OPM Appeal 27 July 83

Brief to OPM, 27 July 1983, in Continued Opposition to April 1981 Agency Application, Retaliating Against Pletten's Whistleblowing.
The goal was to encourage OPM to continue fighting on my behalf. Area U.S. Attorney staff and federal judges were later corrupted to ignore this evidence.
The corruption, secured ex parte, went to the extreme of saying Pletten applied! The record shows he fought continually, and continues to do so, now the year 2001.
For background on his work record, click here.
For background on the unlawful ouster process, see, e.g.,
Violations Overview and html
Discipline Regulation Violations and html
Inconsistencies and html
the Amicus Curiae Brief

See also other Briefs, e.g., 21 March 1983, 29 March 1983, 10 Oct 1983, 25 Nov 1983, and 2 Jan 1985; and, e.g., those to EEOC 15 April 1983 through January 2004.
There are so many Briefs, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was and is obstructing.
More in the series will be posted as scanned. The volume is enormous, takes some time.

UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
CSA BRIEF
JUL 27 1983
TABLE OF CONTENTS
Pages

My Responses and Government "Answers" to OPM Questions 4 - 9
Introduction to Medical/Public Domain Data on Tobacco 10 - 16
"what the doctor was saying"—installation confession
under cross-examination 17 - 20
Compliance with the above data on "what the doctor was saying"
would resolve the matter under AR 1-8 without reaching this
issue (which also shows lack of local specificity) 21
Introduction to Smoker Mental Disorders, Impairments, and
Brain Damage 22 - 38
Data on Radioactivity and Tobacco 39 - 40
Data on Causes of Smoker Mental Disorders/Brain Damage 41 - 52
After Insanity/Brain Damage Occurs, Tobacco Produces Physical
Disorders: Gastrointestinal Problems, Emphysema, Tuberculosis,
Heart Trouble, Alcoholism, etc, 53 - 61
Smokers are Hazards to Themselves and Others—Insight from
S.F. 171 as Designed by the CSC (now OPM) 62 - 63
Smokers foreseeably cause accidents and fires 64 - 70
Considering smoker brain damage, alcoholism, etc., smokers
foreseably parade bizarre ideas 71 - 75
Considering the bizarre nature of smoker ideas, data on pro-
jection, prejudice, and stereotypy provides insight 76 - 78
In-depth Overview Analysis of the Legal Implications of Insanity
and Symptoms thereof, as Displayed in the Various Issuances
Which have Given Rise to the Case at Bar 79 - 94
Specific Symptoms Provide Insight: Confabulation 95 - 97
Trouble Comprehending a Series of Instructions
98 - 102
Fragmentation
103 - 104
Impaired Orientation/Responsiveness to "Time" and
related aspects
105 - 110
Acalculia, alexia, and agraphia
111 - 112
Smoker Suicide 113 - 114
My Background Leads Me to Emphasize "Standards" of Various
Types: On Legal Aspects, Psychiatric Aspects, and Criminal Views 115 - 121
Smoker Mental Problems Impair/Derange their Ability to Under-
stand that Smoking is Not Part of "Employment," The Critical
Nexus that Points Out Against Whom Adverse Action Lies 122 - 132
Data on Benefits of Coming into Compliance with Rules 133 - 136
Safety Rules Concerning Which Compliance Is a Benefit 137 - 150
The Disregard of Safety, and Disregard of Standard/Known
Medical Data is Malpractice by the Installation 151 - 163

Page 2 of 453 pages. Affiant's initials _________
Table of Contents (cont'd)
Data on Nuisances and Negligence Law Provides Insight 164 - 170
"Experience" on Smoking, And in the Agency, And the Local
Abuse and Misuse of Such "experience" 171 - 178
Based on that "experience," and my Background, I
"articulated" input on compliance (as did USACARA),
and was punished for what was "articulated" 179 - 186
Data on the "police power" provides insight, and is foreseeably
referenced herein (foreseeable from the 19 Nov 1976 letter) 187 - 195
Discharge of a Victim vs. Legal Principles on Not Retreating 196 - 209
Legal Principles on Criminals Taking The Victim As He Comes"
—No Support Therein For Adverse Action Against a Victim 210 - 214
Data on "Objective Impossibility"—"No Support Therein for
Claims of "hardship," "undue hardship," "cannot," "unreason-
able," lacking "authority," etc. (even if no benefits arose,
and even if costs were more than about de minimis) 215 - 221
Smokers, Lying, Falsification, and the Criminal Personality 222 - 233
Legal Principles on Extortion and Embezzlement—No Support
Therein for the Adverse Action 234 - 242
Insight on The Purpose of Rules (Why They Are Issued) 243 - 253
Insight from Legal Principles Against Discrimination, and on
the Fixation on "Accommodation" while Refusing It 254 - 270
Constitutional Principles Involved 271 - 278
Data on "Universal Malice," a Legal Principle Providing No
Support for the Adverse Action 279 - 300
Application of Principles of Law on Discrimination and Harm
Directed Against One Person or Group, Which Harms Another,
in the Context of Race, Sex, and Color Discrimination, etc. 301 - 312
Principles on Adverse Actions Provide No Support for the Agency
Application/Behavior: Lack of Specificity, Lack of Advance
Notice, Inconsistencies among Agency Witnesses, Installation
Not Complying with the MSPB Claims, "Conduct," etc. 313 - 334
Analysis of the Bizarre MSPB Behavior through 18 June 1981 335 - 363
Further Analysis of MSPB Behavior in Terms of "Standards"
Such as Law and Psychiatry 364 - 377
MSPB Ineptness in the Administrative Context 378 - 393
MSPB Failure to Apply Jurisdictional Principles of Law 394 - 398
Insight from Res Judicata and Estoppel Principles of Law 399 - 402
Prohibited Personnel Practices Summarized 403 - 408
A "negative defense" 409 - 410
Under the circumstances, attorney misconduct cases provide insight 411 - 422
Analysis of Parodi v. MSPB 423 - 424
MSPB Symptoms/Local Symptoms Not "to be ashamed of" 425 - 430
Conclusion 431 - 439
Motions 440 - 453

Page 3 of 453 pages. Affiant's initials _________

1. Question None.

2. Question None.

3. Question None.

4. [Re action taken] retroactively imposed with advance notice not provided, hence no specificity. None. “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 (CA 10] 1931). Smoking is not a “selection criterion,” and is not required for “the essentials of the job,” Prewitt v. U.S. Postal Svc., 662 F.2d 292 at 306-308 ([CA 5 1981). As a matter of law, no nexus with “employment” can be shown. Smoking is a disease, not an “employment” matter; note the many cases on smoking in settings other than employment.
SF 171 shows federal policy to protect nonsmokers from smokers–by its question about smoker diseases “which might be a hazard to” nonsmokers, and listing smoker diseases such as “heart disease, a nervous breakdown, epilepsy, tuberculosis, or diabetes.”

5. Availability of alternatives such as excused absence pending control/treatment/hospitalization of mentally diseased smokers. Such alternative is clearly available. The installation [TACOM] should have returned me [to duty] as soon as OPM pointed out the [TACOM] violations. MSPB should have told the installation [TACOM] to halt its violations. It should have implemented the 25 Jan 80 USACARA Report, and AR 1-8 before that. Alternatives much as control of mentally diseased smokers are available; see Rum River Lumber Co. v. State, 282 N.W.2d 882 ([Minn.] 1979). Cf. Spragg v. Campbell [FAA], 466 F. Supp. 658 ([D SD] 1979). On the duty to implement the USACARA Report, see Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980).

Page 4 of 453 pages. Affiant's initials _________

(pp 5-9)

The article, “The Effects of Smoking,'' by E. Cuyler Hammond [Sc.D.], in Scientific American, Vol. 207(1), pp. 39-51, July 1962, provides background data. At 39, “Scepticism about . . . tobacco developed near the end of the 16th century; not long thereafter smoking was condemned as a pernicious habit responsible for all manner of ills.” Cf. Susan Wagner's book, Cigarette Country: Tobacco in American History and Politics [Praeger Pub.], 1971, p. 64, on “scientific study of tobacco and its effects on the body . . . in 1671, when the Italian biologist, Francesco Redi [1626-1697], published an account of the lethal effects of the 'oil of tobacco.’” Additionally, the pamphlet, “Tobacco Abuse” (Exhibit 7a with the 25 Jan 1980 USACARA Report), indicates data from 1604, “harmful to the brain, dangerous to the 1ungs,’” etc., and that “Half a century” later, “the French reported that tobacco smoking shortens life and produces, among other things, colic, diarrhea, ulcerations of the lungs, asthma, coughs, pains in the heart, undernourishment and impotence.”
Hammond, supra, discusses “M. Bouisson, an obscure French physician” and his “well-documented clinical study of the matter. In 1859, reporting on patients in the hospital at Montpelier, he observed that of 68 patients with cancer of the buccal cavity (45 of the lip, 11 of the mouth, seven of the tongue and five of the tonsil) 66 smoked pipes, one chewed tobacco and one apparently used tobacco in some form. . . . He suggested that the cancer resulted from irritation of the tissue by tobacco products and heat. Bouisson's observations were confirmed repeatedly over the next half-century . . . .'' The data provided by such studies shows the validity of the analysis by the court in Austin v. State [101 Tenn 563], 48 S.W. 305 at 306 [70 Am St Rep 703; 50 LRA 478] (1898), in terms such as “wholly noxious and deleterious to health . . . always harmful, never beneficial . . . inherently bad, and bad only . . . pernicious altogether.”
Hammond, supra, indicates that “Another . . . problem early recognized as being associated with smoking was Buerger's disease . . . affliction of the peripheral arteries. It was found to occur exclusively among smokers and to subside when the patient stopped smoking.” See data from Norman [L.] Farberow, in The Many Faces of Suicide: Indirect Self-Destructive Behavior [McGraw-Hill], 1980, at 82, “Buerger's disease . . . is . . . controlled by a single activity, smoking.”
Hammond, supra, provides additional data on the harm from smoking. “In 1936 . . . two New Orleans surgeons, Alton Ochsner [M.D.] and Michael E. DeBakey [M.D.], observed that nearly all their lung cancer patients were cigarette smokers. Noting that lung cancer seemed to be on the increase and that it was paralleled by a general rise in cigarette smoking, they suggested a causal connection between the two phenomena. In 1938 Raymond Pearl, the noted Johns Hopkins University medical statistician, reported that smokers had a far shorter life expectancy than those who did not use tobacco. The effect was so great as to indicate that smoking must be associated with diseases other than cancer” and in addition to cancer. Moreover, “for every 10 cases of lung cancer reported for smokers, there is only one case for nonsmokers,” with “no reported cases of lung cancer for” “the purest nonsmoking population that can be obtained in the USA,” words from G. H. Miller, in The J. of the Indiana St. Med. Ass'n., Vol. 76(2), pp. 121-3, Feb 83. Clearly, smokers are dangerous to themselves and others, i.e., display “universal malice.” Cf. State v. Massey [20 Ala. App. 56], 100 So. 625 (1924).
Page 10 of 453 pages. Affiant's initials _________

(pp 11-12)

The danger from smoking behavior “is a danger inherent in the normal use of the product,” Banzhaf v. F.C.C. [132 US App DC 14, 29], 405 F.2d 1082 at 1097 (1968) [cert den 396 US 842 (1969)]. Such “normal” “use is always harmful . . . inherently bad, and bad only.” Austin v. State, 101 Tenn. 563, 48 S.W. 305 [70 Am St Rep 703] (1898) affirmed 179 US 343 (1900). The “universal malice” of tobacco is evident from the medical data cited by William D. McNally, in The Journal of Laboratory and Clinical Medicine, Vol. 5, Issue 4, pp. 213-217, January 1920. At 213,
“One cigar contains a quantity of nicotine which would prove fatal to two persons if directly injected into the circulation. . . . The literature contains many references to tobacco poisoning where tobacco has been swallowed with suicidal intent, accidental poisonings. . . . Less severe poisonings have been noted by nearly every one upon beginning the use of tobacco, where the peripheral and nauseant actions predominate. Even chronic smokers often experience ill effects and pain from smoking.”
William D. McNally provided a review of some of the literature.

Event Source
“Death occurred in nearly all of the cases of nicotine poisoning within a few minutes to a few hours, although I find record of one instance in which death did not occur for two days after the drinking of wine in which Spanish snuff had been placed by a practical joker, causing the death of the French poet Santeul.” “Fontanelle, Julia: Jour. de Chimie Med., 1836, ii, 652.”
“In another instance where death did not occur in a few hours, a child, age three, used for an hour an old pipe for blowing soap bubbles. Symptoms of poisoning developed and the child died on the third day.” “Pharm. Jour., 1877, p. 377. ”
“Sonnenschein (quoted by Weidanz) relates the cases of two suicides in which death took place in three and five minutes respectively after swallowing one or two ounces of tobacco.” “Weidanz: Heilkunde, Berlin., 1907, pp. 333-390.”
“Reynolds reports a singular case of nicotine poisoning in which tobacco had been accidentally dropped into food warming on the stove. The food was given twice to a baby five months old, the baby became cyanotic, vomited twice, extremities were cold and clammy to the touch, pulse weak and irregular. Death occurred 13½ hours after the first feeding.” “Reynolds: Jour. Am. Med. Ass'n., 1914, lxii, 1723.”
“Huseman cites a case seen by Hellwig of two brothers who died after continuous smoking of seventeen and eighteen . . . pipefuls of tobacco.” “Husemann: Handbuch der Toxicologie, 1862, p. 481.”
“In another case a man died in one hour after an enema of two drams of tobacco in eight ounces of boiling water.” “Edinburgh Med. and Surg. Jour., 1813, ix, 159.”

The “universal malice” of tobacco includes a full range of effects, from short-term to long-term, over which “The law . . . extends its protection” to the victims, words from People v. Carmichael, 5 Mich. 10 [71 Am Dec 769 (1858)].
Page 13 of 453 pages. Affiant's initials _________

(pp 14-15)

The data presented in this case are from the public domain. The data concern the nature and impact of tobacco smoke. Such data form the basis for the case.
Laymen are "required to know the ordinary operation of well-known natural laws." Laymen are required, "among other things, to know the poisonous qualities of many drugs, chemicals, and gases and the explosive or inflammable qualities of many chemical compounds and the intoxicating quality of certain liquids. So too, the" layman "as a reasonable man is required to know the ordinary operation of natural forces in the locality in which he lives which are likely to be affected by his conduct." This data is from basic legal guidance and is discussed in the brief submitted in the case of Shimp v. New Jersey Bell Telephone Co., 145 N.J.Super. 516, 368 A.2d 408 (1976).
Smoking is a common behavior. Laymen are required to know certain facts which relate to smoking behavior. The facts presented in this case, as to what tobacco does, etc., are thus already known to laymen, as a matter of law. A layman "is treated as though he knew those things which the reasonable man at that time and place would know even though" some specific layman may be or "is himself excusably ignorant of them." The data presented herein follows that legal principle. The layman "is treated as though he" already "knew those things" presented.
Moreover, the layman "is required to know . . . the common law, legislative enactments," etc. In other words, ignorance of law is no excuse.
The data herein pertain to matters of pertinence under controlling laws and enactments. Government officials acting in their respective areas of job duty begin at the point where the laymen may excusably halt. What the layman "is treated as though he knew," the government official acting in his sphere, is treated as though he not only knows them, but so well as to be adept and skillful in the matter.
For example, in safety, "The knowledge which is required of an employer includes a knowledge of generally known scientific discoveries and inventions applicable to conditions of safety in his business." Such "knowledge" is obtained by a method. The employer "is required to inform himself of current advances and of the progress in industries of the same nature as his own." In addition, the employer "is also under a duty to realize the limits of knowledge of those whom he employs, so that he can guard them against dangers which he is required to know, but of which he should know they may be unaware."
Clearly, for whomever is required "to inform himself," there is in such a matter, no "excusably ignorant" principle, since "He is treated as though . . . he knew." The data herein contains material for the application of law and legislative and administrative enactments. Each person herein cited is "treated as though he knew," especially after being informed.
Page 16 of 453 pages. Affiant's initials _________

AR 1-8 issued under 32 C.F.R. 203 provides for "an environment reasonably free of contamination." Such "environment reasonably free of contamination" is defined as one that "does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." That is the type of environment which the record shows has been sought by me, and recommended by the medical advice.
The installation Chief of Staff, Col. Benacquista, admits concerning the medical letters of record, that "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his present work space was not reasonably free of contaminants." (T. 24).
Col. Benacquista's admission along these lines confirms that the continual installation insistence on the use of the phrase, "smoke-free," is a ruse. It is especially a ruse, considering the simultaneous installation insistence that such "cannot" be provided. That claim is inexplicable: tobacco smoke is the endangering and discomforting factor. The regulation expressly "does not" allow such.
Ed. Note: “The failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination.” Association for Disabled Americans, Inc v Concorde Gaming Corp, 158 F Supp 2d 1353, 1362 n 5 (SD Fla, 2001).

The record shows that the installation is responsible for the first use of the expression, "smoke-free." See the installation's own document, dated 22 January 1980, issued by the installation's medical officer. Dr. Francis J. Holt. He is the installation official who later reversed himself, and said that a complying environment "cannot" be provided, i.e., that "the agency refuses to alter" the "smoke-filled environment," as noted by EEOC [Docket 03.81.0087, 83 FEOR 3046] on 8 April 1983, pp. 3 and 6.
Once the endangering aspects are resolved as specified by AR 1-8, the environment is then "safe." EEOC on 8 April 1983 clearly called attention to the medical evidence issued 24 March 1980 on my ability to work "in a safe work environment." That is what AR 1-8 provides for. Compliance with AR 1-8 is clearly the "broadest intendment" of the medical advice. Indeed, Col. Benacquista admits "that what the doctor is saying was that the environment in his" present work space was not reasonably free of contaminants." (T. 24).
EEOC noted the root cause of the situation, at p. 5. "The agency does not argue nor does the record support that it ever complied with the recommendations of the [USACARA] grievance examiner. The agency presented no evidence that it considered the rights of the non-smokers or even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others." The EEOC analysis is clearly framed within the parameters of AR 1-8. Installation officials such as Col. Benacquista clearly admit "what the doctor was saying." (T. 24).
While Col. Benacquista admits "what the doctor was saying," it must be noted that, nonetheless, Col. Benacquista is part of the problem. He is a smoker, and evidently let his personal feelings overrule his official knowledge and duty. Despite the existence of AR 1-8, he claims that "It doesn't make sense to have a Command getting involved in the personal habits of its employees . . . ." (T. 25). He overlooks that the whole purpose and function of AR 1-8 is to set limits and parameters on behavior which he calls "personal habits."
Page 17 of 453 pages. Affiant's initials _________

The 8 April 1983 EEOC decision calls attention to the 24 March 1980 note from Dr. Holt, the note issued prior to the fabrication issued thereafter pretending absence is pending "clearance from . . . personal physician." The claim of insistence upon such "clearance" was, and is, at all times a fraud. It was a fraud for use for various unlawful purposes.
Col. Benacquista admitted what the actual requirement was, before I would be allowed to return. Col. Benacquista makes clear, "The job was available. All he had to do was to say, 'I agree that this is reasonably free of contaminants.'" (T. 62).
A "clearance from . . . personal physician" was not required. It was not ever required. That fact was made clear. "All" that I "had to do was to say, 'I agree that this is reasonably free of contaminants.'" Retraction of my "personal determination" made under the personal standard envisioned by AR 1-8 was "All" that I "had to do." "The job was available." (T. 62).
The record is clear that I declined to do "All" that I "had to do." Cf. Pilarowski v. Brown [76 Mich. App. 666], 257 N.W.2d 211 (1977).
Dr. Holt changed his 24 March 1980 note. It was replaced by a 25 March 1980 note. Dr. Holt has admitted withdrawing his reference to "pending further directives from DA . . . regarding smoking at this installation." When the issue arose concerning "who told you to take it out," he said that he was "not absolutely certain." (T. 110).
Dr. Holt, before being pressured, was well aware that "We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working." (T. 10).
The malicious pretenses concerning "clearance from . . . personal physician" did not arise from medical reasons. Col. Benacquista admits his opposition to the underlying premise of AR 1-8, "It doesn't make sense to have a Command getting involved in the personal habits of its employees . . . ." (T. 25).
Thus, Col. Benacquista imposed a non-medical requirement, for me to retract my "personal determination," "All he had to do was to say, 'I agree that.this is reasonably free of contaminants.'" Based upon my declining to do that, the fabrications concerning need for "clearance from . . . personal physician" were developed. (T. 62).
Such "clearance" is not, and never has been, required. The medical evidence was overruled. The evidence was overruled because I declined to do "All" that I "had to do." The record shows who fabricated the claim or "determination that the doctors had required a smoke-free environment . . . I had made that determination," an admission from Col. Benacquista. (T. 13).
"That wouldn't disqualify him from working." Not unless I declined to withdraw my "personal determination" and "say, 'I agree that this is reasonably free of contaminants." That was "All" I "had to do" to appease Col. Benacquista. "The job was available."
Page 18 of 453 pages. Affiant's initials _________

(pp 19-20)

The Installation Did Not "prove" "undue hardship"
The installation is responsible for showing "undue hardship," Prewitt v. U.S. Postal Service, 662 F.2d 292 (CA 5, 1981), and EEOC Decision, 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046]. In addition "Once the employer presents such evidence, the" employee has an opportunity "to rebut the employer's evidence." In showing "undue hardship," the employer is responsible to adhere to "applicable standards of proof," p. 4 of the EEOC letter. Criteria for showing the employer's position are cited in both the EEOC letter and in Prewitt, supra.
Employer "evidence" subjects for coverage "evidence"
A. "business necessity" aspects to be shown none
1. "business necessity" for "permitting" smoking none
2. "business necessity" for permitting "discomfort" none
3. "business necessity" for permitting endangerment
of life or property
none
4. "business necessity" for condoning disregard
of the 25 January 1980 USACARA Report
none
B. "job related" aspects to be shown none
1. "job related" re "employment" as a matter of law none
a. "job related" re "duties"
none
b. "job related" re environment
none
2. "job related" re job description (fact/law) none
3. "job related" under AR 1-8 admissions that smoking is "personal"
C. impact "on the operation of its program"
re agency none
1. overall size of the agency's program none
a. number of employees
none
b. number and type of facilities
none
c. size of budget
none
2. type of agency operation, including the composition
and structure of the agency's work force
none
3. nature and cost of the accommodation none

In reviewing the above, it must be kept in mind that not only is the agency to make showings in these subjects, but that such showings must be in the direction of showing some sort of hardship.
The record shows that I have asked, for specificity in data. None was forthcoming. Nonetheless, I did "not remain silent," Prewitt, supra, at 308. I have shown benefits of compliance, as well as the inadequacies of the installation presentation. The installation actually admits that smoking is "personal." That obviates/meets my "burden of coming forward with evidence . . . to rebut."
Page 21 of 453 pages. Affiant's initials _________

“Addictive Aspects in Heavy Cigarette Smoking,” by Peter H. Knapp, M.D., Charles M. Bliss, and Harriet Wells in the American Journal of Psychiatry, Vol. 119, pp. 966-972, April 1963, provides insight including a review of some of the medical literature. At 966, “This work was supported in part by grants from . . . the Tobacco Industry Research Committee.” At 971, “Heavy cigarette smokers thus appear to be true addicts, showing not only social habituation but . . . physiologic withdrawal effects. . . . Concerns about the dangers of smoking, latent but readily mobilized in our population, are effectively masked by denial and related psychic defenses.”
At 966, “Among heavy smokers . . . withdrawal effects can be marked. Irritability, sleep disturbance, impaired concentration and memory, anxiety, restlessness and intense craving for tobacco . . . as well as distorted time perception have been described . . . .” At 969, “In general they showed marked denial of concern . . . about any dangers connected with tobacco. Latent anxiety, however, was readily mobilized by questioning. Five subjects revealed the fear that they actually had cancer. Many others skirted around the subject of lung disease. Forty percent of them spoke of hoping to avoid such illness by the naive expedient of switching brands.”
At 970, “Our subjects also showed a compulsion to continue to smoke in increasing amounts. . . . the habit is notoriously persistent and recurrent. . . . Six and one-half years after total cessation of heavy smoking, cigarettes were still occasionally appearing in stereotyped smoking dreams.”
At 969, “experimental subjects had many complaints referable to the stomach, 'emptiness,' ‘gnawing’ or 'hungry' feelings. These may . . . be related to . . . nicotine, which habitually suppresses gastric activity. . . . Experimental subjects also described vague restlessness and discomfort on 'test' days. Six of them spoke about time moving slowly. . . . We obtained some information about special meanings of smoking to given individuals. . . . In addition to the feelings of emptiness and the craving, many subjects also referred to the satisfaction obtained from various sensory avenues. They described relief of tension from having ‘something to do with your hands.’ Our subjects stressed pleasurable aspects of smoking less” than “their ‘need’ to smoke for relief of tension, even when smoking itself had become for a time unpleasant. Cigarettes might make them 'jittery' but they still would feel compelled to smoke them. Similarly, as to the cigarette before breakfast: even while acknowledging that a cigarette under those circumstances ‘tastes terrible,’ several said, 'It wakes me up.’”
P. 966 cites “distorted time perception.” P. 969 indicates, “Six of them spoke about time moving slowly.” At 970, “our evidence at least is consistent with the existence of 'chronic intoxication’ in the heavy smoker, which ie harmful to the smoker himself. Our subjects also showed a compulsion to continue to smoke in increasing amounts.” P. 969 discusses remarks about “having ‘something to do with your hands.’” Such data is consistent with the data on brain damage in smokers, based on information on brain damage, “Where the damage is severe, such symptoms typically include . . . Impairment of orientation––especially for time,” and on “odd stereotyped gestures” as in, for example. schizophrenia. (Coleman, 461; Calvin, 430).
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(p 23)

