times of Sydney, Australia, who dug all this out in 1981, making it much easier for me to verify later. The researcher also reported talking to former neighbors, who "have only fond memories of Hand, his father and his mother." I tried to augment the researcher's findings, but was blocked by the New York -53- Memorandum for Investigator Once Review Begins As Done For Others A Former DEA Agent Calls The War on Drugs An Illusion "The war on drugs was only an illusion. . . . drug dealers . . . had bigger and better connections in the American government than [anti-drug agents] did."—Michael Levine [Drug Enforcement Agency agent 1965-1989], The Big White Lie (New York: Thunder's Mouth Press, 1993), page 124. "I personally am convinced that the Justice Department is against the best interests of the United States in terms of stopping drugs."—Representative Larry Smith, Chairman, House Task Force on International Narcotics Control, quoted in The Big White Lie, page 385. "[O]ur system of justice had been perverted; [our CIA, etc.] had converted themselves into channels for the flow of drugs into the United States." "‘While American people were taxed . . . to stop drugs, their own government was complicit in flooding their country with them . . . the American people had been betrayed.'"—Senator John Kerry, Government Involvement in Drug Trafficking, Senate Iran-Contra Hearings, Ibid., page 3. "The CIA . . . often courts criminals . . . The highly-connected tuxedo-clad criminal is left in place to provide intelligence to the [CIA]—and drugs to . . . citizens." Ibid., page 125, citing James Mills, The Underground Empire: Where Crime and Governments Embrace (Garden City: Doubleday and Co, 1986) "For decades, the CIA, the Pentagon . . . have been supporting and protecting the world's biggest drug dealers." Ibid., page 463. "[T]he CIA perverts the American justice system by protecting drug dealers . . . from prosecution; . . . even federal judges and prosecutors alleged to have violated narcotics laws were protected from investigation." Ibid., page 4. One drug criminal "was quietly released from jail [by the Justice Department] and the U.S. Attorney's office, Southern Judicial District of Miami, dropped all charges against him. [He] immediately returned to Bolivia, where he ran a full-page ad in Bolivia's largest newspapers with a photo of his unconditional release signed by the U.S. attorney. Overnight our war on drugs became a joke among South American drug traffickers." Ibid, page 36. Agent Levine was assigned to DEA Headquarters under President Ronald Reagan. He found that "[H]alf of the job is makin' up fact sheets and briefing papers—you know, statistical bullshit, how we're winnin' the war [on drugs]—so one of these clowns [high officials] can go on TV or testify before Congress." "Where do you get the statistics?" "Outta yer head, where else? And the rest of the job is pretty much . . . what you make of it . . . anything you want; or don't do a fucking thing—no one cares. You ever heard of anyone being fired in DEA for doing nothing?" "Nope, I can't say's I have." Quoting a conversation with Tony Buono [name changed to protect him], an official at DEA Headquarters, 1405 E Street, Washington, D.C. Ibid., page 129. Excuse the language, but it gives the flavor of pro-drug officials. Their pervasive attitude explains why prevention laws, anti-gateway drug laws, are not enforced. The purpose of not enforcing prevention laws is to promote post-gateway drug use, i.e., in legal terms, "what happened [post-gateway drug use] is what might have been expected . . . and is the natural and probable consequence . . . . Malice is presumed under such conditions." Nestlerode v United States, 74 US App DC 276, 279; 122 F2d 56, 59 (1941). w/ Exhibit 11 My whistleblowing related to the starter drug banned by laws and regulations due to harm to self - others, cited in USDHEW NIDA Res Monog 17, Pub ADM 78-581, p vi (Dec 1977); Robinson v California, 370 US 660, 670 (1962) ("The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway"); Comm'r of Narcotics Harry J. Anslinger and U.S. Attorney Wm. F. Tompkins, The Traffic in Narcotics (NY: Funk & Wagnalls, 1953), p 196 ("all" drug addicts are smokers); essentially verified since by, e.g., R. DuPont, Teen Drug Use, 102 J Pediatrics 1003-1007 (June 1983); Report 86-13, Impaired Soldier Performance, Army Aeromedical Research Lab (Fort Rucker, AL) (June 1986); R. Fleming, et al., Initiation & Progression Of Early Substance Use, 14 Addictive Behaviors 261-272 (1989). A. W. McCoy, Politics of Heroin (NY: Harper & Row, 1972) cites government role in drugs back to WWII. J. Kwitny, Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (NY: Norton, 1987) cites officials (Pentagon, pp 50-52), smuggling drugs into U.S., ousting agents exposing it. My whistleblowing ran up against pro-drug Pentagon and DOJ attitude (a "universal malice" trait, not caring who is killed, nor how, definition in Black's Law Dict, 5th ed (St. Paul: West, 1979, p 863). R. Ehrenfeld, Narco-Terrorism (NY: Basic Books, 1990) and Evil Money (NY: Harper Collins, 1992) tracks money trail cycle from drug abusers through local to higher drug dealers, back in sequentially to initial growers and indigenous terrorist groups. Now the government's own data and website links drugs and terrorism. Devine and Aplin, "Whistleblower Protection—Gap Between Law and Reality," 31 Howard Law J 223 (1988), cite pattern of universal malice hostility against whistleblowers, including using false charges. Same constitute mail fraud, falsification (RICO, 18 USC § 1961), etc. Army issued no notice of ex parte communications (Col Benacquista - Gen. Decker; OPM-Averhart; Averhart - CPO Hoover; Hoover - Gen Stallings, Hygienist Braun - AMC), violating 5 CFR § 752.404(f) (must state all reasons including ex parte contacts, Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed, 