[Exh 2]

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.                                         /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 DA FORM 2496 -4- Exh 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Leroy Pletten Plaintiff(s) Judge Cook, Julian, Jr.     Civil Action No. 85-72998     FILED '03 JAN 24 P 3:10 v. The Department of the Army Defendant(s) _____________________/ AFFIDAVIT IN SUPPORT OF MOTIONS STATE OF MICHIGAN ) SS COUNTY OF MACOMB ) Plaintiff Leroy J. Pletten, being first duly sworn, deposes and says that his statements in his Motions and Briefs being filed at this time are true and correct. 1. In summary, I am an employee of Defendant Department of the Army at its Tank-Automotive Command (TACOM) in Warren, Michigan. 2. TACOM assigned me functions of personnel and crime prevention. I became a whistle blower. In reprisal, 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. I did no misconduct; attendance was better than co-workers; appraisals were for acceptable quality work under the performance evaluation law 5 USC § 4304. 3. TACOM nonetheless claims to have made some decision to terminate me. This was solely due to my refusal to alter anticipated testimony, and cease and desist pursuing whistleblowing issues. That was the immediate "proximate cause" for the termination decision. 4. At the time (early 1980) of Defendant's ordering me off-premises, it also did not provide me -1- a notice of all appeal rights; it has never done so thereafter. Instead, it has regularly denied I have any appeal rights. Pursuant to that view, it has opposed my every effort to secure review like others. 5. Until Defendant notifies me of appeal rights, I do not know what they are, can only speculate. All I have done was "uninformed," mere guesses. I deny ever waiving my right to notice and merits review like others typically receive, as per my years of experience providing same to others. 6. Moreover, EEOC has verified in its decision, Docket Nos. 01800273 et al, p 2 (23 Feb 1982), a decision that TACOM did not appeal, that TACOM had cut me off from access to EEO review by February 1980. Significantly, that is the time of the termination decision! 7. I could not make, was not allowed to make, a choice of forum, of which the agency neither notified me, nor (this is undisputed) allowed me to have access. 8. Defendant may allege 'disqualification.' But in a female co-worker case, Re Bertram, File No. A9-190131, it denies 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. 9. This court case was dismissed 30 Jan 1986 (Challenger-astronaut-death-day due to whistleblower fear of reprisal if too aggressive for safety). Dismissal was on the fraudulent basis of "the parties" allegedly having "advised the Court" the "issues have been settled. . . ." 10. As a party (Plaintiff), I did no such thing, was unaware of said allegations, disagree entirely, and have continuously both before and after, been seeking the notice and review that all other federal employees routinely receive as a matter of course. My reply/review-seeking filings are voluminous. 11. In August 1986, my then attorney sent me a letter on the basis of the case being open and not settled, and thereafter continued to represent the case as open. He has not told me to the contrary. 12. 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. -2- Defendant terms vary as it issued no 30 days advance notice pursuant to 5 USC § 7513.(b). 13. I have continually been seeking review to begin as done for others, e.g., to be allowed to return to duty, thus "reply" as provided for by 5 USC § 7513.(b), as recently as days ago in Dec 2002; and to get processing to begin on my EEO requests for review to commence administratively, pursuant to the then EEO regulation, then 29 CFR § 1613, now 29 CFR § 1614. 14. Defendant made me a senior personnel official, as such, I am aware of some of the case law and precedents, but need an attorney, due to the known pattern of anti-whistleblower reprisal. 15. All copies provided with my filings are true copies. 16. Assuming that Defendant continues its pattern of merely filing attorney pleadings, and refusal to file 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). /s/Leroy J. Pletten Leroy J. Pletten Personnel Office Crime Prevention Officer/Plaintiff /s/Julie Ann Pawlos Julie Ann Pawlos   NOTARY PUBLIC MACOMB CO., MI MY COMMISSION EXPIRES Mar 19, 2007 This document was acknowledged and signed by Leroy J. Pletten before me on January 23, 2003. -3-

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Leroy Pletten Plaintiff(s) Judge Cook, Julian, Jr.     Civil Action No. 85-72998     FILED '03 JAN 24 P 3:08 v. The Department of the Army Defendant(s) _____________________/ CERTIFICATE OF SERVICE I hereby certify that on the date below, I transmitted Motions for Reopening, for Appointment of Attorney, and to Show Cause, with Briefs and affidavit, to Clerk of Court Attorney General John Ashcroft for Judge Julian Abele Cook U.S. Department of Justice Theodore Levin U.S. Courthouse 950 Pennsylvania Avenue, NW 231 W Lafayette Washington, DC 20530-0001 (mail) Detroit MI 48226 (handcarried) [Cert # 7002 2030 0007 9879 1038, delivered at 4:15 am 29 Jan 2003]   Jeffrey G. Collins, U.S. Attorney Eastern District of Michigan 211 West Fort Street, Suite 2001 Detroit, MI 48226 [handcarried] /s/Leroy J. Pletten 24 January 2003     Leroy J. Pletten

The Jan 1986 Dismissal At Issue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Leroy Pletten Plaintiff(s) Civil Action No. 85-72998 v. The Department of the Army Defendant(s) _____________________/ ORDER OF DISMISSAL At a session of said Court held in the U.S. Courthouse in the City of Detroit, Michigan on _______January 30, 1986__________ PRESENT: ____Julian Abele Cook, Jr.__ HONORABLE JULIAN ABELE COOK, Jr. United States District Judge The parties have advised the Court that the issues in controversy have been settled, thereby obviating the necessity of a trial. IT IS ORDERED that the above-entitled cause shall be, and is, dismissed without prejudice and without costs. IT IS FURTHER ORDERED that any party in interest, upon the presentation of good cause, may move to vacate or modify the terms of this Order within a period of ninety (90) days from the effective date of this Order.   /s/Julian Abele Cook, Jr. JULIAN ABELE COOK, Jr. Dated: 30 JAN 1986 Detroit, Michigan

