UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LEROY J. PLETTEN, Plaintiff, vs. Civil No. 89-CV-71877-DT Honorable Horace W. Gilmore JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants. __________________________________/ PLAINTIFF'S MOTION FOR INTERIM ORDER TO DIRECT DEFENDANTS TO ABIDE BY THE 25 JANUARY 198O USACARA REPORT AND TO ENFORCE AND OBEY SAFETY RULES (INCLUDING 5 U.S.C. 7902(d)) Plaintiff, pro se, pursuant to Rule 7(b) of the Federal Rules of Civil Procedure moves for himself and as private attorney general [to aid others, e.g., coworkers, similarly situated] that the Court issue an interim Order (pending commencement of 29 C. F. R. 1613.213 EEO counseling IAW Plaintiff's 29 C.F.R. 1613.403 Election) directing Defendants to abide by the 25 January 1980 USACARA Report and to enforce and obey safety rules (including 5 U.S.C. 7902(d). In accordance with Local Rule 17(a)(1), Defendant's attorney Stephen J. Markman was contacted by certified (P 170 756 904) letter dated 17 July 1989 to seek concurrence with the motion. There was no reply; concurrence was not acquiesced in; hence it is necessary to bring this motion. The grounds for this motion are stated in the accompanying brief in support of this motion. Proposed Orders are attached. -2- Pursuant to Local Rule 17(1)(2), Plaintiff suggests that this matter be decided without oral argument on the briefs filed. Respectfully submitted,   Leroy J. Pletten Leroy J. Pletten Plaintiff 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343   [Attachments: Brief in Support and Proposed Orders] BRIEF FOR THE PLAINTIFF LEROY J. PLETTEN IN SUPPORT OF HIS MOTION FOR INTERIM ORDER TO DIRECT DEFENDANTS TO ABIDE BY THE 25 JANUARY 1980 USACARA REPORT, AND TO ENFORCE AND OBEY SAFETY RULES (INCLUDING 5 U.S.C. 7902(d) ================================================================ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ================================================================ CIVIL CASE NO. 89-CV-71877-DT JUDGE: HORACE W. GILMORE ================================================================ LEROY J. PLETTEN, Plaintiff, v. JOHN O. MARSH, Jr., ET AL., Defendants. ================================================================ ON COMPLAINT CONCERNING MULTIPLE REFUSALS OF REVIEW ================================================================ Leroy J. Pletten Plaintiff 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343 STATEMENT OF ISSUES PRESENTED Pursuant to Rule 17 (h) of the Local Rules of the United States District Court for the Eastern District of Michigan, Plaintiff states the issues presented in this Brief are: 1. Whether implementation of safety rules (including 5 U.S.C. 7902(d) should be ordered where hazardous conduct exists. [Pp 6-15.] 2. Whether implementation of a USACARA Report should be ordered where the duty of implementation exists. [Pp 16-20.] INDEX OF AUTHORITIES CASES PAGE   A. E. Staley Mfg. Co., 71-1 Lab. Awards (CCH) 8203 (1971) 9   Albany Ins. Co. v. Holberg, 166 F.2d 311 (8th Cir. 1948) 13   Alford v. City, 220 Va. 584, 260 S.E.2d 241 (1979) 7   Allen v. Posternock, 107 Pa.Super. 332, 163 A. 336 (1932) 13   American Textile Mfrs. Ins. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) 6,  9   American Zinc Co. v. Graham, 132 Tenn. 586, 179 S.W. 138 (1915) 7   Austin v. State, 101 Tenn. 563, 48 S.W. 305, 70 Am.St.Rep. 703 (1898), affirmed, 179 U.S. 343 (1900) 3,   11,   15   Banzhaf v. F.C.C., 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842 (1969) 3,   18   Bluestein v. Scoparino, 277 App.Div. 534, 100 N.Y.S.2d 577 (1950) 13   Bostik West, Division of USM Corp., 78-2 Lab. Awards (CCH) 8545, 71 Lab.Arb. (BNA) 954 (1978) 10   Bouillier v. Samsan Co., 100 R.I. 676, 219 A.2d 133 (1966) 14   Bradford's Case, 319 Mass. 621, 67 N.E.2d 149 (1946) 13   Caraco Ship Supply, 64-3 Lab. Awards (CCH) 8961 (1964) 11   Centoni v. Ingalls, 113 Cal.App. 192, 298 P. 47 (1931) 7   Cit-Con Oil Corp., 30 Lab.Arb. (BNA) 252 (1958) 10   City of New Orleans v. Texas & P. Ry. Co., 171 U.S 312, 18 S.Ct. 875, 43 L.Ed. 178 (1898) 16   Columbian Rope Co., 7 Lab.Arb. (BNA) 450 (1947) 10   Com. v. Hughes, 478 Pa. 502, 364 A.2d 306 (1976) 12,  14,  16   Consolidation Coal Co., 82-2 Lab. Awards (CCH) 8600 (1982) 10   Converters Ink, 68 Lab.Arb. (BNA) 593 (1977) 11,  15 -ii- Craig by Craig v. Buncombe Cty. Bd. of Ed., 80 N.C.App. 683, 343 S.E.2d 222, appeal dism., 310 N.C. 201 (1986) 18   De Mirjian v. Ideal Heating Corp., 129 Cal.App.2d 750, 270 P-2d 114 (1955) 14   Dickerson v. Reeves, 500 S.W.2d 854 (Tex.Civ.App. 1979) 14   Dzikowska v. Superior Steel Co., 259 Pa. 570, 103 A. 351 (1910) 13   Evans v. Platte Valley Public Power & Irr. Dist., 144 Neb. 360, 13 N.W.2d 401 (1944) 16,  20   Federal Reserve Bank v. Neuse Mfg. Co., 213 N.C. 409, 196 S.E. 848 (1930) 16   George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 (1949) 13   Gladieux Food Svcs., Inc., 70 Lab.Arb. (BNA) 544 (1978) 10, 12   Golden v. Comm. Tech. Corp., 36 E.P.D. 35,095 ([D ND Ga,] 1985) 10   Grusendorf v. City, 816 F.2d 539 (10th Cir. 1987) 3,  10,  15   Hercules Inc., 74-2 Lab. Awards (CCH) 0407 (1974) 10   Illinois Fruit & Produce Corp., 66 Lab.Arb. (BNA) 498 (1976) 10   Matter of Knust, 288 N.W.2d 776 (S.D., 1980) 16   Mitchell v. State, 60 Ala. 26 (1877) 12   N.A.A.C.P. v. Detroit Police Officers Ass'n. (DPOA), 591 F.Supp. 1194 (D.E.D. Mich., S.D. 1984) 4,  18   National Rlty. & C. Co. Inc. v. Occupational S. & H. R. Com'n., 160 U.S.App.D.C. 133, 142, 489 F.2d 1257 (1973) 6,  8,  9,  19   Nestlerode v. U.S., 74 U.S.App.D.C. 276, 122 F.2d 56 (1941) 12   Olin Corp., Mcintosh Plant, 83-2 Lab. Awards (CCH) 8521, 81 Lab.Arb. (BNA) 644 (1983) 10   Olin Mathieson Chemical Corp., 28 Lab.Arb. (BNA) 29 (1956) 10   People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 309 (1975) 18   People v. General Dynamics Land Systems, 175 Mi.App. 701, 430 N.W.2d 359 (1989) 12 iii. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983) 18   Ross v. Harding [64 Wn.2d 231,] 391 P.2d 526, 531 (Wash. 1964) 16   Rossie v. State/Dept. of Revenue, 133 Wis.2d 341, 395 N.W.2d 801 (1986) 14,  18   Royce Chemical Co., 70-1 Lab. Awards (CCH) 8138 (1969) 9   Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988) 3   Schnadig Corp., 83-1 Lab. Awards (CCH) 8267 (1983) 19   Shimp v. New Jersey Bell Telephone Co., 145 N.J.Super. 516, 368 A.2d 408 (1976) 14,  16   Smith v. Western Elec. Co., 643 S.W.2d 10 (Mo.App. 1982) 9,  14   Social Security Admin., 82-1 Lab. Awards (CCH) 8206 (1982) 19   Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980) 4,  18,  19   Standard Oil Co., 19 Lab.Arb. (BNA) 795, 797 (1952) 9   State v. Massey, 20 Ala.App. 56, 100 So. 625 (1924) 12   State v. Ohmer, 34 Mo.App. 115 (1889) 5   Tex. & Pac. Ry. Co. v. Behymer, 189 U.S. 460, 23 S.Ct. 622, 47 L.Ed.2d 905 (1903) 9   Tiralongo v. Stanley Works, 104 Conn. 331, 133 A. 98 (1926) 13   U.S. Industrial Chemical Co., 64-2 Lab. Awards (CCH) 8481 (1964) 10   U.S. Plywood-Champion Papers, Inc., Del-Mar Industries Div., 70-1 Lab. Awards (CCH) 8340 (1970) 10   U.S. Powder Co., Division of Commercial Solvents Corp., 67-2 Lab. Awards (CCH) 8454 (1967) 10   U.S. v. City of Los Angeles, 595 F.2d 1386 (9th Cir. 1979) 18   Ward Furniture Mfg. Co., 68-2 Lab. Awards (CCH) 8702 (1968) 10   Wisconsin Steel Coal Mines of Internat'l. Harvestor Co., 76-2 Lab. Awards (CCH) 8348 (1976) 10 iv. STATUTES   5 U.S.C. 706 5,  15,  20   5 U.S.C. 706(2) 7   5 U.S.C. 7902(d) 1,  2,  4,  5,  6,  7,  14,  15,  20   18 U.S.C. 1964(a) 17   28 U.S.C. 1361 5,  15,  20   29 U.S.C. 651 et seq. 2,  7   29 U.S.C. 655(b)(5) 6   42 U.S.C. 2000e-5.(g) 5,  15,  20     REGULATIONS   Army Regulation 1-8 7   Army Regulation 1-8.2.a 7   Army Regulation l-8.3.b 7   Army Regulation 385-10 [4],  6   Army Regulation 385-10.1-4 6   Army Regulation 385-10.1-4.b 15   Army Regulation 385-10.1-5 6   Army Regulation 385-10.1-5.d 6,  15   Army Regulation 385-10.1-6.e 8,  19   Army Regulation 385-10.3-5a 8   Army Regulation 385-10.3-5b 8   Army Regulation 600-63 7   Army Regulation 600-63.4-l.a 12   Army Regulation 600-63.4-l.d 7   Army Regulation 600-63.4-2 7 v. Army Regulation 690-700, Chapter 751 15   5 C.F.R. 771 17   29 C.F.R. 1613 17   29 C.F.R. 1613.213 5   29 C.F.R. 1613.403 5,  20   29 C.F.R. 1910.1000.Z. 2,  9,  15   32 C.F.R. 203 2,  7,  16,  18,  19,  20   32 C.F.R. 203.2 7   32 C.F.R. 203.3 7   Executive Order 11807 6,  14,  19   54 Federal Register 2923-2960 (19 Jan. 1989) 2     REFERENCES   Army Pamphlet 600-63-7, Fit to Win Antitobacco Use (1987) 2   Black's Law Dictionary 1110 (4th ed. 1968) 12   Blumrosen, et al., “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 California Law Rev. 702 (1976) 7   Burger, Warren, Chief Justice 6   Barry, “Psychologic Aspects of Smoking,” 35 Staff Meetings of Mayo Clinic 386 ([22 June] 1960) 5   Johnston, “Tobacco Smoking and Nicotine,” 243 Lancet 742 ([19 December] 1942) 5   Rehnquist, William, Chief Justice 6   Standard Form 78, “Certificate of Medical Examination” 4,  11,  15   Surgeon General Reports 2,  9,  [13],  15   USAARL Report No. 86-13 “Smoking and Soldier Performance: A Literature Review” ([June] 1986) 4   USACARA Report (25 January 1980) 1,  4,  5,  16,  17,  18,  19,  20 vi. BRIEF FOR THE PLAINTIFF LEROY J. PLETTEN ================================================================ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ================================================================ CIVIL CASE NO. 89-CV-71877-DT JUDGE: HORACE W. GILMORE LEROY J. PLETTEN, Plaintiff, v. JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants. ================================================================ PLAINTIFF'S MOTION FOR INTERIM ORDER TO DIRECT DEFENDANTS TO ABIDE BY THE 25 JANUARY 1980 USACARA REPORT, AND TO ENFORCE AND OBEY SAFETY RULES (INCLUDING 5 U.S.C. 7902(d) ================================================================ STATEMENT OF ISSUES PRESENTED Pursuant to Rule 17 (h) of the Local Rules of the United States District Court for the Eastern District of Michigan, Plaintiff states the issues presented in this Brief are: 1. Whether implementation of safety rules (including 5 U.S.C. 7902(d) should be ordered where hazardous conduct exists. [Pp 6-15.] 2. Whether implementation of a USACARA Report should be ordered where the duty of implementation exists. [Pp 16-20.] STATEMENT OF THE CASE Nature of the Case and Disposition Below This case is before the Court on a Complaint of a pattern of misconduct. Item 9.D. cites patterns, e.g., “refusal to obey” a -1- USACARA Report and rules. These include, e.g., 5 U.S.C. 7902(d), 29 C.F.R. 1910.1000.Z, and 32 C.F.R. 203. In carrying out Defendant's reprisal against Pletten for his freedom of expression job duty [pursuant to AR 385-10), Defendants have prevented review. There has been no disposition below on the merits of the issues. Statement of the Facts Army Pamphlet 600-63-7, “ANTITOBACCO USE,” page 14, says: “Nicotine is a physically and psychologically addictive drug . . . There is no safe level of tobacco use . . . TOBACCO USE AFFECTS EVERYONE. We all have family, friends, and co-workers who use tobacco. Also, as non-smokers, if we live or work in a smoke-filled environment [behavior/conduct situation], we are at higher risk for cancer, cardiovascular and chronic obstructive lung diseases . . . Smoking is not a natural act.” Quoting the Surgeon General, it adds, “Cigarette smoking is the chief, single avoidable cause of death [holocaust] in our society and the most important public health [or moral] issue of our time” (italics in original). The 1964 Surgeon General Report lists tobacco chemicals on page 60, showing quantity levels violating [federally mandated 29 CFR 1910.1000.Z] safe limits. Tobacco Chemical P.P.M. Amount Safe Limit Carbon Monoxide 42,000 100 Methane, ethane, etc. 87,000 500 Acetylene, ethylene, etc. 31,000 5,000 Formaldehyde 30 5 Acetaldehyde 3,200 200 Acrolein 150 .5 Acetone 1,100 200 Methyl ethyl ketone 500 250 Ammonia 300 150 Nitrogen dioxide 250 5 Hydrogen Sulfide 40 20 Hydrogen Cyanide [Zyklon-B] 1,600 10 Methyl Chloride 1,200 100 Tobacco smoke poses a universal malice hazard; its toxics exceed safe limits set under 29 U.S.C. 651 et seq. in 29 C.F.R. 1910.1000.Z, amended, 54 Federal Register 2923-2960 (1/19/89). -2- The hazard is known even without the mathematics of smoking. Austin v. State, 101 Tenn. 563, 566-567, 48 S.W. 305, 306, 70 Am.St.Rep. 703, 704-705 (1898), aff'd sub nom. Austin v. Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224 (1900), says: "cigarettes . . . are . . . wholly noxious and deleterious to health . Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only . . . they are widely condemned as pernicious altogether. Beyond question, their every tendency is toward the impairment of physical health and mental vigor . . . those facts . . . by human observation and experience, have become well and generally known to be true. . . . cigarettes are wholly noxious and deleterious . . . an unmitigated evil." Banzhaf v. F.C.C., 132 U.S.App.D.C. 14, 29, 405 F.2d 1082, 1097 (1968), cert. den., 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), says: "The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . it is a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group." Grusendorf v. City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1997), says: "We need look no further . . . than the Surgeon General's [15 USC 1333] warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health." Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988), says: "The normal use of cigarettes is known by ordinary consumers to present grave health risks . . . 'for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge." -3- Despite the "eliminate work hazards and health risks" duty of 5 U.S.C. 7902(d), defendants permit that grave health risk and known hazard. They fail to disqualify smokers based on physical or "Neurological and mental health" "medical findings which . . . would make him [smoker job applicant] a hazard to himself or others" IAW Standard Form 78, "Certificate of Medical Examination." Defendants' misconduct causes "a hazard for all these other people" (TACOM's Dr. Francis Holt Deposition, page 42). TACOM refuses to commence compliance, so Pletten (IAW freedom of expression and Army Regulation (AR) 385-10 job duty) obtained higher authority review, i.e., a 25 January 1980 USACARA Report. Compliance is mandatory, Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980). Smokers Edward Hoover, Carma Averhart, and others do not comply. They share the anti-rule hostility of Col. John J. Benacquista, which he admits against interest: "It doesn't make sense to have a Command getting involved in the personal habits of its employees, you know, as a Command policy letter [matter]." (Deposition p. 25) Defendants "never sought declaratory relief from this or any other court," N.A.A.C.P. v. Detroit Police Officers Ass'n. (DPOA), 591 F.Supp. 1194 (D.E.D.Mich. 1984), at 1201, n. 7, but "took a gamble," p. 1199, "a politically expedient decision that [they] would rather face a lawsuit by [Pletten asking compliance] than face a lawsuit by [smokers ordered to obey]," p. 1202. Army USAARL Report No. 86-13, p. 149, says: "[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services." -4- Lennox Johnston, M.D., in 243 The Lancet 742 (1942) says: "Smokers show the same attitude to tobacco as addicts to their drug, and their judgment is therefore biased in giving an opinion of its effect on them." Maurice J. Barry, Jr. M.D. ["Psychologic Aspects of Smoking"] 35 Staff Meetings of Mayo Clinic 386, 387 ([22 June] 1960) cites smoker symptoms including: "rebellion" and "a considerable feeling of defiance for authority and the individuating thrill of setting aside some rule." State v. Ohmer, 34 Mo.App. 115, 123-125 (1889) has data: "'that tobacco is a drug [with] persons addicted to its use' [so it] is merely a narcotic [but] 'the cravings of a morbid appetite' [do not warrant] accommodation [for smokers]." Defendants rebel against rules stopping their self-granted accommodation. They commit ex parte communications with and fraud on adjudicators so as to prevent review. So Pletten filed the current Complaint to secure commencement of review overall. He files this motion for himself and as private attorney general asking for an Order (pending commencement of 29 C.F.R. 1613.213 EEO counseling IAW his 29 C.F.R. 1613.403 Election) directing Defendants to enforce and obey safety rules (including 5 U.S.C. 7902(d)) and to abide by the 25 January 1980 USACARA Report. SUMMARY OF THE ARGUMENT 1. Whether implementation of safety rules (including 5 U.S.C. 7902(d) should be ordered where hazardous conduct exists. 5 U.S.C. 706; 28 U.S.C. 1361; and 42 U.S.C. 2000e-5.(g). [Pp 6-15.] 2. Whether implementation of a USACARA Report should be ordered where the duty of implementation exists. 5 U.S.C. 706; 28 U.S.C. 1361; and 42 U.S.C. 2000e-5.(g). [Pp 16-20.] -5- ARGUMENT 1. IMPLEMENTATION 0F SAFETY RULES (INCLUDING 5 U.S.C. 7902(d) SHOULD BE ORDERED WHERE HAZARDOUS CONDUCT EXISTS. The President's Executive Order (E.O.) 11807, "Occupational Safety and Health Program For Federal Employees," says: "As the Nation's largest employer, the Federal Government has a special obligation to set an example for all employers by providing a safe and healthful working environment for its employees." 5 U.S.C. 7902(d) says: "The head of each agency shall . . . eliminate work hazards and health risks."1 The Army incorporates safety and health rules by reference in AR 385-10, "The Army Safety Program."     AR 385-10.1-4, says: "Safety goals. The safety goals of the Army are to--. . . "b. Provide a safe and healthful environment at all times for all Army personnel and others exposed to Army operations. AR 385-10.1-5 says: "Objectives. The above safety goals are achieved through the following safety program objectives . . . . d. Compliance with statutory and regulatory requirements uses the specialized experience of the safety staff to ensure consistent, economical compliance with applicable safety requirements of Federal Statutes, Army regulations, host nations, and Status of Forces Agreements." ________________________ 1 5 U.S.C. 7902(d), in contrast to 29 U.S.C. 655(b)(5), lacks the phrase "to the extent feasible" so vigorously challenged by Warren Burger and William Rehnquist in Am. Tx. Mfrs. Inst. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). Even saying "to the extent feasible," the 29 U.S.C. 655(b)(5) duty is "unqualified and absolute," Nat'l. Rlty. & C. Co., Inc.v. Occupational S. & H. R. Com'n., 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973). So 452 U.S. at 509, 101 S.Ct. at 2490, 69 L.Ed.2d at 202, says "Congress itself defined the basic relationship between costs and benefits , by placing the 'benefit' of worker health above all other considerations save [except] those making attainment of this 'benefit' unachievable." Absent the disputed words, 5 U.S.C. 7902(d) is [even] more so "unqualified and absolute." -6- AR l-8.3.b. on smoking says of itself: "It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations." AR 600-63.4-1.d. on smoking says of itself: "This policy does not cancel or supercede other instructions that control smoking because of fire, explosion, or other safety considerations." Such incorporation of safety by reference is also included in 32 C.F.R. 203.2, which says of itself: "It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations." 32 C.F.R. 203.3 and AR 1-8.2.a. cite other, additional conditions precedent before smoking may be permitted, e.g.: "provided such action [smoking] does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights."2 AR 600-63.4-2 likewise sets more conditions precedent, e.g.: "the secondhand smoke from tobacco usage can be sufficiently isolated to protect nonsmokers from its effects." ________________________ 2 Had 32 C.F.R. 203, AR 1-8 and AR 600-63 not incorporated conditions precedent, they would be invalid IAW 5 U.S.C. 706(2) as outside agency authority and unconstitutional. A rule doing less than 5 U.S.C. 7902(d) and 29 U.S.C. 651 et seq. require "would be equivalent to a repeal of the statute, since it would be a continuing invitation to . . . forbear compliance with [law] provisions," Am. Zinc Co. v. Graham, 132 Tenn. 586, 589, 179 S.W. 138, 139 (1915), cited by Alfred W. Blumrosen, et al., in "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 California Law Rev. 702, 712, n. 48 (May 1976). Unconstitutionality of inadequate compliance with safety duty re smoking is found in Alford v. City of Newport News, 220 Va. 584, 260 S.E.2d 241 (1979). 32 C.F.R. 203, AR 1-8, and AR 600-63 incorporate "nuisance" conditions precedent for similar reasons IAW case law, e.g., Centoni v. Ingalls, 113 Cal.App. 192, 298 P. 47 (1931). -7- AR 385-10.3-5a says: "Reports of unsafe or unhealthful conditions. a. Reports of unsafe or unhealthful conditions by Army personnel are important . . . AR 385-10.3-5b. says: "Commanders will publicize all channels for reporting unsafe or unhealthful conditions, emphasizing personnel responsibility for making such reports . . . . " 3 AR 385-10.1-6.e. says: "Commanders must emphasize the use of . . . early detection techniques on a priority basis over techniques that rely on detecting hazards or accident causes after an activity is operational or after an accident has occurred." "An employer has a duty to prevent and suppress hazardous conduct by employees." "All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workforce." Nat'l. Rlty. & C. Co. Inc., 160 U.S.App.D.C. 133, 142, 489 F.2d 1257, 1266-7, and note 36. Note 34 cites House and Senate Committee reports of a: "'general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment'" and says the duty that "employers must take more than merely 'reasonable' precautions for the safety of employees follows from the great control which employers exert over the conduct and working conditions of employees." ________________________ 3 Against interest, TACOM's own Dr. Holt confirms Pletten's hazard reports, as "mechanical failures happen all the time." (Dep., page 25). "Is smoke in the air good for any human being? No, it's not good for anybody. No." (Dep. 12). So "there's a hazard for all these other people . . . Yes. Yes . . . People smoking in their vicinity is hazardous to them. (Dep. 42). So "wouldn't a reasonable human being want the best for all his co-workers? Yes. Sure. And doesn't everybody who works at the Tank Command have a duty, by regulation, to promote the efficiency of the service . . . I would think so." (Dep. 34). -8- Safety is "above all other considerations" as "Congress itself defined," Am. Tx. Mfrs. Inst., 452 U.S. at 509, 101 S.Ct. at 2490, 69 L.Ed.2d at 202. So "A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry." Nat'l. Rlty., 489 F.2d at 1257. "[W]hat ought to be done is fixed by a standard [rule]. . . whether it usually is complied with or not," Tex. & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed.2d 905 (1903). Accord, Smith v. Western Elect. Co., 643 S.W.2d 10, 13 (Mo.App. 1982). Tobacco smoke poses a hazard as its toxics exceed 29 C.F.R. 1910.1000 limits (Surgeon General data, page 2 above). Obeying 29 C.F.R. 1910.1000.Z limits (which define what is reasonable) is reasonable. How to obey? by normal personnel methods, "hiring, training, monitoring or sanctioning [disciplining] workers," Nat'l. Rlty., 489 F.2d at 1266, repeated, 1267, note 37. Other employers discharge smokers, not coworkers who report smokers' hazardous behavior. A. E. Staley Mfg. Co., 71-1 Lab. Awards (CCH) 8203 (1971), says, "the discharge penalty has been applied for violations of the no-smoking rule." Standard Oil Co., 19 Lab.Arb. (BNA) 795, 797 (1952), says "The discharge penalty for violation of the no smoking rules is firmly established in practice and upheld in arbitration." Royce Chemical Co., 70-1 Lab. Awards (CCH) 8138 (1969), "It is a common industrial rule . . . The [discharged smoker] grievant admitted he was smoking in an undesignated area; therefore his discharge was for just cause." -9- Other precedents of discharging smokers also exist: Columbian Rope Co., 7 Lab.Arb. (BNA) 450 (1947); Cit-Con Oil Corp., 30 Lab.Arb. (BNA) 252 (1958); U.S. Industrial Chemical Co., 64-2 