1983). Army issued no "statement or citation of the written regulations . . . said to have been violated [&] detailed statement of the facts," Boilermakers v Hardeman, 401 US 233, 245 (1971); was only conclusory, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954); allows only "general denials," Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950); no "names . . . places . . . dates" of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Not "lengthy and detailed," Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956); not any / "numerous examples of specific errors," Long v Air Force, 683 F2d 301 (CA 9, 1982); not "item by item," Mandel v Army, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008 (1975). Pletten continues seeking specifics, attempting to reply. Army refuses EEOC review via 29 CFR § 1613; verified by EEOC 23 Jan 1982, etc., etc. Extortioners refuse "to process grievances." United States v Russo, 708 F2d 209, 212 (CA 6, 1983). 5 USC § 552.(a)(l)(C) - (D) makes publication of a rule/qualification "jurisdictional": Bowen v City of N Y, 476 US 467 (1986); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); WGCT & S. Corp v Army, 480 F2d 498, 503 (CA 4, 1973) (Army has pattern, did this before); Onweiler v U.S., 432 F Supp 1226, 1229 (D Id, 1977). I repeatedly return to duty per Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) (employee also falsely accused of not meeting non-existent qualification requirement!) Army had provided me a qualifications waiver—then ousted me re 'qualifications'! Christopher Slobogin, "Testilying: Police Perjury and What To Do About It," 67 U Col L Rev 1037 (Fall 1996) cites references on pattern of recurring gov't experience using perjury to win cases. w/ Exhibit 11 Exhibit 12 DEPARTMENT OF THE ARMY UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND WARREN MICHIGAN 48090 AMSTA-CQ (690-700h) 16 November 1990 MEMORANDUM FOR C, Sys & Spt Br (AMSTA-PSM) SUBJECT: EEO Complaint — Leroy J. Pletten — SSN — 576-67-6699 Last employed February, 1980 Formerly a Personnel Specialist 1. The complainant requests permission to examine his complete personnel history. He was employed from 26 August 1969 to February 1980 at TACOM. 2. The complainant has alleged discrimination in the processing of his past complaints. 3. Thank you for your efforts in assisting us. The POC for this action is the undersigned at, X48483. K. R. Adler for Annie G. Johnson Case Manager Exhibit 12 Exhibit 13 Selectcare MedExtend HMO December 5, 1990 Medical Officer United States Tank/Automotive Command Warren, Michigan 48397-5000 RE: Mr. Leroy Pletten M.R. 228935 Dear Sir: Mr. Leroy Pletten is physically able to perform all of his job duties. Mr. Pletten currently has no medical condition which has rendered him disabled and to my knowledge he has never had any such condition. I agree with the Department of Labor's findings that Mr. Pletten was able to return to work in March of 1980. Sincerely, /s/Silas Cardwell, M.D. Silas Cardwell, M.D. SC:prn:g Exhibit 13 Exhibit 14 Selectcare August 21, 1991 Dr. Bruno Vurgess, Medical Officer United States Army Occupational Health Clinic HSXP-WAR, Building 2 Warren, Michigan 48397-5000 RE: Mr. Leroy J. Pletten M.R.# 228935 S.S.# 364-67-4819 Dear Dr. Vurgess: Mr. Leroy Pletten is able to perform all of his job duties and the requirements checked on the Health Qualification Placement record. I do not find tobacco smoke listed in it. Mr. Pletten has no medical condition that disqualifies him from working. I do not find any record in Mr. Pletten's file saying he needed accommodation to do his duties and meet the requirement of the position. I have not recommended accommodation, he has no need for it. I agree with the Department of Labor's findings that Mr. Pletten was able to return to work on March 17, 1980. I agree also with the Michigan Department of Education's letter of June 25, 1991. Mr. Pletten continues to be ready, willing and able to return to work. He should be returned to work immediately. Please help him to do so. Sincerely, /s/Silas Cardwell, M.D. Silas Cardwell, M.D. SC:prn:v Exhibit 14 Exhibit 15 Bibliographic reference: Maureen Murdoch, MD, MPH, and Kristin L. Nichol, MD, MPH, "Women Veterans' Experiences With Domestic Violence and With Sexual Harassment While in the Military," Archives of Family Medicine, Vol 4, pages 411-418 (May 1995). The Detroit News Nation World PAGE 5A FRIDAY, MAY 12, 1995 Women: Rape rampant in military One-third of female veterans say they've been assaulted Reuter CHICAGO — Nearly one-third of all women who have served in the U.S. military have told researchere they were raped, and almost every woman veteran under 50 reported being sexually harassed, researchers said Thursday. The incidence of violent assaults among female veterans, the vast majority of whom reported at least one "severe assault," is much higher than in the general population. If the data is accurate, it means 400,000 women were raped while in military service. The abuse may be responsible for increased risks of depression, anxiety and hospital treatment noted among the nation's 1.2 million women vets, Maureen Murdoch and Kristin Nichol of the Minneapolis Veterans Affairs Medical Center wrote in the Archives of Family Medicine, published by the American Medical Association. "Both domestic violence and sexual harassment while in the military are common experiences for female veterans," they wrote. "Attempted and completed sexual assaults were reported at rates 20 times (higher than) those reported for other government workers." The researchers sent questionnaires to 602 women veterans, basing their report on the 333 surveys that were returned. Reports of sexual harassment among veterans over age 50 were much lower, at 37 percent, than among younger veterans — 90 percent of whom reported being harassed. But figures on rape were similar — 31 