Tobacco as a factor in mental illness has been recognized for some time. Dr. [Matthew] Woods in 1899 called attention to the fact that smoking “causes insanity.” The ICD-9-CM and the DSM-III [1980] continue the recognition of smoking as related to mental illness. Dr. Tennant [1981] and others have noted the link with alcoholism, another drug related behavior disturbance harmful to self and others. Dr. Kellog [1922] cited [100% correlation] data on smoker dementia praecox (schizophrenia). Data on schizophrenia [thus] provides insight into the smoker behavior directed against nonsmokers such as me.
Insight on schizophrenia is provided in the book, Introduction to Psychology 3rd edition [New York: Harcourt, Brace & World, 1962], by Ernest R. Hilgard. At 525, the book states that “Schizophrenic reactions, by far the most common disorders among hospitalized mental patients, are so named because they represent a lack of harmony or split between aspects of personality functioning; (schizo derives from a Greek root meaning 'split or divided').” Such is “common” just as smoking has become common. The book continues, “The split is particularly noticeable between emotion and conduct . . . . Very often the patient withdraws from reality into a world of his own. The patient may have hallucinations . . . The disorder may manifest itself as early as childhood or late in life, though the most common time of incidence is in late adolescence and early adult life.“ Smokers retreat from the reality that smoking is harmful. They refuse to consider that the harm is both physical and mental. Their judgement is so severely impaired that they do not even recognize the impairment [anosognosia]. It thus is no surprise that they retaliate so savagely against me for citing the facts about their behavior. The “time of incidence” is also insightful—the same timeframe as smoking begins.
At 525, the book provides other illuminating data. “Paranoid reactions are characterized by persistent systematized delusions. Delusions differ from hallucinations in that they are false beliefs rather than false sense perceptions. The paranoid person may react entirely normally except when his delusions are touched upon . . . . Delusions often take the form of either delusions of grandeur (the patient believes he is Napoleon) or delusions of persecution (the patient has suffered at the hands of his enemies). Paranoid symptoms are common in some types of schizophrenia . . . The delusions of grandeur are elaborate rationalizations, and the delusions of persecution are clearly projections.”
The data on paranoid reactions is most insightful. The delusions are of a continuing thing, even for years, since they are “systematized.“ TACOM [smoker management] employees [e.g., Edward E. Hoover, John J. Benacquista, Francis J. Holt, Emily S. Bacon] thus insist I am unfit for duty in advance for years. Their paranoia arises from their obvious and stated belief that stopping endangerment and discomfort violates smokers' presumed “rights,” even though endangering and discomforting others is expressly disallowed by AR 1-8. Smoker delusions of grandeur involve their view that they can overrule grievance reports, laws, regulations, examining doctors, and everybody who disagrees with them. In a disturbed “world of his own,” each deciding smoker in a “systematized” way displays his own particular delusion or hallucination as his “world of his own” needs. Managers have delusions of grandeur [or paranoia] that they can pretend they have no authority to resolve the matter. Non-doctors [e.g., Hoover, Benacquista, MSPB and court adjudicators, etc.] have delusions of grandeur that they can disregard the examining physicians.
Delusions of persecution are evident when smokers insist that halting the endangerment or discomfort is an “undue hardship” or somehow “cannot” be done. Such claims “are elaborate rationalizations” or “projections” as the circumstances and a hearing can show. Since such claims are from a “world of his own,” clues to the disorganized thinking process are evident in the inconsistencies, double standards, refusals to consider evidence, actions contrary to evidence, non-responsive to input, disregrard of rules, etc. Placing claims in both the accomplished and “undue hardship” categories are other clues.
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The DSM-III and ICD-9 cite tobacco dependence. The 1980 Transactions of the Society of Actuaries shows smoker deaths from mental illness at a rate higher than that of nonsmokers. Smoking “causes insanity” as Dr. Woods noted in 1899. Dr. Kelloggs's book on Tobaccoism or How Tobacco Kills cites smoker dementia praecox (schizophrenia). Insight on schizophrenia is provided by authors Allen D. Calvin, et al., in their 1961 book Psychology [(Boston: Allyn & Bacon, 1961)]. At 430, the authors indicate that “The commonest of psychoses, and by all means the state involving the greatest deviation in thinking, contact with reality, emotion, and overt behavior, is schizophrenia.”
The book continues, “In schizophrenia, reality orientation is especially weak; the patient lives in a world of fantasy.” Smokers fantasize that harm will not befall them; i.e., that they are somehow unique. People with delusions thus are clearly projecting uniqueness delusions they have by pretending that I am unique. At 430, the authors continue, “The schizophrenic patient seems to have reacted to a threatening reality by creating for himself a more comfortable make-believe world. The existence of this fantasy world is shown in delusions and hallucinations, both common in schizophrenia.” The “threatening reality” of tobacco-induced “slow-motion suicide” is cited by the many reports of the Surgeon General, the warning on each pack of cigarettes, and by the very existence of AR 1-8. In the fantasy world of schizophrenic delusions, the “more comfortable make-believe world” does not contain such threats. Such facts help shed light on the fact the decision materials from TACOM and MSPB officials do not even allude to such data. MSPB decisions do not even acknowledge the bare existence of AR 1-8. They certainly do not acknowledge the duties AR 1-8 prescribes. The AR 1-8 threat to the “make-believe world” is dismissed summarily [by] with assertions of “undue hardship.” The claim is an obvious “fantasy”; the 25 Jan 80 USACARA Report does not provide the slightest basis for belief that AR 1-8 goals constitute an “undue hardship.”
At 430, the Psychology authors note that “Lack of appropriate emotionality is also present—the patient weeps over trivialities and is unmoved by tragic events.” The lack of proportion is obvious in the TACOM and MSPB behavior. The documents focus on “trivialities” such as supposed requests made, while utterly ignoring the multiple regulatory duties. Trivia is made grossly disproportionate in the smoker fantasy world. At 430, “Thinking may be seriously disturbed, waking-thought processes resemble those in a dream or, it is hypothesized, those of an infant.” Smoking is not allowed to cause even so “subjective” a thing as mere “discomfort.” Yet smokers and decisions insist that AR 1-8 guidance is wrong; they disagree with it, and they demand I be declared unfit for duty in advance. The “threatening reality” of having to obey rules is too terrifying to them. The idea of providing a proper environment is declared an “undue hardship” or “cannot” be done for the sake of their “make-believe world.” At 430, the book notes that “Marked distortions of normal behavior appear in the form of odd stereoyped gestures and in disturbances of speech.” Smoking comprises a series “of odd stereotyped gestures.” The DSM-III notes such “highly overlearned” behavior.
At 430, “The patient seems farthest from normal in hebephrenic schizophrenia. His symptoms include a slow and gradual deterioration of personality. The adult hebephrenic exhibits a great deal of silly behavior . . . Speech deteriorates to the point where it resembles a 'word salad.' Peculiar mannerisms develop, and hallucinations are common.” When decision correspondence contains thoughts strewn together without regard for consistency, the concept of “word salad” sheds insight. Difficulty speaking [aphasia] sheds light on why [TACOM smoker] management refuses to begin the process of reasonable accommodation for me. Uncommunicative smokers are being overaccommodated in their [tobacco-caused brain damage] handicap.
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The book, Schizophrenia: Symptoms, Causes, Treatments [New York: Norton], 1979, by Kayla Bernheim, Ph.D., and Richard Lewine, Ph.D., provides insight. At 27-28, “There are two primary ways of describing disordered thinking. One is that the normal brain has a filter mechanism which prevents the intrusion of unwanted or irrelevant thoughts. As you read this book, for example, you are relatively unaware of the noises of the outside world. . . . You are able to focus your attention on this page, more or less at will, and you can direct your mind to shut off extraneous thoughts and feelings.” At 25, “More fundamentally, the schizophrenic finds it difficult to organize thoughts and direct them toward a goal.” Such data provides insight on the bizarre behavior of the deciding officials. They display symptoms of their minds wandering in a flight of ideas from topic to topic without ever doing a competent analysis of any point. They clearly display serious mental incapacitation to comprehend the “broadest intendment” of the meaning of words, concepts, rules, etc. They display a lack of “a filter mechanism” to deal with rules sequentially and progressively, for example, AR 1-8, OSHA, and “reasonable accommodation,” in a rational, complete, thorough, and professional manner. The serious lacking results in a bizarre fixation on the last step in the process, without ever dealing with the prior steps.
At 28, “The schizophrenic person appears to have a faulty 'shut-off mechanism, a faulty filter. He tends to be flooded by information, by thoughts and feelings from within and by stimulation from without. Patients' descriptions . . . lend credence to such a view:
'Each of us is capable of coping with a large number of stimuli, invading our being through any of the senses. . . . we would be incapable of carrying on any of our daily activities if even one hundredth of all these available stimuli invaded us at once. So the mind must have a filter, which functions without our conscious thought, sorting stimuli and allowing only those which are relevant to the situation in hand to disturb consciousness. What happened to me . . . was a break-down of the filter, a hodgepodge of unrelated stimuli were distracting me . . .'”

Note the paranoid tendencies. Stimuli are considered an invasion. They are considered as disturbing consciousness. Such odd views concerning the activities of life is indeed bizarre. Such an odd view of life provides insight on smoker unwillingness to consider the merits. “Working and smoking don't mix” [says William A. Weis, Ph.D., C.P.A., “Profits up in Smoke,” 60 Personnel Journal (#3) 162-165 (March 1981)]. The psychiatric basis for smoker laziness is evident. The psychiatric basis for muteness is evident. Working is “disturbing.” The mere fact of a nonsmoker request for compliance is itself “disturbing.” Any stimuli is “disturbing” to the mentally ill smoker. The contents of a request for compliance merely display more strongly the already-present smoker paranoia that stimuli are “invading.”
At 28, “When schizophrenics must choose to attend to certain stimuli and ignore others, they become confused and their performance is impaired.” I ask that AR 1-8 be implemented; local personnel make comments about OSHA [hallucinating compliance!]. Disturbed MSPB offenders “become confused” and senselessly garble their output, as the record shows. MSPB issues weird output even despite the aid of the 25 Jan 80 USACARA Report, thereby providing insight on the severity of the disorders involved.
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Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”
Dr. Tussing indicates that “The second noticeable characteristic of the behavior of schizophrenics is a certain lack of harmony, integration, and coordination between their emotional and rational or intellectual activities.” That fact can provide insight into the [TACOM smoker] use of [falsified, altered, lowered] TLVs vs. AR 1-8 criteria; insistence the environment is safe while claiming it is not safe enough to let me return; placing data in both the completed and “undue hardship” categories simultaneously; etc. Dr. Tussing notes that “The third symptom that seems to characterize all schizophrenic patients is a gradual mental deterioration.” That [psychiatric fact] helps show why the reprisal pattern has intensified. That [psychiatric fact] helps show why TACOM and MSPB assertions become more and more strange and farther and farther from reality.
Dr. Tussing notes that “Hallucinations, particularly of hearing and vision, are fairly common during the early stages . . . disorganized experience . . . clarity of thought is lost in the confusion. His explanations for his behavior are fragmentary and have a dreamlike quality. Another aspect of schizophrenic behavior that is frequently mentioned is its apparent inappropriateness.” This [psychiatric fact] sheds insight into the varied [TACOM, MSPB, and court] explanations given from time to time as to the basis for not letting me work; inconsistency between thoughts in decision correspondence as though the author could not recall one idea to the next; delusions that studies under AR 1-8 criteria have occurred; etc. P. 357 continues “. . . schizophrenia is generally broken down in subgroups: simple, hebephrenic, catatonic, and paranoid. Any two or more of these may occur at the same time or successively in the same person. Such combinations are generally referred to as dementia praecox mixed. . . .” The change in assertions from time to time may be the product of such deteriorations or variations.
At 357, “Simple cases are marked by their apparent and long-lasting deterioration and scarcity of acute psychotic symptoms. Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.” The adverse effects of smoking on intelligence has long been noted. Smoker incapacity to comprehend that a smoky work environment can cause a development or worsening of health is obvions. Incapacity to comprehend that pre-17 Mar 80 events could lead to the post-17 Mar 80 events is also clear. MSPB displays clear unwillingness to consider such cause and effect aspects. Smokers rarely are capable of stopping smoking and thus normally remain hooked for life—“slow-motion suicide.” The “seem feeble-minded rather than psychotic” insight by Dr. Tussing is most illuminating. When a decision is merely arbitrary and capricious as not based upon reasons, such a thing can be committed by honest (but sane) error. Cf. McNutt v. Hills, 426 F. Supp. 990 ([D DC] 1977). A one-time error can happen. But here, the pattern for years and years raises deeper questions, Why are TACOM and MSPB assertions the way they are?
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(pp 28-31)

The book, Understanding and Helping the Schizophrenic [New York: Basic Books], 1979, by Silvano Arieti, M.D., is insightful. At 49, “Patients suffering from the paranoid type of schizophrenia constitute the largest group.” At 52, “It may be difficult to distinguish a hebephrenic from a paranoid. Most of the symptoms seen in the paranoid type are also seen in the hebephrenic, but they appear in a more advanced form and with a less organized and coherent structure. The most obvious difference from the paranoid type is that the hebephrenic is more confused and on the whole less able to function normally. The illness, as a rule, starts earlier in life. Some hebephrenics seem to have passed through a paranoid phase and to have moved on to a hebephrenic style of living when not treated.” Such worsening is consistent with the data on brain damage caused by smoking. Children who start smoking earlier than others would foreseeably display worse symptoms earlier than others. As additional brain damage occurs, in addition to prior untreated brain damage, passing through one “phase” into another phase is foreseeable. Such data is consistent with the "passing" from the pre-withdrawal syndrome to the characteristic withdrawal syndrome in a period of only "at least several weeks," the period of time cited in the DSM-III.
At 53, “The delusions of the hebephrenic are generally more out of contact with reality." "He has grandiose, absurd, illogically sustained delusions more often than the paranoid.” At 52, “Although at” times “hebephrenics can think logically, they spend a greater amount of time by far thinking in a rambling, incoherent, confused manner. . . . The” hebephrenic “does not care, as the paranoid often does, to demonstrate that his ideas are valid.” Such data provides insight on the local [Edward Hoover, Emily Bacon, John J. Benacquista, et al.] and MSPB [Martin Baumgaertner, Ronald Wertheim, Ersa Poston, et al.] behavior. Their claims and assertions are often contradictory. Claims of “immediate threat” clash with claims of no hazard at all. Claims of actions taken clash with claims of actions that are supposedly an “undue hardship” or “cannot” be done. Claims of lack of authority clash with the evidence on the full authority. Claims of supposed "health standards" clash with evidence that standards covering tobacco smoke do not exist [due to TACOM falsifying the data], except for the “personal determination” standard and others in AR 1-8 which are considered an “undue hardship.” When the bizarre and rambling assertions from local and MSPB offenders are noted, there is no response “to demonstrate that” such claims and “ideas are valid.”
At 43, “Although the patient has undergone a change that has made him become ill, he does not realize that a transformation has taken place within him.” [Ed. Note: Cf. anosognosia]. At 46, “The patient does not attempt to demonstrate the validity of his ideas. He 'knows'; that is enough. His knowledge comes from an inner, unchallenged certitude that does not require demonstration. 'He knows.'” Such data provides insight on the odd local and MSPB behavior. The claims of “cannot” and “undue hardship” are unsupported by evidence. There is no “attempt to demonstrate the validity of” the claims. The mentally ill individuals do “not realize that a transformation has taken place within” themselves. Since they provide no evidence for their bizarre and delusional claims, they have effectively repealed the right of reply. They have reversed the burden of proof and placed it on me, heedless of the evidence that the 25 Jan 80 USACARA Report refutes their odd ideas. They do “not realize” reality; they lack insight.
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(pp 33-36)

Information in the book, Managerial Deviance: How to Deal With Problem People In Key Jobs [New York: Mason/Charter (1976)], by Andrew J. DuBrin, Ph.D., professor of behavioral science, provides insight into the situation. Information is provided on identifying deviant behavior, confronting it, and helping deviants to overcome their deviant behavior. It covers a range of deviance and behavior so extreme as to go off the scale of deviance. At x, it notes that “managerial deviancy deals with a small proportion of people in management whose aberrant behavior has a disproportionate negative effect on the organization, yet who are nor criminals, psychotics, simple neurotics, or outright misfits in their jobs. Managerial deviants are those management-level workers (generally males and occasionally a female) whose maladaptive behavior stems from some variety of character disorder or personality disturbance. Included here are pathological liars, manipulators, alcoholics, drug abusers, sexual exploiters of subordinates, and blatant abusers of power.”
At ix, it notes that “several types of deviant behavior in management have long been considered to lie outside of tolerable limits. Embezzlers, corporate espionage agents (‘industrial spies’), blackmailers, arsonists, and a variety of other criminal types are universally considered people unfit to hold key positions . . . . If discovered, criminals have always been forcibly invited to leave . . . . Another general category of deviants have been considered unfit to occupy leadership positions in work organizations––those suffering from full-blown mental illnesses . . . memory for recent events has all but do disappeared is usually asked to accept medical retirement.” Tobacco use “causes insanity,” as noted by Dr. Matthew Woods [JAMA, Vol. XXXII(13), p. 685, 1 April 1899]. Dr. Forest Tennant notes a way of stopping employee alcoholism is to “get rid of smokers.” Smoker mental problems are reflected in the DSM-III, in their high suicide rate, in their high death rate from mental disorders, in their progressing to use other drugs, in their causing fires and other hazards, etc. Smokers lie abut whether studies have been done; such lying is not merely a collateral matter to pretend to establish thier credibility on claiming I am not fit for duty; it is a highly critical and material fact. Smokers are making withdrawals from my property (leave account) for their personal reasons. Personal reasons are the only reasons for refusing to enforce rules against endangerment, discomfort, “injurious” behavior, etc.
At 185, the book notes that “managers who resist being evaluated by own subordinates in general are precisely those people with the most to hide from their superiors.” This helps explain the desperate refusal of a hearing; Dr. Holt, Mr. Hoover, Mr. Braun, Mr. Shirock, Ms. Averhart, and others have a lot to hide. The Army legal office is being manipulated to protect their personal behavior. Dr. Holt heaps ridicule on the pattern information regarding mental disorder in smokers; he not only fails, but refuses, to identify smokers who are mentally disordered and dangerous and thus need psychiatric evaluation and/or assistance. Fortunately for me, my background in personnel [work] allows for tentative assessments for the purpose of proposing further evaluation of smokers, some of whom have displayed symptoms for which analysis on a limited basis is attached. At 186, the book cites “how a worker at any level in an organization can try to expose deviance through informal channels.” When management does “resist” as in this situation, formal methods then become necessary. When the system breaks down and fails to identify persons who appear to need psychiatric help, this is tragic, particularly when the victims of deviants do not receive timely relief. At 186, the book notes that victims may “receive physical and psychological abuse.” Deviants do not want to be exposed, particularly when they are important persons and their deviance and/or mental problems have been tolerated too long.
Ed. Note: Such disordered persons went to the extreme of accusing their victim. “Is it not common knowledge that the belief that others are mentally ill rather than oneself is one of the commonest signs of mental illness?" says Karl A. Menninger, M.D., The Crime of Punishment (New York: Viking Press, 1968), p 99.

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(p 38)

Data on radioactivity and smoking behavior provides insight. For example, see the article, “d-Radiation dose at bronchial bifurcations of smokers from indoor exposure to radon progeny,” by E. A. Martell [Ph.D., LTC (ret)], in Proceedings of the National Academy of Sciences, USA., Vol. 80, pp. 1285-1289, March 1983. At 1286, “A single burning cigarette in a closed room gives rise to particle concentrations of” approximately “10⁵ per cm³ . . . extremely concentrated cloud of particles and vapors in mainstream smoke . . . Radon progeny on large mainstream smoke particles will be deposited in the tracheo-bronchial tree with a highly nonuniform distribution. Deposition in the right upper lobe of the human lung may approach twice that in each of the other four lobes . . . Such particles are deposited with higher surface densities in the lobar and segmental bronchi than elsewhere within each lung lobe . . . selective deposition at bifurcations takes place for particles in both the diffusion and impaction subranges led results in highly localized ‘hot spots’ at bifurcations. The hot spot intensities increase steeply with particle size . . . .”
Tobacco smoke foreseeably “operates to derange the healthy organization of the system,” words borrowed from People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769 (1858). Such derangement would foreseeably include derangement of the process by which the body clears foreign substances out. At 1287, Martell discusses “clearance of insoluble particles from bifurcation sites” in terms of the “half-life” involved. Dr. Martell indicates that, “due to progressive damage to the epithelium at bifurcations of smokers, leading to lesions with loss of cilia . . . particle retention times . . . increase with smoking rate and duration of smoking in years. Albert et al. . . . demonstrated that most cigarette smokers had impaired bronchial clearance, with an average half-time of 172 min. Particles that resist clearance would include those deposited at bifurcations in lesions with cilia absent. Particle half-residence times of 172 min are sufficient for nearly complete decay of ²¹⁴Po from deposited radon progeny associated with smoke tars . . . the bronchial epithelium is incapable of absorbing more than negligible amounts of tar––further indication that radon progeny associated with smoke tar particles deposited at bifurcations may persist for substantial . . . decay of ²¹⁴Po before clearance.”
At 1289, “The age-related incidence of bronchial cancer in smokers, duration of smoking in years to the fifth power, indicates a multistage process of cancer induction involving at least two stages of DNA transformation.” “Brues pointed out . . . that tumors arise focally in small irradiated tissue volumes.” Also, “it is apparent that smokers exposed to average indoor radon-progeny levels receive surprisingly high cumulative d-doses in hot spots at bronchial bifurcations.” At 1287, “²¹⁰Pb-enriched smoke particles produced by tobacco trichome combustion are highly insoluble.” “That inhaled tobacco tars are highly concentrated at segmental bifurcations of cigarette smokers is borne out by several lines of evidence. . . . Ermala and Holsti . . . observed highly localized tar deposits in the tonsillar region, at the vocal cords, and at the tracheal and bronchial bifurcations––sites closely correlated with the clinical frequency of cancer of the respiratory tract in smokers. . . . Little et al. . . . observed high local concentrations of ²¹⁰Po at individual bifurcations of smokers.”
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(p 40)

In the N. Y. Med. Journal, Vol. 48, pp. 262-265, 8 Sept. 1888, C. W. Lyman, provides data on smoking behavior. At 263, Nicotine “is one of the most powerful of the ‘nerve poisons’ known. Its virulence is compared to that of prussic acid. . . . It seems to destroy life not by attacking a few but all of the functions essential to it . . . A significant indication of this is that there as no substance known which can counteract its effects . . . .” At 264, “a professor connected with a prominent medical college, while lecturing on disorders of the liver, stated that the use of tobacco in even the smallest amount impairs the functional action of the liver on the blood passing through it, and that the abnormal state of the blood thus caused will manifest itself by disturbance in the brain.” Such data is consistent with information from R. T. Ravenholt [M.D., M.P.H.], in The New Engl. J. of Med., Vol. 307(5), pp. 309-313 at at 312, 29 July 1982, “Volatilized, soluble ²¹⁰Po, produced at the burning temperature of cigarettes, is cleared from the bronchial mucosa at the expense of the rest of the body, being absorbed through the pulmonary circulation and carried by the systemic circulation to every tissue and cell, causing mutations of cellular genetic structures, deviation of cellular characteristics from their optimal normal state, accelerated aging, and early death from a body-wide spectrum of diseases . . . The proof of circulating mutagens is that ²¹⁰Po and other mutagens can be recovered not only from tobacco smoke and bronchial mucosa but also from the blood and urine of smokers.”
Lyman, supra, at 262, indicates, “Cigarettes are responsible for a great amount of mischief . . . because smokers . . . are apt to use them continuously or at frequent intervals, believing that their power for evil is insignificant. Thus the nerves are under the constant influence of the drug and much injury to the system results.” At 264, Lyman cites “addiction to the use of this drug,” and that “injury may be shown by general restlessness. insomnia, depression of mind, or the development of a dull or irritable temper.” Such data is consistent with the like range of effects after only “at least several weeks,” as discussed in the 1980 DSM-III. Lyman observes that “in men whose constitutions are thoroughly shaken and undermined by the effects of tobacco, an attempt to abandon its use is sometimes accompanied by tremor and a feeling of general misery which are practically intolerable. Such persons are indeed slaves to the habit.” The astuteness of such analysis (in 1888) is evident even more so considering that smoking cigarettes was rare then, i.e., “Cigarettes began to be popular during World War I,” as stated by E. C. Hammond [Sc.D.], [“The Effects of Smoking”] in Scientific American, Vol. 207(1), p. 39, July 1962. Now, “'Tobacco Dependence is obviously widespread,” as the DSM-III notes. The symptoms of mental disorder paraded/displayed by smokers are obvious to any trained observer, regardless of the historical epoch and numbers of mentally ill smokers involved, i.e., such symptoms “come as small surprise to those” professionals “who have had contact with individuals attempting to give up cigarettes,” words borrowed from Mich. Law Rev., Vol. 81(1), p. 242, Nov 1982.
Lyman also noted, at 263, “A desire, often a craving, for liquor or some other stimulant is experienced.” Clearly, “the well-established association between smoking and drinking,” words from The New Engl. J. of Med., Vol. 308(7), p. 393, 17 Feb 1983, has long been “well-established.”
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(pp 42-44)

The condition of tobacco organic mental disorder is cited in the organic mental disorders section of the DSM-III. Data on brain dysfunction provides insight of a general nature. Organic mental disorders have various causes, including self-inflicted causes. A general explanation on organic mental disorders shows the context to provide greater insight into the smoker pathology that is the matter of concern in the case at bar.
At 361 [of Psychology for Better Living, 5th ed (New York: John Wiley, 1965)], Dr. [Lyle] Tussing states “that there are a number of mental cases that are referred to as organic, which means that a part of the brain has been affected physically. This may be due to an infections disease such as syphilis, which destroys nerve tissue. Injuries to the head may cause personality disturbances and psychotic behavior. The brain may also have been affected by toxins, such as alcohol [and tobacco].”
The book Psychology [(Boston: Allyn & Bacon, 1961)] by authors [Allen D.] Calvin, et al., at 432 states, “When the cerebral cortex is damaged, certain symptoms arise directly from the fact of damage. There may be a tendency toward distractability and disorganization . . . an apparent lack of awareness of his defect [anosognosia]; the patient does not perceive his handicap as particularly worthy of notice. These are general consequences of cerebral injury; damage in various areas of the brain may produce symptoms of a particular type. If, for example, the parieto-temporal area, the region above and forward from the ear, is injured, a disturbance of language, called aphasia, often results.”
The book Introduction to Psychology [New York: Harcourt, Brace & World, 1962], 3rd edition, by [Earnest R.] Hilgard, states at 526, “There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system: disorders associated with alcoholism, syphilis, acute infections, tumors, gunshot wounds.” The 4th edition [1967], p. 537, adds “head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries).”
Calvin et al. at 433 indicate, “Lessened ability to adjust that stems from brain injury is present in organic psychoses, states that resemble other psychoses with the additional feature that symptoms of brain injury complicate the patterns. The brain can be damaged in ways other than gross physical insult; drugs [e.g., nicotine] also alter its functioning and produce marked behavioral changes. . . . Brain injury . . . permanently impairs functioning and return to completely normal behavior is not to be expected.” P. 435 discusses “patients whose symptoms followed the pattern of paresis, or general paralysis. Its earliest phase is marked by symptoms resembling brain damage. Patients have poor control of impulses, are irritable, restless, and disorganized, and memory for recent events is badly impaired. As the disorder continues, coordinated activity, like speech and locomotion, become disorganized. The deterioration of behavior increases with time; seizures occur, orientation and memory fail, and death finally intervenes. Delusions of grandeur are common, and many paretics develop delusions of persecution, fall into depressions, or show other psychotic patterns. . . . When cases of paresis are discovered, medical treatment arrests the progress of the disease, but damage to brain tissue inflicted by the spirochetes of syphilis cannot be reversed.”
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(pp 46-52)

The book, How to Get Along with Your Stomach: A Complete Guide to the Prevention and Treatment of Stomach Distress, by Nancy Nugent [Boston: Little, Brown and Co.], 1978, provides insight. Smoking has adverse effects on the body. The book provides data on various aspects of smokers as dangerous to themselves. For example, p. 143 indicates concerning chronic gastritis, “Alcohol should be eliminated if it seems to irritate symptoms, and smoking is often discouraged because of the irritating effect that nicotine can have on the mucosa.” At 142, “The disease is often found in very nervous and tense persons and those who are emotionally unstable . . . tiny submucosal hemorrhages and petechiae . . . characterize chronic gastritis.”
P. 81 discusses reflux, that is, the backup of the stomach's contents into the esophagus. When the reflux is persistent and severe, the mucous membrane of the inner esophagus becomes inflamed and raw, creating esophagitis. . . . Cigarette smoking in particular is known to promote reflux by contributing to a reduction of lower-esophageal-sphincter pressure. A test of this action conducted by Drs. C. Stanciu and John R. Bennett of Hull, England, showed that ‘smoking a cigarette invariably caused a fall in sphincter pressure’ and that ‘reflux was seen during the smoking of two-thirds of all the cigarettes consumed.’” Also, “The most significant element in the production of reflux seems to be the strength of the lower esophageal sphincter in terms of pressure. Tests have shown a very high correlation between lowered sphincter pressure and the occurrence of heartburn.”
The section on ulcers provides data on smoking and alcoholism at p. 184. It notes “a very high incidence of ulcer among people with cirrhosis of the liver, a condition often (but not always) linked to chronic alcoholism. . . . Smoking is believed to retard the healing of both gastric and duodenal ulcers, and there is evidence that it may hasten the formation of an ulcer in people already predisposed to the disease. . . . in gastric ulcer it may be a result of reflux from the duodenum into the stomach, and in duodenal ulcer smoking is thought to influence the production of acid. The reduction in ulcer size has been greater in people who have stopped smoking than can those who continue.”
At 124, the range of stomach contents includes but is not limited to “any air that may have been swallowed” for a reason such as “because one is nervously puffing on cigarettes . . . .” At 197, “If the swallowed air is not burped up, it will pass into the small intestine and then to the colon . . . This movement of air is likely to produce borborygmus that may be loud and gushing as well as uncomfortable. Ideally, the gas should then pass out through the anus as flatus, but it may become trapped in the intestinal tract . . . .”
At 152, the section on hyperacidity notes, “Heartburn is undoubtedly the best known symptom of hyperacidity, and many people who suffer from it may also be victims of esophagitis if gastroeeophageal reflux compounds the problem. Too much smoking and drinking of alcohol and coffee will both stimulate further acid secretion and contribute to weakening the gastroesophageal sphincter. If this pattern continues unabated, a painful and incapacitating ulcer may be the next step.”
The above is consistent with the span of medical knowledge, past and present. Dr. Kellogg provided like data in the 1920's; the DSM-III provides like data for the 1980's. Circumstances have not changed.
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(pp 54-57)

Smoking “leads to intemperance,” data from Dr. Matthew Woods in JAMA, Vol. XXXII(13), p. 685, 1 April 1899, to such an extent that “It is a rare circumstance to meet a dry smoker,” data from Anthony Smythe, in The Lancet, Vol. 1 for 1857, p. 128, 31 January 1857. Thus, there is a “well-established association between smoking and drinking,” data from Dr. Joseph Stokes III, in The New Engl. J. of Med., Vol. 308(7), p. 393, 17 February 1983. Moreover, “It is clear that alcohol has played a major role in the lives of many prison inmates,” data from the Dep't of Justice, “Prisoners and Alcohol,” January 1983. “Nearly all alcoholics, recovered or otherwise, are heavy smokers,” data from Dr. Arthur H. Cain, The Cigarette Habit, 1964, p. 4. Additionally, “Tobacco intoxication . . . is a grandeur narcosis,” data from Dr. James Tracy, in Med. Rev. of Reviews, Vol. XXIII(12), p. 818, December 1917. Such data provides insight on bizarre and paranoid and violent smoker (alcoholic) behavior.
For example, see Hicks v. United States, 511 F.2d 407 (1975). The case arose when Corinne Morgan “was killed by her husband, Joseph Morgan,” p. 409. “Morgan for many years had been a heavy drinker. Prior to the homicide he had been arrested for drunkenness, disorderly conduct or assault at least sixteen times . . . His wife had been the complainant on eight or these occasions. On” one occasion “July 11, 1966, she obtained a warrant for his arrest for assault upon her on July 7.” Such data is consistent with Dep't of Justice data that “Rapists and assaulters were most apt to be drinking prior to the offense.” Note that none of the professional reviewers or courts grunt that compliance, or arrests for past non-compliance “cannot” be achieved. Evidently sane people comprehend the police power and normal implementation of the police power. Local and MSPB [officials] do not display such mental capacity. Clearly “they do not respond to and are not motivated by normal stimuli,” behavior of “those individuals who are psychotic (insane in the legal sense of the term,” words from Dr. Lyle Tussing, Psychology for Better Living, 1959, p. 345.
Medical data such as on smoking and alcoholism, and that smoking “causes insanity,” noted by Dr. Woods, is an efficient predictor of behavior and consequences. Smoking has long been recognized “as one of the causes of insanity,” such that smokers “become deranged from smoking tobacco,” data from Dr. Samuel Solly, in The Lancet, Vol. 1 for 1857, p. 176, 14 February 1857. Considering such data, it is foreseeable that Joseph Morgan would have “organic brain damage.” At 412, “Chronic Brain Syndrome, Associated with Alcohol Intoxication . . .” is cited. Smoking “leads to intemperance,” and “Nearly all alcoholics . . . are heavy smokers.” At 413, Mr. Morgan's “test data reflected a deteriorative process consistent with the effects of prolonged alcoholism in an already profoundly inadequate individual.” In the case at bar, the deciding officials display “a deteriorative process,” such that their issuances worsen from the already “profoundly inadequate” level of barely able to grunt that they “cannot” comply with the duty to exclude hazards. A “profoundly inadequate individual” would foreseeably issue a “profoundly inadequate” analysis. In severe mental disease, issuances foreseeable vary significantly from the regulations and facts and fail to recognize that AR 1-8 sets limits on smoking. Thus, local and MSPB claims are foreseeable repeatedly rejected by sane reviewers. Sane people see the inadequacies.
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(p 59)