The case was on remand from the Federal Circuit, on appeal from 24 Oct 1984 decision of the Merit Systems Protection Board, 23 MSPR 682, an agency having no jurisdiction as per the Army in violation of 29 CFR 1613.403, now 29 CFR 1614.302(b), having refused to notify me of my options (EEOC OR MSPB), and further having locked me out of access to EEOC since February 1980, the time of the "decision to terminate" me as noted by EEOC's Henry Perez, Jr., 9 April 1980. See also Carreno v Dept of Army, 22 MSPR 515, 518 (1984), supra. MSPB had upheld the removal, disregarding the gross violations shown on the record, and inventing an utterly wild story bearing no relation to actual events, thus giving no indication whatever of the whistle-blowing and criminal activity underlying the situation. As in a fiction book disclaimer, any resemblance between the MSPB story, and actual reality, is purely coincidental. Actual issues were no notice, no due process, no right to reply, closure of review forum, violation of agency rules, etc. MSPB fraudulently claimed the issue was "accommodation." But in law and fact, "accommodation" issues are an affirmative defense to a advance notice, see 61 Am Jur 2d 152, p 580; Bolling v Navy, 43 MSPR 668, 671 (1990), and Brown v Postal Service, 47 MSPR 50, 59 (1991). Here there was no "advance notice" to which to reply to, much less, to present such such defense. Even if the MSPB claim had been true, there has now been "intervening change in the legal atmosphere that it renders the bar of collateral estoppel [purported prior review] 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), also a federal employee case. As per the 'authority to cease permitting smoking' issue, as USACARA noted 25 Jan 1980, AR 600-20.2-1 grants commanders full authority to do their jobs. The duty of Army was to exercise that authority at the time. It refused to do so, forthwith terminated me when I won the confirmation of its authority, it did not explain why, neither cause nor why it claims continued lack of authority, and still has not explained. This is particularly significant, as once it thought it had beat me, it then exercised the very authority it had been denying! With respect to smoking (behavior spewing high levels of toxic chemicals into the air), federal rule 29 CFR § 1910.1000 (1964 Surgeon General Report, Chapter 6, p 60, listing cigarette chemicals vs the legal limits) bans doing it. Obeying 29 CFR § 1910.1000 is a mandatory duty. U.S. Attorneys, due to their oft private practice wherein they are responsible as an employer to obey the law, knows very well that the safety duty "is unqualified and absolute," not merely "reasonable," or what "the average workplace" may be doing, Natl Realty & C Co Inc v O.S.H.R.C., 160 US App DC 133; 489 F2d 1257, 1265 (1973). "[T]he benefit of worker health [is] above all other considerations." Am Textile Mfrs Inst v Donovan, 452 US 490, 509; 101 S Ct 2478, 2490; 69 L Ed 2d 185, 202 (1981). Safety law 29 USC § 651 et seq., bans hazardous conduct, i.e., even if, at any specific employer, compliance "had never before been attained," Am Fed of Labor, Etc. v Marshall, 617 F2d 636, 658 (1979) aff'd 452 US 490 (1981). "Otherwise the Act's commitment to protect workers might be forever frustrated."

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Leroy Pletten Plaintiff(s) Judge Cook, Julian, Jr.     Civil Action No. 85-72998     FILED 2003 APR 3 P 3:04 v. The Department of the Army Defendant(s) _____________________/ BRIEF IN SUPPORT OF MOTION TO CLARIFY, AND/OR RECONSIDER, AND/OR IN THE ALTERNATIVES TO REOPEN       3 April 2003 Leroy J. Pletten Plaintiff 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 (586) 739-8343 TABLE OF CONTENTS Table of Contents i   Table of Controlling Authorities ii   Statement of Facts 1   Argument   I. [1] The Initial Circumstances Show Statutory Violations 3   II. [2] The Fraud on Court (Judge Cook) Warrants Reopening 4   III. [3] It Is No Longer Equitable That The Judgment Should Have Prospective Application, While Other Employees Ousted Without Due Process Notice of Charges Remain On The Rolls 5   IV. [4] It Is No Longer Equitable That The Judgment Should Have Prospective Application, As Per MSPB "Accommodation" Cases 7   V. [5] It Is No Longer Equitable That The Judgment Should Have Prospective Application, Absent Condition Precedent (Notice Of Charges and Specifics Enabling Reply) 9   [VI. [6] It Is No Longer Equitable That The Judgment Should Have Prospective Application As Per 5 USC § 552 Jurisdictional Bar 10]   VI. [7] It Is No Longer Equitable That The Judgment Should Have Prospective Application Where Defendant Denied Me "Informed Choice" To Even Commence Review 13   VII. [8] It Is No Longer Equitable That The Judgment Should Have Prospective Application Where There Has Been Intervening Change in the Legal Atmosphere 15 [A. 15] [B. 16] [C. 16] [D. 17]   VIII. [9] It Is No Longer Equitable That The Judgment Should Have Prospective Application, In View of All These Facts and Precedents, Re Which For Others The Government Does A Confession of Error 18   Conclusion 19 -i- TABLE OF CONTROLLING AUTHORITIES Supreme Court Case Law   Aiken v Wisconsin, 195 US 194; 25 S Ct 3; 49 L Ed 154 (1904) 15   Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975) 11   Boilermakers v Hardeman, 401 US 233; 91 S Ct 609; 28 L Ed 2d 10, 21 (1971) 5   Bowen v City of New York, 476 US 467 (1986) 12   Camfield v U.S., 167 US 518; 17 S Ct 864; 42 L Ed 260 (1897) 8   Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986) 10   Cleveland Bd. of Ed. v Loudermill, 470 US 532; 105 S.Ct. 1467, 64 L.Ed.2d 494 (1985) 7   Glus v