percent of younger veterans reported being raped, as did 29 percent of those over 50. Some respondents said they had been denied promotions, had transfers blocked or were given poor assignments after refusing sexual favors to superior officers. In Washington, Pentagon spokesman Ken Bacon told reporters that the Defense Department took seriously any reports of sexual harassment, but said the figures were "completely out of line" with results of a sexual harassment study done by the military in 1988. He said a new Defense Department study was under way. Thursday's report came as the Pentagon prepared to release recommendations today setting up new guidelines for the military services to use in investigating discrimination and harassment against women and homosexuals. Bacon said the Pentagon would set uniform standards on reporting harassment and on such issues as disciplinary proceedings in cases where they are warranted. Exhibit 15 Ed. Note: See also Susanne M. Browne, “Due Process and Equal Protection Challenges to the Inadequate Response of the Police in Domestic Violence Situations,” 68 So Calif Law Rev 1295 (1995) (on victims' rights to sue re incidents) Chris Lombardi, “Women speak out: Sexual assault is military business as usual,” The Objector pp 4-5 (Spring 1997) Eric Schmitt, “Female GIs report rapes, assaults by fellow troops: Pentagon accused of foot-dragging,” San Francisco Chronicle (26 February 2004) Hearing and Admonishment of Defense Undersecretary David Chu at Senate Armed Services Committee (with, e.g., Susan Collins, R-Me; Ben Nelson, D-Neb; Kay Bailey Hutchison, R-Tex, of the committee; and witnesses such as Christine Hansen, Exec Dir, Miles Foundation (25 Feb 2004) Officials refuse to prevent incidents, "natural and probable consequences," instead vicariously enjoying same. Exhibit 16 AMSTA-PBR 20 APR 1993 Dir for Hum Res No. P-93-71 MEMORANDUM TO ALL EMPLOYEES SUBJECT: CHANGE IN THE COMMAND SMOKING POLICY 1. Previous directorate/office smoking policies which designated smoking areas in TACOM buildings are hereby rescinded. 2. Effective 30 days from the date of this memorandum, smoking will no longer be permitted in any TACOM building, except for designated smoking areas which have separate ventilation systems from work sites, as follows: Building 200A Receiving/Loading Area, first floor, southeast corner Building 229 Room next to the elevator on each floor (excluding basement) Building 230 Corridor in the center rear of the first floor Building 231 Room next to the elevator on each floor (excluding the first floor and the basement) The previous restriction on smoking in "common" areas such as restrooms, hallways, doorways, auditariums, elevators, fitness centers, military vehicles, or in areas which may present a safety hazard (i.e., fuel dumps, motor pools, equipment maintenance shops), remains unchanged. This action is necessary to promote indoor air quality. 3. This memorandum also serves to notify employees that effective 1 October 1993, smoking will be prohibited in all TACOM buildings. This change will apply to after duty hours and weekends, as well as during normal duty hours (i.e., Mon-Fri, 0630-1800 hours). 4. While I recognize that this policy may create problems for people who choose to smoke, our first consideration must be given to the 80 percent of our employees who are non-smokers. The new policy acknowledges this fact and tracks with the current national emphasis on secondhand smoke and smoke-free work places. 5. Employees are reminded that frequent and/or lengthy absences from the work place, for any reason, are not appropriate and cannot be tolerated. Additionally, all employees, smokers and non-smokers, are reminded not to block TACOM building entrances and exits. 6. It is expected that the above will reduce and/or elininate the problems regarding this issue by providing employees with a healthier work environment. At the same time, this change will allow smokers a reasonable period of time in which to adjust to the reduced and subsequent elimination of designated smoking areas inside TACOM buildings. 7. Your cooperation and compliance with this change in policy are required in order to assure that an equitable balance in terms of employee rights is maintained for both smokers and non-smokers. 8. Violators of the above policy may be subject to disciplinary action. Questions on this subject may be directed to the Management-Employee Relations Division, Human Resources Directorate. /s/ Eugene E. Wilson EUGENE E. WILSON Colonel, GS Chief of Staff AMSTA-PBR 20 APR 1993 Dir for Hum Res No. P-93-23 MEMORANDUM TO ALL SUPERVISORS SUBJECT: EMFORCEMENT 0F TACOM'S SMOKING POLICY 1. I recently signed a Memorandum to All Employees (MTAE) which rescinded the previous smoking policies in all TACQM buildings. This new policy consists of two phases, as follows: Phase I, effective 30 days after the date of the MTAE, will allow smoking in a limited number of designated smoking areas which have separate ventilation systems from work sites. Previous restrictions on smoking in "common" areas will romain unchanged. Phase II, effective 1 October 1993, will prohibit smoking in any TACOM building, regardless of the ventilation system. 2. The intent of this policy change is to eliminate the circulation of "secondhand" smoke in order to provide a healthier work environnent for TACOM employees. This phased-in policy will allow smokers a reasonable period of time in which to adjust to the reduced and subsequent elimination of designated smoking areas inside TACOM buildings. 