The book, If your child is drinking . . ., 1981, by Nancy H. Woodward, provides insight. At 108, “It is important that the alcohol abuser be aware of every negative consequence of his drinking.” Also, “Let your child know each and every time he hurts a member of the family or a relative or a friend or causes an unpleasant scene because . . . of his drinking.” Counseling guidance is provided at 125, “Each person is asked to list . . . specific incidents surrounding the abuser's behavior and how these incidents adversely affected someone else. They might be: ‘You were too drunk to go to school . . .’ or ‘Your grandmother was very hurt . . .,’ or ‘You stole the money I'd been saving . . . .' These should be specific, firsthand incidents and data to break through the denial and the illusion of the abuser.”
Data of such nature provides insight on the insane local and MSPB behaviorisms. The insane reprisals, particularly as evident in the 18 Jun 81 MSPB issuance [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], rage against the “specific” data provided by me. Disorientation for time is clearcut, in clear inability to comprehend the events leading up to the grievance that gave rise to the 25 Jan 80 Report. When insane MSPB officials take reprisal because of my following professional techniques, including quoting laws, the “negative consequences” of smoking and alcoholism are obvious. It is clearly difficult to apply professional techniques when the offenders are powerful officials who are themselves mentally disordered or otherwise deviant. Sane deciding officials are requested. A competent review of the situation is requested.
Local smokers “were too drunk” or disconnected to be responsive. They were and are “'too __________________'' to do their jobs; the various symptoms can be inserted as appropriate to complete the multiple applicable statements on “negative consequences.”
The bizarre patterns including the weird assertion about a non-smoker being an “immediate threat,” involves multiple offenses including but not limited to extortion, falsification, etc., that “stole the money” in my leave account, etc., in the context of the situation. When “intention is in law deducible from the act itself” [People v. Carmichael, 5 Mich 10, 17; 71 Am Dec 769 (1858)], it is clear that the foreseeable consequences were and are intended.
“It is important that the . . . abuser be aware of every negative consequence of his” smoking. It is clear that my compliance with professional principles brought reprisals down on me. It is clear that the offenders resent and retaliate because of my use of guidance the government taught me as an Employee Relations Specialist, and which I in turn taught others (particularly supervisors) as part of my assigned duties.
At 108, “It cannot be repeated often enough: Consequences must rest with the abuser.” At 22, reprisals against people who seek to give up drinking are discussed as foreseeable: “The reactions you will get will range from ‘You are joking’ or ‘You are half-mad’ to ‘You are ill’–in no particular order.” It is clear that MSPB and and local deciding officials were and are “too drunk,” “'too” disconnected, and/or “too _________” to grasp and comprehend and react to and reject the reality of the reprisals. When the behavior of deciding officials is so out-of-touch with reality, words such as “feeble-minded” come to mind, as descriptive of their “denial” and “illusion” pattern.
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The book, If your child is drinking . . ., 1981, by Nancy Hyden Woodward, provides insight. At 16, there is a discussion on “bad drinking influences on children . . . the most obvious, and often most dominant force in their children's lives . . . the parent.” Yet “When parents are asked to list bad drinking influences on children,” denial behavior occurs, “they fail to” list “themselves.” That typical denial behavior provides insight on the local and MSPB behavior pattern. That pattern includes but is not limited to denial of reality, disregarding causes, etc., typical of odd behavior that is “communicable” and “may affect third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano, [168 N J Super 466], 403 A.2d 500 (1979).
At 31, “Those who exhibit an early predisposition to alcohol usually are alienated from family, or friends, are immersed in a low self-image, and tend to be intrigued with the deviant or forbidden. Feelings of disaffection will be found most noticeably in children of parents who are separated or divorced, in those of the sexually deviant, the alcoholic, the introverted, or the abusive.” The local and MSPB behavior shows “feelings of disaffection” with the rules and facts as they exist, so fabrications, delusions, confabulations, and/or other deviance are devised. Standards that do not exist and events that have not happened are cited. The behavior pattern shows severe local and MSPB disconnection from reality. Multiple falsifications, reprisals, delays, violations and other misconduct is consistent with the analysis including “intrigued with the deviant or forbidden.”
At 74, “A . . . mother pulled her ten-year-old daughter out of school the day an AA member was to speak before the student body. Her husband is an alcoholic. A . . . father tried to have his son's Scout leader ousted because the troop had devoted three meetings, in part, to alcohol and drugs. Both father and mother are heavy drinkers.” Information of this nature provides insight on the local refusal to have educational programs, on ousting me shortly after the 25 Jan 80 USACARA Report, on the reprisals, etc. Clearly, a hearing is essential on the underlying issues and facts.
At 76, “You cannot pretend that alcohol does not exist.” At 88, “You can help . . . if you discuss the issue calmly–repeat, calmly–and if you are willing to listen . . . and to take any criticism that might come your way . . . .” When local and MSPB offenders “pretend” especially that there is no hazard contrary to the “‘overwhelming evidence,’” and violate so many basic and normal resolution principles, and are mute, they clearly display their severe symptoms of mental disorder. They are unwilling to “discuss the issue calmly,” for they are unwilling to “discuss the issue” at all. They are willing to hand out criticism and make personal attacks on me that show more about them and their symptoms including projection, than about non-smokers' health, including mine. (Nonsmokers are healthier than smokers, on an overall basis). They are unwilling to accept criticism from anyone (USACARA, OPM, MESC, etc.) They are not “willing to listen.” Persons displaying delusions of grandeur are foreseeably not “willing to listen” as new information could challenge their views. A “personal determination” under a “personal standard” [as mandated by AR 1-8] is thus not only not listened to, reprisal occurs for my seeking listening.
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Mr. V. Russell's 20 June 1983 issuance is disconnected from reality, including but not limited to 5 C.F.R. § 752.404(d)(3), and federal job applications, Standard Form 171. Employees and applicants are not allowed to be dangerous in their conduct towards themselves or others. Mr. Russell displays fragmentation when he leaves out a key aspect of the guidance; the rules relate to the persons’ own conduct.
S.F. 171 shows federal policy relative to smoking and being dangerous to self. The S.P. 171 asks about smoker conditions “which might be a hazard to you or to others,” and lists “heart disease, a nervous breakdown, epilepsy, tuberculosis or diabetes.” When an applicant has such smoker condition(s), it is the smoker applicant’s application that would be rejected. The application of nonsmokers (“others”) would not be rejected. Victims are not the ones to be excluded. It is the persons whose own conduct “might be a hazard to” themselves “or others” whose application would be rejected.
Mr. Russell is disconnected from the federal guidance. So is Dr. Holt.
S.F. 171 does not indicate that the “others” whom smoker conditions “might be a hazard to” are to be excluded. In addition, it does not indicate that such “others” are to be treated as somehow “handicapped.” Smoker conditions are to be detected in the applicant stage. However, it is clear that since smoking “causes insanity,” including but not limited to resultant symptoms such as confabulation, smokers with such foreseeable smoker conditions, may foreseeable lie. MSPB displays a willingness to make false statements on behalf of smokers. The record is replete with examples of MSPB falsehoods.
Fraudulent applications from smokers do not convert nonsmokers into being “handicapped.” Despite foreseeable fraudulent applications from smokers, nonetheless, “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 (CA 10, 1931). Smokers who make false statements in their job applications are to be dealt with in accordance with established rules and penalties for such conduct. False statements by smokers do not convert nonsmokers into being “handicapped.” Fraud does not magically convert smoking into being a part of “employment.”
OPM has made clear the lacking of a showing of a nexus with “employment,” i.e., no showing of “incompatible with either useful service or retention in the position.” Clearly, in safety cases, no “accommodation” is needed. There are no “job related” physical criteria”' involved. Cf. [Eugene Schoon, "Private Rights of Action"] Valparaiso University Law Rev., Vol. 13, 1979, p. 461. “Clearly, when dealing with a person merely perceived as disabled . . . the employer has no particular problems because the individual's ability is not affected.” Thus, as a matter of law, no “undue hardship,” lack of “authority to accommodate, or “unreasonableness” of perceived accommodation applies. No accommodation is required; none has been sought. Resolution involves application of basic rules and laws, to eliminate the hazards, and to deal with the offenders whose conduct has caused the hazard.
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(p 63)

Smokers cause automobile accidents, as is clear from “the well-established association between smoking and drinking and between drinking and automobile accidents,” noted by Dr. Joseph Stokes III, in The New Engl. J. of Med., Vol. 308(7), p. 393, 17 Feb 1983. In the 1980 Transactions of the Society of Actuaries, Table 9, p. 200, shows the smoker death rate in “Motor vehicle accidents” as 2.6 times higher than the nonsmoker rate.
The high smoker rate of deviant behavior, combined with the brain damage caused by smoking, makes such facts foreseeable. For example, see the article, “Human Factors in Highway Safety,” by Ross A. McFarland, Ph.D., and Roland C. Moore, Ph.D., in The New Engl. J. of Med., Vol. 256(17), pp. 792-799, 25 April 1957. At 795, “although superior intelligence per se is no guarantee of safe driving, a certain minimum mental ability is required by the nature and complexity of the driving situation. As brought out in one ‘job analysis' of driving, to avoid accidents, drivers must react within such brief intervals that factors of foresight, planning and the appreciation of hazards are of special importance. Moreover, more continuous attention is required of the motor-vehicle driver from moment to moment than of the operator of any other type of transportation equipment.” At 794, data is presented that is clearly insightful concerning smokers, “‘a man drives as he lives’ ––that is, if he makes mistakes in adjustment to the personal and social demands of living, he will make repeated errors in his driving.”
Such data provides insight on smoking and driving. Brain damage produces symptoms such as an impaired orientation for time, “for place,” “impairment of learning, comprehension, and judgment . . . with inability to think on higher conceptual levels and to plan,” and “Impairment of inner reality and ethical controls,” noted by Dr. James C. Coleman [Ph.D.], in Abnormal Psychology and Modern Life [Scott, Foresman & Co.], 5th edition, 1976, p. 461. The DSM-III cites symptoms that appear early (after only “at least several weeks”) in smokers, for example, “irritability,” “difficulty concentrating,” “restlessness,” and “drowsiness,” among others. The mental derangement paraded by smokers is such that, in this case at bar, smokers “cannot” comprehend that smoking is unsafe, that smoking is personal and hence adverse action is not allowed, that employee duties do not include smoking duties and certainly not at the 100% of duties level, etc. Smokers clearly lack even the “minimum mental ability” to understand Public Health Service data “that there is no safe cigarette; the single best way to avoid the health hazards of smoking is to quit smoking,” words borrowed from the 1981 Surgeon General's Report, p. 201. I want to “quit smoking” as is a non-smoker right under AR 1-8, safety law, mental health law, etc., yet smokers want to force nonsmokers to smoke, and punish me for objecting.
Smokers lack even the “minimum mental ability” to comprehend the massive danger of smoking, which in the No. 1 cause of death and disability. Considering the severity on the mental derangement displayed/paraded by smokers, their excessive rate of automobile accidents and deaths “will come” and did “come as small surprise to those who have had contact with” smokers, words borrowed from [“Tobacco Addiction”] Mich. Law Rev., Vol. 81 [237-258], p. 242, Nov 1982.
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(pp 65-70)

Smoking behavior “is recognized as one of the most common causes of insanity,” as Dr. Kellogg [Tobaccoism, p 77] noted. Dr. Hilgard cites others including but not limited to “head injuries, epilepsy, and cerebral arteriosclerosis,” “alcoholism, syphilis, acute infections, tumors, gunshot wounds,” in saying that “There are . . . many kinds of mental disturbance associated with known organic changes in the brain or nervous system.” Dr. Hilgard also discusses “projection,” “a form of rationalization,” even “to go so far . . . as to convert bad traits as to their opposite.” Moreover, in describing mental illness such as schizophrenia, authors utilize expressions including but not limited to “marked loosening of associations,” “frequently incoherent and disconnected,” “real derangement,” “delusions of persecution,” etc.
The pattern of symptoms in the local and MSPB behavior is clear. Ms. Bacon, and Messrs. Baumgaertner, Wertheim. and Taylor, for example, make odd statements that involve the reversal of the role of victim and “immediate threat.” Identifying nonsmokers such as me as tantamount to criminals clearly involves symptoms such as “marked loosening of associations,” disconnection, etc. Claims of “not ready, willing and able to” do what “not employed to” do are based on the “immediate threat” language first used by Ms. Bacon. (Cf. McIntosh v. Milano [168 NJ Super 466], 403 A.2d 500 at 512, “‘dangerousness' may affect third persons in much the same sense as a disease may be communicable.” Clearly, a “marked loosening of associations” such as a markedly illogical role reversal use of language “may be communicable,” in this case, from Ms. Bacon. to MSPB offenders.)
The bizarre role reversal is not unique to the cited four persons. Others are likewise culpable. Moreover, the disconnected identification of “nonsmokers as criminals” can be recognized in the public domain. See The Macomb Daily, Monday, 22 Nov 82, p. 9-A, in the syndicated “Health” column by Lawrence Lamb, M.D. The odd malassociation foreseeable in mentally ill smokers was submitted to him by a reader. Dr. Lamb responded, “I never thought of nonsmokers as criminals . . . .” The incoherent, disconnected associations made by the reader are consistent with the garbled and senseless remarks and associations of local and MSPB offenders. Dr. Limb analyzed the odd remarks. and started his answer, “I wonder if you happen to be a smoker.”
The odd remarks by the reader as published in Dr. Lamb's column are: “I am so tired of hearing about 'nonsmoker's' rights. Non-smokers rights are being equated with criminal's rights. We are so busy protecting the rights of the criminal that we forget the rights of the victim. I believe smokers have some rights, too. Alcohol kills more people than smokers. Why don't you concentrate more on the alcoholics?”
The inaccurate, disconnected, and senselessly malassociated local and MSPS assertions form a pattern. The medical literature on abnormal psychology shows well-established patterns in various mental disorders. It as foreseeable that mentally ill smokers will make illogical associations, misuse language as part of their symptoms, and draw incoherent and disconnected conclusions. In their garbled behavior, symptoms of multiple disorders are evident, including but not limited to paranoia, tobacco dependence, schizophrenia, brain damage, projection, etc. The “marked loosening of associations” that is foreseeable is evident in the pattern of identifying a nonsmoker (me) in language such as “immediate threat” terminology in a delusional and disconnected way not appropriate to a victim.
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(p 72)

The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on criminal behavior patterns provides insight concerning local [TACOM] and MSPB offenders. At 306, “The criminal lacks a concept of integrity. . . . integrity is foreign to his way of life.” At 302, “Mental processes in man evolve from the concrete to the conceptual.” At 303, “The criminal . . . is a concrete thinker.” At 310, “Concrete thinking as it occurs in the criminal is related to fragmentation.” At 303, “It has also been noted that concrete thinking predominates in some mental disorders. 'The schizophrenic's abstract level is lost or completely replaced by the concrete form (Arieti, 1967, p. 272).' Werner and others identified concrete thinking in the mentally retarded, the organically brain-damaged, and those with toxic mental conditions” Such data provides insight considering the nature of the contents of the issuances from local [TACOM] and MSPB sources.
At 304, “The criminal does not regard a parent as a human being with thoughts, wishes, and fears of his or her own. There is no concept of a reciprocal relationship; it is all take and no give.” Such data provides insight on smoker mental disease such that smokers think nonsmokers are not normal, so they ignore rules for the protection of nonsmokers. Indeed, local [TACOM] and MSPB offenders display insane and/or criminal views so extreme that they have not “even recognized that . . . regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others,” words borrowed from the 8 April 1983 EEOC letter [Docket 03.81.0087, 83 FEOR 3046]. Such data provides insight on why smokers oppose every aspect of the limits on their behavior, despite the express [AR 1-8] command to establish and “maintain an equitable balance” to achieve the duties. Smoking is not permitted unless the environment is “healthful,” a duty prior to reaching the issue of the alleged request for a ban on smoking where the duties are unmet.
At 303, “The criminal . . . is a concrete thinker.” At 305, “Most noteworthy . . . is his failure in . . . the process of 'identification.' The criminal does not maintain a balanced view of a person over time. He does not abstract anything that has to do with human qualities, temperament, abilities, and dispositions.” Aspects such as on “discomfort,” etc., relate to “human qualities.” The record shows the severity of the local [TACOM] and MSPB lackings in that regard. The “'abilities” to work are also clearly not comprehended. The local and MSPB innuendos display their lack of “a balanced view of a person over time.” The case in great [part] arises from the lack of such “balanced view.” For example, they have not “even recognized” the cited regulatory limits on smoking. Disregard of explicit words, especially words called to their attention by USACARA, by EEOC, and by me, is not “balanced.” It is not “equitable.”
At 305, “A criminal may successfully complete college and even graduate school, and thus there are criminals in all professions––law, medicine . . . etc. In quoting ethical principles, they appear to be conceptualizing. Actually, if one listens carefully, it becomes apparent that the criminal does not really grasp the meaning on a conceptual basis.” Such data provides insight on the local [TACOM] and MSPB behavior pattern. When “there are criminals in all professions,” “criminals in . . . professions” employed at MSPB, for example, are foreseeable. Their output “does not really grasp the meaning” of the legal and regulatory principles and concepts involved. For example, words such as “cannot,” “environment,” etc., are used by local [TACOM] and MSPB offenders, but they clearly do “not really grasp the meaning.”
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, Ph.D., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on criminals’ behavior provides insight for noting similarities with local [TACOM] and MSPB behavior. For example, claims of “uniqueness” are foreseeable from criminals views on uniqueness. At 316, “Each criminal’s belief in his personal uniqueness is manifested early. . . . The criminal’s sense of uniqueness is expressed everywhere. . . . For a criminal to accept advice is for him to lose his uniqueness, his identity. . . . He does not need it; he knows it all. When it comes to issues of right and wrong, legal and illegal, he makes his own rules.” Such data is insightful on the local [TACOM] opposition to the rules, to review, to beginning the compliance process, and to the various analyses from competent reviewers. It is insightful concerning the MSPB refusal of a hearing, disregard of the standards of evidence, making claims without regard for truthfulness and the record, and the MSPB “knows it all” attitude. At 403, “The criminal is not a fact-finder.” A criminal is thus foreseeably an inappropriate trier of fact; the employment of criminals by an adjudicative body is foreseeably reckless and lawless behavior.
At 315, “The criminal . . . emphasizes his total difference from other people.” At 316, the criminal “operates on the basis of being one of a kind, different from everyone else. . . . The criminal believes that no one can have the thoughts that he has. His belief in his uniqueness is an outgrowth of the way the criminal shuts others out or his life. He is very secretive . . . closing the channels for communication . . . The criminal's sense of uniqueness is expressed everywhere.” The local [TACOM] and MSPB behavior involves “closing the channels for communication.” They are “very secretive” and so they resort to multiple ex parte communications, which misconduct pattern “shuts others” such as appellant “out.” Such behavior arises from their view of being “one of a kind, different from everyone else” who are responsible to avoid ex parte communications. In such a situation, truth and the evidence of record and the standards for reviewing evidence are disregarded––a foreseeable consequence of ex parte communications, and hence, an intentional wrong. Their “closing the channels for communication” is intentional.
At 315, “If one compares human beings on the basis of the important issues that they must race in their lifetimes, one finds that most of the issues are faced in common, rather than being peculiar to individuals. All humans have generally similar physical needs and are generally alike in their bodily functions. . . . The criminal, however, emphasizes his total difference from other people. Although he pays lip service to what he has in common with others, a pervasive sense of uniqueness constitutes the cornerstone of his self-image.” Such data provides insight on the [TACOM and MSPB] disregard of the fact that “The danger cigarettes . . . pose to health . . . threatens a substantial body of the population, not merely a peculiarly susceptible fringe group,” Banzhaf v. F.C.C. [132 U.S.App. D.C. 14] , 405 F.2d 1082 at 1097 (1968). Like “The criminal,” the smoker “emphasizes . . . total difference.” The smoker “knows it all.” He “does not need” facts, or standards of evidence, to issue decisions. The smoker's and “The criminal’s sense of uniqueness is expressed everywhere.”
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Insane smokers claim that nonsmokers are abnormal and need to have “reasonable accommodation,” and then those same insane smokers grunt that such “cannot” be provided. Nay, they grunt that compliance with even the first aspects in the “series of instruction” “cannot”' be achieved. Such severe derangement as smokers display in this case is foreseeable from the data provided by Dr. James L. Tracy, in the Medical Rev. of Reviews, Vol. XXIII(12), p. 818, December 1917. The claim that nonsmokers are the ones to be accommodated is clearly part of the insane delusions of grandeur that smokers have. "So far, in fact, does this grandeur impression carry, that to the user of tobacco any opposition to its use at once suggests that there is mental abnormality in those who would interfere with its use,” such as by seeking compliance with basic rules, implementation of a USACARA Report, etc.
Because smokers are mentally deranged to the point of having insane delusions of grandeur, they feel that their insanity-causing behavior “which is so pleasant to the user is without question pleasant to every one else.” Evidently, to insane smokers, being insane is “pleasant,” and thus they lack the mental capacity to comprehend the views of sane people, especially those trained in psychology or psychiatry, that self-induced insanity is to be avoided.
Under such circumstances, the accuracy of the 8 April 1983 EEOC analysis, “The agency presented no evidence that it . . . even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others,” is foreseeable. The 25 January 1980 USACARA Report made the same point, at p. 12. To be very precise, the “agency” in AR 1-8 recognized the limits on smoking that EEOC, and USACARA before it, called attention to. What EEOC and USACARA are in fact finding, is that insane smokers, purporting to represent the “agency,” are simply parading their personal, deranged and lunatic notions. They are “parading the narcosis,” words from Dr. Tracy, supra, in accordance with the recognized symptoms of their disease, their mental disease. Foreseeably and predictably, these tragically insane individuals have not “even recognized” the agency's “own regulations.” In severe brain damage, it is foreseeable that such individuals “cannot” have “recognized” such guidance as AR 1-8 establishes. The guidance goes contrary to the characteristic symptoms of the mental disease.
Smokers “cannot” comprehend that they endanger nonsmokers. etc. “Craving operates largely unconsciously and addicts are usually unaware of their disturbance of judgment . . . rejecting and even resenting the suggestion that smoking might be responsible; that thought is so unwelcome that it is repressed into the unconscious mind. Even if this repression is overcome it does not follow that appropriate action will be taken,” insight from Dr. Lennox M. Johnson, in “Tobacco smoking and Nicotine,” in The Lancet, Vol. 2(6225), p. 742, 19 December 1942. In the midst of the multiple symptoms of smoker mental derangement, they feel that nonsmokers are weird, but they refuse to comply with the specified criteria for the protection of nonsmokers, while simultaneously asserting that such is so necessary that the lack thereof renders the victim unable to work. EEOC noted, p. 6, “suspension or termination” of me instead of compliance. The odd local [TACOM] behavior is clearly not “appropriate action.”
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Data on mental disorder is insightful concerning the smoker assertions about, and fixation on “relocating one nonsmoker.” That “projection” is involved is clear from the protracted nature of the insistence, despite the violation of the rules. Insane people are relocated by society when necessary to protect people from their dangerous behavior. For example. mentally ill smoker behavior is cited in Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); the mentally ill smoker was relocated away from society, first to Anoka State Hospital, then to St. Peter State Hospital “as a mentally ill and dangerous person.” The insane smoker's assessment of being relocated the first time is apparent from his reaction; he “escaped three times,” prior to the yet another “escape” that led to the Rum River case.
“Projection” is discussed in Introduction to Psychology, 4th edition, by Hilgard and Atkinson. At 516, “Projection is really a form of rationalization . . . .” “In projection we protect ourselves from recognizing our own undesirable qualities by assigning them in exaggerated amount to other people. Our own tendencies are thereby justified; we remove the stigma from our bad qualities by minimizing them in ourselves and by exaggerating them in others.” At 521, projection “unrealistically attributes an objectionable tendency of his own to another person instead of recognizing it as part of himself.”
Experiments on projection have found that those subjects “who possessed an undesirable trails in a high degree and yet were unaware of possessing it tended to assign their own undesirable traits to others to a greater extent than did the rest of the” subjects, p. 517. In another study, “The most striking finding of this study was a tendency on the part of the subjects to go so far in self-ratings as to convert bad traits to their opposite. The person who said of himself that he was “sincere under all conditions” was rated by the judges as lacking in sincerity. This subject, of course, found others full of sham and insincerity as compared to himself.” When mentally smokers do not know they are mentally ill, data an projection provides insight on their strange behavior, including their bizarre and disconnected accusations and behavior directed against nonsmokers including me. Examples include but are not limited to their own delusions of grandeur on their uniqueness, their fitness, and on their sanity. In a clearly mentally garbled way, they project their weird ideas directly or in opposites, as is foreseeable from the studies on projection.
In Psychology for Better Living, by Dr. Tussing, projection is also discussed. At 298, “the unwanted impulse is not eliminated but merely denied and then identified with another individual or object.” The person “looks to others whom he can blame and finds flaws in their actions.” At 299, “he can deal with the person he blames by hating, attacking, or avoiding him.” The local and MSPB behavior clearly shows such behavior; the 18 Jun 81 MSPB issuance [by Ronald P. Wertheim and Ersa H. Poston] is particularly unbalanced in this way. The extant hazard “is not eliminated but merely denied,” although considering the severity of the other symptoms, “denied” is by innuendo in a blunted and impoverished way. The prevalence of blaming and avoiding me, including repeatedly relocating me, is clear.
The entire smoker behavior, viewing the record as a whole, shows garbled, bizarre, disconnected, impoverished, concrete, and blunted statements muddled together, with different symptoms predominating in different issuance depending on authorship. Overall, it is clear that the fixation on “relocating one nonsmoker” arises from the irritable and escapist tendencies smokers show.
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Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], by Dr. [Lyle] Tussing, at 474, notes “that the prejudiced person has a sickness within himself.” Introduction to Psychology [Harcourt, Brace & World, Inc.], 4th edition [1967], by [Ernest R.] Hilgard and [Richard C.] Atkinson, at 177, cites of prejudices that “the people holding them are not capable of change through the examination of evidence bearing on them.”
Ed. Note: See People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

The inflexibility, and the apathy and indifference to reality, shown by local and MSPB personnel is clear. They refuse “examination of evidence bearing on” the situation, such as “examination” to determine that safety and health standards have been disregarded, that the personal standard envisioned by AR 1-8 has not been effected, that there is no job-related standard for claiming that a non-smoker wanting rules enforced should be declared ill for a medically impossible duration, that time limits are ignored, etc., etc. Indeed, even the 18 June 1981 MSPB assertions are ignored, and there is no “examination” or even response to my inquiries on the matter.
Hilgard and Atkinson at 177 provide a definition of prejudice, “An attitude that is firmly fixed and not open to free discussion is known as a prejudice.” Such data provides insight on the smoker behavior [that EEOC cited] of refusal to “ever consider the merits.” Even when their own EEO Officer (Mr. Kenneth Adler) in September 1980 recommended discussion, they refused. Mr. Baumgaertner of MSPB considered compliance “not relevant.”
Ed. Note: MSPB brazenly flouts decades of precedents that agencies must obey their own regulations. Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); California Human Dev Corp v Brock, 246 US App DC 65; 762 F2d 1044, 1049 (1985). See also U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (24 July 1974), and Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959).
These precedents show that it is well settled that an agency is bound by the regulations it has promulgated, even though absent such regulations the agency could have exercised its authority to take the same actions on another basis, and that the agency must abide by its regulations as written until it rescinds or amends them.
It is characteristic of the criminally insane that they are unable “to appreciate the wrongfulness of [their] conduct,” and “to conform [their] conduct to the requirements of the law,” says People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

The pre-reasonable accommodation process has not started; the 25 Jan 80 Grievance Report on the personal standard envisioned by AR 1-8 has not been implemented; local management in “the agency failed to abide by” it [as EEOC said].
Ed. Note: The accommodation process presumes compliance with other rules, i.e., does not serve as a pale substitute for it, contrary to the TACOM and MSPB position.