Eastern District Terminal, 359 US 231; 79 S Ct 760; 3 L Ed 2d 770, 772 (1959) 14   Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238; 64 S Ct 991, 88 L Ed 1250 (1944) 5   Morton v Ruiz, 415 US 199; 94 S Ct 1055; 39 L Ed 270 (1974) 12   New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875 [14 L Ed 178] (1898) 10   SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) 4, 6   Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) 14   State of Missouri ex rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938) 9   Teamsters v U.S., 431 US 324; 97 S Ct 1843; 52 L Ed 2d 396 (1977) 7, 15   U.S. v Bausch & Lomb Optical Co, 321 US 707; 64 S Ct 805; 88 L Ed 1024 (1944) 4   Watkins v City of Memphis, 373 US 531; 83 S Ct 1314 (1963) 9 -ii- Federal Laws   5 USC § 552 11-12   [5 USC § 2302 11]   5 USC § 7513 2, 5, 10   29 USC § 706(7)(B) 3   42 USC § 2000e5(g)(5) 19     Federal Rules of Civil Procedure   Fed.R.Civ.P. 53 19   Fed.R.Civ.P. 60 1     Federal Regulations   [5 CFR § 752.404(f) 6]   29 CFR § 1607.5(b)(3) 3, 5, 11   29 CFR § 1613/1614 3, 5, 11   32 CFR § 203 16     Michigan Laws   MCL § 750.27, MSA § 28.216 3, 11-12, 15   MCL § 750.213, MSA § 28.410 3     TACOM Regulations   [TACOM-R 190-4 3]   TACOM-R 600-5.14-28 and 29 2, 10 -iii- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Leroy Pletten Plaintiff(s) Judge Cook, Julian, Jr.     Civil Action No. 85-72998     FILED 2003 APR 3 P 3:04 v. The Department of the Army Defendant(s) _____________________/ BRIEF IN SUPPORT OF MOTIONS TO CLARIFY, AND/OR RECONSIDER, AND/OR IN THE ALTERNATIVES TO REOPEN STATEMENT OF FACTS Plaintiff Leroy J. Pletten moved, pursuant to Fed.R.Civ.P. 60(b), to reopen this specific Civil Action No. 85-72998. He moves to clarify or reconsider the 24 March 2003 Order received. He is a whistleblower, citing noncompliance with existing laws that, if enforced, would aid in prevention of alcoholism, drugs, abortions, etc. Re freedom of expression, whistleblowers are subjected by agencies, to reprisal, fraud, abuse, crimes. Via its policy of not prosecuting crimes against whistleblowers, Dept of Justice consents, aids, abets. This situation is one of many in the documented anti-freedom-of-expression, anti-whistleblower government pattern (Exh. 9). Americans die as "natural and probable consequence" of the "universal malice" against whistleblowers. Civil Action No. 85-72998 before Judge Cook arose on remand from the Federal Circuit, on appeal from 24 Oct 1984 decision of the Merit Systems Protection Board, 23 MSPR 682. Not until years later occurred Civil Case Mo. 88-72254 before Judge Taylor. I am an employee of Defendant, at its Tank-Automotive Command (TACOM, Map, Exh. 14). My assigned building was No. 230, in southwest periphery. The Personnel Office of which I was one member had about 100 employees; each of us did our proportionate share, as no one of us could (contrary to [retroactive, outside-notice] TACOM claims about me servicing the whole place), handle, even see, the entire site. -1- TACOM has not provided the notice of charges and specifics required by constitutional due process, and 5 USC § 7513.(b). Case law shows employee remains on the rolls (ouster is void). Defendant said it fired me in 1982. Defendant deceived non-EEOC adjudicators by that late date claim. TACOM actually made the decision early 1980. EEOC's Henry Perez saw the termination at once (Exh 2). TACOM admission against interest of this early date, blatantly pre-5 USC § 7513.(b) notice, was delayed until AFTER feeling it, with DOJ aiding and abetting, beat me in court (Exh 6). TACOM had not provided reasons for the ouster, nor requested specifics, thus obstructed me from replying, did not notify me of all forum review rights (Exh 10, again, a long delayed admission against interest), nor allow administrative review access such as other federal employees are routinely provide as a matter of course, despite my decades of requesting same. (At one point, I recall allegation of having made some 2000 requests for review. Army, Exh 10, does NOT say it processed any!) This Civil Action No. 85-72998 at issue, was dismissed 30 Jan 1986 (Challenger-astronaut-death-era due to whistleblower fear of reprisal if too aggressive for safety). Dismissal was on the fraudulent basis of "the parties" (no specific names cited) having "advised the Court" (Judge Cook, not Judge Taylor), the "issues have been settled. . . ." As a party, Pletten did no such thing, was unaware of said allegation, disagrees entirely, and has repeatedly both before and after, been seeking the advance notice and specifics needed to reply, and the notice of forum-rights-review process. Each of these any non-whistleblower employee would routinely have received as a matter of course. I never considered the issues "settled," issues of being terminated, suspended, put on forced LWOP contrary to TACOM Regulation 600-5.14-28 and 29 (Exh. 1), terminated, removed. Agency terms vary as it issued no 5 USC § 7513.(b) 30 days advance notice of charges and specifics. I have repeatedly been seeking to be allowed to reply as Constitutional due process provisos and 5 USC § -2- 7513.(b) provide, to RTD as recently as December 2002; and to have processing begin on my EEO requests for review to commence, pursuant to the then EEO regulation 29 CFR § 1613, now 29 CFR § 1614. (Note "uninformed choice" ab initio, as Defendant did not provide me notice of forum choice rights. Defendant only claims citing part of my rights, (Exh. 10.) 