Lab. Awards (CCH) 8481 (1964); U.S. Powder Co., Division of Commercial Solvents Corp., 67-2 Lab. Awards (CCH) 8454 (1967); Ward Furniture Mfg. Co., 68-2 Lab. Awards (CCH) 8702 (1968); U.S. Plywood-Champion Papers, Inc., Del-Mar Industries Division, 70-1 Lab. Awards (CCH) 8340 (1970); Hercules Inc., 74-2 Lab. Awards (CCH) 8487 (1974); Illinois Fruit & Produce Corp., 66 Lab.Arb. (BNA) 498 (1976); Wisconsin Steel Coal Mines of Internat'l. Harvester Co., 76-2 Lab. Awards (CCH) 8348 (1976); Bostik West, Division of USM Corp., 78-2 Lab. Awards (CCH) 8545, 71 Lab.Arb. (BNA) 954 (1978); Consolidation Coal Co., Robinson Run Mine, Jones Run Portal, 82-2 Lab. Awards (CCH) 8600 (1982); and Olin Corp., Mcintosh Plant, 83-2 Lab. Awards (CCH) 8521, 81 Lab.Arb. (BNA) 644 (1983). Federal courts uphold discharge for smoking, e.g., Golden v. Communication Technology Corp., 36 E.P.D. 35,095 (1985) , for "smoking in an unauthorized area"; and Grusendorf, 816 F.2d 539, for taking "three puffs from a cigarette while on a lunch break from his job." Gladieux Food Svcs., Inc., 70 Lab.Arb. (BNA) 544, 548 (1976), says "Prior misuse of smoking or failure to conform to the prohibition, does not create any right to smoke or diminish any obligation to use every means or effort to eradicate it," including discharge, upheld there. Olin Mathieson Chemical Corp., 28 Lab.Arb. (BNA) 29, 32 (1956), in upholding a suspension of a smoker, says that "to emphasize the importance of these restrictions, the company has placed an even greater liability on representatives of management. It has been past practice that a supervisor who is caught violating the No-Smoking Rule, is instantly discharged." [Ed. Note: Contrast with the corrupt TACOM-MSPB reaction, which is to discharge the nonsmoker employee blowing the whistle on violations!] -10- Caraco Ship Supply, 64-3 Lab. Awards (CCH) 8961 (1964), upholding discharging a supervisor, says: "He was not discharged for personally smoking. His termination was based upon his dereliction in enforcing the relevant Company rule," as "it was his conduct which encouraged the men to smoke." It adds, "non-adherence to the rule prohibiting smoking results in a direct and immediate detriment to the job security of all employees." From a personnel point of view, unquestionably the more humane approach (solving the matter at the hiring stage) is discussed in Converters Ink, 60 Lab.Arb. (BNA) 593, 595 (1977) (a smoker discharge case, reduced to about six months suspension): "There are myriad 'no-smoking' disciplinary cases reported in the arbitration literature . . . One other dimension is lent to the case, however, entirely by the Company's able argument. That is the suggestion that the Grievant, being an habitual smoker [addict] quite possibly committed an involuntary act, and therefore indicated that he is intrinsically unsuitable for employment . . . The Union took up . . . this argument, and suggested that if it is valid, then the Company should not hire smokers in the first place or should discharge all smokers on the theory that they might create a hazard." Unquestionably, Defendants should have been abiding by Standard Form 78, "Certificate of Medical Examination," i .e., disqualifying smokers based on physical or "Neurological and mental health" "medical findings which . . . would make him [smoker applicant] a hazard to himself or others," as alluded to in Austin, 101 Tenn. at 566-567, 48 S.W at 306: "It. is a part of the history of the organization of the volunteer army in the United States during the present year that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and, perhaps, every other reason." -11- Ninety-nine (99) years later, AR 600-63. 4-1.a. repeats: "Smoking harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs. Readiness will be enhanced by establishing [obeying] the standard of a smoke-free environment [conduct/behavior] that supports abstinence from and discourages use of tobacco." Note [the reference to] "premature death." Gladieux, 70 Lab.Arb. at 547 says: "In these circumstances, the act of smoking becomes a source of peril so that its indulgence, in effect, constitutes [il]legal malice and any fatality resulting because of the violation may be potential murder." 4 Gladieux is right. Violating safety rules can be criminal. Accord, People v. General Dynamics Land Systems, 175 Mich.App. 701, 438 N.W.2d 359 (1989); Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976). Smoker Hughes caused a "fire," "several explosions," and "the death of two firemen." He "was arrested . . . indicted on two counts of involuntary manslaughter." IAW the "Comment to the Model Penal Code," the Court at 511-512 says: "'Fire, dealt with by the law of arson, is the prototype of forces which the ordinary [hu]man knows must be used with special caution because of the potential for wide devastation. Modem legislation puts explosion, flood, poison gas, and avalanche in the same category." ________________________ 4 "Universal malice" encompasses tobacco toxics causing "premature death" "without knowing or caring who may be the victim," Black's Law Dictionary 1110 (4th ed. 1968), citing Mitchell v. State, 60 Ala. 26, 30 (1877). "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions," Nestlerode v. United States, 74 U.S.App.D.C. 276, 279, 122 F.2d 56, 59 (1941). Tobacco has universal malice traits: it "is not directed [in its killing tendencies] to any particular individual, but is general and indiscriminate . . . putting the lives of many in jeopardy . . . without the intent to kill any particular person, but . . . likely to [kill] some one or more persons . . . ' regardless of human life, although without any preconceived purpose to deprive any particular person of life," State v. Massey, 20 Ala.App. 56, 100 So. 625, 627 (1924). -12- It is fire releasing the toxic substances cited by the 1964 Surgeon General Report (page 2 above) making the danger at issue. Judicial notice of employers' control of smoking [conduct/behavior] includes: Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 A. 351, 352 (1918), says "the foreman testified that . . . he did not allow smoking inside" "the building." Tiralongo v. Stanley Works, 104 Conn. 331, 133 A. 98, 99 (1926), notes that: "The rules of the factory forbid smoking during working hours, and notices were posted in the lavatory and toilets of the plant reading 'No smoking.'" Allen v. Posternock, 107 Pa.Super. 