When in reaction [to the non-compliance, as EEOC noted], “appellant filed even more EEO complaints,” “miscalculations” [as EEOC noted] that suggest acalculia resulted [at TACOM], as did “the agency's decision to terminate” me [as cited by EEOC's Perez] in reprisal.
Dr. Tussing at 356, says of schizophrenia, “Because the disorder lasts so long, schizophrenics accumulate in mental hospitals and constitute about 50 per cent of the inmates at any given time.” Evidently schizophrenics, like prejudiced persons, “are not capable of change through the examination of evidence . . . .” They are unresponsive even when provided data from USACARA, MESC, and EEOC showing aspects of their unresponsiveness to reality.
At 474, Dr. Tussing notes that prejudice “is harmful to those against whom there is a prejudice . . . creates problems . . . directed against people . . . Prejudice is learned behavior . . . resentment and hatred . . . Once prejudices have been acquired . . . they tend to keep them . . . .” The analysis of “not capable of change” despite reality to the contrary is insightful. Malicious officials are “against” people, “against” rules, “against” those who disagree with them, “against” reality. Hilgard and Atkinson at 578 indicate, “The practice of finding a victim upon whom to place the blame for our troubles and hence to make the object of our agressions is a familiar one.” The local wrath at me has existed since I began [in 1979] seeking rule enforcement, and especially since I won the 25 Jan 80 Report, as Ms. Bacon's 29 April 1980 [letter] makes clear. At 579, the book says, “The law must increase the retaliatory strength of the victims of aggression,” and “it must invoke the usual sanctions that protect individual liberty . . . .” The MSPB behavior reflects rage and irritability that I suggested “the usual sanctions” [e.g., following hiring and discipline rules] for past rule violations, and asked for future rule enforcement. MSPB offenders [Baumgaertner, Wertheim, Poston, et al.] are clearly “not capable of change” to correct their errors. Their continued blunted actions show this.
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Stereotypy
The DSM-III [1980] at [page] 177 notes the “highly overlearned” nature of smoking behavior. NIDA Research Monograph 23 [1977] at [page] 1 notes that the “behavior represents a prototypic dependence process.” In “Smoking as an Addictive Disorder” [by Jerome H. Jaffe, M.D., and Maureen Kanzler, Ph.D.] (pp. 4 - 23), “gradually the capacity to choose is eroded . . . a small 'bolus' of nicotine reaches the brain within seconds after a puff . . . hundreds of puffs inhaled each day should produce a well-established puff-inhalation habit.” The behavior “is a case of widespread self injury with enormous health consequences . . . sickness and death,” as noted at [page] vii. Dr. [Matthew] Woods noted in [32 J Am Med Ass'n (#13) p 68, 1 April] 1899 that smoking “causes insanity.” The psychogenic or other mental problems that produce initial smoking behavior clearly produces organic brain damage; repeatedly placing poison in the brain "hundreds of puffs" or times a day results in brain damage. Dr. Woods noted that smoking “causes insanity.” More specifically, Dr. Kellogg noted such aspects as “neurasthenic symptoms,” “difficulties in speaking and writing, defects of word memory, aphasia, neuralgia . . . .”
Introduction to Psychology, 4th edition, at 512 - 513, discusses “stereotypy in behavior, that is, a tendency to blind, repetitive, fixated behavior. Ordinary problem-solving requires flexibility . . . .” Under certain circumstances in a person's life, “some of his flexibility appears to be lost, and he stupidly makes the same effort again and again . . . For example, a white rat can be taught to jump to one of a pair of stimulus cards . . . by so arranging the cards that the rat finds food behind the positive card but is punished if he jumps to the negative card. . . . The cards are so arranged that the rat knocks over the positive card when he hits it, opening . . . access to a platform where there is a food reward. If the rat jumps against the negative card, the card does not give way. Instead, the rat bumps against the card and falls into a net. By varying the position of the cards, the experimenter can teach the rat to select the positive one and to jump consistently to it.” However, the experiment can be changed so that “each of the two cards leads half the time to reward (positive reinforcement), half the time to punishment (negative reinforcement), regardless of its position . . . Hence, whichever choice the animal makes is 'correct' only half the time. The result is that the rat . . . tends to form a stereotyped habit of jumping regularly to one side, no longer paying attention to which card is exposed. . . . Once the stereotyped habit has been adopted, it is very resistant to change, so much so that it has been called an 'abnormal fixation.' For example, if the rat that has come to jump regularly to the right is now punished every time he jumps, he may continue to jump to the right for as many as 200 trials, even though the left window remains open as an easy and safe alternative . . . The behavior is so stereotyped that the altenative does not exist for the rat . . . .”
Stereotypy provides insight on smoker behavior such as the disregard of the [15 USC § 1333] warning labels on tobacco, the “highly overlearned” aspects of the behavior, etc. Smokers do not foresee which smoker in particular will die of which physical or mental illness caused by smoking. Once brain damage has occurred, “gradually the capacity to choose is eroded.” Even if they were taught the principles of safety, job-related qualifications criteria, “not ready, willing and able to work” guidance, the “blind, repetitive, fixated behavior” continues even despite repeated showings of the mentally disordered and wrongful aspects of their deviant behavior.
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DSM-III Smoker Symptoms
The symptoms listed in the DSM-III at 160 are: craving for tobacco, irritability, anxiety, difficulty concentrating, restlessness, headache, drowsiness, and gastrointestinal disturbances. In analyzing the MSPB decisions and the tACOM claims for symptoms evident therein, background on smoker delusions and deviance is helpful. The fact that smokers do not properly grasp or deal with reality is evident from the psychiatric and medical literature. In counseling disturbed individuals, it is helpful to understand where they are coming from––their background and beliefs however deviant they might be. The hearing will go into the detailed delusions and background of the persons involved in the case. But overall, what kinds of delusions do smokers have?
[Matthew Woods, M.D. in] 32 JAMA 683 (1899) makes clear that smoking “causes insanity.” The observation that “Anyone who smokes is nuts” is in the public domain. Alcoholic psychoses are publicized. There is no doubt that smokers have delusions and loss of self-control. The existence of tobacco-induced insanity explains why we are so long in time past 17 March 1980. So the question remains: overall, what delusions are common to smokers? A pamphlet “Funded from NIDA p192-255 through Wisconsin department of Health and Social services” describes smoker beliefs. The pamphlet is called “Sharing the Same Space: a guide to getting along for smokers and nonsmokers.” The pamphlet is in laymen’s language and is at the simple hortatory level.
What is the fundamental smoker delusion? At 6, the pamphlet indicates that smokers “feel injury to the nonsmoker is absolutely impossible.” The mentally twisted, psychotic, crazed hallucination that “injury to the nonsmoker is absolutely impossible” is the source of the TACOM refusal to admit a hazard. That claim is repeated time and again by TACOM officials. It explains the refusal to protect other nonsmokers. It explains why MSPB refuses to deal with the situation of singling me out for the sadism of being prohibited from working for so long. In Barylski v. Paul, 38 Mich. App. 614 at 616 [196 NW2d 868] (1972), the Court noted that “The lunatic must bear the loss occasioned by his torts.” However, as noted in the Michigan Law Review, March 1981, at 754, “criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned.” When a “lunatic” causes a “loss,” the victim needs an impartial deciding official with impartial people providing the evidence. The victim is not helped when they pretend there is no “loss” and/or that the cause has been corrected when it has not been. The victim is not helped when the insane delusions of the “lunatic” are accepted over the truthful data provided by the victim.
The pamphlet also says that smokers “are resentful . . . A health conscious society . . . has already suggested they eat too much and drink too much alcohol . .. .” Irritability and the link with alcoholism are evident even in the lay pamphlet. At 10, the pamphlet advises to “Avoid smoking in the presence of . . . One whose condition is sensitive to smoke (e.g., cardiac; respiratory).” The fact that smokers are not capable of self-control in this aspect is obvious from the many sources that offer such advice; the delusion that I am unique is continually refuted. Circumstances have not changed in any way; smoking in my presence was wrong both before and after 17 Mar 80. When circumstances have not changed, adverse action is not proper.
One symptom of a “resentful” smoker is cited at 7 as: “You might decide requests from nonsmokers to refrain are unreasonable.” The reaction of “cannot” and “undue hardship” is typical of the smoker pattern of not grasping reality. The symptoms smokers have are well known; the pamphlet at 16 advises smokers to “respond with good humor.” That seems reasonable. A fit of irritability or insane rage is not socially acceptable; it is uncouth and boorish.
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(pp 80-82)

When schizophrenes, deviants, and others have demonstrated in writing the existence of their fixations, the rigidity that is characteristic of such disorders of thought processes is unresponsive to the presentation of evidence for examination. The record reveals multiple examples of rigidity, including rigidity disconnected from reality, including reality such as issuances from the same agencies.
For example, MSPB is aware of “an environment [TACOM's] where exposure to cigarette smoke presents a hazard to all employees,” yet MSPB does not overrule the symptoms of mental illness of local offenders who claim that there is no “hazard to all employees.” Such claims are disconnected from the [reality of] multiple cases showing the hazard “beyond controversy,” Larus & Brother Co. v. F.C.C., 447 F.2d 876 ([CA 4] 1971), and “inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events,” Banzhaf v. F.C.C. [132 US App DC 14], 405 F.2d 1082 (1968) [cert den 396 US 842 (1969)]. Under such circumstances, psychosis is clear in such [MSPB staff] remarks as, “the agency reaffirmed its offer to return the appellant to work as soon as he provides medical dearance from his personal physician.” Clearly, such claims support data that smoking “causes insanity,” including but not limited to brain damage, delusions of grandeur, and schizophrenia.
Another example of the rigidity of disordered thought processes relates to the bizarre claim by MSPB that the “police power” poses an “undue hardship,” and that I should be punished for reference to the police power in some way. Such MSPB delusions, displayed 18 Jun 81, clearly violate guidance on bills of attainder, freedom of expression, finality of USACARA Reports, etc. But delusions of grandeur are also evident in the 18 Jun 81 remarks.
Competent police officials recognize the range of self-defense possibilities. The severe rigidity of thought processes evident in the continuing MSPB behavior is not evident in competent analyses. A competent police official recently stated, “I never want to be” in “a position to say a victim didn't do enough. We don't criticize someone for not fighting . . .” Such data is from “Detroit Police Inspector Robert Hislop, head of the crimes against persons unit,” whose assessment was printed in the Detroit Free Press, Vol. 152, Issue 229, 19 December 1982, pages 1 and 15. The police “don't criticize.” MSPB offenders lack such self-restraint. Their severe rigidity is evident.
The Supreme Court has shown the other end of the spectrum of resistance to harm. See Brown v. United States, 256 U.S. 335, 41 S.Ct. 501 [65 L Ed 961] (1920). The range of acceptable behavior on the part of a victim is clearly wide. Words such as “vast” and “full range” come to mind. However, in deviant, schizophrenic, or other rigidity, running afoul of some unstated view obviously disconnected from the body of law is used as grounds by MSPB for supporting reprisal. In delusions of grandeur, self-restraint such as “don't criticize” is lacking. Disorientation for time is also evident in the bizarre 18 Jun 81 issuance. Cf. Matter of Seraphim [97 Wis 2d 485], 294 N.W.2d 485 [500] (1980) [cert den 449 US 994 (1980)], quoting In the Matter of Laster [404 Mich 449], 274 N.W.2d 742 (Mich. 1979), “One path seeks to correct past prejudice . . . the other seeks to prevent potential prejudice to future” victims. To mentally disturbed people, mild requests such as I made after my requests for compliance with AR 1-8 were denied, are inappropriate. Schizophrenic smokers and other dangerous people clearly are mentally incapacitated to comprehend cases such as Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976), in either past or preventive terms.
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(pp 84-90)

The book, Abnormal Psychology and Modern Life, 5th edition, at 418, indicates that “Several psychotic reactions commonly develop in individuals who have been drinking excessively over long periods of time, or who–for various reasons, such as brain lesions–have a reduced tolerance for alcohol.” Dr. [Matthew] Woods [in JAMA, Vol. XXXII(13), 1 April 1899] noted that smoking “often leads to drink.” Smoking has adverse organic effects such that the DSM-III lists it in the “Organic Mental Disorders” section. At 477, “Alcoholics, in particular, are prone to head injuries and other accidents, and do not have good recovery records.” Dr. [Arthur] Cain noted that “Nearly all alcoholics, recovered or otherwise, are heavy smokers.”
One of the various alcoholic psychotic reactions is Korsakoff's psychosis. At 420, “Korsakoff’s psychosis was first described by the Russian psychiatrist [Dr. Sergei] Korsakoff [1854-1900] in 1887. The outstanding symptom is a memory defect (particularly with regard to recent events) which is concealed by falsification. An individual may be unable to recognize pictures, faces, rooms, and other objects as identical with those just seen, although they may appear to him as similar. Such persons increasingly tend to fill in gaps with reminiscences and fanciful tales that lead to unconnected and distorted associations. There individuals may appear to be delirious, hallucinated, and disoriented for time and place, but ordinarily their confusion and disordered conduct are closely related to their attempts to fill in memory gaps. The memory disturbance itself seems related to an inability to form new associations. . . . some personality deterioration usually remains in the form or memory impairment, blunting of intellectual capacity, and lowering of moral and ethical standards.'' At 477, “Among older people and individuals who have suffered extensive damage to the frontal lobes, the symptom picture may be complicated by markedly impaired memory for recent events and by confabulation.”
Korsakoff’s psychosis provides insight on the bizarre behavior of the deciding officials. The rules may “appear” “similar” since my cases cite them, but deciding officials are “unable to recognize” them or respond to them, such as by overturning the action on the basis of the violations and/or by directing compliance to begin. The examining physicians emphasize my ability to work; yet decisions are “unable to recognize” such input, including the acceptance of the corrective actions asserted [6 MSPB 626; 7 MSPR 13, 18 June 1981, by Wertheim, Poston, etc.]. Placing requests and alleged requests in both the completed and “undue hardship” categories connote “fanciful tales.” References to requests I did not make are also disconnected “fanciful tales.” Weird contradictions from decision to decision as well as internally in decisions. even in the same sentence, are also disconnected “fanciful tales.”
The reorientation for time and place evident in the decisions and the apparent hallucinations or delusions of actions alleged become more and more evident as more and more cases are filed. The “attempts” at decisions reflect the “attempts to fill in memory gaps,” a laborious process evidently, considering the extreme delays. Correction of stereotyped behavior can take hundreds of efforts; when stereotypy is compounded by displayed symptoms of mental disorder and/or alcoholism, the value of the many appeals is evident. The bizarre behavior patterns of deciding officials, including blunted aspects, is thus surfaced.
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The book, Understanding and Helping the Schizophrenic [New York: Basic Books], 1979, by Silvano Arieti, M.D., provides insight. At 167, “Adverse prognostic features in a considerable number of cases—but not in all—are the following:
“1. Slow, insidious beginning of the illness.
“2. Absence of precipitating factors or easily ascertainable psychological causes.
“3. Blunting of affect and marked schizoid type of personality.
“4. General attitude of defiance toward doctors and nurses.
“5. Attempt to blame others and exonerate oneself. This criterion is not always valid.
“6. Acceptance of one's illness or resignation to being sick. This trait belongs more properly to advanced stages of schizophrenia.”

Such data is most helpful. The entire case clearly arises from smoker claims that compliance with the safety duty “cannot” be achieved. The [multi-year] duration arises from the bizarre MSPB view that compliance is an “undue hardship.” Such “resignation to being sick” mentally and to continuing to endanger nonsmokers such as me clearly arises from the “advanced stages of schizophrenia” or other deviance [e.g., bribery, racketeering]. Such claims as “cannot” comply are foreseeable, based on the many years of smoking that the makers of such claims have engaged in. It is now many years after the “at least several weeks” period cited for the “Tobacco Withdrawal” syndrome, in the DSM-III. The “advanced stages” of mental illness or other deviance are foreseeable after such a protracted period.
Smoker mental problems show a “Slow, insidious beginning” based on the evidence concerning “General attitude of defiance toward doctors and nurses” and the public domain data on the hazards of smoking. False advertising directed at children is also part of the pattern. These factors are involved in the initial smoking. Thereafter, addiction and brain damage arises, producing continued smoking. Lack of insight combined with disorientation for time is evident in the disregard of the long-term effects of continued smoking behavior. The untreated behavior continues; additional symptoms including but not limited to paranoia, delusions of grandeur, lowered ethical standards, impairment of comprehension, aphasia in various forms, etc., etc., arise and worsen to a noticeable degree.
Bizarre behaviors are evident in the smoker behavior as discussed in the case record. Weird “schizoid” claims are made by the offenders, involving odd and contradictory claims. Examples relate to the “immediate threat” claim initiated by Emily Bacon, as contrasted with the implied denial of even so much as a hazard, issued by Ronald Wertheim [Ersa Poston, et al.]. His bizarre symptoms [7 MSPR 13] include both a denial that smoking can be controlled, as well as a simultaneous insistence that a ban is already extant! Clearly, “defiance toward doctors” and medical evidence, as well as the “personal determination” envisioned by AR 1-8, is evident. The malicious accusations against nonsmokers such as me (typical of smoker paranoia) are part of the [insane's] “Attempt to blame others.” Note Ms. Bacon's [symptomatic] 29 Apr 80 claim that the situation “was brought about by Mr. Pletten.” MSPB has accepted that bizarre reversal. I have not “brought about” the non-compliance [with AR 1-8, OSHA, advance notice law 5 USC § 7513, etc.. TACOM did!]
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(p 92)

The book, Schizophrenia: Symptoms, Causes, Treatments [New York: Norton], 1979, by Kayla Bernheim, Ph.D., and Richard Lewine, Ph.D., provides insight. At 23, “One of the defining characteristics of schizophrenia is disordered thinking. This is present, in one form or another, at one time or another, in all schizophrenies and is typically what makes schizophrenia often seem so bizarre. In our example, Kate experienced a number of symptoms of thinking disturbance. . . . She had difficulty concentrating and was unable to understand what a co-worker was saying to her. Her perception of the co-worker's appearance changed. A major difficulty in studying thinking problems is that they are not directly observable and must be inferred from speech and behavior.” At 24, “To date, it has not been demonstrated that the schizophrenic can be taught or coerced or convinced not to have these thoughts.”
Such data provides insight. The case record is replete with examples of the “disordered thinking” of deciding officials. The odd assertions are in writing, not limited to mere “speech and behavior.” The “speech and behavior” has included odd behaviors and assertions made in my presence. Symptoms of “difficulty concentrating” are evident both in person and in the written issuances. The written symptoms are “observable.” Such data is consistent with information on “prolonged use of tobacco . . . as one of the most common causes of insanity,” words borrowed from Dr. John Kellogg. When brain tissue is damaged to the point of being dead, it is clearly foreseeably unresponsive to input. Dead brain cells foreseeably cannot “be taught or coerced or convinced” of anything. Such information provides insight on the local [smoker] claims of “cannot“ act [to obey AR 1-8, OSHA, advance notice law, etc.], as distinguished from the MSPB claim of “undue hardship.” Dead brain tissue “cannot” respond, whereas for damaged and dying brain tissue, response might demonstrably be an “undue hardship.” However, MSPB has not made such a demonstration [as EEOC verified 8 April 1983, Docket 03.81.0087, 83 FEOR 3046].
The MSPB assertion on “undue hardship” was rendered sua sponte. Such issuance is consistent with data at 26, quoting [Prof. Paul Eugen] Bleuler [M.D.], “'In schizophrenia . . . thinking becomes confused, bizarre, incorrect, abrupt.'” The “undue hardship” assertion was clearly “abrupt” [i.e., without advance notice to allow time for defense, reply]. It [MSPB's abrupt assertion] shows clear disorientation for time, including the brain damage and death process. Dead brain tissue follows the damage. Tissue death does not precede the damage. In the tissue dying stage, “undue hardship” may apply for that specific tissue, but “cannot” applies to the dead tissue. The process of dying leads to the deaths, at the cellular level. There would foreseeably be a repetitive process of cellular change, culminating in individual cell deaths. The MSPB [Wertheim, Poston et al.] “abrupt” assertion of “undue hardship” [rejected by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046] disregards the process, and is thus “incorrect” in the long term.
Smokers displaying brain tissue death symptoms indeed “cannot” accommodate anyone. That is particularly true after they leave federal service, for example, by fraudulent disability retirements. Mentally ill and dangerous smokers are to be disciplined or removed, not retired on disability. When the “advanced stages” of mental illness are extant in smokers, discipline of course would be ineffective, since dead cells cannot “be taught or coerced or convinced” of anything.
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(p 94)

Data on confabulation provides insight concerning the odd local [TACOM] and MSPB behavior. See Dr. James C. Coleman, Abnormal Psychology and Modern Life, 5th edition, 1976, pp. 460-461, on “permanent destruction of brain tissue . . . Where the damage is severe . . . symptoms typically include . . . a tendency to confabulate, that is, to 'invent' memories to fill in gaps.” That relates to “Impairment of memory,” which is particularly foreseeably likely to produce odd decisions and MSPB issuances, when combined with other symptoms.
Note p. 8, n. 6, of the 20 June 1983 MSPB issuance [6 MSPB 626; 7 MSPR 13]. Mr. V. Russell cites the 18 June 1981 MSPB allegations. He minimizes them as mere “Dicta,” which claim in itself is odd considering the MSPB insistence on how important “accommodations” are for me.
Mr. Russell claims/pretends to remember that the alleged actions were “in response to prior grievances and complaints.” In brief, Mr. Russell does “‘invent’” a basis for the wantonly false MSPB claims, i.e., a result of “prior grievances and complaints.” Confabulation provides insight on Mr. Russell's unfortunate condition.
EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] noted that “evidence in the record would indicate such actions were not even attempted.” That fact provides insight on the severity of Mr. Russell's condition. Confabulation foreseeably includes inventions of explanations for events. Here, confabulation is piled on top of confabulation. Events that “were not even attempted” are not a result of “prior grievances and complaints.” Even MSPB on 18 June 1981 [6 MSPB 626; 7 MSPR 13] did not go to such a bizarre extent as to claim causative factor (“prior grievances and complaints” or other basis) for the false allegations that the environment had been “improved.” The MSPB offenders [Ronald P. Wertheim, Ersa H. Poston, et al.] who unlawfully fabricated the false claims knew better than to fabricate such a claim as well.
The 25 January 1980 USACARA Report was not implemented. On 23 February 1982 [Dockets 01800273 et al.], EEOC noted that “the agency failed to abide by” it. EEOC also noted what happened then, “appellant filed even more EEO complaints,” and grievances as well. Mr. E. Hoover has confessed what happened concerning those. “the relief sought by Mr. Pletten in each case has been denied,” in his 24 September 1981 letter, MSPB Docket CH07528110619, decided 9 November 1981. The severity of Mr. Russell's condition is evident, considering that he referred to that case in his own issuance, yet clearly without insight. He displays “an apparent lack of awareness of his defect,” data from Allen D. Calvin, et al., Psychology, 1961, p. 432, discussing “Brain injury.”
Confabulation is evident, indeed confabulation on confabulation. The claim of “a series of ‘accommodations’ . . . in response to prior grievances and complaints” is impoverished. It lacks specificity. Considering Mr. Russell's poor condition, and lacking insight on his own lack of specificity, his impairment of comprehension of the installation [TACOM] lack of specificity is foreseeable. Confabulation of a basis for non-existent events is particularly marked in Mr. Russell's case, as combined with related impairment for time, and are disconnected from the 7 and 8 July 1981 acceptances [of MSPB’s 18 June 1981 claims, thereby exposing them as they falsehoods they were intended by MSPB to be].
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(p 96)

In schizophrenia, “explanations for . . . behavior are fragmentary,” [says] Dr. Lyle Tussing, in Psychology for Better Living [(New York: John Wiley, 1965, 5th ed.], p. 357. Brain damage is discussed by Dr. James C. Coleman, in Abnormal Psychology and Modern Life, 5th edition [(Scott, Foresman & Co, 1976)], pp. 460-461, “where the damage is severe . . . symptoms typically include . . . a tendency to confabulate . . . to fill in gaps . . . Impairment of learning, comprehension, and judgment—with ideation tending to be concrete and impoverished—and with inability to think on higher conceptual levels and to plan.”
MSPB displays inability “to plan” to comply with time limits for decisions. Hazards, and especially “a serious health hazard,” p. 2, n. 2 of the 20 June 1983 issuance [by MSPB's Victor Russell], are to be resolved within hours. The MSPB inability “to plan” is clear, when a decision on a 16 December 1981 appeal is not issued until 20 June 1983.
In safety matters, two thoughts are foreseeable:
#1 #2
The employee is ready, willing, and There is a hazard.
able to work.

Hazards are a recurring situation in the world of business and industry. When hazards arise, the employees are not terminated. Insane reactions of such a nature would foreseeably produce numerous strikes. Moreover, terminations of [whistleblower] employees because of hazards would “not eliminate or even reduce the hazard,” Amer. Smelting & R. Co. v. OSHRC, 501 F.2d 504 at 515 (CA 8, 1974).
In brain damage, there is “a tendency to confabulate . . . to fill in gaps.” In this case, the examining physicians have carefully distinguished the two thoughts. Their response to “ normal stimuli” displays sound mental acuity. Precise distinctions are made. They do not muddle thoughts together in a senseless malassociation or word salad. However, Dr. Holt and MSPB officials do display and parade senseless malassociations and word salads. When deciding officials lack the mental acuteness of making precise distinctions, they “fill in gaps” (“confabulate”) to insert and project their insane views into the record. Then, insanely, they attribute their projections to the doctors who are the victims of their protections.
The examining doctors have taken account of the hazard, and nonetheless concluded, that I am ready, willing, and able to work. Insane local and MSPB offenders lack the nental acuteness to make such foreseeable distinctions. Thus, they “fill in gaps” and senselessly malassociate the two separate and distinct thoughts, and thus overrule the actual meaning of the statements. This severe symptom is evident throughout the local and MSPB assertions. For example, p. 5 of the 20 June 1983 MSPB issuance [by MSPB's Victor Russell] displays the severe symptoms at issue, in its saying, “Dr. Dubin and Dr. Salomon both stated the appellant was not able to safely work in” “a serious health hazard,” p. 2, n. 2. Mr. Russell thus displays his own confabulation, and impaired and impoverished comprehension. He thinks smoking is what workers are employed to do, so he projects his own odd personal views, and fills in the gap, presumptuously “thinking” tbat doctors would not be aware that workmen are not enployed to smoke.
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The book, Schizophrenia: Symptoms, Causes, Treatments [New York: Norton], 1979, by Kayla Bernhein, Ph.D., and Richard Lewine, Ph.D., provides insight. At 23, “One of the defining characteristics of schizophrenia is disorganized thinking.” At 25, “More fundamentally. the schizophrenic finds it difficult to organize thoughts and direct them toward a goal. It appears as if associations lose their logical continuity. . . . This sort of disturbed thinking is called ‘loose associations.” “[Prof. Paul Eugen] Bleuler [1857-1939], whose turn-of-the-century characterization of schizophrenic symptoms remains unsurpassed, describes the disorder this way:
‘In the normal thinking process, the numerous actual and latent images combine to determine each association. In schizophrenia, however, single images or whole combinations may be rendered ineffective, in an apparently haphazard fashion. Instead, thinking operates with ideas and concepts which have no, or a completely insufficient, connection with the main idea and should therefore be excluded from the thought-process. The result is that thinking becomes confused, bizarre, incorrect, abrupt.’”

At 27, “Thus, thoughts may be connected simply because they occur together in time. For instance, if one asks a patient a question, he may respond with an idea he happened to have at the time, with little reference to the meaning of the question. . . . Fragments of thoughts may lead to other fragments of thoughts so that, before long the original intent of the communication is lost. Our example of the schizophrenic’s response . . . is bizarre, not because the associations are bizarre but because the original goal is lost while one thought leads to another. It is as if thinking gets waylaid, leading forever down divergent paths and either failing to get to the point quickly or going beyond it. A schizophrenic patient describes the state this way:
'My thoughts get all jumbled up. I start thinking or talking about something but I never get there. Instead, I wander off in the wrong direction and get caught up with all sorts of different things that may be connected with the thing I want to say but in a way I can't explain. . . .
‘My trouble is that I've got too many thoughts. You might think about something, let's say that ashtray and just think, oh! yes, that's for putting my cigarette in, but I would think of a dozen different things connected with it at the same time.’”

Such data provides insight on the local [TACOM] and MSPB behavior and issuances. The deciding officials might want to discuss compliance with AR 1-8, but their mind wanders off to ramble concerning irrelevant OSHA data, then wanders off onto “reasonable accommodation.” No thought is analyzed in a thorough and professional manner. This type of symptom is particularly noted in the 18 June 1981 MSPB issuance [6 MSPB 626; 7 MSPR 13]. Claims of what should have happened are garbled with claims of “undue hardship” concerning the same aspects. It is evident that the bizarre connections of “thoughts” were “connected simply because they occur together in time.” At the time of issuing a decision, thoughts on what should have happened would foreseeably occur along with thoughts on what did not occur. Sane people would separate and distinguish the thoughts in a competent manner. The MSPB issuance, however, simply muddled together “fragments” and “other fragments.” With the data all garbled incoherently, “the point” was lost.
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The book, Schizophrenia; Symptoms, Causes, Treatments [New York: Norton], 1979 by Kayla Bernheim, Ph.D., and Richard Lewine, Ph.D., provides insight. At 28, “The schizophrenic person appears to have a faulty 'shut-off mechanism, a faulty filter. He tends to be flooded by information.” Moreover, in contrast, when there is a “normal brain,” “you can direct your mind to shut off extraneous thoughts and feelings.” Such data provides insight concerning the 20 June 1983 MSPB issuance. A person such as a deciding official with a “faulty filter” would foreseeably parade the consequences of such, even though his victim does not foresee that such would occur; cf. McAfee v. Travis Gas Corp. [137 Tex 314], 153 S.W.2d 442 (1941).
The record shows a lot of data, briefs, transcripts, etc., such that an individual with “a faulty filter” would foreseeably be “flooded” by the “information.” With a “faulty filter,” “faulty” filtering is foreseeable. The 20 June 1983 issuance parades significant “faulty” analyses.
Installation officials provide data showing their grunting “cannot” comply with “AR 1-8 guidance against endangering people. The 20 June 1983 issuance [by MSPB Presiding Official Victor Russell] repeatedly affirms the endangerment. But instead of filtering out the [TACOM smoker] grunted claims of “cannot” [comply] as false, it [the Russell decision] lets such “faulty” “information” through. Even worse, it filters out the data showing that the installation must comply with the guidance, has the “authority” to do so, and must do what is “necessary,” as distinct from some “faulty” view of the OSHA “unqualified and absolute” safety duty as somehow “unreasonable.”
The issuance [from MSPB's Victor Russell] has not “even recognized that” the agency's "own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others,” “information” from the 8 April 1983 EE0C decision, p. 5. A “faulty filter” would foreseeably “filter” “information” in such a “faulty” manner [that] that duty would not “even” be “recognized.”
A “faulty filter” would also foreseeably “filter” out data that “smoking shall be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful,” “information” from 32 C.F.R. 203. A “faulty filter” would foreseeably “filter” in a “faulty” way such that limits on what is “permitted” would be filtered out, leaving a fixation [by MSPB's Victor Russell] only on the word “ban.”
A “faulty filter” would “filter” out [ignore] the MSPB duty to overturn adverse actions where compliance is not shown. Where a “filter” is particularly “faulty,” the “faulty” filtering might even exclude aspects of regulatory issues as somehow “not . . . relevant.”
Ed. Note: Victor Russell's symptom pattern defies decades of case law that agencies MUST comply with their own rules before they can proceed, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).
Note the rule of law on a person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”--People v `, 115 Mich App 263; 320 NW2d 238 (1982).

A “faulty filter” foreseeably would fail to “filter” out [reject] installation claims on lack of authority, etc., [aberrant claims] already rejected by the agency's own Grievance Office. A ”faulty filter” foreseeably would let by a lack of specificity so glaring that others, such as OPM, have already noticed the lacking, as for example, a nexus between smoking and employment. A “faulty filter” would foreseeably reverse the issue of “conduct,” and overlook the endangerment caused by others (smokers) dangerous to themselves and others. A “faulty filter” would foreseeably overlook installation overruling of medical evidence on ability to work. A “faulty filter” would foreseeably “filter” out the “applicable standards of proof” of a case. A “faulty filter” would foreseeably filter out cases on safety, smoking, etc. despite the nature of the case.
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(pp 100-102)

Examples of
Fragmentation/lmpoverished Ideation
Fragments The fragments ignore reality (rules and evidence in the record as a whole).