1980's, fixes already were in, Exh 13. DOJ attorneys representing Defendant know their DOJ human resources staff know that no employee can legally be ousted as I was, nor denied notice of review rights. DOJ does not deny its own employees their rights. Jeffrey Collins would follow the rules if firing one of his civil service employees. Were DOJ treating me like others, it would be arguing for me, even noting, as per EEOC's finding on non-processing of my pleas for review, Exh 3, that extortioners refuse "to process grievances." U. S. v Russo, 708 F2d 209, 212 (CA 6, 1983). These are equity considerations. ARGUMENT I. [1] THE INITIAL CIRCUMSTANCES SHOW STATUTORY VIOLATIONS. This situation began by Defendant hiring dangerous drug addicts, in violation of 29 USC § 706(7)(B) principles against hiring them when they "constitute a direct threat to property or the safety of others." And by ousting anti-drug smuggling whistleblowers, cited by Jonathan Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (NY: Norton, 1987), pp 51-52. Ed. Note: And see the series, “Buried Secrets, Brutal Truths” (Toledo Blade, 10 October 2003), e.g., “Rogue G.I.'s Unleashed Wave of Terror in Central Highlands" (22 Oct 2003). 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 November 2003). The “Report on Brutal Vietnam Campaign Stirs Memories,” by John Kifner (New York Times, 28 Dec 2003), says that the atrocities were not by a “'rogue' unit.” No, the troops “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.” This is yet another example of the results of the rampant reprisals and terror against whistleblowers, deterring timely action by would-be whistleblowers too intimidated to speak up. And by cigarette smuggling into TACOM in violation of MCL § 750.27, MSA § 28.216 (banning deleterious cigarettes from Michigan), and TACOM's own TACOM-R 190-4, banning drugs and discouraging personal property being brought on-post. And by extortion (violating MCL § 750.213) that I alter anticipated testimony, cease and desist exposing a natural and probable consequence of cigarette smuggling, a contaminated environment. (Exh. 4, lines 23-25). Change testimony, or have pay embezzled and become destituted: that was the choice. "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 to continue prospectively not "eradicating the evils" affecting me: -3- "[W]here a [smuggling] distribution system 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). II. [2] THE FRAUD ON COURT (JUDGE COOK) WARRANTS REOPENING This specific Civil Action No. 85-72998 was dismissed 30 Jan 1986 due to "the parties" allegedly having "advised the Court" the "issues have been settled. . . ." Courts speak through their orders, here based on agency input. As Judge Cook was recipient of the false claims, he is aware of the facts. No other basis than recorded is judicially acceptable, 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"). And what is stated is clearly wrong, has inequitous result, and meet the five elements that constitute fraud upon the court, conduct: (1) on the part of an officer of the court, (2) directed to the 'judicial machinery' itself, (3) that is intentionally false, willfully blind to the truth, or in reckless disregard for the truth, (4) that is a positive averment or is concealment when one is under a duty to disclose, and (5) deceives the court. Workman v Bell, 245 F3d 849, 852 (CA 6, 2001). Defendant is a federal agency, not a human, so could only have been spoken for by a DOJ attorney, officer of the court, invoking (1) above; my then attorney too was an "officer of the court." Re (2) and (5), the result was deceiving Judge Cook, so "the judicial machinery [here, J. Cook] can [did] not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." In re Intermagnetics America, Inc, 926 F2d 912, 917 (CA 9, 1991). Re (3): "As a party, Pletten did no such thing, was unaware of said allegation, disagrees entirely, and has repeatedly both before and after, been seeking the advance notice and specifics needed to reply, and the notice of forum-rights-review process. Each of these any non-whistleblower employee would routinely have received as a matter of course. I never considered the issues "settled," issues of being terminated, suspended, put on forced LWOP contrary to TACOM Regulation 600-5.4-28 and 29 (Exh. 1), terminated, -4- removed. Agency terms vary as it issued no 5 USC § 7513.(b) 30 days advance notice of charges and specifics. I have repeatedly been seeking to be allowed to reply as Constitutional due process provisos and 5 USC § 7513.(b) provide, to RTD as recently as December 2002; and to have processing begin on my EEO requests for review to commence, pursuant to the then EEO regulation 29 CFR § 1613, now 29 CFR § 1614. (Note "uninformed choice" ab initio as Defendant did not provide me notice of forum choice rights. . . ." (Quoted from pp 2-3 above). Re (4), the words cited by Judge Cook show "positive averments" and "concealment" of my position as a party, contrary to “duty to disclose” the reality. When officers of the court know of a significant violation, e.g., fraud, they “shall inform” proper authority. M.R.P.C. 8.3(a). Here, “members of the bar have knowingly participated in the fraud,” Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238; 64 S Ct 991, 88 L Ed 1250 (1944). Such “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, 322 US 246. “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). The fraud perpetrators are in essence tortfeasors. I am the victim. Please tell them to assist me. III. [3] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION, WHILE OTHER EMPLOYEES OUSTED WITHOUT DUE PROCESS NOTICE OF CHARGES REMAIN ON THE 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.” Like slaves, whistleblowers do have due process rights. 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). -5- 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) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983); Chenery, supra, 332 US 194 ("judge the propriety of action solely by the grounds invoked"); (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); (iii) "item by item," Mandel v Nouse, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975). Defendant here did none of this. Pursuant to Smith v Dept of Interior, 9 MSPR 342, 344 (1981), 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." Defendant provided me no such specificity, thus precluded me replying. As a matter of equity, note the long line of case law, 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 -6- 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 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). Ed. Note: See similar Comptroller decisions, e.g., 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, nobody ousted without 5 USC § 7513.