3. Your employees should be further advised of this change, their responsibility to comply with this policy, and of the possibility of disciplinary action for failing to do so. They should also be reminded that the Phase 1 policy allows smoking only in the following designated areas within TACOM: Building 200A Receiving/Loading Area, first floor, southeast corner Building 229 Room next to the elevator on each floor (excluding basement) Building 230 Corridor in the conter rear of the first floor Building 231 Room next to the elevator on each floor (excluding the first floor and the basement) 4. Smoking has been a very sensitive issue for both smokers and non-smokers, therefore, your cooperation and assistance in the enforcement of this policy are required. /s/ Eugene E. Wilson EUGENE E. WILSON Colonel, GS Chief of Staff Ed. Note: TACOM had previously bizarrely pretended that allowing unrestrained-by-rules smoking causing an unhealthful situation was an "equitable balance," that despite the many rules granting and commanding full authority to act, it somehow could not cease permitting smoking, that "it doesn't make sense to have a Command getting involved in the personal habits of its employees," that my whistle blowing was an "accommodation" matter that it was an "undue hardship" to cease permitting smoking in my work area! Now it is acting in everyone's work areas! Exhibit 16 Exhibit 17 DEPARTMENT 0F THE ARMY UNITED STATES ARMY TANK-AUTOMOTIVE AND ARMAMENTS COMMAND WARREN, MICHIGAN 48397-5000 February 26, 1996 REPLY TO ATTENTION 0F: AMSTA-CS-CQ SUBJECT: EEO Complaint- Mr. Leroy Pletten Administrative Judge Henry Perez Equal Employment Opportunity Commission McNamara Building, Room 1540 477 Michigan Avenue Detroit, Michigan 48226 Dear Mr. Perez: This is in reply to the request for information in reference to the above named complainant. Our records indicate that the complainant was counseled nineteen different occasions following his dismissal. He is currently scheduled for counseling beginning March 4, 1996, by an EEOC directed action (encl). The dates of counseling indicated in our records are as follows: October 30, 1979 November 29, 1979 November 9, 1989 July 6, 1990 November 11, 1990 November 20, 1990 November 30, 1990 December 14, 1990 April 4, 1991 June 27, 1991 October 25, 1991 February 16, 1993 March 12, 1993 March 29, 1993 June 23, 1993 July 9, 1993 August 19, 1993 November 5, 1993 June 14-15 and 16, 1994 August 24, 1994 -2- For additional assistance you may contact Ms. Annie Gary-Johnson, Complaints Manager, on 810-574-8483. Sincerely,       /s/ Gonzellas Williams Gonzellas Williams Chief, Office of Equal Opportunity Enclosure Enclosure 17 Ed. Note: Counseling is informal discussion with a coworker lacking authority to resolve a matter; this meaningless step (!) is is step one in review. Note that TACOM makes no claim of allowing review to get to step two, investigation, and step three, hearing. TACOM had no intention of ever allowing review. Refusing review is malicious, deliberate, intimidate all employees: no laws and no rules (no matter how clear) can protect from reprisal. Exhibit 18 In each of the 15 fiscal years spanning the period 1985 through 1999, between 92 percent and 97 percent of MSPB's decisions that were appealed to federal court were unchanged. In FY 1999, 93 percent were unchanged. —Source: MSPB's "A Report on Cases Decided in Fiscal Year 1999" It's a fact Retaliation Rate Remains Unchanged [www.mspb.gov/studies/00decnws.pdf] No news can be considered good news when you're looking at rates of retaliation experienced by federal whistleblowers. In spite of the changes over the past decade in agency leadership, laws and regulations, and workforce composition (including downsizing and increased contractmg out)—all of which have the potential to create workplace turmoil—federal workers' perceptions regarding retaliation for various protected actions have not changed durmg the 1990s. In its Merit Principles Survey 2000, the Board asked employees whether they had experienced retaliation for a variety of activities, from whistleblowing to refusing to obey an unlawful order (Respondents could mark as many actions as applied to them.) As the table below shows, the percentage of employees who believe they experienced retaliation for each of these activities has remained fairly stable over the past decade. Ed. Note: See 1993 Report, showing worsening from 1983, as agencies had gotten away with many reprisals, with MSPB and DOJ serving as accessories, aiding and abetting agency reprisal practices and policy, and thus encouraging its continuance and worsening. Because such retaliation is a prohibited personnel practice [5 USC § 2302], the fact that any retaliation occurs at all is, of course, troubling. Nevertheless, there's some comfort in knowing that there has been no increase in such behavior. Percentage of employees who believe they experienced retaliation in the preceding two years for the indicated action. In the last 2 years have you Percentage saying Yes experienced retaliation for 1992 1996 2000 Making disclosures concerning health and safety dangers, unlawful behavior, and/or fraud, waste, and abuse? 8 7 7 Exercising any appeal, complaint, or grievance right? 11 12 9 Testifying for or otherwise assisting any individual in the exercise of whistleblowmg, equal employment opportunity, or appeal rights? 6 6 5 Refusing to obey an unlawful order? 