MSPB repeatedly relies on Dr. Holt's “legal opinions” on the lack of “authority.” Dr. Holt is not an “expert” witness on law. Even if he were, his “opinion of the law is both incompetent and irrelevant.” People v. Matulonis, [115 Mich App 263] 320 N.W.2d 238 (1982). Moreover, Dr. Holt's symptoms include disconnection from, and unresponsiveness to “normal stimuli,” such as the 19 June 1979 legal opinion, the 25 Jan 80 USACARA Report, AR 1-8 and 600-20, the AR 385 series, and principles of law such as on safety, malpractice, mental illness, negligence, nuisances, crimes, etc. Also, the USACARA analysis is not only res judicata, it is also the “law of the case.”

MSPB repeatedly relies on Dr. Holt's insistence that I am not “ready, willing, and able to work. Dr. Holt's symptoms of non-responsiveness to “normal stimuli” produced his overruling the medical evidence, which emphasizes my ability to work. Dr. Holt’s symptoms include his odd view that smoking is part of employment (duties, environment, etc.), contrary to law. His delusions of grandeur concerning his own legal expertise confirm that the installation misconduct is void ab initio. He admits that he overruled the medical evidence by his confession of ignorance of the USACARA Report.

MSPB ignores Dr. Holt's confession of ignorance of the USACARA Report, which ignorance led him to overrule the medical evidence on my ability to work, based on his own view of law. Dr. Holt's ignorance of the rules of law is massive. The severity of his symptoms of obliviousness to reality is evident from the fact that the 25 Jan 80 Report has been brought to his attention from the very beginning. His unresponsiveness to “normal stimuli” is clear.

MSPB ignores the many cases on smoking, the OSHA “general duty,” and other rules, when it limits itself to the “legal opinions” of incompetent witnesses. MSPB claims to be relying on AR 1-8, which assertion is, of course, false. But taking MSPB offenders at their word, their disregard of the multiple court precedents on smoking (in this case on smoking) is clearly fragmented and impoverished. Such symptoms are foreseeable in brain damage, even though a victim does not foresee those symptoms, McAfee v. Travis Gas Corp., [137 Tex 314] 153 S.W.2d 442 (1941).

MSPB emphasizes the negative. MSPB ignores all the things that “can” and “must” be done, and uses multiple falsifications, based on the malice against the laws.

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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Information on the state of mind of criminals provides insight concerning smoker “reasoning.” At 309, “The most common characterization of the criminal is that he is unreliable and a liar.” At 308, “Inconsistencies in the criminal's behavior are readily apparent . . . contradictoriness is a standard component of the thinking processes of criminals. There are consistent and predictable aspects to this element of the criminal mind.” Such data provides insight concerning the multiple contradictions issued by local [TACOM] and MSPB offenders.
At 309, “The most common characterization of the criminal is that he is unreliable and a liar. When he fails to keep his word, it is usually deliberate, but it might be the result of fragmentation.” At 308, “‘Fragmentation' refers to fluctuations in mental state that occur within relatively short periods.” At 311, “An outstanding characteristic of the fragmented mind of the criminal is the speed with which it changes. However, unlike a person with a severe mental illness, the criminal has conscious control over both his thinking and his action.” In the case at bar, the 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] shows fragmentation. Within only a few pages, multiple contradictions are evident. Such multiple contradictions are consistent with the data on “the speed with which . . . changes” showing fragmentation occur.
At 314, “Fragmentation can also be distinguished from psychotic disorganization. A psychotic person's thinking is fragmented, in the sense that thoughts are disorganized and irrational. 'It is extraordinarily difficult to follow the thought-processes of a schizophrenic patient. . . . Their thinking falls to pieces, it defies logic, it contains weird constructions (White and Watt, 1977, p. 449). . . . The patient has almost entirely deserted the level of realistic thinking. . . .' The criminal does not function like that. He knows what he is doing. The fragmentation is based on what a man decides he wants at a given moment. The criminal shifts in his wants in line with his desire for excitement and a buildup. Also, there is not the confusion in ideation that is typical or the psychotic.”
It is evident that the key to the distinction between fragmentation and psychotic disorganization, is that the criminal “knows what he is doing.” Tobacco “addicts are usually unaware of their disturbance of judgment,” data from Lennox M. Johnson, in The Lancet, Vol. 2(6225), p. 742, 19 December 1942, as is foreseeable in brain damage.
At 314, “We have encountered criminals who are fragmented and who also show signs of transient psychosis.” In discussing a “Criminal in a Psychotic State,” the book indicates, “‘All I can say is that the behavior is quite inappropriate. The mental processes are more scrambled than in fragmentation. It is difficult to have a consecutive conversation . . . .’” Such data provides insight in assessing the local [TACOM] and MSPB claims and assertions. The various distinctions must be kept in mind in assessing the contradictoriness and other aspects of the local [TACOM] and MSPB behavior pattern.
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When there is “permanent destruction of brain-tissue . . . Where the damage is severe . . . symptoms typically include . . . Impairment of orientation––especially for time but often also for place and person,” data from Dr. James C. Coleman, in Abnormal Psychology and Modern Life [Scott, Foresman & Co.], 5th edition, 1976, pp. 460-461. Considering the dangers of smoking behavior, such data provides insight on assertions by local [TACOM] and MSPB offenders. In brain damage, acuteness of thought is foreseeably lost. Senseless malassociations are foreseeable.
Such data provides insight when the bizarre MSPB issuance of 18 June 1981 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] is compared with the 20 June 1983 MSPB issuance [by Victor Russell]. The 18 June 1981 issuance shows hallucinations or delusions of actions “purportedly” taken at some prior time, unspecified by MSPB. The 20 June 1983 issuance refers to those “purported” actions at p. 8, n. 6. Instead of using the past tense as did the 18 June 1981 issuance, i.e., the “purported” actions “included,” the 20 June 1983 issuance alleges “offered,” i.e., an other than past tense reference. Difficulties with time orientation are foreseeable in mental problems. Thus, the [TACOM] environment [behavior] was not “improved” as the MSPB had falsely alleged. The process has not yet begun.
The 20 June 1983 issuance reverts back to the 23 July and 4 August 1980 insistence that the process need not start. That Chicago [MSPB] position [by Martin Baumgaertner] was rejected 18 June 1981, although as is clear, with brazenly false assertions. EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] found that the process had not even begun, i.e., compliance “actions were not even attempted.”
The 20 June 1983 issuance alludes, without comprehension or insight, to Mr. E. Hoover's symptoms of disorientation for time and place and person. At p. 8, “the appellant's job requires that he move about the entire facility on a continuing basis (Hoover Deposition at 58).” Mr. Hoover lacks comprehension that there are other position classification specialists. He lacks comprehension on the duration(s) involved. He lacks comprehension on the location of the incidents in late 1979 and early 1980, after the environment (place) was worsened in retaliation for my foreseeable successful grievance. He lacks comprehension of the job description and of actual organizational assignments. The inefficiency of organizational assignments as he alleges is clear, if what he says is true.
Mr. V. Russell is responsible for reviewing adverse actions in situations of mental disabilities. Yet he has not noted Mr. Hoover's symptoms. He treats Mr. Hoover's symptoms as though they are properly connected to reality. In law, “it is not enough that the defendant did the best he knew how,” Kuhn v. Zabotsky [9 Ohio St 2d 129; 38 Ohio Ops 2d 302], 224 N.E.2d 137 (1967). Mr. Hoover's symptoms, including muteness, undoubtedly contribute to his lack of comprehension of reality. Data on smoking and mental illness is well-established, and known in the Department of the Army in particular. When I cited Mr. Hoover's symptoms. the review process was cancelled. Such “evidence of flight” from review” “has probative value to guilt. Gauthier v. State (1965) . . . 137 N.W.2d 101; United States v. Crisp (7th Cir. 1970), 435 F.2d 354,” Wangerin v. State [73 Wis 2d 427], 243 N.W.2d 448 at 453 (1976) [State v. Nelson, 65 N.M. 403; 338 P.2d 301 (1959) cert. den., 361 U.S. 877 (1959), People v. Luster, 2003 WL 21509182 (Cal App, July 2003)].
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Criminal thinking patterns provide insight on the local [TACOM] and MSPB behavior. At 305, “The criminal has a knowledge of what is right and what is wrong. . . . He also learns what is against the law. However, what others forbid is not considered at the time a criminal decides he wants to do something. That is, when he has his mind set on violation, considerations of right and wrong are not pertinent; only whether he will get away with it matters. . . . He, not others, is the arbiter of what is right and wrong for him at the time. There is no abstract concept or set of principles deterring him.” At 306, “The criminal lacks a concept of integrity.” AR 1-8 contains a “set of principles” restricting smoking. However, local [TACOM] and MSPB offenders are contemptuous of those rules; “what others forbid is not considered.” The smoker “is the arbiter,” so “what others” such as the issuing authority for AR 1-8 “forbid is not considered.” Both USACARA and EEOC have noted the disregard of the limits set in AR 1-8. Indeed, local [TACOM] and MSPB contempt for AR 1-8 is so great that they have not “even recognized” it. With their “mind set on violation,”' “what others forbid ls not considered.”
At 371, “Almost everyone who writes about the criminal emphasizes the latter's disregard for the future. . . . The criminal has no enduring concept of the length of a life, or even of a ‘lifetime.’” At 372, “The criminal . . . is totally inept in utilizing the past and future responsibly. He does not develop a responsible time perspective because it is not necessary for his criminal way of life.” The local [TACOM] and MSPB behavior lacks “a responsible time perspective.” The “present rights” are ignored. A medically impossible duration is cited. Time limits are ignored. The foreseeability of harm is disregarded. That smoking initiates diseases is ignored. The phrase “totally inept” provides insight concerning the local [TACOM] and MSPB issuances. Local and MSPB offenders misuse their positions for promoting their personal views. Considering the power of their jobs, they do “not develop a responsible time perspective because” considering their abuse of their power, “it is not necessary for” their “criminal way of life.” Without a “responsible time perspective,” they think that their violation pattern can go [on] and on indefinitely. Thus, they are not responsive to normal stimuli such as rules and the 25 January 1980 USACARA Report.
At 370, “It has been said that the criminals time frame is mostly in the present. 'He is a man for whom the moment is a segment of time detached from all others (McCord, 1956, p. 14),’” Such data provides insight on the inability to learn from the AR 1-8 guidance, from the 25 January 1980 USACARA Report, and from the various other issuances such as from MESC and EEOC. A1 369, “People who work with the criminal . . . are perplexed as to why a person . . . does not learn from experience and plan for the long term.” At 370, “To an extent, experience guides him in planning new crimes.” Thus, while smokers do not learn what “society assumes he should learn,” the various issuances guide smokers “in planning new crimes.” More falsifications were perpetrated. Extortion began. Cf. pp. 440-441data on “feeding others what the criminal thinks they want to hear.” USACARA had not been amenable, but MSPB clearly was.
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(p 107)

Mr. V. Russell [of Chicago MSPB on 20 June 1983] displays bizarre symptoms when he revives the installation claims of lack of authority, and that compliance with rules is unreasonable. USACARA on 25 January 1980 [had already] rejected both of those absurd installation claims.
Installation Claim: Lack of Authority Unreasonable
USACARA Response: Full Authority Whatever is Necessary

The installation position as evidenced in the 28 March 1980 removal/suspension letter from Mr. E. Hoover reflects only the lack of authority claim. The odd 27 November 1981 letter from Ms. C. Averhart likewise makes the "cannot" claim. USACARA had already acted to “refute” the installation's claims, thus meeting the need on my behalf, cited at p. 6 of the 20 June 1983 issuance, to “refute” claims by the installation. Of course, Mr. Russell's odd emphasis on [my alleged duty to re-] “refute,” is itself fragmentary and disconnected from reality. The burden is on the installation [TACOM] to “prove” its claims.
The actual notices (28 March 1980/27 November 1981) do not cite any claim of “unreasonable.” That claim was abandoned by the installation, so as a matter of the universal malice [anti-whistleblower hatred] of MSPB, Mr. Russell has relied on a claim the installation did not make. Under OSHA, which the 27 November 1981 letter claims the installation relies on, the “workplace cannot be just 'reasonablv free' of a hazard,” Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1265 (CADC, 1973). When a presiding official declares Congress' command unreasonable, such presiding official is displaying his personal contempt of Congress. MSPB is responsible to review installation claims as actually made in the notices (20 March 1980/27 November 1981), Horne v. MSPB, [221 US App DC 381] 684 F.2d 155 (CADC, 1982). Cf. SEC v. Chenery, 332 U.S. 194 [67 S Ct 1575; 91 L Ed 1995] (1947), cited therein, concerning when “those grounds are inadequate or improper.”
The installation [had] abandoned the claim of “unreasonable.” Its case claims, though clearly maliciously and falsely, to be in compliance with OSHA. The installation claims, even though false, inadequate, and improper, are “normal stimuli,” which MSPB is responsible to stick to. It is not up to MSPB to ignore the incompetence of the local case, invent a supposedly better one, and then, surprise, issue a decision reviving a claim even the installation had abandoned, and no longer even claimed, in either the 28 March 1980 or 27 November 1981 letters.
The claim of “unreasonable” as contrary to OSHA, which the installation claims to be complying with, is both "wrong," and arbitrary and capricious, "because no reasons . . . were given," McNutt v. Hills, 426 F.Supp. 990 at 1004 (1977). [The law makes the “unqualified and asbsolute” safety duty “reasonable.”] The installation “will undoubtedly be surprised to find that” it “has prevailed on an issue never advanced by” the 28 March 1980/27 November 1981 letters, a principle borrowed from Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 at 1217 [31 L Ed 2d 551] (1972). MSPB has acted arbitrarily and capriciously in ruling on a major issue of the case, on an abandoned claim, contrary to the installation's asserted reliance on OSHA. Mr. Russell at p. 5, n. 3, declared the installation's own reliance as asserted under OSHA, "not . . . relevant." Rejection of the major aspect of the installation's case is thus evident. Mr. Russell has contradicted himself [and flouted decades of case law, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02 [41 L Ed 2d 1039] (1974)].
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The 23 Feb 82 EEOC decision [Dockets 01800273, et al.] noted “the recommendation of ways the agency had to accommodate appellant.” The “recommendation” was the product of the grievance initiated 18 June 1979. Under FPM 771 guidance, resolution is to be completed in 90 days. The agency had ignored that guidance, and other aspects as well, as noted on p. 3 pf the 25 Jan 80 Report. From 18 Jun 79 - 25 Jan 80 is significantly in excess of 90 days. When an agency violates rules, an employee (such as myself) is unduly burdened, including trying to obtain redress in other presumably more efficient channels. EEOC noted that aspect as what I did “Simultaneously'' and subsequently, including that “appellant sought EEO counseling. . . .” If the grievance had been processed in accordance with the FPM 771 time limits, such may not have had to come about.
However, the agency disconnect became so much and so transparent that EEOC on 23 Feb 82 in analyzing the events of that period was able to conclude that “ In none of the appeals pending . . . did the agency ever consider the merits of appellant's allegations.” The reason for disregarding the merits was that “the agency failed to abide by the” Report, which had noted that the agency had failed to abide by its regulation on smoking. The incidents of wrong doing continued; they had occurred before the 25 Jan 80 Report; and they continued after it.
Refusal of compliance with time limits is tantamount to the unlawful/unauthorized “repeal” of such time limits as well as “repeal” of the right to redress. (See ["Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions"] 64 Cal. Law Rev. 702 (1976) citing judicially cognizable use of the concept ot unlawful “repeal” and rejecting such unlawful “repeal” as improper. American Zinc Co. v. Graham, 132 Tenn. 586, 179 S.W. 138 (1915).) When the grievance was not processed properly, and when violations continued, I “sought EEO counseling” on the incidents that gave raise to the formal complaint dated 12 June 1980. That case was in process “simultaneously” with the much-delayed grievance. That case covered lated Dec 79 - early Jan 80 incidents. (The grievance covered incidents up to the filing date of 18 Jun 79). If the agency were interested in resolution, it would have implemented the 25 Jan 80 USACARA Report, thereby making the resolution of the late Dec 79 - early Jan 80 incidents simple.
When the 25 Jan 80 USACARA Report, received in Feb 80, was not implemented, that fact became apparent to me thereafter. It was only a matter of days before management made clear to me that the Report would not be implemented. EEOC alluded to this, in the 23 Feb 82 decision [Dockets 01800273, et al.], in saying that “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints.” The refusal of implementation of the Report became a new cause of action, separate and distinct from the underlying regulatory violations. The new cause of action led to the case known as the 23 Jun 80 formal complaint, Docket No. 01801850. Any confusion of the two cases arises from the installation disconnect, including the interference with EE0 counseling already noted. It is significant that while the agency rejected the 23 Jun 80 case as a pretended duplicate, it refused to process the 12 Jun 80 case. EEOC may have noted that the 12 Jun 80 case is not among those considered 23 Feb 82. Truly, the agency utterly opposes review on the merits!
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(p 110)

Acalculia provides insight. At 477, the book Abnormal Psychology and Modern Life, 5th edition, indicates that “In many cases, brain damage results in fairly specific” adverse effects, and that acalculia is “Among the more common of these.” The record evidences smoker “Loss of ability to do simple arithmetic.”
The 23 Feb 92 EEOC decision in Dockets 01.80.0273 - 01.81.2239 rejected local smoker behavior involving “miscalculations.” Four (4) cases were overturned with the EEOC annotation of “Erroneous calculation by agency of thirty day period prior to counseling.” It is undisputed that simply counting to 30 is one of the simpler aspects of “simple arithmetic.” Not much “ability” is needed to be simply able to count; simple counting is essentially a matter of memory. However, “Loss of ability to do simple arithmetic” is a separate and additional adverse consequence of brain damage caused by smoking––in addition to memory loss.
The underlying cause also connotes acalculia. Smokers are not obeying the 29 CFR § 1910 .1000. Subpart Z, “mixture” guidance . The formula for adding together chemicals requires “ability to do simple arithmetic,” such as addition and division. Moreover, once the various chemicals have been computed and the initial computations have been completed, to determine E_m, it is necessary to do a final “simple arithmetic” exercise . The rule indicates, “The value of E_m shall not exceed unity (1).” The final “simple arithmetic” action specified by the formula is simple comparison of the sum of the chemicals with one (1). All the engineer or anthropologist need consider at that point is, does the figure “exceed” one ( 1) or not? The 25 Jan 80 USACARA Report described what was being done as “no evidence” of compliance. A most severe form of acalculia is evident. “Loss of ability to do simple arithmetic” is a tragic and extreme health problem for an engineer.
The severity of the acalculia is more vividly recognized when the fact of the many calculators and other mechanical aids at the job site is taken into account . A major Federal installation has a surfeit of such mechanical and electronic aids with “ability to do simple arithmetic” and more.
Once the deficiency was called to local attention by the 29 Jan 80 USACARA Report, the “simple arithmetic” should have been computed then. However, “loss of ability to do” that would explain why much has not happened. Certain serious psychogenic and organic brain dysfunctions involve “very little insight into their own conditions” (Tussing at 345) or “an apparent lack of awareness of his defect” (Calvin et al. at 432) . Unresponsiveness resulted even after the “defect” was brought to local [TACOM] attention. The “mixture” formula is a standard technique. Use of standard techniques shows that smoking is a hazard. Yet local smokers appear not to be able to grasp the connection between the thoughts. [“the immediate effect of smoking . . . is a lowering of the accuracy of finely coordinated reactions (including associative thought processes), says Dr. Kellogg, Tobaccoism, p 88].
Other examples of apparent acalculia could also be cited. The initial grievance was not processed in the specified 90 day time frame, but instead was delayed in the period 18 Jun 79 - 25 Jan 80. The disregard for the 23 Feb 82 EEOC decision has far exceeded time limits for compliance. MSPB is generally slow in meeting time limits. Etc. “Present” rights thus suffer.
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In The Addicted Society, at 88, Dr. Joel Fort observes about tobacco cigarettes that “use = abuse.” In Abnormal Psychology and Modern Life, 5th edition, p. 477 cites a tragic medical reality: “Loss of ability to read,” as “Among the more common of” “brain damage results.” Alexia (“Loss of ability to read”) impairs a fundamental and essential ability; we are a literate society. P. 477 also cites “Agraphia–loss of ability to express thoughts in writing.” As recently as 15 June 1982, the Supreme Court stated, “The inability to read and write will handicap the individual deprived of a basic education each and every day of hse life,” Plyler v. Doe [457 U.S. 202, 102 S.Ct. 2382], 72 L.Ed.2d 786 (1982).
Alexia and agraphia provide insight on the culpable government behavior. For example, the 18 Jun 81 MSPB decision [6 MSPB 626, 7 MSPR 13] alleges local action “prohibiting smoking in the entire Civilian Personnel Division.” The statement is not expressing an order; it is alleging a supposedly past action, of an on-going nature. Yet the very next page of the 18 Jun 81 decision calls such action an “undue hardship.” Ability to read and understand the case is clearly not demonstrated. The underlying point of the filing of the grievance that led to the 25 Jan 80 [USACARA] Report is missed. Indeed, the refusal is expressly documented in the case file. Why is the odd claim made? Is the reason alexia? Or, in the alternative, was the decision trying to issue instructions to do the things alleged? Is the problem at MSPB agraphia? The incoherent statements are a puzzle. Do MSPB officials comprehend their own statements? Do they understand that if such actions as were stated are in effect, the situation would be resolved? [These statements are pre-bribery-pattern awareness].
The 25 Jan 80 [USACARA] Report cited the pertinent regulatory and factual principles: “The commander has the authority . . . to ban all smoking.” “The rights of smokers exist only insofar as discomfort or unreasonable annoyance as not caused to nonsmokers.” Those sentences answer the questions on authority, and the factual circumstances when the authority is to be used. Who decides when nonsmokers are bothered? That decision is not by management; instead. it is “a personal determination to be made by that individual” nonsmoker. Who effects the nonsmoker decision with the pertinent ministerial acts? “It is considered reasonable . . . for management officials . . .” to comply. They would act in the individual quadrant(s) that may apply. Does the 18 Jun 81 MSPB issuance [6 MSPB 626, 7 MSPR 13] reflect such full power and duty? No, the MSPB decision overlooks that aspect completely. MSPB does not even address AR 1-8 and AR 600-20. It skips directly to reasonable accommodation aspects, without reflecting any grasp of having read or understood the 25 Jan 80 Report. The “all” aspects are not expressed or even acknowledged. Is the reason alexia? Or is the reason agraphia? When critical aspects are left out, the assertions that are made, especially when they are disorganized, blunted, and conflicting, are a puzzle. [These statements are pre-bribery-pattern awareness].
Plyler v. Doe, supra, notes that “The inability to read and write will handicap the individual . . . .” Other factors are also a handicap. Prejudice is a handicap, particularly in deciding officials. It is a handicap to be “not capable of change through the examination of evidence . . . .”
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Dr. [Matthew] Woods [1899] observed that smoking “causes insanity.” The Surgeon General continues to observe that smoking causes deaths. Actuaries have noted the high smoker death rate from mental disorders and from suicide. Organic mental disorders can reflect unbalanced or otherwise impaired levels of chemicals in the brain. Serotonin is one of the chemicals. “The importance of serotonergic systems in affective disorders has been emphasized in both in vivo and postmortem studies,” data provided by M. Stanley, J. Virgilio, and S. Gershon, “Tritiated Imipramine Binding Sites Are Decreased in the Frontal Cortex of Suicides,” Science, Vol. 216, Issue 4552, 18 June 1982, pp. 1337-1339.
The study as published 18 June 1982 took into account the evidence of “decreased binding . . . in the platelets of patients suffering from clinically significant depression,” data from M. S. Briley, S. Z. Langer, R. Raisman, D. Sechter, E. Zarifan, Science, Vol. 209, p. 303 (1980). The study also took into account that “A number of investigators have found that the concentrations of serotonin and its principal metabolite, 5-hydroxyindoleactic acid (5-HIAA), are significantly lower in the brains of suicides than in control brains,” and cited D. M. Shaw, F. E. Camps, E. G. Eccleston, Br. J. Psychiatry, Vol. 113, p. 1407 (1967); K. G. Lloyd. I. J. Farley, J. H. N. Deck, O Hornkiewicz, Biochem. Psychopharmacol., Vol. 11, p. 387 (1974); and H. R. Bourne, W. E. Bunney, Jr., R. W. Colburn, J. M. Davis, J. N. Davis, D. M. Shaw, A. J. Coppen, Lancet, 1968-II, p. 805 (1968).
The study as published 18 June 1982 also took into account “the prevalence of affective disorders in people who commit suicide,” data discussed by E. Robins, G. Murphy, R. Wilkinson, S. Gassmer, J. Kayes, Am. J. Public Health, Vol. 49, p. 888 (1959); and by G. Winokur and M. Tsuang, Am. J. Psychiatry, Vol. 132, p. 650 (1975). Also, the study published 18 June 1982 took account of data that “lower levels of 5-HIAA have been reported in the cerebrospinal fluid of patients who were diagnosed as depressed or who had recently attempted suicide,” data from L. Traskman, M. Asberg, L. Bertilsson, L. Sjorstrand, Arch. Gen. Psychiatry, Vol. 38, p. 631 (1981).
The study published 18 June 1982 shows competence. It is not disconnected from reality. It is not blunted. It is like competent medical analyses ought to be, and also, like court decisions, i.e., it places analyses in context. Competent analyses stand in marked contract with the bizarre, disconnected, and blunted delusions and/or hallucinations and/or other deviance displayed by local [TACOM] and MSPB employees. Local and MSPB employees do not connect their assertions with either the body of fact or law that is pertinent.
Smoking “causes insanity,” and is linked with a higher rate of suicides and deaths from mental disorders. Studies on suicide thus provide insight on the degenerative effects of the multiple tobacco chemicals on the brain. Brain damage does not suddenly arise to the worst state; there is a process of increasingly severe brain damage, as brain activity including its chemical activities is impaired/reduced. So the conclusion of the study published 18 June 1982 is insightful: “it appears that the reduced . . . binding found in the frontal cortex of suicides indicates a functional decrease in serotonergic neuronal activity, which may in turn be related to a diagnosis of a major affective disorder.”
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(p 114)

Examples of Standards / Rules Ignored
in the MSPB Pattern of
Behavior
Decisions are to be made by reference to standards and rules. The MSPB behavior pattern is lawless and thus arbitrary and capricious by its continued disregard of pertinent criteria. Examples of standards that provide insight include but are not limited to:

the OSHA “unqualified and absolute” safety, such that “A workplace cannot be just ‘reasonably free’ of a hazard, or merely as free as the average workplace in the industry,” Nat’l Rlty. & C. Co., Inc. v. O.S.H.R.C. [160 US App DC 133], 489 F.2d 1257 (CA DC, 1973)
“worker health above all other considerations” under OSHA in terms of eliminating hazards (not people who report them), American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 [509, 101 S Ct 2478; 69 L Ed 2d 185] (1981)
“review is to evaluate agency discretion as it has been exercised,” Horne v. M.S.P.B. [221 US App DC 381], 684 F.2d 155 (1982)
“There is . . . a difference, a constitutional difference, between voluntary adherence to custom and the perpetuation and enforcement of that custom by law. Shelley v. Kraemer, 334 U.S. 1,” Browder v. Gayle, 142 F.Supp. 707 ([MD Ala.] 1956) [cert den. 352 U.S. 903 (1956)]. Smoking is personal behavior.
The agency's “own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others,” EEOC Decision [Docket 03.81.0087, 83 FEOR 3046], 8 April 1983. Smoking is personal behavior.
“the obligation . . . to give the protection . . . can be performed only . . . within its own jurisdiction,” i.e., not elsewhere such as at some other place of employment, by termination or retirement, etc., Missouri ex rel. Gaines v. Canada, 305 U.S. 337 [59 S Ct 232; 83 L Ed 208] (1938)
“undue hardship” criteria under a law which, while ill-fitting, provided guidance whleh the agency must address, appropriate in this case of the agency-perceived handicap, concerning a matter which is not part of employments; hence as a matter of law, no “undue hardship” can be shown. “Accommodation” is ill-fitting; smoking is personal.
Other guidance, such is nuisances, negligence, medical malpractice, engineering malpractice, falsification, advance notice, specificity guidance, nexus with employment guidance, etc.

Res judicata and estoppel principles also provide insight.
Compliance with rules is mandatory, even when the matter is the first of a kind. For example, there is no requirement to show that any other place of employment is complying with any of the above rules. (Of course, I have provided various examples, as well as the 25 Jan 80 USACARA Report.) Decisions are to be based on rules. For example, classification decisions are to he based on standards, not on how some other installation may purportedly classify an allegedly identical job. MSPB has a pattern of not conforming to rules and standards, as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046].
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Higher Ideation List of Some Aspects of
the Range of Rules Across Which
Compliance is Required Prior to Ever
Reaching the Issue of Gaps, if
any, in Protection, Bridgeable by
“Reasonable Accommodation”
AR 1-8 Range of Equitable Balance OSHA Range 5 USC § 7902 Police Power Range

Unreasonable Discomfort Endangerment
Annoyance

Area not “even recognized”
as EEOC noted 8 Apr 83
[Docket 03.81.0087, 83 FEOR 3046] “unqualified and absolute” safety “adjective" to “prevent a likelihood of harm”: “a different balance would be inconsistent” “eliminate work hazards and health risks” smoking “is so limited by” the multiple restrictions “that a ban” “does not violate” any legal principle, but is indeed in conformity with the multiple limitations, or any of them

“In sum, to accept the” installation's disregard of the criteria, even without reaching the evidence that the installation “failed to abide by” guidance to comply, and to condone a “decision to terminate,” disability retirement,” or any unfavorable status (disregarding excused absence pending compliance “would open a door to complete abrogation of this policy which would be illogical in the extreme.”
In addition, “Workmen are not employed to smoke,” so there are no “job related” “physical criteria” upon which to base any “service deficiency.” When behavior is personal, moreover, adverse action is not allowed. A hazard situation involves excused absence. It is evident that the “decision to terminate” me is defective on so many points, that its being overturned on any basis, obviates any need to reach other bases for overturn. For example, the fraud by the installation in seeking OPM involvement in the misconduct, when the “decision to terminate” was decided a year previous, is an example of misconduct that need not be reached, as such is nothing but simply another aspect of the misconduct overall, albeit warranting reversal on its own.