(b) notice fails to win! The reason for exception here—the pattern of "universal malice" reprisals against whistleblowers (Exh. 9). "The proof of the pattern or practice [of reprisal against whistleblowers] 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). As a matter of equity, please help. It is not equitable to prospectively continue my status as not on the rolls, when all others' precedents show otherwise: that a non-whistleblower employee fired without notice remains "on the rolls." IV. [4] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION, AS PER MSPB "ACCOMMODATION" CASES. Actual issues were no notice, due process, specifics, charges, right to reply, review forum-rights-access like others, violation of laws and agency rules, etc. Contrary to EEOC analyses, Exhs. 2 and 3; overriding TACOM's forced leave ban, Exh. 1; ignoring the fact TACOM had not distinguished whether its action was "removal" (ouster for employee misconduct) or "termination" (ouster for other reasons) (Exh 10); and condoning the extortion, Exh. 4—MSPB insisted on the issue of "accommodation." (Examining doctor would deny need, Exhs 7-8.) But even MSPB admits "accommodation" issues are not the case-in-chief, but "affirmative defense," to an advance notice, Bolling v Navy, 43 MSPR 668, 671 (1990), and Brown v Postal Service, 47 MSPR 50, 59 (1991). -7- Here was no "advance notice" to which I could reply, much less, present such a bizarre defense. I had excellent performance, attendance, conduct, awards, recognition, better than others. Defendant [Army] had not applied any discharge criteria, neither 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); twelve point civil service criteria of Douglas v Vet. Adm., 5 MSPR 280, 305-306 (1981); nor the five-point criteria of Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984). Ed. Note: Nature of These Criteria: From 42 Lab Arb 555 and 806 (1) Forewarning employee of possible consequences of conduct. (2) The allegedly violated rule or order must be reasonably related to orderly, efficient, and safe operations. (3) Before administering discipline, employer is to investigate whether employee did, in fact, violate or disobey the rule or order. (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. (6) Employer must apply its rules, orders, and penaltles evenhandedly and without discrimmation. (7) Degree of discipline must be reasonably related to seriousness of offense and employee's record? "'No' answer to one or more normally signifies that just and proper cause did not exist." Ed. Note: From 5 MSPR 280, 305-306 (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 maliciousiy or for gain, or was frequently repeated. (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. (4) Employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. (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. (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. (7) Consistency of the penalty with any applicable agency table of penalties. (8) Notoriety of the offense or its impact upon the reputation of the agency. (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. (10) Potential for the employee's rehabilitation. (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. (12) Adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. References: 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). Ed. Note: From 746 F2d 1454 (1) Where the agency engaged in a "prohibited personnel practice" (5 § 7701(g)(l)). (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. (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." 4. Where the agency committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee. 5. Where the agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding. Of course not, I was out-performing co-workers; no "accommodation" is needed for superior performers! And that concept is NOT a concept to condone the contaminated air result of cigarette smuggling violating MCL § 750.27, MSA § 28.216, the issue re which the extortion occurred (Exh. 4). The recent 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 the deleterious cigarette manufacturing and sales ban MCL § 750.27, MSA § 28.216. The court analysis parallels to my situation: "This was a case that did not have to be. The record in this case covers more than five years [mine, 23] 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 transfer Reilly out of Parnell (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 him transferred out of Parnell." Reilly, 310 F3d 519 [157 F Supp 2d 762, 774]. 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 hostility to Dept of Defense pure air policy, 32 CFR § 203. TACOM felt DOD was "unreasonable," treating workers as good as prisoners. Ed. Note: 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 doing the punishment first, ability to defend is hampered, by income and credibility loss.). DOD's [pure air] policy [32 CFR § 203] tracks to precedents such as Camfield v United States, 167 US 518, 522-523; 17 S Ct 864; 42 L Ed 260 (1897), which says: -8- "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 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). [Ed. Note: 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 is smokers' garbage, i.e., what they are emitting, throwing away, and lingering in the ambient air]; and Albaugh v Abbott, 253 Mich 588, 592; 235 NW 263, 264 (27 Feb 1931) (“Garbage is a nuisance per se.” That judge, unlike here, inspected on-site.) It is not equitable for TACOM, Courts, Dept of Justice, and much of the U.S. to now be having this right, while continuing prospectively the claim that for me alone, it cannot be done; leave me fired for having blown the whistle on TACOM's defiance of DOD's 32 CFR § 203, etc. Rights are present rights, for