4 3 2 Reporting unwanted sexual attention or sexual harassment? * 2 1 *Did not ask in 1992   Source: Merit Principles Surveys 1992 1996 2000 Exhibit 18 Exhibit 19 DEPARTMENT 0F THE ARMY HEADQUARTERS, U.S. ARMY MATERIEL COMMAND 5001 EISENHOWER AVENUE, ALEXANDRIA, VA 22333-0001 REPLY TO ATTENTION OF May 15, 2001 Honorable Carl Levin United States Senator 477 Michigan Avenue Suite 1860 Ddtroit, Michigan 48226 Dear Senator Levin: This letter replies to your latest inquiry on behalf of Mr. Leroy J. Pletten concerning his employment with the U.S. Army Tank-automotive and Armaments Command (TACOM). Mr. Pletten believes there is a significant difference between "separation" and "removal." However in this instance, TACOM used both terms interchangeably [contrary to regulatory criteria, thus preventing defense] in its correspondence to Mr. Pletten advising him that his tenure would be terminated due to medical disqualification. Mr. Pletten was advised that he could appeal this personnel action to the Merit Systems Protection Board [not to EEOC]. Other appeals, such as to the Equal Employment Opportunity Commission, were at his discretion [and refused processing]. In our response to your last inquiry on Mr. Pletten's behalf, we included a chronology of the litigation he has engaged in relative to his separation from TACOM in 1982. We enclose another copy of this chronology for your convenience. As stated in the chronology, in each litigation, Mr. Pletten alleged that the separation was illegal, substantively and procedurally. After thoroughly litigating his separation many times, TACOM continues to consider the matter of Mr. Pletten's employment to be conclusively resolved. I trust this information is of assistance. Sincerely,       /s/ Edward D. Ball Edward D. Ball Colonel, U.S. Army Chief, Congressional Liaison Office Exhibit 19 Exhibit 20 DISPOSITION FORM REFERENCE OR OFFICE SYMBOL| SUBJECT                     |                     | Return to Duty / New Evidence for Reply                     | Effort - Jury Duty, Macomb County                     | TO CG, Attn: Kathleen E. Bell,   FROM Leroy J. Pletten     30 Dec 2002    Dir, Hum Res (AMSTA-H)             CPO (AMSTA-H) 1. I am an employee of TACOM. Please consider this a return to duty. I remain ready, willing, able, and eager to work, as always, and look forward to immediate RTD. 2. Please include in the case file of my efforts to reply to the claim of my not being an employee, my notice of, Encl 1, and successful performance of, Jury Duty at Macomb County Circuit Court, encl 4. 3. TACOM, in retaliation against my successful case/whistleblowing, opposes my right to reply, and has never told me the charges nor specifics. These failures violate 5 USC § 7513.(b); they are for purpose of obstructing reply, as one cannot reply to charges until notified what they are. The case law on ousting an employee without charges and specifics shows that no employee has ever lost such a case. I expect, as always, to RTD immediately, and continue performing duties until same. 4. Significance of Encls 1 and 4 is that this is the Macomb Circuit Court of which TACOM is so afraid, that it feared to appeal there when (overruling TACOM's claim of my inability to do my duties, e.g., write 1½ page memos and the verbal contact process for same), the State of Michigan granted me unemployment compensation in the era when TACOM was still pretending that it had not removed me! See summary of circumstances of ouster, encl. 2. Macomb County Circuit Court would not be amenable to such untruths, and would issue a decision affirming my work ability, which decision would be res judicata in my favor. Please deem the TACOM failure to appeal to Macomb County Circuit Court, an estoppel in my favor. 5. The second significance includes the fact that a person cannot be a Michigan Court juror if suffering from a medical condition preventing duty performance. I have no such medical condition, never have. 6. As per my pattern of performance above and beyond, I prepared for voir dire, encl 3, and studied the full range of the historic jury function, and juror rights, via professionally-prepared writings on point, including but not limited to Dictionaries such as Black's Law and Oxford's English; Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 1999); and Jacqueline D. Stanley, Jurors' Rights: Everything You Need to Know Before You Go to Jury Duty, 2d ed. (Naperville, IL: Sourcebooks, 1998). Refuting TACOM's inability claim, my jury duty service was of acceptable level, encl 4. 7. I look forward to returning to duty immediately, and to many continued years of duty. In view of the War on Terrorism, the country needs people knowledgeable (as I am), of the underlying process in the drug abuse money trail long reported involved in financing terrorists. Sincerely, /s/ Leroy J. Pletten Leroy J. Pletten TACOM Employee - CPO Enclosures: 1. Jury Duty Notice 2. Details on Circumstances of Ouster 3. Voir Dire Material Prepared in Support of My Ability 4. Juror Acceptable Performance Notice Exhibit 20 DISPOSITION FORM REFERENCE OR OFFICE SYMBOL| SUBJECT                     |                     | Return to Duty / Renewed Request to Reply /                     | New Evidence for Reply File                     | TO CG, Attn: Kathleen E. Bell,   FROM Leroy J. Pletten   21 April 2003    Dir, Hum Res (AMSTA-H)             CPO (AMSTA H) 1. I am an employee of TACOM. This is another return to duty. I remain ready, willing, able, and eager to work, as always, and look forward to immediate RTD. This is also an effort to begin reply to the allegation that I am not an employee. As TACOM has not notified me of charges, specifics, "material relied on,"despite my efforts to obtain same, TACOM's refusal to provide same has obstructed the reply process. 2. In the interim, until provided the foregoing, please include these issues in the file for my anticipated reply: I. The initial circumstances had statutory violations, e.g., 5 USC § 7513.