332, 163 A. 336 (1932) says the "Defendant [employer] claimed that she had given instructions . . . not to smoke." Bradford's Case, 319 Mass. 621, 622, 67 N.E.2d 149, 150 ( 1946) says "smoking was not permitted inside the building." Albany Ins. Co. v. Holberg, 166 F.2d 311, 315 (8th Cir. 1948) says the supervisor "in charge . . . testified that. . . he gave . . . very explicit. instructions about not smoking." George v. Bekins Van & Storage Co., 33 Cal. 2d 834, 205 P.2d 1037, 1041 (1949) notes that: "Defendant had a rigid rule, enforced by discharging violators, against smoking in the warehouse except in one designated area of the first floor." Bluestein v. Scoparino, 277 App.Div. 534, 536-537, 100 N.Y.S.2d 577 (1950) notes that: The employer had "a prohibition against smoking . . . signs to such effect posted about the premises . . . [smoker was] discharged for smoking immediately after the fire." -13- De Mirjian v. Ideal Heating Corp., 129 Cal.App.2d 758, 278 P.2d 114, 115 (1955) notes that: "Defendant had given orders prohibiting smoking on the floor of the shop, but had permitted its employees to smoke in the washroom." Bouillier v. Samsan Co., 100 R.I. 676, 219 A.2d 133, 134 (1966) says "no smoking was permitted in the area where the thinners and the lacquers were located." Commonwealth v. Hughes, 468 Pa. At 507, 364 A.2d 306, says "the company had repeatedly warned against smoking on the premises . . . strict smoking restriction." Shimp v. New Jersey Bell Telephone Co., 145 N.J.Super. 516, 531, 368 A.2d 408, 416 (1976) observes that: "cigarettes may not be smoked around the telephone equipment. The rationale behind the rule is that the machines are extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by the smoke. Unlike a piece of machinery, the damage to a human being is all too often irreparable." [Ed. Note: Adjudicators were bribed to pretend in my case that the common human characteristic of being "sensitive" to notorious toxic chemicals, is somehow magically abnormal, is a "handicap" and that not the safety rules, but the bizarrely inapplicable "accommodation" rules should be invoked as applicable so as to reject their applicability!! Bribery of MSPB and judicial adjudicators and DOJ personnel is undisputed and conclusive.] Dickerson v. Reeves, 588 S.W.2d 854, 855 (Tex.Civ.App. 1979) says the smoker "had been told not to smoke in the pouring room, and there were 'no smoking' signs in that room." Smith v. Western Electric, 643 S.W.2d at 12, has the example of "the computer room (where smoking is prohibited)." Rossie v. State/Dept. of Revenue, 133 Wis.2d 341, 295 N.W.2d 801, 804 (1986), says, "'no person may smoke in any enclosed, indoor areas of a state . . . building.'" E.O. 11807 says "the Federal Government has a special obligation to set an example." 5 U.S.C. 7902(d) say to "eliminate -14- hazards and health risks." Defendants do neither. They violate AR 385-10.1-4.b. and 1-5.d., i.e., do not "Provide a safe and healthful environment" by "Compliance with statutory and regulatory requirements." Defendants have two violation patterns: (1) not using, or misstating [falsifying], Standard Form 78 data in the hiring process (despite Converters Ink, and Austin, page 11 above, and (2) not enforcing 5 U.S.C. 7902(d) and 29 C.F.R. 1910.1000.Z on smoking conduct (despite Surgeon General data [showing the numeric excesses in violation], page 2 above. Correcting both patterns is essential to begin compliance. Grusendorf, 816 F.2d 539, upholds removal for "three puffs from a cigarette," page 10 above. AR 690-700.751, A.1-9 through B.1-23, shows removal supportable for any three incidents of misconduct. It supports discipline for "Insubordination" (A-1) or "loafing" (A-4) for Defendants refusal to enforce rules for a decade+ period of time, i.e., for far more than a mere three times. In view of the non-compliance pattern, the Court, pursuant to 5 U.S.C. 706, 28 U.S.C. 1361, and 42 U.S.C. 2000e-5.(g), should order Defendants to obey safety rules including 5 U.S.C. 7902(d); to eliminate the hazard smoking; to review all Standard Forms 78 for smokers currently on the rolls; to disqualify those with "medical findings which . . . would make [smoker applicants] a hazard to himself or others"; to remove smokers pursuant to AR 690-700.751. Table l-l, B.10 where untrue data was provided [in the job application process]; to hereafter record and abide by "medical findings which . . . would make [smoker applicants] a hazard to himself or others"; and to notify this Court in writing stating specifics of compliance. -15- 2. IMPLEMENTATION OF THE 25 JANUARY 1980 USACARA REPORT SHOULD BE ORDERED WHERE THE DUTY OF IMPLEMENTATION EXISTS. 32 C.F.R. 203 was issued in response to Hughes, 364 A.2d 306, and Shimp, 368 A.2d 408, incorporating conditions precedent smoking "does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." 5 TACOM's refusal to obey "caused a hazard for all these other people" (Holt Deposition page 42). Pletten's reporting this and defendants' hostility are described at page 4 above. ________________________ 5 "Any words which express . . . the idea that . . . performance . . . is dependent on some other event will create a condition. Phrases and words such as 'on condition,' 'provided that' . . . are often used.12 Am.Jur. [Section] 295, p. 849; 5 Williston, Contracts (3d ed.) [Sec.] 671, p. 161," [says] Ross v. Harding [64 Wn.2d 231], 391 P.2d 526, 531 (Wash. 1964). 32 C.F.R. 203 says "provided that" and proceeds to list "conditions." "It would be difficult to choose words to more precisely express an intention to create [several] condition[s] precedent than those used in the [rule] here to be construed," Ross, at 531. 