the here and now. The legal answer is not, as Defendant 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 Calif Law Rev (#3) 702-731 (May 1976) (the right to safety is where you are, not elsewhere). V. [5] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION ABSENT CONDITION PRECEDENT (NOTICE OF CHARGES AND SPECIFICS ENABLING REPLY). Sullivan, 720 F2d 1274, supra, is significant. Until notice, an allegedly fired employee remains an employee; the firing is constitutional violation; statutory violation; void. Similarly, spouses remain -9- 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 by Court. Until the "condition precedent" for change (re federal employees, proper notice) is met, the status quo ante (employment, as marriage) remains in full force and effect. Please apply this doctrine. I look forward to returning, and do personnel and crime prevention functions in interim, preparatory to such return.. The "condition precedent" concept (one event MUST precede another to preclude voidness of the subsequent event) is well-established, traceable back at least to New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875, 883 [14 L Ed 178] (1898); and is adhered to for everyone except whistleblower, e.g., Basinger v OPM, 5 MSPB 210 (1981) (action "cannot be effected if there is a lack of compliance with departmental regulations" [here, TACOM-R 600-5.14-28 and 29 banning forced leave (Exh. 1); and of course, Constitution and laws such as the 30 days notice law, 5 USC § 7513.(b).]). (The leave ban rule 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 almost immediately violated the rule in my case!) Absent notice, absent agency obeying own rules, ouster is void, and cannot be ratified, as per the definition of "void," Black's Law Dictionary (6th ed, 1990), p 1573. 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. VI. [6] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION AS PER 5 USC § 552 JURISDICTIONAL BAR. The fix being in, preventing me EEOC review (Exhs 10 and 13), to force me to MSPB and Court, Defendant could there twist focus off my issues. The claim instead became deleterious cigarette smoke, treated as an uncontrollable Bona Fide Occupational Qualification (BFOQ) requirement; and that I don't meet that qualification requirement! Even if the claim were true (it is not; the whole claim is a fraud; the federal job qualifications-writing agency denies it, Exh. 5). And "the job requirements -10- 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 since Feb 1980, Exh 3), once it does “examine the position descriptions,” look for “legitimate job requirements,” Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v Postal Svc, 6 MSPB 536, 541 (1981), it will find tobacco smoke is not, never was, “in the requirements for any position.” Defendant using a non-existent BFOQ violates 5 USC § 2302(b)(6). Recall the qualifications writing agency (OPM) denial, Exh. 5. OPM is the same agency doing the study (www.fhcs.opm.gov) finding foreseeable high employee quit rate due to poor management. 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. Significantly, no such requirement is published. Publication, notice, is jurisdictional. 5 USC § 552.(a)(1). This law is followed for others, not me, (Exh 5). (I asked OPM under FOIA preparatory to 29 CFR § 1613 case review beginning. (EEOC had called attention to TACOM refusing me such civil-rights-expertise-agency review, Exh. 3.) The fix was in to obstruct me getting such review by EEOC staff like others receive it, Exh. 13. EEOC would enforce BFOQ law. MSPB would not, for me. Defendant [Army] fabricated the BFOQ issue from smoker preferences. Same are a banned preference as per Michigan's cigarette ban, MCL § 750.27, MSA § 28.216, and 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.F.R. § 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 -11- are clearly identified.” Defendant did no job analysis. BFOQ's must be applied across the board, not to one person (me, in disparate treatment). BFOQ's must be stated in advance, not fabricated retroactively, i.e., must 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 Defendant's own Dr. Francis Holt certified I meet. Review by EEOC civil rights staff will show such facts in minutes. No wonder Defendant denies me such review, Exh 3; favors what is known to happen, fixing, Exh. 13. EEOC staff would see that in Michigan especially, smoking is not a BFOQ. Deleterious cigarettes are illegal pursuant to law MCL § 750.27, MSA § 28.216. Far from finding deleterious cigarette smoke a BFOQ, EEOC would find it is result of illegal smuggling. 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). Please take judicial notice that no federal employee has ever, but me, been accused of having a ‘‘presence of tobacco smoke'' qualification requirement. Accused without the reply to reply, as per Defendant not providing me a notice of charges, specifics, to which to reply. Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule. 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, -12- 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. Defendant 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 judicial notice that no tobacco qualification "requirement" exists for anyone. The story was invented purely ad hoc, invented solely for me, with concurrence via the fix process described in Exh 13, here, with MSPB. (DOJ aids and abets). EEOC would reject Defendant's story, hence, the fix deal was, to not allow me EEOC review, obstruct that up-front, Feb 1980, Exh 3. 