(b); MCL §§ 750.27 and 213. II. It was never equitable or legal, the massive fraud preventing me review by denying me notice of forum options, refusing me the 29 CFR § 1613 forum, and the ex parte-arranged crimes re DOJ, MSPB, and judiciary III. It is no longer equitable that the ouster should have prospective application A. while other employees ousted without due process notice of charges remain on the rolls B. as per "accommodation" cases showing same a post-charges notice "affirmative defense" C. absent condition precedent (notice of charges and specifics enabling reply otherwise obstructed) D. as per 5 USC § 552 jurisdictional bar (issue of non-publication) E. where TACOM denied me "informed choice" to even commence review F. where there have been intervening changes in the "legal atmosphere" G. in view of facts and precedents, re which for others the government does a Confession of Error 3. Note prevalent corruption cited in U.S. v Busse: Witness John Olmsted: "We were told it would behoove us to entertain these people,"—Macomb Daily 4-16-03, p 1. He "felt pressured" per Busse being "portrayed . . . as a very influential official." Crimes cited include racketeering, extortion, attempted extortion, mail fraud, conspiracy to commit extortion. P. 9: "I got to the point where I really didn't know what was going on. I was afraid," said Olmsted. Busse would set up a fraudulent contract. "He said he does it all the time." Note William Rice, p 13, 4-17-2003, "Telling the jury he felt extorted." "'As far as I was concerned, everybody in the city of Warren was on the take--or that's how it seemed to me,' he said." Friday, 18 April, p 1, on a cover story, how to go about leaving office, by "a confidential source to the FBI," p10. The foregoing parallels the RICO TACOM-DOJ-MSPB-CA6 CCE: crimes "all the time," "pressure," "everybody . . . on the take," denying rights obstructing redress, etc. 4. I expect, as always, to RTD immediately, and continue performing duties until same. 5. I look forward to returning to duty immediately, and to many continued years of duty. In view of the War on Terrorism, the country needs people knowledgeable (as I am), of crime prevention, and the underlying process in the drug abuse money trail long reported involved in financing terrorists.                                         /s/ Leroy J. Pletten                                         Leroy J. Pletten                                         TACOM Employee - CPO DA FORM 2496 w/ Exhibit 20 Exhibit 21 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 586-739-8343 Admiral Harold W. Gehman, Jr. (ret'd)                                   24 March 2003 Chairman, Columbia Accident Investigation Board 16850 Saturn Lane Houston, Texas 77058 Dear Chairman: This is an offer and request to testify and offer evidence in the Investigation, in whistleblower context. Pursuant to Supreme Court decision on patterns, "The proof of the pattern or practice [of reprisal against whistleblowers, including by violence] supports an inference that any particular decision [to commit anti-whistleblower action], 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). The pertinent pattern includes undisputed evidence that federal agencies, e.g., mine, aided and abetted by accessories in the Department of Justice, and judicial branch, have a "universal malice" policy and practice of falsifying safety data, allowing hazards, and savagely punishing and destroying whistleblowers who report same. Said pattern promotes a reign of terror, such that would-be whistle blowers are foreseeably deterred from aggressively reporting, following-up, solving hazards. The "natural and probable consequences"of this long-term federal agency policy and practice is to produce significant numbers of deaths of Americans, "foreseeable" deaths, thus "intended" deaths. Reference: standard legal dictionary definitions of the pertinent terms. Examples of anti-safety "universal malice" that I will present include on the prevalence of fear to whistleblow, deterring timely hazard corrections; on federal "safety officers" falsifying safety records (e.g., recording 42,000 numeric above the 29 CFR § 1910.1000 50 limit, as 4) with impunity as per DOJ accessories; on officials aiding and abetting violation of hazardous materials laws and regulations (e.g., TACOM-R 190-4; MCL § 750.27, MSA § 28.216; and on felonies (including bribery, drug smuggling), by government officials, including U.S. Attorney personnel, undisputed. I know these things from personal experience (as an Army employee including “Crime Prevention Officer”), not hearsay. In my case, despite the U.S. Attorney being aware of federal officials' felonies, there is utter REFUSAL to prosecute. I have been a juror, as such, would draw this conclusion: that U.S. attorneys are FOR felonies against whistleblowers. The "natural and probable consequence" of crime-accessory activity by U.S. Attorneys, is deterrent to federal employees to aggressively report and solve hazards. One cannot even report drug smuggling! without experiencing U.S. Attorney malice including bribery of judges, undisputed. Federal employees can reasonably conclude, they can expect no help from Dept. of Justice regardless of how many felonies are committed against them. Ed. Note: “The U.S. government, through the CIA, disburses tens of millions of dollars each year in cash bribes. Bribery is a standard operating technique of the U.S. government, via the CIA, but it is a criminal offense for U.S. businesses,” says long-time CIA Agent John Stockwell, In Search of Enemies: A CIA Story (New York: W.W. Norton & Co, Inc., 1978), p 246. The CIA is not the only agency by which the U.S. government bribes. Bribery is also used by tobacco pushers, see article, "Traders Offer Bribe to Stop Anti-Smoking Campaign." And see also the case of the bribed sheriff, U.S. v Sheriff Goins, 593 F2d 88 (CA 8, 1979), bribed to not enforce cigarette law the State Bureau of Cigarette and Beverage Taxes, U. S. v Frumento, 409 F Supp 136 (ED Pa, 1976), affd 563 F2d 1083 cert den 434 US 1072; 98 S Ct 1256; 55 L Ed 2d 775 cert den 434 US 1072; 98 S Ct 1258; 55 L Ed 2d 776, wherein the agency constituted an "enterprise . . . the activities of which affect interstate or foreign commerce," within meaning of 18 USC 1962 wherein employee was bribed as part of a cigarette-smuggling conspiracy). “The proof of the 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). My case is not unique. See prevalence data by Thomas M. Devine and Donald G. Aplin, "Whistleblower Protection—Gap Between Law and Reality," 31 Howard Law J (#2) 223 (1988). The pattern of reprisal, retaliation, ongoing savagery, terrorism, directed against federal employees, helps explain why studies show so many federal employees correctly fear to be aggressive to report hazards and seek their remedy. Latest news reports cite NASA having some 200 pertinent whistleblower reports! 