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(pp 117-119)
Examples of Similarities in Disturbances
tobacco organic mental disorder Smoking “causes insanity”—Woods
craving for tobacco
indifference
irritability
a cause of mental decay
anxiety
diminishes mental capacity
difficulty concentrating
listless
restlessness
irritable
headache
callous to others' requests
drowsiness
often leads to drink
gastrointestinal disturbances

paresis Tobaccoism--Kellogg
poor control of impulses
weak memory
irritable
impulsive ideas
restless
depression
disorganized
sleeplessness
memory impaired
ill-humor
deterioration of behavior
loss of self control
delusions of grandeur
aphasia
delusions of persecution
neuralgia
depression
difficulties in speaking

and writing
neurasthenic symptoms

schizophrenia
emotional apathy and indifference in the patient with respect

to other individuals
a certain lack of harmony, integration, and coordination between

emotional and rational or intellectual activities
gradual mental deterioration
hallucinations common
clarity of thought is lost
apparent inappropriateness of reactions
indifference
lack of judgment and foresight
seem feeble-minded
senseless and illogical thought processes
delusions
withdraws from reality
rationalizations and projections
fantasy world
word salad

alcohol intoxication
maladaptive behavioral effects
slurred speech
incoordination
unsteady gait
nystagmus
flushed face
mood change
irritability
loquacity
impaired attention

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(p 121)

The bizarre MSPB pattern of disregarding my job description in order to make its weird “findings” on my ability to perform my “duties,” is continued by the odd 20 June 1983 issuance [by Victor Russell]. Such disregard is evident throughout the entirety of the case file. No specificity on any “duty” at all, much less a “major duty,” has ever been provided. No percentages of time for such “duty(ies)” has been cited. The local [TACOM] and MSPB lack of specificity is clear.
A job description is a criterion by which to measure alleged situations of “unable to perform the duties of his position for medical reasons,” words from the odd 20 June 1983 issuance, p. 2. The job description has not even been referred to. Assertions of inability that are disconnected from the job description are foreseeable from persons with psychiatric disorders; the employer is responsible even though the victim does not foresee such bizarre assertions, McAfee v. Travis Gas Corp. [137 Tex. 314], 153 S.W.2d 442 (1941). In this case, both local [TACOM] and MSPB employers are responsible for the odd behaviors of their employees.
MSPB has a pattern of disregarding reality and of not conforming to rules. EEOC noted aspects in its 8 April 1983 letter [Docket 03.81.0087, 83 FEOR 3046]. Opposition to facts and laws by MSPB offenders ie foreseeable. MSPB repeatedly refuses to consider the merits and make jurisdiction of the local failure to return me to duty, after the OPM decision 5 October 1981. MSPB had refused on 3 November 1981. The circumstances including but not limited to the falsifications emanating from MSPB, display “complete and reckless disregard for the rights of others. . . . Malice is presumed under such conditions,” Nestlerode v. U.S. [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941). “If there are mitigating circumstances, we have failed to find them.”
If there are “duties” which require smoking, “we have failed to find them.” OPM could not find any. The job description does not show any. There are no duties requiring endangerment, discomfort, waiver of AR 1-8 guidance, etc. The installation [TACOM] has not identified any “duties” for me to respond to, i.e., “allegations he must refute,” p. 6 of the 20 June 1983 issuance. None of the MSPB decisions has cited any “duties.” The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] did not cite any such “duties.” There are no such “duties.” The installation must “prove” its case; the requirement asserted at p. 6, [I] “must refute,” does not “prove” [TACOM’s] assertions, especially when assertions such as of specific “duties” have not been made [by TACOM].
The 20 June 1983 issuance at p. 2 alludes to “medical reasons” in the context of discussing the OPM decision [in Pletten’s favor]. There are no “medical reasons” here; there is an external safety hazard. There are mentally ill smokers. There are alcoholic smokers. Such are external to me. Mr. V. Russell does not identify the alleged “medical reasons.” He does not connect his assertion with the job description. He clearly does not cite any “job related” “physical criteria.” His behavior is lawless. The OPM findings are directly on point. Mr. Russell’s assertion to the contrary reflects disconnection from reality, and is vague and impoverished. Since smoking is not what employees are employed to do, as a matter of law, sick leave [termination, removal, etc.] is not proper when an qualification an employee, such as me, chooses not to smoke. Federal “qualification standards . . . do not identify the . . . choice to . . . not smoke as germane,” USACARA Report, 25 Jan 1980, p. 9. Thus, the OPM decision [in Pletten’s favor] is “directly” on point, contrary to Mr. Russell’s assertion.
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(pp 123-127)

The bizarre, fragmented, impoverished, and unresponsive local and MSPB behavior is clear. Their behavior is wrong in fact and as a matter of law. Their behavior is disconnected from the “'overwhelming evidence'” and from the [case] law that “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 ([CA 10] 1931). Employees are “employed to” perform duties; and smoking is not a duty and is not a “business necessity.” The bizarre MSPB claims that I “was not ready, willing and able to” do what I am “not employed to” do reflect severe disorientation and other severe psychiatric symptoms. Even if it were true that I am “not ready, willing and able to” do what I am “not employed to” do, the conclusion that local and MSPB offenders arrive at is disconnected from such finding, even if true.
When local and MSPB assertions are disconnected from reality, more is revealed about local and MSPB offenders and their health, than about the nature of tobacco smoke, the rules, the 25 Jan 80 Report, or nonsmokers' health including mine. It is especially so when their errors are called to their attention, but they fail to demonstrate the capability of being responsive. Disorientation for time is evident from not only the medically impossible duration they assert, but also from evidence such as the use of the word “was” on p. 6 of the 18 Jun 81 MSPB issuance. When people are disoriented, their behavior reveals their disorientation in depth. The local and MSPB behavior is replete with such evidence.
When people display symptoms of disconnection, over a substantial period of time, it is clear that their thinking processes [have already been and so] are adversely affected. There has been, and is, and foreseeably will continue to be, worsening and further deterioration. When their “mind is wandering,” so to speak, such is clear and becomes clearer. It is clear that local and MSPB minds are and have been, wandering off the issue of what employees are “employed to” do (duties), and straying onto the issue of “environment,” as for example, is evident in the MSPB issuances of 18 Jun 81 and 26 Jul 82, the latter by innuendo.
Dr. Matthews [Woods] [in 32 J Am Med Ass'n (Issue #13) p 68 (1 April 1899)] noted long ago that smoking “causes insanity.” Austin v. State [101 Tenn 563], 48 S.W. 305 [70 Am St Rep 703] (1898), describes cigarettes in terms such as “always harmful,” “inherently bad, and bad only,” “wholly noxious and deleterious,” and “an unmitigated evil.” State v. Olson [26 ND 304], 144 N.W. 661 (1913), indicates that “Tobacco, in short, is under the ban.” It is clear that “Workmen are not employed to” do what is, for example, “inherently bad,” “always harmful,” or “under the ban.” It is also clear that the “real derangement” involved wanders off from what employees are “employed to” do, in my case, all my duties for which I am (was) “employed to” do; instead, they [TACOM, MSPB, etc.] fixate on what I am not responsible to do. Indeed, they fail to even address that point, for there is nothing there for them to say; thus their fixation is even more bizarre, i.e., on the unknown “environment.” The severity of their “real derangement” is evident from the disconnection from the “unqualified and absolute” safety duty, from the various court precedents extending as far back as 1847 on controlling dangerous smokers, from the AR 1-8 and USACARA guidance, etc. Indeed, their mere use of the word “environment” confirms the non-existence of evidence relative to what I was “employed to” do. Hence, charging sick leave was void ab initio.
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Data on mental disorders is pertinent. The "prolonged use of tobacco is recognized as one of the most common causes of insanity." Data on illnesses such as schizophrenia, delusions of grandeur, and paranoia is insightful in analyzing the assertions and behavior of deciding officials. Schizophrenia is particularly relevant when it is "the commonest of psychoses." The 18 Jun 81 decision [6 MSPB 626, 7 MSPR 13, by Ronald P. Wertheim and Ersa H. Poston, decision reversed as wrong on both facts and law and remanded by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046] is dubious throughout. Mental disturbances involve unresponsiveness to reality, disproportionate reactions, emphasis on trivia, and disregard of significant matters, among many other traits.
The 18 Jun 81 decision purports to concern itself with my ability to work; yet its analysis relates (though ineptly) to the environment. The very fact that the decision starts off "schizo" is ominous. The competent 25 Jan 80 Report did not have such "schizo" aspects. The nature of the environment is independent of the ability to work. Smoking is personal; adverse action is not allowed for personal reasons. Moreover, smoking is no part of my job. The ability or inability to smoke does not figure in my appraisals of performance, or in my appraisals of potential. Ability or inability to smoke is not listed in my job description as a "major duty" or as any duty. It is thus not listed as a medical factor; there is no medical qualification requirement on the subject. I am a Position Classification Specialist (not Smoking Specialist, as there is no such occupation). As such, I have included physical factors in job descriptions. Smoking is not a factor—not even a de minimis factor. The competent 25 Jan 80 USACARA Report does not have the "schizo" traits that are apparent in the 18 Jun 81 decision. Indeed, the 25 Jan 80 Report expressly indicated, at p. 9, that "suitability and qualification standards established with respect to Federal employment do not identify the personal habit/choice to smoke or not smoke tobacco as germane." It is clear that the fact the Report was not implemented would not justify charging me sick leave. Indeed, the p. 7 finding that "smoking does constitute a safety hazard to" me precludes any charge to sick leave; sick-leave is not authorized in safety hazard situations.
Before ever reaching the issue of "reasonable accommodation" under 29 CFR 1613 guidance, the 18 Jun 81 [6 MSPB 626, 7 MSPR 13, by Ronald P. Wertheim and Ersa H. Poston, decision reversed as wrong on both facts and law and remanded by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046] decision should have considered whether the basic rules were enforced first. A competent review would have stopped at the first local violation, i.e., the obvious fact of non-implementation of the personal standard envisioned by AR 1-8 and upheld by the 25 Jan 80 USACARA Report. The adverse action should have thereupon been immediately overturned based upon non-implementation of the agency's own rules.
Ed. Note: See, e.g., U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (24 July 1974), and Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959). It is well settled that an agency is bound by the regulations it has promulgated, even though absent such regulations the agency could have exercised its authority to take the same actions on another basis, and that the agency must abide by its regulations as written until it rescinds or amends them.
Related precedents include but are not limited to Watson v Army, 142 Ct Cl 749; 162 F Supp 755 (1958), Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969), and Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957).

Disregard of the obvious violation connotes "feeble-minded" behavior. Such "apathy and indifference . . . to other individuals" disregards not only me, other nonsmokers, and other handicappers, but also the writers of the rules who want them enforced. The 18 Jun 81 decision shows apathy and indifference to the 25 Jan 80 Report. There is "a certain lack of harmony, integration, and coordination" with those realities. When "reality orientation is especially weak," that disregard is clear. Had I not already won the 25 Jan 80 Report, deciding officials would still have been responsible for noting the violations of AR 1-8. The disregard of it connotes delusions of grandeur. Paranoia that it might be implemented as a threat to unauthorized smoking is also evident. Smokers are clearly "creating . . . a . . . make-believe world" "by creating" or fabricating it regardless of reality.
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When deciding officials are mentally ill, symptoms such as disorientation for time, and disconnected, malassociated, and impoverished "reasoning" are foreseeable. That is, data on mental illness is an efficient predictor of the behaviors. Hallucinations are predictable or foreseeable; delusions are likewise foreseeable.
The bizarre issuances from MSPB and local offenders display multiple symptoms of mental disorder. Claims of actions taken appear, but are disconnected from each other, from the rules, from reality, and from the matters giving rise to the appeals. When "real derangement" exists, such is foreseeable. Insanity is an efficient predictor. The severe and "real derangement" displays foreseeable effects, such as disconnection from AR 1-8. AR 1-8 forbids endangerment, because smokers lack the mental capacity and willingness voluntarily to not endanger people. They have a pattern of refusing; hence, AR 1-8 became necessary. When severe and "real derangement" exists, disconnection from multiple rules is foreseeable. Insane smokers are disconnected from AR 1-8, and also from other rules as well. For example, they are disconnected from sick leave rules such as 5 CFR 630.401. See the ASH brief, 6 Oct 80, pp. 11-12.
When deciding officials are insane, their delusions and hallucinations result in different conclusions at different times and in different cases. Sometimes the process is "not relevant" and need not start (23 Jul 80 issuance [by Martin Baumgaertner]). Other times, it is already completed (18 Jul 81 [6 MSPB 626, 7 MSPR 13, by Ronald P. Wertheim and Ersa H. Poston, decision reversed as wrong on both facts and law and remanded by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046]). In mental disorder, what is predictable is that symptoms of confusion, disconnection, malassociation, etc. are foreseeable, and will occur. The exact nature of the insane behaviors, of course, varies. For example, in alcoholic hallucinations, different animals can be hallucinated from time to time, and from person to person. Thus, an overall pattern of symptoms becomes evident.
For example, the claims of "in the environment" are part of the pattern of mental disorders. 5 CFR 630.401 does not envision such. When a person "is physically able to perform" the "job" duties, but the "environment" is out of order, sick leave is not appropriate. Excused absence is the proper status. This is particularly so for "a nonnecessary toxic substance," words borrowed from Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 at 411 (1976). But even if tobacco smoke were other than "nonnecessary" (which has not been shown, since the compliance process has not yet started), "All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace," Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 (1973). Cf. the federal safety law, 5 USC 7902.
However, and additionally, smokers display further malassociation and impoverished "reasoning" in even using the word "environment." The situation arises from the presence of insane smokers. It is the insane smokerswho are the cause of the situation. It is essential that words pertinent to causation be used, lest meanings of words be obscured, with resultant disconnection from reality. Emphasis on the word "environment" reflects malassociation of cause and effect. Civil service rules such as FPM Suppl. 752-1 envision that insane individuals will not be employed or retained. Causation arises from the disregard of such rules. Solution does not involve "sick leave" as the rules do not contemplate such a response in lieu of compliance with guidance against reckless retention of insane individuals.
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(pp 131-132)

Examples of the Range of What
“would . . . reasonably be possible”
“The agency presented no evidence that it considered the rights of the non-smokers or even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others” [USACARA Report 05-80-001-G]. And “such actions were not even attempted.” “Therefore, the Commission [Docket 03.81.0087, 83 FEOR 3046] finds that the agency [TACOM] did not establish such accommodations [contrary to the false MSPB list of alleged actions [6 MSPB 626; 7 MSPR 13].” The process has not even begun. Once the process starts sometime in the future, words from Prewitt v. U. S. Postal Service, 662 F.2d 292 at 308 (1981) under a recent (1973) law provide insight, on doing what “would . . . reasonably be possible.” Examples of what would “reasonably be possible” include but are not limited to:
Utilization of the various laws that existed prior to the 1973 law cited in Prewitt, supra. Such other principles are discussed in multiple court precedents that far pre-date that law. Multiple legal principles exist simultaneously, as is noted, for example, in Hentzel v. Singer Co. [138 Cal App 3d 290], 188 Cal. Rptr. 159 (1982). Such legal principles include but are not limited to those on negligence, safety, the police power, nuisances, etc. Utilization of the 1970 safety law (OSHA) as has been done, for example, in cases such as Shimp v. New Jersey Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 (1976) and Smith v. Western Elec. Co., 643 SW.2d 10 (1982). Such are specific applications. As a matter of “higher ideation,” pertinent general principles are covered in cases such as Nat'l Rlty. & C. Co.. Inc. v. O.S.H.R.C. [160 US App DC 133], 489 F.2d 1257 (1973); Am. Smelting & R. Co. v. O.S.H.R.C., 501 F.2d 504 (1974); and Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 [101 S Ct 2478; 69 L Ed 2d ] (1981).
Utilization of the federal employer safety law, 5 U.S.C. § 7902.
Utilization of constitutional principles on the freedom of expression, on not going “elsewhere,” on the right to work, etc., as variously cited.
Utilization of standard personnel techniques.
Utilization of principles and facts pertinent to alcoholism and mental disorder. as applicable to smokers. For example, see Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979).
Specifically Stated Aspects
Utilization of 32 C.F.R. § 203 and AR 1-8.
Implementation of the 25 January 1980 USACARA Report [05-80-001-G] which “the agency failed to abide By,” as noted by the 23 February 1982 EEOC letter [Dockets 01800273 et al.].
Utilization of the 29 September 1980 EEO Counselor 's Report.
Utilization of the 18 June 1981 MSPB Opinion and Order [the false MSPB list of alleged actions, 6 MSPB 626; 7 MSPR 13].
All of the above are included among what “would . . . reasonably be possible” once the process begins.
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(pp 134-135)
Overview of Some of the Benefits
of Beginning Compliance with the AR 1-8 Guidance
on endangerment, discomfort, and
unreasonable annoyance
Compliance with rules is a benefit per se, as a matter of law, even if no additional benefits exist. In this case, compliance with AR 1-8, once begun, will produce multiple foreseeable benefits.
Insight on this aspect is provided by the article, “Can you afford to hire smokers?” by William L. Weis [Ph.D., C.P.A.], in Personnel Administrator, Vol. 26(5), May 1981, pp. 71-78. Cited benefits include:
“Personnel costs will decline. Expect to accomplish the same work load with 10 percent fewer employees,” p. 77.
“furniture and fixture replacement intervals to at least triple,” p. 73.
“Routine cleaning was reduced by as much as 60 percent in some workplaces, partly aided by a more cleanliness-conscious workforce,'' p. 73.
“up to $4,500 per smoker . . . expected cost reductions . . . were, based on results to date, underestimated,” p. 71.
“new categories or savings emerged that only the most imaginative efficiency expert could have projected,” p. 71.
“an additional $230 per . . . year for medical care alone” savings per smoker,” p. 73.
“on-the-job time lost to the smoking ritual–lighting, puffing, pretending to be in deep thought, informal breaks . . . 30 minutes per day
for cigarette smokers and 55 minutes per day for pipe smokers . . . $1,820 per year per smoker,” p. 77.
“smokers have twice the accident rate of nonsmokers due to carelessness caused by attention loss, eye irritation, coughing
and hand interference,” p. 73.
“health impairment caused nonsmokers is $486 per smoker per year,” p. 76.
“feasibility of no-smoking policies: we have yet to see one that has failed,” p. 77.
"employers who no longer tolerate smoking in their firms insist that the major profit consequences, by far, stem from higher employee morale.
Smoke-free work environments are clean, healthy and conducive to good working relationships,” p. 76.
“Smoking is . . . expensive . . . . Can your business afford it?,” p. 78. “up to $4,500 per smoker,” p. 71.
The most recent figure from Dr. Weis cites, “save in excess of $5,000 per year per smoker,” Business Week, Issue 2776, 7 February 1983, p. 4.
Ed. Note: Two decades later, with smoking conduct still uncontrolled, cost went higher: "Deutsche Bank estimates health care costs GM [General Motors] $10,000 annually for each employee," cited in "GM hit by $1.1B in red ink," by Ed Garsten, The Detroit News, p 2 (19 April 2005).

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Safety rules arise under various laws, general rules, federal employee rules, aviation rules, etc. The general rule shows that the safety duty is “unqualified and absolute.” An example of rigid enforcement of safety is U.S. v. Newman, 331 F. Supp. 1240 (D. Hawaii, 1971). Knowing how to achieve proper results is not an adequate defense; even the physical substances must be right. Here, tobacco is an inherently dangerous physical substance. There is no known safe use. There is “no level of tobacco smoke exposure below which there are no human effects.” Management officials are responsible even though they may not actually participate in causing the hazard; see U.S. v. Garrett, 296 F. Supp. 1302 (N.D. Ga. 1969), aff’d, 418 F.2d 1250 (5th Cir. 1969), cert. den'd, 399 US 927 (1970). Cf. U.S. v. Duncan, 280 F. Supp. 975 (N.D. Tex. 1968). It to not acceptable to improperly assemble an Electra prop in an overhaul operation, as the Court noted in U.S. v. Garrett. Tobacco smoke is assembled in such a way by smokers that harm results to both smokers and non-smokers. The various product liability cases, workers' compensation cases, unemployment compensation cases, tort cases, etc., show aspects of the known harm.
The government is normally for rigid, strict,”unqualified and absolute,” safety enforcement. It is the local installation [TACOM] officials who oppose the traditional and proper government position. It is clear that they are misusing their jobs for purely personal reasons of their own. The government insists on safety. “In sum, to accept the Agency's interpretation would open a door to complete abrogation of this policy which would be illogical in the extreme.” Local [TACOM] employees for personal reasons oppose the rules and misuse their jobs to unlawfully “repeal” the rules. Mental health professionals can provide insight on such “extreme” and “illogical” behavior.
A “personal determination” to enforce a “personal standard” promulgated under the authority of law and “A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest . . . and if the incidental restriction on alleged . . . freedoms is no greater than is essential to the furtherance of that interest,” U.S. v. O'Brien, 391 US 367, 377 (1968). Cf. Austin v. Tennessee, 179 US 343 (1900), showing that controlling tobacco is in that category. Also see Shimp v. N. J. Bell Telephone Co. [145 N.J.Super. 516], 368 A.2d 408 (1976). AR 1-8 authorization of personal determinations is “within the constitutional power of the government.” So is AR 600-20.2-1 allowing a total ban on smoking. The right to work, and to remain at work in safe conditions, are “important or substantial governmental” interests. Implementing medical advice [for safe working conditions] is reasonable. Banning smoking is a “restriction . . . no greater than is essential to the furtherance” of the various pertinent interests. See Petition of Republic of France, 171 F. Supp. 497 (1959) [aff'd 290 F2d 395 (CA 5, 1961) cert den 369 US 804 (1962)], confirming the fault and negligence in failing to promulgate and enforce “no smoking” guidance. In this case, the fault and negligence is in the refusal of enforcement of the pertinent rules, the “personal standard,” and the “personal determination.” The fault and negligence also involves [adversely impacts] “the other nonsmokers” who “also have rights even though they have not actively pursued such rights,” as USACARA stated 25 Jan 80, p. 11.
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(pp 138-149)

Examples of
The Range of Tobacco Adverse Effects
In this range, 5 CFR § 752 rules

against being a danger to self

or others apply.

NO SMOKING PERMITTED
Worst Endangerment––Death of Smoker
(Threat to self)
Worst Endangerment––Death of Non-Smoker
(Threat to Others)
Severe Endangerment––Excessive Absences
Causing Smoker Disability Retirement
(Threat to Self)
Severe Endangerment––Excessive Absences
Causing Non-Smoker Disability Retirement
(Threat to Others)
Moderate Endangerment––Excessive Absences
Above Sick Leave Norm by Smoker
(Threat to Self)
Moderate Endangerment––Excessive Absences
Above Sick Leave Norm by Non-Smoker
(Threat to Others)
More Endangerment––Absences Above
Sick Leave Norm by Smoker
(Threat to Self)
More Endangerment––Absences Above
Sick Leave Norm by Non-Smoker
(Threat to Others)
Endangerment––Absences in Normal Range
by Smoker
(Threat to Self)
Endangerment––Absences in Normal Range
by Non-Smoker
(Threat to Others)
Endangerment––Short Absences by Smoker
(Threat to Self)
Endangerment––Short Absences by Non-Smoker
(Threat to Others)

In this range, AR 1-8 applies.

NO SMOKING ALLOWED Discomfort
Unreasonable Annoyance

SMOKING PERMITTED
[But see MCL § 750.27] No Effects

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Management [at TACOM] opposes the 25 Jan 80 “personal determination” guidance. Management insists on forcing people such as me to smoke; and it punishes those who object or are hurt as a result. The installation [TACOM] physician [Francis J. Holt] ignores the “informed consent” guidance that physicians are responsible to adhere to. The commonsense duty “to make a reasonable disclosure . . . of the nature and probable consequences . . . and . . . to make a reasonable disclosure of the dangers within his knowledge which were incident to, or possible in” the situation is clear, Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960); rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960). Courts specify disclosure of risks when treatment is properly administered. There is no way to properly administer endangering, discomforting, unreasonably annoying, unhealthful, and/or unremoved smoke. AR 1-8 makes that fact clear. AR 1-8 says “remove smoke,” i.e., smoke-free. That conforms to medical goals. The problem arises from installation [TACOM management] disagreement with the rule. The installation disagrees with the 25 Jan 80 USACARA Report.
The decision on tobacco smoke is a “personal determination,” as USACARA noted 25 Jan 80. Disclosure by the installation physician must conform to the Army's own rules; there is no question but that disregard of rules is negligence and/or malpractice. The D.C. Circuit Court explained the proper way for a doctor to make disclosure, which decision is most insightful under the circumstances:
“The duty to disclose . . . arises from phenomena apart from medical custom and practice. The latter, we think, should no more establish the scope or duty than its existence. Any definition of scope in terms purely of a professional standard is at odds with the patient's prerogative to decide . . . himself. . . . The scope of the physician communication to the patient, then, must be measured by the patient's needs, and that need is the information material to the decision. Thus the test for determining whether a particular point must be divulged is its materiality to the patient's decision; all risks potentially affecting the decision must be unmasked.”