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!). As this is a jurisdictional issue. Federal subject matter jurisdiction presents an issue which may be raised by a party or court at any time. Enrich v Touche Ross & Co., 846 F2d 1190 (CA 9,1988); Fed. R. Civ. P. 12(h)(3). It is not equitable to ratify an agency ultra vires act outside jurisdiction. Ed. Note: 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, 7 Feb 2003). VI. [7] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION WHERE DEFENDANT DENIED ME 'INFORMED CHOICE" TO EVEN COMMENCE REVIEW. Defendant undisputedly cut me off from EEOC review, Feb 1980, Exh 3, at the time of the ouster, Exh 6. Further, Defendant gave no notice of full rights, Exh 10, much less, of how to proceed under such a severe restraint (denial of access to an entire review forum), then to present, hence, I have -13- never had "informed choice" since then. This is so despite 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" anyway, thereafter, that was not my "first action," hence depriving any reviewer thereafter 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, § VI. case law incorporated here by reference. Johnson v Dept of Labor, 26 MSPR 447, 449 (1985) says 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 free and "informed choice"—Quod ab initio non valet in tractu temporis non convalescet, Black's Law Dict., supra. The Johnson case 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 Defendant statutory violation, indeed series of time as per multiple incidents. Indeed, in equity, a party cannot violate rules, then expect court to support it! See, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957), and 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). -14- "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). "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). "The proof of the pattern or practice [Exh 9, of reprisal against whistleblowers] supports an inference that any particular decision [to commit same], 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, inequitable to ratify them prospectively. VII [8]. IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION WHERE THERE HAS BEEN INTERVENING CHANGE IN THE LEGAL ATMOSPHERE. There has now been "intervening change in the legal atmosphere that it renders the bar of collateral estoppel [prior decision] 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. Dept of Justice cites significant fraud in its anti-tobacco lawsuit, US v Philip Morris, Inc. et al., CA 99-2496 (GK) (22 Sep 1999) www.usdoj.gov/civil/cases/tobacco2/complain.pdf and www.usdoj.gov/civil/cases/tobacco2/appendix.pdf, re illegal 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 contaminated air situation re which the extortion occurred, Exh 4. 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. Litigants can show as part of the evidence in his/her own case, the guilt of others linked to the current defendant, in showing a pattern. Locker v American Tobacco Co, 194 F 232 (1912). It is not equitable for the government to be arguing the tobacco issue in terms of fraud, while leaving me prospectively ousted for rest of life, due to past consequences of that very fraud. -15- B. Defendant has now vacated the basis for having ousted me. Just as Defendant would surreptitiously admit in an internal memo from one management official to another, Exh. 6, the truth about when it fired me (Feb 1980, not Jan 1982), confident it had beat me in court, it then decided to follow the 32 CFR § 203 guidelines after all. It then decided to follow the pure air rule that EEOC had noted had been flouted for me when I won the ‘arbitration' EEOC alludes to, telling Defendant to comply, Exh. 3. TACOM decided to now, belatedly solve the contaminated air situation it had committed the extortion (Exh 4) against me for refusing to stop blowing the whistle on. No big "undue hardship"! It had looked MSPB and the Court in the eye and fabricated, knowingly committing outlandish fraud claims of "undue hardship"! No hardship! Never was! Hah-hah! Just made it up for the Pletten case. Forget that claim, once it beat Pletten in court!— The "hah-hah" approach in dealing with MSPB and this Court, aided and abetted by DOJ. Having vacated its hostility judgment, Defendant's smoking ban judgment vacates the basis for having ousted me. It is inequitable to prospectively keep me ousted for life, to ratify a Defendant view Defendant itself no longer holds. I look forward to returning to duty. Government will need personnel officials, crime prevention officials, in view of the OPM study showing high potential quits among the latter type occupations. We'll need to be hiring; better yet, fixing the poor management practices. Ed. Note: The agency 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), and literally lied about lacking it! Note Army's own precedents such as: Army's refusal in the Spanish American War of 1898 to enlist smokers as symptoms of deteriorated health were found by examining doctors in smokers Olin Mathieson Chemical Corp, Indiana Army Ammunition Plant v Int'l Chemical Workers Union, 68-2 Lab Arb Awards (CCH) § 8630; 51 Lab Arb (BNA) 97 (Indiana, 3 July 1968) (eleven months' suspension of smoker for smoking) Jenkins v Secretary of the Army West, 1995 WL 43711 (U.S. E.E.O.C., 20 January 1995) (affirmation of an Army decision removing Sheranne Jenkins for instances of misconduct which included permitting smoking at week night bingo events in violation of a smoking ban) C. In seeking to reopen this Civil Action No. 85-72998, dismissed in Challenger Shuttle death era, Jan 1986, I cited its explosion in whistleblower context. At that time, 23-24 Jan 2003, I could not know that a mere days hence, the Columbia shuttle would suffer a similar fate, again apparently tied to the rampant reprisal, Exh 9, against whistleblowers deterring them. I offer aid, Exh. 11. Note the news Tuesday, 4 Feb 2003, that Space Shuttle Program Manager Ronald Dittemore said, originally, nobody 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, the concerned people "didn't come forward." -16- No doubt they didn't! Employees who become "whistleblowers" reporting suspected hazards, are widely known to be often retaliated against, punished, suspended, fired. Employees say so themselves when surveyed, Exh 9. Reprisal is so notorious a federal management reaction against whistleblowers that this concern was published years ago. In attacking a whistleblower, federal managers (aided and abetted by DOJ): “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 . . . .”—Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection--Gap Between Law and Reality," 31 Howard Law Journal (#2) 223, 226 (1988). That privately written article did not exist in Jan 1986 at time of dismissal. And now we have subsequent verification, from the government's own retaliation rates data survey, Exh 9. 7-12% report retaliation, meaning hundreds of thousands of incidents. Now there is concern, in view of both the 9/11 tragedy wherein FBI whistleblowers complaint of being unheeded, and now with the latest, NASA shuttle, incident. Investigation is ongoing, I offer aid, Exh 11. In view of this 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. Defendant has now admitted, to Senator Carl Levin, 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. No notice [was sent me] defining any “fault" by me warranting discipline. Defendant's Exh 10 admission of using inconsistent terms should not be ratified, Yorkshire v MSPB, 746 F2d 1454, 1457, n 4 (CA Fed, 1984). In view of the changes in legal atmosphere, it is inequitable that the discipline against me should be retained prospectively, ratified in essence as a life sentence. Ed. Note: The two must be sharply distinguished, not muddled as TACOM did. See Jones v J. J. Security, 767 F Supp 151, 152 (ED Mich, 1991), citing Gantz v City of Detroit, 392 Mich 348, 356; 220 NW2d 433 (1974): "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 mvoed 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. -17- VIII. [9] IT IS NO LONGER EQUITABLE THAT THE JUDGMENT SHOULD HAVE PROSPECTIVE APPLICATION, IN VIEW OF ALL THESE FACTS AND PRECEDENTS, RE WHICH FOR OTHERS THE GOVERNMENT DOES A CONFESSION OF ERROR. When precedents arise, as so many did during the pendency of my situation, the government, for non-whistleblowers, provides “Confession of Error," e.g., in U.S. v Graham, 688 F2d 746 (CA 11, 1982). But for whistleblowers, suffering rampant retaliation, Exh 9, it does not. Here DOJ did not even answer. For non-whistleblowers, DOJ helps, even calls to court attention extortioner refusing “to process grievances." U. S. v Russo, 708 F2d 209, 212 (CA 6, 1983). Here, EEOC found similar refusal of processing, Exh 3. Instead of offering to prosecute the guilty managers, DOJ remains silent. It is inequitable to prospectively continue my life sentence punishment simply because Defendant refuses to admit any error of inequity at all. CONCLUSION “[I]rreparable injury should be presumed from the very fact that the statute[s] has [have] been violated." U.S. v. Hayes Int'l Corp., 415 F2d 1038 (CA 5, 1969). The criminality of the underlying situation, Exh 4, 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, Exh 9, of which my case is one example, not to mention destruction of my career, family, finances. All of this is inequitable. WHEREFORE, Plaintiff moves 1. to prevent issues of non-impartiality, please assure a judge without any question of bias or being a ‘fixer'; 2. to reopen C.A. No. 85-72998 before Judge Cook so fraudulently, inequitously dismissed; 3. the Court to 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, -18- each voiding “informed choice," thus voiding each subsequent step from the very first; 4. to make findings of fact on the changed legal circumstances; 5. Order defendant 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 free and informed choice; 5. [6] for other relief as the court may determine. In addition, if there is some actual or apparent failure to articulate this matter on my part, please schedule a meeting, assign Dept of Justice to investigate as it would in other crime-reports situations, and/or appoint a “Special Master" pursuant to 42 USC § 2000e-5(g)(5) citing Fed.R. Civ. Proc. 53, to do fact-finding. As Dept of Justice human resources officials know to not oust employees as I was, may I suggest appointing someone technically qualified from its human resources office. Respectfully,       /s/Leroy J. Pletten Leroy J. Pletten Plaintiff 8401 18 Mile Road #29 Sterling Heights, MI 48313-3042 Exhibits (586) 739-8343 1. TACOM Reg. 600-5, Ban Forced Leave (18 Jan1980) 2. EEOC Letter (Perez) Showing Termination Decision Already Made (9 April 1980 3. EEOC Decision, p 2, Citing TACOM Non-Compliance With Pure Air Guidance (23 Feb 1982) 4. Benacquista Deposition re Extortion Confirming Above, p 62 (23 April 1982) 5. OPM Jurisdiction BFOQ Denial Letter (30 Jan 1984) 6. TACOM Management Finally Admits Ouster by Feb 1980, Without EEO Review (16 Nov 1990) 7. Medical Letter Verifying Work Ability (5 Dec 1990) 8. Medical Letter Verifying Accommodation Never Needed (21 Aug 1991) 9. Retaliation Rate Study Article by MSPB (Dec 2000) 10. Army Admission to Sen. Levin Of Not Telling Me EEO Review Rights re Ouster (15 May 2001) 11. Whistleblower Letter to NASA (24 March 2003) 12. Letter to Detroit U.S. Attorney (28 March 2003) 13. Newspaper Article on Judges' Bias, Case-Fixing (30 March 2003) 14. Map of TACOM (Pletten's Assigned Bldg 230 Circled, Southwest Periphery) -19-

[EEOC Letter (Perez) Showing Termination
Decision Already Made Two Years
Before the Jan 82 TACOM Party-Line Story
Exhibit 2]

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. 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, /s/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 Exh 2

[EEOC Decision, p 2, Citing TACOM
Non-Compliance With Pure Air Guidance,
Exhibit 3]

employees from smoking within 25 feet of appellant. [Pletten's supervisor, Jeremiah Kator, agreed, but higher management forbad him to act.] When he [Pletten] failed to obtain the accommodations [32 CFR § 203, AR 1-8, etc., 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 complaint, 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 [conduct] 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 Exh 3

[Benacquista Deposition, P 62, Exhibit 4]

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." -62- Exh 4 [Ed. Note: See Deposition Context]