32 C.F.R. 203 has smoking "conditioned upon the act or will of a third person. 13 C.J. 679; Wellsville Oil Co. v. Miller, 243 U.S. 6, 37 S.Ct. 362, 61 L.Ed. 559 . . .," Federal Reserve Bank v. Neuse Mfg. Co., 213 N.C. 489, 196 S.E. 848, 850 (1938). "[W]hether or not an individual is discomforted by smoke is a personal determination to be made by that individual," USACARA Report, page 12. The "reasons given for failure or refusal to act or give consent are immaterial. See 17 C.J.S., Contracts, p. 969, [Sec.] 468, subsec. b, p. 939, sec. 456d; 13 C.J. 648," Evans v. P.V.P.P. & I.D., 144 Neb. 368, 13 N.W.2d 401, 402 (1944). "Nonperformance or nonoccurrence of a 'condition' prevents [a would-be smoker] from acquiring a right, or deprives him of one," Ross, 391 P.2d at 530. 32 C.F.R. 203 "makes no provision for any refusal [to obey the conditions], reasonable or otherwise," Matter of Knust, 288 N.W.2d 776, 778 (S.D., 1980). "The event [no endangerment, discomfort, etc.] must be shown to make the obligation binding," and any alleged agency "obligation [to permit smoking] is suspended unti1 the condition is performed [as] the performance of the condition must precede the execution of the obligation. . . . Till then nothing is due. . . . Pendente conditione nondus debetur, sed spes est debitum iri," City of New Orleans v. Texas & P. Ry. Co., 171 U.S 312, 333, 10 S.Ct. 875, 883, 43 L.Ed. 178, 186 (1890). -16- TACOM's own Dr. Francis Holt [a smoker] admits against interest: "Is there a conditional right to smoke? Yes, providing it doesn't cause discomfort or unreasonable annoyance to non-smokers. . . . who determines whether a non-smoker is discomforted or annoyed? . . . the non-smoker himself would determine that . . . . If Mr. Pletten says he's annoyed or discomforted, the person shouldn't smoke, right? Um-hum. . . . that's the way the Army kind of puts it down. Correct7 Um-hmm. Um-hmm . . . "And if the people didn't stop smoking, they would be violating the Army regulation, wouldn't they? I guess it could be interpreted that way." (Dep. pages 33-34). [Ed. Note: Holt was a smoker, with typical smoker mental disorder symptoms. He was knowingly defying the rules and the USACARA Report commanding compliance. Pursuant to Benacquista's extortion, i.e., laymen, he had criminally aided and abetted the ouster process, falsifying Pletten's medical records to declare Pletten magically unable to perform his job duties! Holt faced prison for his crimes, hence his hesitance to affirm the rule of law.] The 25 January 1980 USACARA Report, 6 Page 12, says: "AR 1-8 states that DA recognizes the rights of individuals to smoke in DA occupied buildings provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers or infringe upon their rights. Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. Discomfort being a highly subjective term, whether or not an individual is discomforted by smoke is a personal determination to be made by that individual." Page 11 thereof gives more data and conditions: "the other nonsmokers also have rights even though they have not actively pursued such rights. . . . AR 1-8 clearly states that in common work areas shared by smokers and nonsmokers, smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful." Page 14 alternatives say "less smoking or more ventilation." ________________________ 6 "To request said USACARA Report, Pletten filed in the Army grievance system (extant IAW 5 C.F.R. 771) as distinct from the 29 C.F. R. 1613 anti-discrimination system as smoking conduct arises from violating basic personnel and basic safety rules. Those government personnel, attorneys, and adjudicators alleging [that] accommodation Pletten is the issue are racketeers in a continuing criminal enterprise engaged in racketeering, including mail fraud, which is their means by which they make false assertions, including those, for the purpose of evading actual rules. Motion(s) to remove and/or disbar said racketeers are contemplated to be forthcoming IAW 18 U.S.C. 1964(a). -17- The 25 January 1980 USACARA Report, page 13, says: "There was no evidence presented regarding any policy issuance by TARCOM regarding smoking. There are several avenues of controls which would preclude exposure of employees to unacceptable health hazards including, but not 1imited to, administrative actions to control smoking periods, appropriate arrangements of work areas and grouping of employees, designation of smoking areas or banning smoking when concentrations of by-products are not removed by the ventilation system." 7 Compliance is mandatory, Spann, 615 F.2d 137. Addicts Benacquista, Hoover, etc., are defiant so do not comply (as page 4 above says). Benacquista admits against interest the hostile reaction due to their idea that "[i]t doesn't make sense to have a Command getting involved in . . . personal habits." Pletten declines to do "All he had to do [which] was to say, 'I agree that this [work area] is reasonably free of contaminants'" (Benacquista Dep. p. 62), despite the hazardous conduct. [Reference anti-extortion precedent] People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1975). They [TACOM management] made "a politically expedient decision that [they] would rather face a lawsuit by [Pletten asking compliance] than face a lawsuit by [smokers ordered to obey]," N.A.A.C.P., 591 F.Supp. at 1202. Benacquista and Hoover foreseeably expect to lose. Rossie, 395 N.W.2d 801 [government building smoking ban]. ________________________ 7 Cited "several avenues of controls" show smoking subject to the police power, Banzhaf, 132 U.S.App.D.C. at 29, 405 F.2d at 1097.     32 C.F.R. 203 is "designed to disrupt" "the status quo," U.S. v. City of Los Angeles, 595 F.2d 1386, 1391 (9th Cir. 1979). "The right to smoke in public places is not a protected right, even for adults," Craig by Craig v. Buncombe Cty. Bd. of Educ., 80 N.C.App. 683, 685, 343 S.E.2d 222, 223, appeal dism., 319 N.C. 281, 348 S.E.2d 138 (1986). The "right . . . is so limited . . . that a ban does not violate that right," Quilici v. Village of Morton Grove, 695 F.2d 261, 267 (7th Cir. 1982), cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). -18- TACOM is not obeying the 25 January 1980 USACARA Report. 