Dr. Holt and the installation clearly violate this guidance. They refuse data. My inquiries and efforts to make contact are rebuffed. Replies are not sent. Subpoenas are even ignored. There is clearly no “affirmative action” under AR 1-8 to inform other nonsmokers; the USACARA analysis of the [TACOM] disregard of the rights of all nonsmokers is accurate and astute. The decision is by nonsmokers. Management has been stripped of its authority under AR 1-8; [TACOM] management bitterly resents the AR 1-8 protection of nonsmokers’ rights. The nonsmoker decides, and none other. Management and Dr. Holt resent that. The cited D.C. Circuit court decision, Canterbury v. Spence [150 U.S.App.D.C. 263], 464 F.2d 772 (1972), enunciates the same concepts as did USACARA on 25 Jan 80. Management opposes “informed consent” and “personal determination” because management disagrees with both the laws and the rules that apply. That is what malpractice is––disregard of standards (rules and/or laws).
Instead of rigorous compliance in a most rigorous way, as in U.S. v. Newman, 331 F. Supp. 1240 (D. Hawaii 1971), compliance is refused.
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(pp 152-176)

Huron Portland Cement Company v. City of Detroit, 355 Mich. 227, 93 N.W.2d 893 (1959), affirmed 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), provides insight. The case involved “a comprehensive ordinance . . . which provides that it shall be unlawful within that city to permit the emission of smoke of a density equal to or greater than that described . . . .” The rule is thus significant in showing the use of the police power to control a nuisance, as a rule in addition to a “series” of other rules. In this case, smoker mental illness includes but is not limited to confusion and impairment of the normal mental capacity “to follow a series of instructions.” AR 1-8 provides for a “series” of criteria, all of which must be met, before smoking can be allowed. Other rules in addition exist. The symptoms of the [TACOM and MSPB] deciding officials reflect bizarre reactions to the rules, and especially to the rules and criteria viewed as a whole. AR 1-8 envisions a “personal determination,” such that resolution does not require even reaching other rules; yet local and MSPB offenders fixate on the farthest link in the series (“reasonable accommodation”).
In the Detroit case, supra, the Michigan Supreme Court at 890 and 891 considered the “intent” of the ordinances Here, in this case, AR 1-8 envisions a “personal determination” as appropriate in the implementation of certain criteria, which include but are not limited to safety guidance. Other aspects considered “subjective” are also clearly evident in AR 1-8. But, since mental disorder impairs review of the rule in its “series” components, local [TACOM] and MSPB offenders fixate on only the safety aspects, and even then, in a bizarre, contradictory, and disconnected manner [claiming TACOM has no hazard, and removed me due to the hazard].
At 891, “We think the ordinance before us is clearly aimed at the prevention of air pollution and not at any regulation of interstate commerce. If it affects interstate commerce at all we think it is only indirect and incidental.” Likewise, in this case, my “personal determination” “is clearly aimed at” AR 1-8 criteria so as to achieve them at the “subjective” level without need to reach any other criteria, such as on safety, “reasonable accommodation,” etc., and thus to preclude sick leave ab initio. Compliance at that point also avoids the situation of mentally ill deciding officials becoming confused by the multiplicity of real or hallucinated guidance. Compliance at that point, in other words, avoids reaching the “series” that is so confusing to brain damaged or otherwise deviant deciding officials.
At 891, “The point is that the ordinance does not seek to supersede or replace any existing provisions of” any law or rule. Clearly, when there are several rules on the same subject, all must be obeyed, including the one that is, or may seem, most restrictive. AR 1-8 clearly runs afoul of the paranoid views of smokers, but that “is only indirect and incidental.” Smokers must obey the guidance anyway.
At 892, “this ordinance concededly seems to outlaw only the emission of smoke of such density that can readily be prevented by the use of modern smoke control equipment.” Likewise, my “personal determination” is also conservative. Rather than being an additional “ordinance,” my “personal determination” is even more limited. It simply quotes existing guidance and asks for enforcement and compliance. The Detroit ordinance was upheld unanimously. My quoting rules should likewise be upheld unanimously.
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(pp 165-170)

“It is a part of the history of the organization of the volunteer army in the United States during the present year [1898] 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,” Austin v State [101 Tenn 563], 48 SW 305 [70 Am St Rep 703] (1898), aff’d 179 US 343 [21 S Ct 132; 45 L Ed 224] (1900). Smoking continues to impair the Army. Consider the untimely death of the Army Chief of Staff, General Creighton W. Abrams [1914-1974]. The adverse effects are so severe that the Army issued a special regulation, AR 1-8, just to deal with that huge problem by itself.
Also see “Cigarette Smoking and Acute Non-Influenzal Respiratory Disease in Military Cadets,” published in the American Journal of Epidemiology, Vol. 93, No. 6, 1971, pages 457-462. The study covered The Corps of Cadets at The Citadel, a military college in South Carolina. It had been noted that "Cigarette smoking among college students was linked with more frequent respiratory morbidity during the 1968-1969 epidemic of A2/Hong Kong influenza.” Tobacco-induced disease would be a significant concern, therefore, as affecting potential officers as distinct from enlisted men. The 1898 data in the Austin case is not limited to only one segment; smoking harms everybody. But officers are especially critical to the Army; loss of a Chief of Staff is not taken lightly.
The study found “little doubt that cigarette smoking so undermined host defenses that even rigorously conditioned, healthy young smokers did not escape increased acute respiratory illness.” “In this study, smokers, particularly heavy cigarette smokers, had significantly more upper and lower respiratory disease of both outpatient and hospital types than nonsmokers.”
The study is consistent with the much evidence on the subject. The Army ban on smoking that causes endangerment, discomfort, or unreasonable annoyance makes sense. It is bad enough that the smokers make themselves sick; the Army does not want them to make nonsmoker sick as well. TACOM and MSPB employees simply refuse to honor the clear regulatory guidance. They refuse to honor the specifics. And they clearly refuse to act upon the fundamental civil service rules against harming others, littering, loafing, assaulting, discourtesy, etc.
Col. Eugene C. Jacobs, Ret., wrote in ["Smoking: Insidious Suicide and Personal Air Pollution"] Military Medicine [Vol 135], August 1970, pages 678-681, similar information. He noted [smoking ban] benefits such as “A great savings in health to the military. . . ,” “A great reduction in the shortages of doctors and nurses,” “A great reduction in the overcrowding of hospitals,” “The virtual elimination of lung cancer, emphysema, and thrombo-angiitis obliterans,” etc. The difficulties the military face are to be prevented, not encouraged and compounded by taking adverse action against people who want the rules enforced. Dr. Holt should follow the professional example and get on the team. Col. Jacobs also noted that “Tobacco smoke is offensive and nauseating to millions of non-smokers.” Col. Jacobs is clearly not suffering from “difficulty concentrating” on the fact that I am not unique. Adverse action against persons wanting an AR 1-8 environment and saying so, is reprisal. It is clearly improper to take adverse action against such persons, while allowing others with a similar or greater need, to remain on duty and become permanently disabled due to the severity of the hazard at TACOM. Even if it were an offense to have a need for rule enforcement (and it is not an offense), FPM Supplement 752-1, S3-2b provides guidance against actions of unequal penalties, unwarranted harshness, or no change in circumstances. The adverse action against me is wrong on all counts.
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(pp 172-176)

Employers are responsible to foresee improper conduct even when the victim does not foresee it. McAfee v. Travis Gas Corp., [137 Tex 314] 153 S.W.2d 442 (1941). Data on insanity shows patterns of behavior. Data on insanity provides insight on MSPB behavior. Where such data is an efficient predictor of MSPB behavior, the installation is responsible to foresee and deal with its employees who utilize such data to exploit MSPB, as for example, by giving false data to MSPB. See EEOC Docket No. 01.81.0324, as remanded by letter [Dockets 01800273, et al.] dated 23 February 1982.
Agency experience with smoking is of long duration and of great extent. It is such experience that has given rise to issuances such as 32 C.F.R. § 203, AR 1-8, the pamphlet number RPI-914, etc. Army personnel have published articles on smoking “conduct” as dangerous to smokers including but not limited to articles such as “Smoking, the Soldier, and the Army,” by Major Joseph F. John, Jr. [“Smoking, the Soldier, and the Army,” Military Medicine 142: 397-398, May 1977]. Army personnel have published articles on smoking and alcoholism, with writers including but not limited to Barry M. Maletzky, M.D., James Klotter, M.D., and Ralph G. Watson, M.D. Data such as “long term use of alcohol, resulting in physical deterioration of the brain,” is well established, People v. Matulonis, [115 Mich App 263] 320 N.W.2d 238 (1982).
Ed. Note: See, e.g.,
Maletzky BM, Klotter J." “The prevalence of alcoholism in a military hospital.” Mil Med. 1975 Apr;140(4):273-5.
Maletzky BM, Klotter J. “Smoking and alcoholism.” Am J Psychiatry. 1974 Apr;131(4):445-7.
Maletzky, BM. “The alcohol provocation test.” J Clin Psychiatry. 1978 May;39(5):403-11.
Maletzky BM. “The diagnosis of pathological intoxication.” J Stud Alcohol. 1976 Sep;37(9):1215-28.
Maletzky BM. “Treatable violence.” Med Times. 1972 Oct;100(10):74-9.

Army experience with smoking, alcoholism, mental illness, etc., is “experience,” Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981). In this case, the local installation has defied AR 1-8 and the 25 January 1980 USACARA Report, etc., and abused the agency “experience” by using data on smoking, alcoholism, and mental disease as efficient predictors of MSPB behavior. Such misuse of agency “experience” is malicious. The Army [HQ] has never agreed to the [local, TACOM] abuse of the agency “experience,” as is clear from the support given to my effort to have AR 1-8 enforced, evident in the 25 Jan 80 Report, the 29 September 1980 EEO Counselor's Report, and (in reverse) by the installation then stripping the local EEO office of its authority to process my requests for compliance, noted by the 23 February 1982 EEOC decision [Dockets 01800273, et al].
The installation [TACOM] is misusing and abusing agency “experience” on smoking, alcoholism, and mental illness, by its use of that “experience” to subvert AR 1-8. The agency concern on the smoking problem is long-standing. See data from “Dr. Benjamin Rush [1745-1813], a Surgeon-General in the Continental Army [under George Washington],” as noted in Abnormal Psychology and Modern Life, 5th edition, 1976, by Dr. James C. Coleman, p. 427. Dr. Rush was “the founder of American psychiatry,” p. 43, “and a signer of the Declaration of Independence,” p. 427. The record shows that he was “against the habitual use of tobacco” for reasons such as that it (a) “led to a desire for strong drink,” (b) “was injurious both to health and morals,” (c) “is generally offensive to” nonsmokers, (d) “produces a want [lack] of respect for” nonsmokers, (e) “always disposes to unkind and unjust behavior towards them,” etc. Such “experience” is consistent with the record data on “universal malice” and “depravity” as displayed by local and MSPB offenders.
Installation [TACOM] smoker universal malice and depravity is paraded by the misuse of the agency “experience” to take advantage of psychiatric data as an efficient predictor of MSPB behavior.
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Numerous medical studies and court precedents show that smoking behavior is inherently dangerous. Such facts were found centuries ago. It is not a matter of a current “finding” in this case. The agency's experience showed the danger long, long ago. Even if the Army did not know (but it does), the legal principle of treating each person “as though he were a reasonable man” and “as though he knew” is well-established. However, smoking “causes insanity,” as noted by medical personnel including but not limited to Dr. Matthew Woods, in J.A.M.A., 1 April 1899, pp. 683-687. Thus, smokers display and parade “personal inability to conform” to reality and “to the standard” and requirements at issue. Of course, smoking is not the only cause of insanity; there are other causes. Thus, conditions such as “mental disease . . . fall into this predictability category,” data from Dr. C. Zook and Dr. F. Moore, in The New Engl. J. of Med., Vol. 392(18), p. 1001, 1 May 1980.
The inherently dangerous nature of tobacco smoke has long been known. That fact is noted–as a matter of sound orientation for time. However, “Where” “permanent destruction of brain tissue,” for example, “is severe . . . symptoms typically include . . . Impairment of orientation–especially for time but often also for place and person,” data from Dr. J. Coleman, in Abnormal Psychology and Modern Life, 5th edition, 1976, pp. 460-461.
Note the odd “orientation” in the 20 June 1983 MSPB issuance [by Chicago MSPB’s Victor Russell], especially p. 9. The hazard is a common one; yet Mr. V. Russell does not display such orientation [to reality]. The hazard has been known for centuries, yet he does not display such orientation. He uses the present tense, “I find” the hazard. Where “thinking” is impoverished, the person with the deficiency would foreseeably make such an impoverished assertion. And due to the “predictability”' of symptoms, installation [TACOM] officials misusing agency experience, in conjunction with misuse of the “predictability category” involved, are responsible even though the victim does not foresee such misuse, McAfee v. Travis Gas Corp., [137 Tex 314] 153 S.W.2d 442 (1941).
The hazard is well known. It is long-standing, for centuries. There is “No cause because no change in circumstances,” data from FPM Supplement 752-1. S3-2.b.(1), p. 40 (Inst. 25. 11 October 1976). That rule requires a sound mind properly oriented for “time” and “person.” However, Mr. V. Russell does not apply the rule. He displays disconnection from the rule. Considering the misuse of the agency “experience,” his behavior was foreseeable and predictable to the installation. Owens v. Air Force is not applicable to a situation of “No cause because no change in circumstances.”
Moreover, Mr. Russell displays further impoverished and fragmentary “thinking” in his inability to comprehend the lack of a nexus with “employment.” The nexus with employment is a second nexus that must be applied properly. The nexus with employment is critical in determining who to take adverse action against. Adverse action is taken against the person whose “conduct” is dangerous, not against the victim. Where thinking is impoverished, fragmentary, disconnected from reality and laws, and disoriented for time and person, the bizarre gap from Mr. Russell is foreseeable, as falling into the cited “predictability category.”
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Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981), provides insight. At 307, “the employer must bear the burden of proving that the physical criteria are job related.” The pattern shows that no effort whatsoever has been made by local officials or by MSPB to even identify the “physical criteria” involved much less to show any “job related” aspect whatsoever. The record is void.
The decision pattern is blunted and disconnected to reality, including even the simplest legal functions. The reasonable accommodation process has not even started. AR 1-8 forbids endangerment, discomfort, and unreasonable annoyance of nonsmokers; it requires a “remove smoke” requirement as well as a healthful environment. There may well never be a need to ever reach the “physical criteria” review. With computers, that need never arrives. The instructions make clear what will not be done around computers; that is tantamount to their “personal determination.” The issue of analyzing “physical criteria” on computer functioning is not reached. Neither is there a need for reaching that issue with people, since AR 1-8 indicates equality of rights of people and property. A human’s “personal determination” is equal to a computer’s. We are on equal planes; we are not subordinate in this matter, contrary to local [TACOM] and MSPB innuendo. Clearly, “the employer must bear the burden of proving that the physical criteria are job related.”
Moreover, “the burden of proving inability to accommodate is upon the employer,” at 308. The local [TACOM] officials provide no evidence at all to show “inability.” MSPB [6 MSPB 626; 7 MSPR 13] on 18 Jun 81 at p. 5 [typed text] admits the fact that “proving” has not occurred, saying “even if the agency’s argument of impossibility of appellant’s suggested accommodation cannot be substantiated . . . .” The Court does not agree that a maybe proving is adequate as in answer; nor did EEOC 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046].
Prewitt, supra, was decided 5 Nov 81. That was years after the June 1979 grievance to secure an equitable balance by enforcement of the [1 Nov 1977] AR 1-8 duties. I [in 1979] was of course not aware of the [1981] decision then years in the future. However, the local smokers ' opposition to AR 1-8 did not seem reasonable , so by happenstance, I complied years in advance with the p. 308 guidance that the employee “may not remain silent.” As the malicious reprisal for my freedom of expression confirms emphatically, I did not “remain silent.” I quoted AR 1-8 and the FPM and other rules in detail and prevailed. The 25 Jan 80 Report destroyed the false local claims. There is full authority to achieve each and every one of the orders issued by the Army in 1-8. The Army does not take kindly to clearly false claims of lacking authority to do what one has been told.
Clearly, “the burden of proving inability to accommodate is upon the employer.” The installation has utterly failed to show that it cannot achieve the regulatory goals. However, MSPB has knowingly and intentionally made false claims while refusing to even advert to the 25 Jan 80 Report. EEOC found likewise 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046].
The installation [TACOM] has failed its “burden of proving inability.” The agency's own examiner [Norma Kennedy] refuted the local [TACOM] assertions. I did not “remain silent.” Full authority exists to achieve the regulatory goals, exactly as I had indicated. There is not even one goal that the installation cannot achieve. All can be.
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The 25 January 1980 USACARA Report “articulated” the [TACOM] duty of compliance with AR 1-8. AR 1-8 criteria precludes endangerment. AR 1-8 criteria is to be complied with; and there is full authority to do so. Compliance is not unreasonable, contrary to the local [TACOM] position that compliance is unreasonable. USACARA referenced both AR 1-8 and AR 600-20, and at 14 indicated, i.e., “articulated,” “the authority . . . to ban all smoking or take whatever action is necessary to control smoking” to achieve the duties such as against endangering nonsmokers such as me. At no point in the process is compliance “unreasonable.” The USACARA word is “necessary,” in rejecting the local insistence on “unreasonable” and on lack of “authority.”
MSPB symptoms of brain damage reflect that they do not respond to the regulatory and USACARA “normal stimuli.” When “permanent destruction of brain tissue . . . is severe . . . symptoms typically include . . . Impairment of orientation--especially for time but often also for place and person.” The 20 June 1981 MSPB issuance [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.], among others, displays symptoms concerning which data on brain damage provides insight. For example, p. 8 of the 20 June 1983 [MSPB] issuance [by Victor Russell] alleges, “no reasonable accommodation was articulated.” Mr. V. Russell's personal disorientation for person produced his bizarre reliance on the legal opinion of Dr. Holt, whose insubordination and malpractice have produced this situation. His self-serving claims denouncing the full “authority” are relied upon by Mr. Russell. Such reliance is not well-founded, considering Dr. Holt’s lack on legal training. He admits he is not familiar with the 25 January 1980 USACARA Report (T. 115-116).
Mr. Russell senselessly relies on Gen. Stallings assertions, unsupported by any rules, even though Gen. Stallings admitted that he had not “ever read” or “referred to” AR 1-8 (T. 9). His testimony reflects his being oblivious to the “unqualified and absolute” safety duty [National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133, 489 F2d 1257 (1973)] “above all other considerations [American Textile Mfrs. Inst v Donovan, 452 US 490, 509; 101 S Ct 2478; 69 L Ed 2d 185 (1981)],” as well as his being oblivious to the harm to others in addition to myself.
Mr. Russell is himself oblivious to the fact that a Report such as the USACARA Report “is a guide to our conclusion and should have been given due regard,” In Re United Corporation, 249 F.2d 168 at 178 (CA3, 1957). That is particularly so when Mr. Russell is rehashing the same claims (unreasonable/lack of authority) as USACARA has already addressed, and when he asserts a diametrically opposite answer.
Back when the installation [TACOM] had surfaced those nonsensical claimer I did “not remain silent,” words from Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (CA5, 1981). The Report did “rebut the employer's” claims made without “evidence” as well as being fragmentary, in their disregard of AR 600-20, the personal standard envisioned by AR 1-8, the “unqualified and absolute” safety duty, etc. Mr. Russell displays and parades his disorientation for time, when he disregards what has already been “articulated,” and goes to the bizarre extreme of denying the very existence of what has been “articulated.” He has not “even recognized” what the agency's “own regulations” have articulated, words from the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], p. 5. Mr. Russell's symptoms of obliviousness, and disorientation for time and person, parade that he does “not respond to” and is “ not motivated by normal stimuli.” AR 1-8 does not reduce authority under 29 C.F.R. § 1613; instead, it is an additional rule whose protections for nonsmokers must also be obeyed.
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The 25 January 1980 USACARA Report has already “articulated” rejection of the twin claims “Unreasonable/no authority to act,” upon which bizarre assertions Mr. V. Russell bases so many bizarre conclusions. In mental illness, it is foreseesable that deciding officials would declare rules “not relevant,” thus parading their mental inability to understand that the rule compliance process is the process by which an environment is “improved” to the point of compliance. When mental acuity is lost, the mind “seems feeble-minded,” i.e., dull and uncomprehending. Disorientation for time produces inability to comprehend alternatives for the future, a process matter as distinct from a static/stagnant tunnel vision view of reality, fragmentary in nature.
Mr. Russell displays severe “Impairment of orientation--especially for time but . . . also for place and person.” His odd remarks on p. 8 of his 20 June 1983 issuance are a case in point. Years after my “suspension or termination” noted by EEOC 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046], and in brazen denial of my right of reply, Mr. Russell indicates that there is “only” one “accommodation,” and that one is both “unreasonable” and the installation lacks authority to do it. To a rational person about to make such a claim, it would seem prudent to stop and think before making such absurd claims. Such claims tell a lot more about the mental rigidity of Mr. Russell, than they tell about law.
The 25 January 1980 USACARA Report, p. 14, summarized compliance actions (not “accommodation” under 29 C.F.R. § 1613, contrary to the fixations of local and MSPB offenders) at p. 14 in terms of “less smoking or more ventilation.” Mr. V. Russell does not explain how he so sharply limited to “only” one supposed “accommodation” a wide range of alternatives, under a wide variety of rules and laws. Why not “more ventilation”?, for example. Even the installation [TACOM] has not made such a rigid claim; such rigidity is not evident in either letter (28 March 1980 from Mr. E. Hoover/27 November 1981 from Ms. C. Averhart) giving rise to the adverse action(s) involved. Their symptoms of mental disorder are so severe that they can barely grunt “cannot” comply--a conclusionary assertion, obviously contrary to the 25 January 1980 USACARA Report. The rigid assertion by Mr. Russell that there is “only” one “accommodation” when USACARA has cited a full range (“less smoking or more ventilation”) is arbitrary and capricious “because no reasons . . . were given,” McNutt v. Hills, 426 F.Supp. 990 at 1004 (1977), and guidance cited therein. Mr. Russell's rigidity is “wrong” as well, considering my 7 July 1981 acceptance of the 18 June 1981 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] decision “treated most favorably,” as well as the USACARA Report, actual duty/organizational assignment(s), and the brazen disregard of rules as well as the actual criteria which must be met, cited in the 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046].
The USACARA Report concerning “authority” and “less smoking or more ventilation” “should have been given due regard,” In Re United Corp., 249 F.2d 168 at 178 (CA3, 1957). Mr. Russell's bizarre limiting of resolution “came too late in the proceedings,” Nat'l Rlty. & C. Co., Inc. v. OSHRC, 489 F.2d 1257 at 1267 (1973), thus I am “unfairly deprived of an opportunity” to respond to the 28 Mar 80 and 27 Nov 81 letters, which set no such limit. Mr. Russell should learn to “operate upon, not seek to replace, record evidence.”
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USACARA on 25 January 1980 “articulated” data, including reference to AR 600-20, in rejecting the claims Mr. V. Russell makes on 20 June 1983. The USACARA Report cited “the authority . . . to ban all smoking . . . whatever . . . is necessary” to achieve an “environment reasonably free of contamination,” i.e., which “does not endanger life or property, cause discomfort or unreasonable [annoyance] to nonsmokers, or infringe upon their rights.” Col. Benacquista (a hostile witness) admitted “that what the doctor was saying was that the environment in his present work space was not reasonably free of contaminants.” (T. 24). In rejecting the sloppy and incompetent MSPB behavior, his words (“if you looked at them closely it's quite obvious”) provide insight. Doctors report on hazards, and have emphasized the endangerment. The latter is one of the aspects involved; there are others. Col. Benacquista understood that aspect, even though his own personal misconduct led him to disregard the duty of compliance.
Even conceding the bizarre MSPB fixation on the endangerment, it does not take any greater “authority” to eliminate endangerment, than the entire combination of violations only one aspect of which is endangerment.
USACARA articulated data on the full range. Mr. Russell ignores the USACARA data, despite the guidance of In Re United Corporation, 249 F.2d 168 at 178 (CA3, 1957), which “should have been given due regard” under the legal principles of that case. Under Army rules, of course, a USACARA Report has much greater weight, Spann v. McKenna, 615 F.2d 137 (CA3, 1980). Clearly, Mr. Russell's issuance “is not supported by the evidence in the record as a whole,” words from the EEOC Decision, 8 April 1983 p. 6, rejecting MSPB behavior, bizarre as it was, that at least tried, albeit ineptly, to apply “applicable standards of proof,” p. 4. Mr. Russell's behavior shows a marked deterioration in the quality of MSPB output. Prior MSPB behavior was rejected by EEOC both on “regulations” and the “record.” Mr. Russell does not even try; his behavior simply shows a malicious power play, clearly personal animus, when there is not even an effort to comply, even ineptly, with the “applicable standards of proof.” His reference to 29 C.F.R. 1613 reveals the malice; he refers to the regulation, but not to its “applicable standards of proof.” As a trained individual, he cannot plead ignorance.
[TACOM’s] Dr. Holt admits that he is not familiar with the 25 January 1980 USACARA Report (T. 115-116). Gen. Stallings asserts that he had not “ever read” or “referred to” AR 1-8 (T. 9). Their personal ignorance is not “evidence” of what regulatory, pre-accommoaation compliance “would not reasonably be possible,” on the merits. Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (CA5, 1981). It is not a matter on the merits that I “must refute,” p. 6 of the 20 June 1983 issuance. Even for me to “refute” their assertions, and even to show perjury, would not do more than to show actual familiarity with the 25 Jan 80 Report, by Dr. Holt, or that Gen. Stallings was untruthful in denying that he “ever read” or “referred to” AR 1-8. They have not tried to refute USACARA. I stand on that Report. Even “erroneous decisions” are “‘final and binding’” under Army guidance, Spann, supra. The 25 Jan 80 finding on “authority” is not “erroneous.”
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(pp 183-184)

It is clear that MSPB has overruled the evidence in order to declare me “not ready, willing and able to” do what “Workmen are not employed to” do. The refusal of local and MSPB offenders to cite a nexus between the thoughts underscores the wrongfulness of not providing an advance notice and opportunity to reply concerning “the agency's decision to terminate” me [as observed by EEOC’s Henry Perez, Jr.] so many years ago. When symptoms of mental disorder exist in local and MSPB issuances, legal principles are ignored. Local and MSPB allegations are fragmentary, disconnected, bizarre, disjointed, concrete but impoverished, and unresponsive to the evidence, among other failures.
The ASH brief dated 6 Oct 80 called attention, delicately, to some of the behaviors. For example, at p. 16, ASH noted behavior “inappropriate in the circumstances, and . . . contradictory inter se.” That delicate phraseology refers to the clearly disconnected, garbled, and bizarre behavior involved. However, local and MSPB offenders lack insight into their own symptoms and so do not demonstrate a rational reaction to normal stimuli, i.e., the presentation of evidence for examination.
“Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931). Cf. 39 Comp. Gen. 154, cited in the 31 March 1980 appeal. Cf. FPM Supp. 752-1, S1-6c(4)(c) at p. 27, “In summary, the placing of an employee on sick leave without his consent when he was capable of performing the duties of his position was erroneous.” MSPB claims that I “was not ready, willing and able to” do non-duties that I am “not employed to” do are clearly disconnected from the governing criteria. The bizarre claims are fragmentary, impoverished, and indeed impoverished to the severe degree that even concreteness is lacking. They are “inappropriate in the circumstances.”
The FPM Supplement which I have used for many years as a part of my Employee Relations Specialist duties expressly reminds us to be prudent, “This is a delicate area, full of hair-thin distinctions, and should be approached with caution.” It is clear that local and MSPB offenders disregard multiple rules and cautions, of which that is only one among many. Nonetheless, it is clear that they have simply failed to show, even after all these years, any “duties” that are pertinent. The 39 Comp. Gen. 154 guidance is basic. Showing “duties of his position” is basic, to even start to have a cause of action. The local and MSPB blunderbuss approach is disconnected from the basic aspects; the basic “duties of his position” has not been established, and indeed, cannot be established, since “Workmen are not employed to smoke” is true as a matter of law, as well as is clearly a factual matter as well. When the basics are not shown, when claims are not responsive to reality, and when evidence has been overruled, it is no surprise that claims are “contradictory inter se.”
When the basic requirement for a cause of action is lacking (i.e., no “duties of his position” are shown), the case is void ab initio, and there is no need to reach additional issues. It is clear that local and MSPB good faith is lacking, clear in many ways, and not just relative to the summary removal in hasty reprisal.
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(pp 186-189)

People v. Cook, 34 N.Y.2d 100 [356 NYS2d 259], 312 N.E.2d 452 (1974), provides insight. Its analysis of the police power answers [refutes] much of the bizarre, delusional, disconnected, and blunted deviance of local and MSPB offenders. When mental disorder and/or deviance is manifested by muteness,
[Ed. Note: Referring to there being no advance notice of charges, with such allegations as were made, made retroactively, apart from the rule of law, obstructing justice by preventing normal response]
the psychotic or otherwise deviant nature of the decisions burdens the victim thereof [here, Pletten] by forcing a need to speculate as to the matters to which response may be appropriate. (Already, some of the situation, indeed, most if not all, arises from insane delusions or hallucinations or deviance which could not be foreseen.)
Ed. Note: Foreseeablity is not by the smoker's victim such as a fellow employee, but as a matter of law, holding the employer responsible. See precedents such as McAfee v Travis Gas Corp, 137 Tex 314; 153 SW2d 442 (1941); and Shipley v City of Johnson City, 620 SW2d 500 (Tenn App, 1981). As a matter of law, employers are required to foresee the behavior of those whom they hire. The better approach is to not hire such foreseeably dangerous people.

At 456, “The link between smoking cigarettes with a high tar and nicotine content and poor health is widely and officially acknowledged. The means utilized to accomplish the health purpose . . . is reasonably related to the goal of reducing consumption of the more harmful high tar and nicotine brands, since it is intended to force a cigarette consumer to pay a higher retail price for the harmful cigarettes. . . . This conclusion is reinforced by the fact that cigarette tobacco is now recognized as a substance dangerous to public health and, as in the case of alcohol, justifies greater legislative control . . . .” AR 1-8 is based on the fact that smokers are [foreseeably] likely to violate the rights of nonsmokers, by causing endangerment, discomfort, and u reasonable annoyance, etc. While alcoholics do not force people to drink, smokers do this with their smoke, forcing it on nonsmokers. An equitable balance means that nonsmokers are free to choose not to smoke; and that nonsmokers shall not be endangered, discomforted, etc. Due to the inherent difference between post-consumption alcohol and cigarettes, “greater . . . control” is needed. Consumed alcohol is inside the drinker; a consumed cigarette produces a situation likely to endanger, discomfort, and unreasonably annoy—since much of the cigarette is not consumed. Thus, AR 1-8 envisions a personal standard. We are free to choose whether and what to drink; nonsmokers are free to choose likewise on smoking. The guidance of AR 1-8 is “clear” as the 25 Jan 80 USACARA Report noted.
At 458, the Court rejected uniqueness assertions. (Here, like [similar] claims of uniqueness are made directly and by innuendo.) The Court answer included, “There is no requirement that a local law be a response to a uniquely local situation.” AR 1-8 envisions a personal standard; AR 1-8 decentralizes the decision authority; the authority is clearly at the nonsmoker level. The decentralization is what infuriates local offenders, who thus misuse their positions, to retaliate against me. Their innuendo seems to be the rejected idea like that cited at 457, which argues “that a locality may not 'enact a local law which prohibits conduct which is permitted by State law,'” only applied to reject my “personal determination,” even though such is envisioned by AR 1-8. The Court answer is insightful, in rejecting such a view, “This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory. Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule.” It is also the essence of a “personal determination.” Safety law is similar, Natl Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 141], 489 F.2d 1257 at 1265 (1973). “A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry.” The reason is that the safety “adjective is unqualified and absolute.”
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(pp 191-195)

An employee is “not obligated to retreat from his place of business,” State v. Smith, 378 So.2d 261 at 262 (1979). “‘Whither shall he flee, and how far, and when may he be permitted to return?’” People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914), quoted in Gainer v. State, 40 Md.App. 382, 391 A.2d 856 (1978). See also People v. Lenkevich, 394 Mich. 117, 229 N.W.2d 298 (1975), and People v. McGrandy, 9 Mich.App. 187, 156 N.W.2d 48 (1968).
“When may he be permitted to return?” According to the insane, depraved, or otherwise deviant offenders [TACOM, MSPB] and their issuances, NEVER. The word, never, is the clear import of the local and MSPB issuances.
“It is not now and never has been the law that a man assailed” in such circumstances “is bound to retreat. If assailed . . . he may stand his around and resist the attack. He to under no duty to take to the fields and the highways, a fugitive from his own” job. But to the insane, the depraved, and the criminal [TACOM, MSPB, U.S. Attorneys, Federal Judges], all protective rules are an “undue hardship” in this case. “Whither shall he flee?” Obviously not to MSPB and other unlawful “repealers” of rules. [“It's a problem that's faced by police departments in every major city in our country, that criminals infilitrate and sign up to join the police force,” says Secretary of Defense Donald Rumsfeld, CXLVI Newsweek, p 23 (10 October 2005). And, they also “join the” Army, MSPB, Dept. of Justice, and judiciary.]
Page 862 of Gainer, supra, provides insight above and beyond the text of helpful precedent data. The dates of pertinent cases are also cited:
Jones v. State, 76 Ala. 8 (1884)
People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914)
Of course, Gainer v. State was decided in 1978, as it shows. Cf. Matter of Rabideau [102 Wis. 2d 16], 306 N.W.2d 1 (1981), “an attorney who knowingly violates any criminal statute should not be heard to claim insufficient notice of the general culpability of his conduct, especially in light of the heightened awareness of the law and heightened responsibility to respect it with which an attorney is properly charged.” The case at bar shows not only multiple violations by MSPB officials, but even worse, denunciation of my quoting the rules. Words such as “barbaric” and “unconscionable” (borrowed from Lash v. Workmen’s Comp. Appeal Bd. [491 Pa. 294], 420 A.2d 1325 (1980)) come to mind as descriptive when deciding officials charged with rule enforcement denounce requests for rule enforcement, and even the mere observation that enforcement has been lacking.
Criminal law forbids smoker behavior that might lead “to retreat from his place of business” issues. See Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976). Mental health principles show a proper response to “mentally ill and dangerous” smokers, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979). AR 1-8 provides yet another method for control of smokers. Issues of “retreat” do not arise when rules are obeyed and/or enforced. Local and MSPB behavior is “barbaric” and “unconscionable” in denouncing enforcement.
“When may he be permitted to return?” At this point, when the offenders are “indicted” or “committed” or otherwise controlled.
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(pp 197-209)