200! though none cited at first! Now, too late, come they! Your investigation, if it is of merely an "accident," will NOT solve the problem insofar as may relate to would-be whistleblowers rightly fearing to aggressively pursue hazard issues, due to fear for themselves, family, career, finances. Solution must involve providing a non-hostile, indeed, a welcoming, work environment genuinely receptive to reporting and preventing hazards, not this whining and shedding crocodile tears over yet more preventable deaths–the ‘hah-hah' approach currently in vogue. Solution must include CRIMINAL prosecution for their past felonies, of felons in agency management, Dept of Justice, and judiciary. Only such an approach can remotely hope to reduce the fear level among federal employees, and thus save lives. My testimony, evidence, and plea is to urge you to take a comprehensive approach, deal with criminal aspects, the entire problem in short, not an alleged "accident" fragment. I look forward to testifying. Sincerely,       /s/Leroy J. Pletten Leroy J. Pletten Copy to: CPO U.S. Attorney General, D.C. U.S. Attorney, Detroit Commanding General, TACOM, Warren Exhibit 21 Exhibit 22 CHAIRMAN COLUMBIA ACCIDENT INVESTIGATION BOARD 16850 SATURN LANE, HOUSTON, TX 77058 Ser CAIB/157 26 Mar 03 Dear Mr. Pletten, Thank you for your letter of 24 March. I appreciate your offer to provide testimony to the board. Your letter has been provided to our independent technical group, and they will be in touch with you if further information is needed. Once again thank you for your input. Sincerely,       /s/H. W. Gehman H. W. GEHMAN Admiral, U.S. Navy (Retired) Chairman Columbia Accident Investigation Board Mr. Leroy J. Pletten 8401 18 Mile Road Sterling Heights, Ml 48313-3042 Exhibit 22 Exhibit 23 www.toledoblade.com/apps/pbcs.dll/section?Category=SRTIGERFORCE Exhibit 24 Report on Brutal Vietnam Campaign Stirs Memories By John Kifner Published: December 28, 2003 Quang Ngai and Quang Nam are provinces in central Vietnam, between the mountains and the sea. Ken Kerney, William Doyle and Rion Causey tell horrific stories about what they saw and did there as soldiers in 1967. That spring and fall, American troops conducted operations there to engage the enemy and drive peasants out of villages and into heavily guarded "strategic hamlets." The goal was to deny the Viet Cong support, shelter and food. The fighting was intense and the results, the former soldiers say, were especially brutal. Villages were bombed, burned and destroyed. As the ground troops swept through, in many cases they gunned down men, women and children, sometimes mutilating bodies — cutting off ears to wear on necklaces. They threw hand grenades into dugout shelters, often killing entire families. "Can you imagine Dodge City without a sheriff?" Mr. Kerney asked. "It's just nuts. You never had a safe zone. It's shoot too quick or get shot. You're scared all the time, you're humping all the time. You're scared. These things happen." Mr. Doyle said he lost count of the people he killed: "You had to have a strong will to survive. I wanted to live at all costs. That was my primary thing, and I developed it to an instinct." The two are among a handful of soldiers at the heart of a series of investigative articles by The Toledo Blade that has once again raised questions about the conduct of American troops in Vietnam. The report, published in October and titled "Rogue G.I.'s Unleashed Wave of Terror in Central Highlands," said that in 1967, an elite unit, a reconnaissance platoon in the 101st Airborne Division, went on a rampage that the newspaper described as "the longest series of atrocities in the Vietnam War." "For seven months, Tiger Force soldiers moved across the Central Highlands, killing scores of unarmed civilians — in some cases torturing and mutilating them — in a spate of violence never revealed to the American public," the newspaper said, at other points describing the killing of hundreds of unarmed civilians. "Women and children were intentionally blown up in underground bunkers," The Blade said. "Elderly farmers were shot as they toiled in the fields. Prisoners were tortured and executed — their ears and scalps severed for souvenirs. One soldier kicked out the teeth of executed civilians for their gold fillings." In 1971, the newspaper said, the Army began a criminal investigation that lasted four and a half years. Ultimately, the investigators forwarded conclusions that 18 men might face charges, but no courts-martial were brought. In recent telephone interviews with The New York Times, three of the former soldiers quoted by The Blade confirmed that the articles had accurately described their unit's actions. But they wanted to make another point: that Tiger Force had not been a "rogue" unit. Its members had done only what they were told, and their superiors knew what they were doing. "The story that I'm not sure is getting out," said Mr. Causey, then a medic with the unit, "is that while they're saying this was a ruthless band ravaging the countryside, we were under orders to do it." Burning huts and villages, shooting civilians and throwing grenades into protective shelters were common tactics for American ground forces throughout Vietnam, they said. That contention is backed up by accounts of journalists, historians and disillusioned troops. The tactics — particularly in "free-fire zones," where anyone was regarded as fair game — arose from the frustrating nature of the guerrilla war and, above all, from the military's reliance on the body count as a measure