8 TACOM is not setting an example IAW E.O. 11807. TACOM ignores Nat'1. Rlty., 160 U.S.App.D.C. at 143, 489 F.2d at 1267: "To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously." TACOM is an example of disobeying that and the similar AR 385-10.1-6.e (quoted at 8 above) duty to "emphasize the use of . . . early detection techniques . . . over [after-the-incident] techniques.' At TACOM, "there's a hazard for all these other people." (Holt Dep. 42). Contrast the proper employer attitude: "The Company expects the employees to live within the restriction . . . as the Company aptly points out, the expectation is that the entire work force . . . will abide by the rule upon its being upheld in this very proceeding." (Pages 4189 and 4192, Schnadig Corp., 83-1 Lab. Awards (CCH) 8267 (1983). It should not be necessary that Pletten ask this Court to order Army to 'abide by the [Army] rule upon its being upheld in this very proceeding." TACOM and U.S. Attorney [Stephen J. Markman] should be defending the rules, not resisting them. TACOM's own Dr. Holt admits: "If you get an order from your superior telling you to do something, you do it. Is that correct? Yes; but there is an appeal process. You can appeal orders and so on; civilians can." (Deposition page 36). Here, TACOM did not appeal the 25 January 1980 USACARA Report. So it should have obeyed it IAW Spann, 615 F.2d 137. ________________________ 8 The 25 January 1980 USACARA Report parallels Social Security Administration, 82-1 Lab. Awards (CCH) 8206 (1992), analyzing a federal [agency] regulation on smoking paralleling 32 C.F.R. 203. -19- The conditions precedent of 32 C.F. R. 203 have an efficiency thrust to preclude disputes on smoking. With words having a thrust "to discourage smoking," it renders unnecessary nonsmoker "reasons . . . for failure or refusal to . . . give consent" to smoking, Evans, 13 N.W.2d at 402. Likewise, the Army command to obey USACARA Reports promotes efficiency. Pursuant to 5 U.S.C. 706, 29 U.S.C. 1361, and 42 U.S.C. 2000e-5(g), the Court should order defendants to abide by the 25 January 1980 USACARA Report. CONCLUSION Pending commencement of EEO counseling IAW Pletten's 29 C.F.R. 1613.403 Election of EEO review, and pursuant to safety rules including 5 U.S.C. 7902(d) which say to 'eliminate work hazards and health risks" which against interest Army admits smoking to be, this Honorable Court should order Defendants to obey them by eliminating said hazard. And (or alternatively), this Court should order Defendants to implement the 25 January1980 USACARA Report. Respectfully submitted,   Leroy J. Pletten Leroy J. Pletten Plaintiff 8401 18 Mile Road #29 Sterling Heights, MI 48078-3099 (313) 739-8343   [Attachment: Proposed Orders] -20- PROPOSED ORDERS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LEROY J. PLETTEN, Plaintiff, vs. Civil No. 89-CV-71877-DT Honorable Horace W. Gilmore JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants. __________________________________/ ORDER Upon consideration of Plaintiff's Motion for an interim Order (pending commencement of 29 C.F.R. 1613.213 EEO counseling IAW Plaintiff's 29 C.F.R. 1613.403 Election) ordering Defendants to enforce and obey safety rules (including 5 U.S.C. (d)), and to abide by the 25 January 1980 USACARA Report, It is hereby ORDERED that Plaintiff's Motion should be, and hereby is, GRANTED; and it is further ORDERED that Defendants abide by said USACARA Report. Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980); and it is further ORDERED that Defendants notify this Court within _____ days in writing stating specifics of compliance as "There is no safe level of tobacco use." Army Pamphlet 600-63-7, page 14. ________________________________ HORACE W. GILMORE UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LEROY J. PLETTEN, Plaintiff, vs. Civil No. 89-CV-71877-DT Honorable Horace W. Gilmore JOHN O. MARSH, Jr., Secretary, Department of the Army; JOHN DOE, and JANE DOE, Jointly and Severally, Defendants. __________________________________/ ORDER Upon consideration of Plaintiff's Motion for an interim Order (pending commencement of 29 C.F.R.1613.213 EEO counseling IAW Plaintiff's 29 C.F.R. 1613.403 Election) ordering Defendants to enforce and obey safety rules (including 5 U.S.C. 7902(d)), and to abide by the 25 January 1980 USACARA Report, It is hereby ORDERED that Plaintiff's Motion should be and hereby is, GRANTED; and it is further ORDERED that Defendants, as an act to "eliminate work hazards and health risks," eliminate smoking behavior. 5 U.S.C. 7902(d); and it is further ORDERED that Defendants review the Standard Forms 78, "Certificate of Medical Examination," for smokers currently on the roles by issue notices initiating disqualification of smokers with "medical findings which . . . would make [smoker applicants] a hazard to himself or others," and issue notices initiating 2 removal pursuant to Army Regulation 690-700.751., Table 1-1, B. 10 where such data was untruthfully provided, and it is further ORDERED that. Defendants record and abide by the "medical findings which . . . would make [smoker applicants] a hazard to himself or others" on applicants hereafter, and it is further ORDERED that Defendants notify this Court within ____ days in writing stating specifics of compliance as "There is no safe level of tobacco use." Army Pamphlet 600-63-7, page 14. "The normal use of cigarettes is known by ordinary consumers to present grave health risks." Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1998). Accord, Banzhaf v. Federal Communications Commission, 132 U.S. App.D.C. 14, 30, 405 F.2d 1082, 1097 (1968), cert. denied., 396 U.8. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); and Austin v. State, 101 Tenn. 563, 566-568, 48 S.W. 305, 306, 70 Am.St.Rep. 703, 704-705 (1898), aff'd sub nom. Austin v. Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224 (1900). ________________________________ HORACE W. GILMORE UNITED STATES DISTRICT JUDGE