of success and a reason officers were promoted, according to many accounts. Nicholas Turse, a doctoral candidate at Columbia University, has been studying government archives and said they were filled with accounts of similar atrocities. "I stumbled across the incidents The Blade reported," Mr. Turse said by telephone. "I read through that case a year, year and a half ago, and it really didn't stand out. There was nothing that made it stand out from anything else. That's the scary thing. It was just one of hundreds." Yet there were few prosecutions. http://www.nytimes.com/2003/12/28/national/28TIGE.html?ex=1077685200&en=dfc8358ffd1f458d&ei=5070 Exhibit 23 Exhibit 25 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 586-739-8343 5 January 2004 Kathleen Johnson, EEO Officer US Army TACOM (AMSTA-CQ) Warren MI 48397-5000 Dear EEO Officer: Pursuant to 29 CFR § 1614, this requests an EEO Counselor with respect to agency ex parte communications with adjudicator culminating 18 Dec 2003, in prejudicial remarks contrary to fact, allegations distorting aspects including my review efforts, the lack of advance notice, the lack of notice of review rights by which to make informed choice to seek review, and TACOM's application for disability retirement; and inventing claim I did the latter, a claim contrary to both fact and the then rule, 5 CFR § 831 now § 831.1206(a), specifying that an applicant “must submit to OPM the following forms included in Standard Form 2824 . . . 2824A . . . 2824B . . . 2824C . . . 2824D . . . 2824E,” etc., which documentation package I refused to "submit" despite the embezzlement of my pay to extort me to do so) and made for prejudicial, and/or, by the initial ex parte inventors of said claim, criminal (e.g., blackmail, bribery) purposes. Pertinent precedents against prejudicial remarks include but are not limited to: Stumbo v Seabold, 704 F2d 910, 912 (CA 6, 1983); and U.S. v Singer, 710 F2d 431, 432 (CA 8 en banc, 1983) (adjudicator "helping the Government to try its case"). The claims, accusations, alluded to in my situation and for which I seek EEO review (counseling, investigation, hearing occurring in sequence pursuant to 29 CFR §1614 such as others receive on request), are NEW (constituting a new charge) and prejudicial, especially so when made ex parte, invoking right to reply pursuant to 5 USC § 7513.(b) and denying due process opportunity to timely rebut in advance, as per Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985). In addition to seeking the 29 CFR § 1614 EEO process on the immediate matter, this also requests that (1) TACOM process my initial seeking of EEO review of the ouster, process it as done for others, with the counseling, investigation, and hearing specified by the then 29 CFR § 1613 now 1614; (2) TACOM notify me pursuant to then 29 CFR § 1613.403, now 1614.302(b), of forum choice options with respect to the ouster to enable making my initial "informed choice"of forum in which to have review; (3) TACOM process my EEO-forum requests for review of the TACOM application, which EEO review requests TACOM has to date refused to process on merits; and (4) condition precedent to foregoing, TACOM notify me of the charges against me so I may begin my defense pursuant to 5 USC § 7513.(b). Relief sought includes reinstatement, with TACOM providing actual notice of charges, including the material of 18 December 2003. (Pursuant to [Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965) and] Sullivan v Navy, 720 F2d 1266, 1274 (Fed, 1983) (5 CFR § 752.404(f)), I "remain on the rolls" absent complete advance notice of charges, especially apt reference now.) Sincerely, /s/Leroy J. Pletten Leroy J. Pletten CPO Ed. Note: I had secured letters from OPM in opposition to the TACOM application; and corroborative material from other agencies as well. See also the MESC rulings in my favor, and the many EEOC writings. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 Leroy J. Pletten, Appellant, Docket No. 01A41229 v. Agency No. ARTACOM03FEB0010 R. L. Brownlee, Acting Secretary, Department of the Army, 11 March 2004 Agency. ____________________________________/ REPLY TO AGENCY'S STATEMENT IN OPPOSITION TO APPEAL The agency's statement does not deny the jurisdictional and other data cited in my Brief, does not contradict my affidavit, is conclusory, does not contain first-hand evidence such as affidavit, wherefore the agency has not provided my constitutional right to due process. Mattox v U.S., 156 US 237, 242-243; 15 S Ct 337; 39 L Ed 409 (1895); Kirby v U.S., 174 US 47, 55; 19 S Ct 574; 43 L Ed 890 (1899) ("a fact . . . cannot be proved . . . except by witnesses who confront him at the trial, upon whom he can look while being tried . . . ."); U.S. v Charles, 561 F Supp 694 (D SD Tex, 1982) (constitutional rights prejudiced without opportunity to cross-examine); a concept applied in the federal civil service by, e.g., Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985) (due process required at meaningful time) Significantly, note the Agency Letter dated 18 November 2003, from its EEO Officer Kathleen Johnson (by Dorothy M. Southerland). That letter supported, vs opposed, my being provided a hearing. Pursuant to Yorkshire v MSPB, 746 F2d 1454, 1456-1457 (CA Fed, 1984), a ruling should be in employee favor when agency action involves inconsistency or failure to investigate. Here is both aspects, inconsistency (both for and against a hearing); and a clear failure to have ever investigated my situation, either on merits or procedurally. Wherefore please rule in my favor, e.g. remand for investigation to develop the record, and hearing with testimony from first-hand witnesses. Respectfully, /s/Leroy J. Pletten Leroy J. Pletten Appellant 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 (586) 739-8343 Exhibit: (Incorporate by reference Agency's 18 Nov 2003 letter) To: EEOC and Agency