Criminals take the victims as they come; so the law sets criminal responsibility likewise. The hazard from tobacco smoke is well-established. The agency admits the likelihood by its regulation, AR 1-8. The various claims of action as alleged by MSPB purport to deal with the hazard. Local [TACOM] offenders claim to be doing some sort of studies, but that compliance with the guidance against endangerment “cannot” be effected. Words from Cox v. The People, 80 N.Y. 500 at 515 (1880), come to mind, “The confession was not induced by any promise or threat and so far as appears was entirely voluntary.” AR 1-8 “was entirely voluntary” in its issuance. So was the 25 Jan 80 USACARA Report. So were the claims of “cannot” comply and of “undue hardship.” So were the MSPB fabrications [documented by EEOC, Docket 03.81.0087, 83 FEOR 3046].
The danger and the falsifications are linked. The process of misconduct began at the regulatory violation level. But when falsifications and other misconduct are added, there is a raise in “the grade of the offense” to the criminal level. Cf. Ex parte Heigho [18 Idaho 566], 110 P. 1029 at 1032 (1910), “The statute has the effect of raising the grade of the offense in which the party is engaged to the rank of manslaughter where it results in the death of a human being.” Just as untreated conditions can worsen, violations when uncorrected can have “the effect of raising the grade of the offense” to a worse “rank.” In this case, “Precisely what happened is what might have been expected as . . . natural and probable consequence . . . Malice is presumed under such conditions,” words borrowed from Nestlerode v. United States [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).
“The confession” of various aspects an evident in the various issuance in “entirely voluntary.” Extortion and embezzlement as part of the pattern directed against me, the victim taken as he comes, is evident. Heigho, supra, indicates, “Many examples might be called to mind where it would be possible for the death of a person to be accomplished through fright, nervous shock, or terror as effectually as the same could be done with a knife or gun.” Aspects such as “fright” or “terror” are foreseeably utilized in extortion; cf. People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1976). And see Mich. Law Rev. [Vol.] 79, p 1270 at 1284 (May 1981), discussing U.S. v. Benjamin, 328 F.2d 854 (1964), “In our complex society . . . the lawyer's opinion can be instruments for inflicting pecuniary lose more potent than the chisel or the crowbar.” Such data applies also to extortion and falsification, including wrongdoing by MSPB employees for their personal reasons, as part of a pattern of unlawful behavior directed against a victim taken as he comes.
Heigho, supra, indicates, “As was said by Justice Denman in the Towers Case, it would be ‘laying down a dangerous precedent for the future’ for us to hold as a conclusion of law that manslaughter could not be committee by fright, terror. or nervous shock.” Indeed, an effort to deny application of manslaughter law to smoking has already been rejected, Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976). Clearly, “it would be laying down a dangerous precedent for the future' . . . to hold as a conclusion of law that” extortion, embezzlement, falsification, etc. “could not be committed” under such circumstances as these directed against a nonsmoker seeking rule compliance. Indeed. such crimes “might have been expected,” considering the public domain data on smoker mental disorder, alcoholism, crimes, and inherently dangerous behavior.
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(pp 211-218)

The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on criminal behavior provides insight on smoker behavior. At 368, “When the criminal actually does encounter circumstances that by almost any standards are adverse, he creates a vicious circle by responding in a nonconstructive manner. Rather than adopt an approach of enduring the situation or trying to improve it, he responds with irresponsibility, which makes things worsen.” Smoking is “adverse.” Smokers perceive AR 1-8 as “adverse.” But “Rather than adopt an approach of enduring” AR 1-8, the offenders respond “with irresponsibility, which makes things worse.” Instead of processing cases right, and on time, they delay and commit falsifications, “which makes things worse.” EEOC noted one aspect on 23 February 1982 [Dockets 01800273, et al.], “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints.” Also, initial matters related to civil law violations; but when smoker “irresponsibility” “makes things worse,” they run afoul of additional rules, including criminal laws.
Pages 364-366 provide insight on the [TACOM smoker] claims of “can't” comply with rules. At 365, “The criminal does not think about ‘I can’t’ when he says it. Verbalizing it is habitual, to the extent that it sometimes rolls off his tongue before he even gives the matter at hand any thought.” At 364, “the criminal does say ‘I can't’ to express his refusal to act responsibly. Occasionally, the noncriminal does this to avoid something unpleasant. The criminal does it constantly.” At 365, “‘can't’ is equivalent to ‘don't want to’ or ‘won’t.’ ‘I won’t’ indicates his refusal to perform on someone else's terms. . . . When approached by a therapist or another agent of change about living responsibly, the criminal makes statements couched as ‘I can't,’ . . . If he continues with ‘I can't,’ this amounts to an affirmation that he wants something else and is not willing to give up . . . .” At 366, “The self-deception occurs when the criminal repeats ‘I can't’ so often that he half-persuades himself that he cannot be different. . . . His failure in turn gives him license for more crime, insomuch as he always has recourse to the argument that he tried but ‘could not' make it. He has shown himself and the world that he ‘can't’ change.” Clearly, “the criminal does say ‘I can't’ to express his refusal to act responsibly,” p. 364.
At 365, “‘I can't’ is extremely useful when the criminal is held accountable and pressure is applied. If others say that he can do something, he debates the point, offering a variety of excuses to reinforce his position.” Indeed, “What reinforces his saying ‘I can't’ is its effectiveness. People tend to excuse the criminal, because they think he lacks the capability to do some things.” Trained professionals, of course, recognize that, p. 364, “the criminal does say ‘I can't’ to express his refusal to act responsibly.”
The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] noted this key aspect, p. 6, in referring to “the agency's smoke-filled environment which the agency refuses to alter.” The word is “refuses,” not “cannot.” MSPB and local [TACOM] behavior disregards “‘can't’” as “equivalent to . . . ‘won't.’” They disregard normal word meanings as used by criminals. “Misrepresentation, vagueness, distortion, and calculated lying are among the means to accomplish this end,” p. 445. EEOC was not deceived.
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(pp 220-221)

Patterns are evident in the falsification behavior by smokers and concerning tobacco. The court and FTC cases show a pattern of false and deceptive advertising. Smoker falsification and denial behavior also forms a pattern.
The book, Cigarette Country: Tobacco in American History and Politics [(New York: Praeger Publishers], 1971, by Susan Wagner, provides insight. Chapter 7 discusses the trial which resulted in Lartique v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (1963), cert. den. 375 U.S. 865 (1963). Dr. Alton Ochsner testified concerning false information provided by smokers concerning their smoking behavior, i.e., denial of such behavior. (The pattern becomes clear––MSPB [e.g., 6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] provides false data claiming a halt on smoking in the local personnel office, just as smokers gave false data. Local smokers also give false data on the safety of smoking.) At 104, the book indicates, “There was a period between 1946 and 1948 when certain studies were made that indicated that there was no causal relationship between cancer and smoking, the surgeon testified. But in 1949, he said, it was found that hospital records regarding the smoking records of patients were incorrect. 'If we asked a patient if he smoked he would say “no,” and we would find out that he had stopped the day before . . . . we had to have scientific medical records’ . . . A special smoking history form was later devised for cancer patients.”
It is clear why “it cannot be said that” a smoker “is a person of normal sensibilities,” words borrowed from Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965). It is clear why symptoms of mental illness are displayed, with malicious smoker denunciations of nonsmokers in terms of crime, “uniqueness,” “immediate threat,” “peculiar personal sensitivity,” etc. Data on smoker falsification, confabulation, and other bizarre inconsistency with reality, provides insight into the severe brain dysfunction, that gives rise to smoker misconception of nonsmokers. Data from “projection” on saying the opposite of what is meant, also comes to mind.
The book, The Making of a Woman Surgeon [New York: Putnam], 1980, by Elizabeth Morgan, M.D., provides insight. At 155-156, “It is not easy for an unemployed disabled veteran to tell a disapproving doctor that he drinks a fifth of whiskey a day, especially if the doctor is a woman. If I simply asked, 'How much?’ my patients would say they did not smoke or drink. At first I believed them. One patient said he did not drink. I asked him when his last drink had been. He said, 'This morning, but I quit when I came to the hospital.' . . . I only drink a case a day, and I stop after two packs of cigarettes.' . . . Tobacco smoking was the worst health problem in the V.A. Something in the tobacco injures blood vessels and after twenty years of smoking a pack or two a day, atherosclerosis from the tobacco is bad enough to block arteries to the brain, the heart and the lower limbs, causing stroke, heart attack and gangrene of the legs.”
Confabulation, “lowering of moral controls,” and other symptoms are known in the literature concerning alcoholism, smoking behavior, arteriosclerosis, brain damage, etc. Such data, including known smoker tendencies for falsification and deception, provide insight concerning the claims [6 MSPB 626; 7 MSPR 13] of safety, “health standards,” “prohibiting smoking in the entire Civilian Personnel Division,” and like innuendos, disconnected and impoverished assertions. etc. Such symptoms are foreseeable.
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The installation [TACOM] and MSPB are working together as a team, in developing multiple false statements. When some false statements are caught, new false statements are invented. MSPB is not allowed to be a team member/attorney/representative for the agency. Instead, MSPB is supposed to judge decisions based on the case, if any, as actually made. See Horne v. MSPB [221 US App DC 381] 684 F.2d 155 (CADC, 1982). When an installation holds a wrong position, MSPB is supposed to reject the errors, not endorse them. When the installation denied authority and claimed that the standard was “reasonable” vs. “necessary,” USACARA rejected the installation [TACOM] position. MSPB ignores the fact that USACARA Reports, especially once “accepted,” are final and binding. Spann v. McKenna, 615 F.2d 137 (1980).
The MSPB [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] pattern of falsifications includes but is not limited to false claims of:
“prohibiting smoking in the entire Civilian Personnel Division”
“advising fellow workers and visitors not to smoke in appellant's presence”
“conducting periodic air quality surveys of appellant's immediate work area to insure compliance with health standards”
claiming “undue hardship” without adhering to “applicable standards or proof”
The MSPB falsifications were obvious. MSPB officials knew that the claims were false, when the claims were made. EEOC reviewed the record and noted of the “Board cited actions” that “such actions were not even attempted,” EEOC letter [Docket 03.81.0087, 83 FEOR 3046], 8 April 1983, pp. 4-5. The EEOC analysis is a “subsequent” finding. In addition, there is a “subsequent admission” from MSPB itself, contained in the 20 June 1983 issuance, p. 8, n. 6, “The agency denies it ever made such an offer.” Cf. People v. Locricchio, 342 Mich. 210, 69 N.W.2d 723 (1955), concerning a “subsequent admission” and evidence that “established the felony.”
When MSPB offenders make false claims and are not prosecuted, further falsifications are issued by MSPB. MSPB offenders feel above the law. Thus, the 20 June 1983 MSPB notice [by Victor Russell] contains false statements:
“a total ban on smoking throughout the installation would be the only accommodation”
“the appellant's job requires that he move about the entire facility on a continuing basis”
“Contrary to the appellant's assertion, a total ban on smoking is not authorized”
Ed. Note: See Army Regulation (AR) 600-20.2-1 showing the full authority involved, "It is Army policy that each individual in the chain of command is delegated sufficient authority to accomplish assigned tasks and responsibilities." This had been quoted by USACARA to rebut that same claim when TACOM had falsely made it.
TACOM's own Legal Office's Chief Counsel Richard T. Tarnas (with TACOM attorneys Frank R. Ortisi and Susan Lewandowski) had refuted the TACOM claim. They had said on 19 June 1979, "Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction."
USACARA deemed this TACOM Legal Office analysis so significant, it both (a) cited it, and (b) made the Chief Counsel memorandum its USACARA Exhibit 8g.
Thus it is clear that the USACARA Report, p. 14, had already conclusively re-confirmed that "The Commander has the authority . . . to ban all smoking."
When MSPB criminals determined to felony falsify on behalf of their TACOM accessories and accomplices in crime, they carefully avoided citing the regulatory and USACARA reference, and instead criminally fraudulently cited only appellant, as though appellant were sua sponte exaggerating the Commander's authority!
And note federal court precedent, e.g., National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133, 489 F2d 1257, 1265 (1973), an employer has a duty to prevent and suppress hazardous conduct by employees above what "the average workplace" does. And see note 27, "An employer, of course, enjoys vast physical authority over his employees and their workplace, a fact which Congress stressed in drafting the general duty clause. See, e.g., S.Rep.No.91-1282, 91st Cong., 2d Sess., 9 (Oct. 6, 1970), U.S.Code Cong. & Admin.News 1970, p. 5177, and H.R.Rep.No.91-1291, supra note 7, at 21.
This is important as "permission often means only a failure to prevent in situations where the permitting party has considerable physical or social capacity to control the permitted party." This was the situation at TACOM, indeed beyond that, deliberate refusal to enforce the rules, pursuant to the widespread insubordinate attitude that "It doesn't make sense to have a Command getting involved in the personal habits of its employees . . . ." (Col. Benacquista T. 25).
For background on the criminal personality displayed by TACOM and MSPB criminals, see, e.g., p 249, infra.

The offenders clearly “defend on the ground that his own word should not have been believed,” Bishop v. E. A. Strout Rlty. Agency, 182 F.2d 503 at 505 (1950). Thus further “subsequent admission” is foreseeable, which will again include data which have “established the felony” of falsification.
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McBride v. Johnson, 225 F.2d 249 (5th Cir. 1955), provides insight. It is a criminal case involving medical misconduct “to satisfy” others’ “appetite or craving for such drug” as was involved in that case “only and not in the treatment of his patient, then the dispensation of such drug would not be in good faith nor in the regular course of the defendant's professional practice as a physician, nor for legitimate medicinal purposes . . . .” Smoker “craving for tobacco” is cited in the DSM-III and is well-established. Smoking is clearly “not in the treatment of . . . patient” of [TACOM] Dr. Holt's, and even if it were, it would not be “in the regular course” considering the multiplicity of evidence on the adverse health effects of smoking. The misconduct of Dr. McBride provides insight on the behavior of Dr. Holt.
The decision in McBride, supra, is consistent with the principles in the poisoning case decision of People v. Carmichael [5 Mich 10], 71 Am. Dec. 769 (1858), for example, that “It is obvious that the law does not encourage tampering with such matters, even by physicians and nurses.”
McBride, supra, indicates at 252 that, “Evidence of the failure to follow standard medical practices shows a lack of good faith. So also as bearing on good faith is the evidence of” McBride's “unorthodox attitude toward narcotics and addiction. Without detailing this evidence we mention as examples excerpts from appellant's testimony: ‘You can take morphine, you can take codeine, you can take anything at all without being an addict. Just because you drink whiskey is no sign you are a drunkard, and about the only people who become addicts are weaklings.’”
The Court provided more data on Dr. McBride's “unorthodox attitude toward narcotics and addiction” by citing his quoting his patient, who evidently said “I took pantopon every day, two or three times a day, for six weeks to two months, and, boy, I love that stuff, boy, it's heaven, pantopon is heaven, it's wonderful, but I tell you what, I wouldn't take that stuff because I'm scared of it. . . .” (P. 253).
It is evident, and I don't dispute, that an addict may have strong feelings about the subject of his addiction. This may well be the case with tobacco addicts with a “craving for tobacco.” The words cited above are insightful for what they may reveal about the views of brain-damaged smokers whose addiction is a clue to the brain damage. (An undamaged brain is presumably the state prior to addiction to poison, considering the evidence that smoking “causes insanity.”) However, the issue relates to the prohibition of causing endangerment, discomfort, inefficiency, etc.
[TACOM] Dr. Holt's “unorthodox attitude” is evident. His writings including but not limited to his 15 July 1980 memorandum provide insight to that. The “careful examination of the record as a whole” shows unorthodoxy including but not limited to declaring a person not fit for duty in advance for the purpose of “protecting” the person (me) from becoming not fit for duty; disregard of causes including but not limited to endangerment prohibited by the rules; disregard of data on smoker addiction and mental disorder; disregarding evidence; taking measures or holding beliefs against me instead of dealing with smokers who appear to be “projecting” their symptoms; ignoring evidence such as the 25 Jan 80 USACARA Report; etc.. etc. Cf. U.S. v. Moore, 423 US 122 (1975), and Merchants Nat. Bank & Trust Co. of Fargo v. U.S., 272 F. Supp. 409 (1967), particularly the behavior of Dr. Linnell.
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United States v. Myers, 131 F. Supp. 525 (D.N.D. Cal. 1955), provides insight. It is a case under 18 USC § 1001 against falsifications. The law “is in effect designed to insure to the whole world, governmental employees and the general public alike, that any record, document, instrument or statement made by a governmental employee, great or small, in his official capacity and in the course of his official duties can be relied upon by all,” p. 531. It is clear that the local [TACOM] and MSPB behavior cannot be relied upon as true. The various decisions and analyses by such organizations as EEOC, MESC, USACARA, and OPM arise from the fact that the supposed governmental input is not reliable. USACARA could not rely on the false local [TACOM] claims, so USACARA rejected them. That fact underlies the situation; hence, to support improper local [TACOM] behavior, MSPB has chosen to place brazen falsehoods in its output [e.g., 6 MSPB 626; 7 MSPR 13 (18 June 1981) (Ronald P. Wertheim, Ersa H. Poston, etc.].
In Myers, supra, at 527, “It is conceded that each of these last four statements” at issue in that case “were false, that the document as completed by the defendant is itself false, and that the defendant knew such to be the fact when he executed and delivered the same . . . .” That statement provides insight on the culpable behavior involved. The issuances locally and from MSPB are non-specific. Even when challenge is offered, improvement is not made. It is evident from the methodology (modus operandi) of the offenders that they “knew such” falsehoods as have been issued were false. The local “cannot” claims are false. The [6 MSPB 626; 7 MSPR 13] MSPB claims concerning “compliance with health standards” and provision of a “smoke-free” environment such as “prohibiting smoking in the entire Civilian Personnel Division” are but some of the many falsehoods, “each” of which is at issue.
At 529, “the defendant signed the official printed government document which he himself completed by filling in false data and which shows on its face that he signed the same in his official capacity. In so doing, he sought to make it appear, and did, in fact, make it appear that the document was an official document of . . . the United States Army, a Department of the United States.” That data is insightful for some of the documents involved. Of course, the material generated from MSPB relates to another agency of the United States, and such documents are also “within the jurisdiction of any department or agency of the United States.”
The defendant in that case sought to make several defenses for his misconduct, but the Court rejected the defenses. The Court appeared concerned with the fact that “the false entries in question were made upon an official United States Government form, the very existence of which carried with it the United States Government's integrity, guaranteeing its truth, honesty, and authenticity.” Here, the various assertions emanating from local [TACOM] and MSPB sources are, when false, quite the opposite. They are not “guaranteeing . . . truth,” for example, and indeed, are not even defended by their authors on challenge. When a false issuance
“passed out of the hands of the defendant, it carried with it the full faith and credit which is given to documents of the United States government, and but for the defendant's perfidy, would have been entitled to the same unimpeachable standing to which every official document of the United States is entitled.”

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Local [TACOM] personnel have engaged in a continuing pattern of falsifications to obstruct and interfere with action to “ever consider the merits of appellant's allegations.” The [TACOM] misconduct “went so far as to utilize erroneous information” as part of the [TACOM] pattern “to restrict and/or deny appellant the right to file EEO complaints and seek counseling.” [EEOC decision words, Dockets 01800273 et al.] The pattern included use of false and misleading data sent by TACOM to MSPB. One of the many examples of clearly false statements is found in the 14 May 1980 letter by Ms. Bacon to [MSPB’s] Mr. [Martin] Baumgaertner. She falsely alleged that “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations.”
The claim is, of course, false, EEOC noted the pattern of [TACOM] inaction and interference in its 23 Feb 82 decision [Dockets 01800273 et al.]. The claim was false; as “intention is in law deducible from the act itself [People v Carmichael, 5 Mich 10, 17; 71 Am Dec 769 (1858)],” it was intentional. As “the agency's decision to terminate” [EEOC’s Henry Perez’s words] me had already been made and effected unlawfully, local [TACOM] officials considered me already fired. As far was they were concerned, I was no longer a government employee, hence no obligation “to process . . . actions brought under government regulations.” Thus, the 14 May 80 letter admitted that “Mr. Pletten may not return to his work environment. . . .” The very purpose of the 14 May 80 letter was to obstruct and prevent action to “ever consider the merits.”
The merits which 14 May 80 letter opposed action to “ever consider” included the fact “the agency failed to abide by the” 25 Jan 80 [USACARA] “recommendation of ways the agency had to accommodate appellant” by implementing AR 1-8. The merits the 14 May 80 letter also opposed considering included “the agency's decision to terminate” me. One result of “the agency's decision to terminate” me was that “Mr. Pletten may not return.” When an individual “may not return,” there has been a “decision to terminate.” Installation rules do not allow non-employees to trespass. As a personnel specialist, I have been involved in enforcing that rule. Based on “the agency's decision to terminate” me and to oppose action to ''ever consider the merits,” I was “locked out.” The letter admitted that “Mr. Pletten may not return to his work environment,” but asserted that “Mr. Pletten has not been locked out of his office.” That contradiction confirms the fallacy of the view that the issue is limited to suspension. “The agency's decision to terminate” me without adhering to the [30 days] advance notice, specificity, and reply rules [e.g., 5 USC § 7513.(b)] shows that “Mr. Pletten may not return to his work environment,” which includes but is not limited to “his office.” When a person “may not return to his work environment” which includes his office, he has “been locked out of his office.” “Locked out” resulted from prior “decision to terminate.”
The 14 May 80 letter contained false assertions including but not limited to the false statement that “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations.” I concede that Mr. Baumgaertner was given false, intentionally false, data by local officials. However, Mr. Baumgaertner is not a clerk. He is not allowed to simply photocopy management claims, or otherwise rubber-stamp assertions. He is not allowed to be gullible. Notwithstanding the false nature of the local [TACOM] assertions, including the 14 May 80 letter, he should have taken action to “consider the merits.”
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The lack of “a sufficient basis of information to make” representations (scienter) meshes effectively to control TACOM and MSPB misconduct with the U.S. v. Olivares-Vega, 495 F.2d 827 (1974) “full equivalent of knowledge” data. This further meshes with the guidance “where a witness knowingly fabricates details in order to strengthen his credibility as such,” U.S. v Blackmon, 24 F.Supp. 830 (1938), aff'd 108 F.2d 572 (1940). The lack of relevant studies, disregard of the examining physicians, disregard of “personal determinations” and other "The agency does not argue nor does the record support that it ever complied with the recommendations of the Grievance Report guidance, failure to identify and control mentally disordered/alcoholic smokers, violation of basic constitutional rights, disregard of civil service and installation rules, etc., etc., make clear that this is no longer merely a civil case. The full power of governmental control mechanisms are vital to measures against government officials for their methods in handling the case to this point. In my 6 Nov 81 letter to the local FBI, “it is understood that from time to time, management and employees may disagree.” Likewise with MSPB. “But is never permissible for management to simply fabricate things.” Likewise with MSPB.
Many ways are recognized to show a hazard exists. TACOM and MSPB are intentionally limiting the range of methodology to only TLV’s without evidence to do so, and indeed contrary to the evidence. The 25 Jan 80 Grievance Report and the examining doctors have made the facts clear. Dr. Holt has too, in substance. Mr. Shirock is evidently backing off from his claims. What are ways to show a hazard? See 64 Cal. Law Rev. 702 at 715 (1976). Examples include: government-compiled statistics . . . injuries that were redressed by workman’s compensation . . . a safety standard . . . a published study . . . apparent to the ‘ordinary person.’” All of these exist. There are thousands of studies on the matter. There have been compensation cases, as Mr. Grimmett’s 10 Oct 1979 memo makes clear––“at least several employees have filed claims stemming from smoking-related conditions.” The installation [TACOM] legal office on 1 Aug 1979 noted that “no asthmatic should be within 25 feet of a smoker.” AR 1-8 is not protection just for me. AR 1-8 is a standard that prohibits precisely the endangerment that is happening. American Smelting & Refining Co. v. Occ. Safety & Health Rev. Commission, 501 F.2d 504 (1974), provides insight into the concept on what is “apparent.”
Out of control smokers have hurt themselves and others and property as Court records around the nation show. The problem of smoking behavior has been noted for centuries. Dr. William H. Stewart, Surgeon General in 1967, indicated that the health hazard “is flat, scientific fact.” He indicated that "establishing it and demonstrating it is no longer our goa1.” What is the matter with MSPB and TACOM officials? Are they so arrogant they feel everybody is wrong but them?
Management has intentionally singled me out for abuse. MSPB has intentionally refused a hearing to show this fact. In 16 Archives of Environmental Health 443 (March, 1968), ill effects from tobacco smoke are shown to be common. Bad effects occur in both allergic and nonallergic persons. The article “Tobacco and the Nonsmoker” by Frederick Speer notes common complaint such as eye irritation. coughs, headache, and nasal symptoms. The article notes that “the many individuals who develop symptoms from tobacco smoke need the understanding and support of the physician in helping them to avoid its noxious effects.” Note “the many.” In my case, I need government compliance with criminal law. A halt to the multiple falsifications by itself will provide relief.
Please arrange compliance with the criminal law.
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on the views of criminals provides insight an the local [TACOM] and MSPB views. At 436, “The criminal's idea of 'justice' is not being caught; 'injustice' is interference with his plans. There may be other, relatively minor, injustices such as being informed on or being handled roughly by the authorities. Any environmental factor that contributes to his being apprehended is considered unfair. But the inherent injustice is getting caught, never what responsible people would consider the injustice of the crime. In fact, he has no shame about what he has done, no thought about people whom he has harmed, and little concern about his own family.” At 437, “He does not believe that he should have to be accountable to anybody. This belief may be obscured by a barrage of other issues that the criminal raises” to “camouflage what to him is the basic injustice––being apprehended and confined.” Such data provides insight on the local [TACOM] reaction to the 25 January 1980 USACARA Report, and to the AR 1-8 guidance before it. Such data also provides insight on MSPB aiding and abetting the installation [TACOM] misconduct. Relative to criminals assisting each other when one is caught, p. 436 states, “in his thinking, they are obligated to do this.” Thus, crimes foreseeably lead to additional crimes, including the multiple falsifications by local [TACOM] and MSPB offenders as are apparent in the record.
Pages 439-440 cover “the psychology of escape thinking.” To a criminal, “As far as he is concerned, it is his ‘right’ to leave. If he is caught, lt is a blatant injustice for anyone to punish him for the attempt . . . .” Such data, combined with information on “projection,” provides insight on smoker insistence that I go “elsewhere,” i.e., the “relocating one nonsmoker” rejected by USACARA [IAW constitutional law including but not limited to Missouri ex rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938)].
Insight on the local [TACOM] and MSPB reaction to my appeals is provided by data on criminal reactions to parole and probation. At 440-441, “Probation or parole is regarded as merely another obstacle to surmount, and not a particularly formidable one . . . The criminal does with the authorities what he has done all along . . . He sizes up the person with whom he is dealing and anticipates what it will take to satisfy him. . . . This is part of the pattern of feeding others what the criminal thinks they want to hear.” Appeals are “not . . . particularly formidable” when criminals are willing to commit additional crimes, such as falsification, “to surmount” the “obstacle.” At 441, a criminal “will satisfy his interrogator on whatever score is necessary, and that usually puts an end to the questioning.” Such data provides insight on the multiple ex parte aspects. The use of falsifications did “satisfy” MSPB offenders, who in turn themselves resorted to additional falsifications.
At 444-445, “From the criminal’s point of view, it certainly makes sense for him to tell any story that will reduce personal jeopardy. When held accountable, he tries to avoid incrimination. Misrepresentation, vagueness, distortion, and calculated lying are among the means to accomplish this end.” Such data provides most astute insight on the local [TACOM] and MSPB pattern, and particularly on the 18 June 1981 [6 MSPB 626; 7 MSPR 13] issuance from Ronald Wertheim [Ersa H. Poston, etc.]. At 446, “The criminal does everything possible in his scheming to ensure the success of his enterprise. This is what scheming is all about. He may run into trouble through his superoptimism . . . Superoptimistic thinking is basically unsound.” The local [TACOM] and MSPB behavior includes delusions of grandeur, which are “basically unsound.”
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It is clear that local [TACOM] and MSPB offenders decided upon a course of action including but not limited to multiple falsifications. Ex parte behavior was decided upon as a tactic to implement the intention to make false statements, including but not limited to false assertions of actions taken, standards, “uniqueness,” “immediate threat,” etc. Cases on falsification thus provide insight. See People v. White, 411 Mich. 366, 308 N.W.2d 128 (1981). The court said that “we should be mindful of the menace to our trial system which a perjurious witness imports. It is difficult to imagine a more potent threat to the adjudicative process than perjury. Nothing should impede legitimate efforts to punish it.”
MSPB delusions, hallucinations, and/or other deviance is clear in this area. The sweeping language of the 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] issuance shows “irritability” at the arrest possibilities, i.e., at the broadest intendment––the “police power.” MSPB considers any control whatsoever of smoker crimes to be an “undue hardship” by the sweeping wild assertions MSPB made. MSPB opposes control of insane smokers such as was done in the situation described in Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979). MSPB opposes control of assaultive smokers such as in the situation of State v. Giles [183 Neb 296], 159 N.W.2d 826 (1968). MSPB opposes control even in manslaughter situations such as described in Commonwealth v. Hughes [468 Pa 502], 364 A.2d 706 (1976). The sweeping denunciation of control measures is clear in the local [TACOM] and MSPB behavior. No rules are alluded to––not AR 1-8, not 5 CFR § 752, not anything––to control smokers from endangering others.
Considering the extreme hatred of the rules displayed by local [TACOM] and MSPB offenders, it is clear why falsifications were resorted to. When people begin a life of crime, they can find themselves in a vicious circle. Additional crimes are committed, as an unlawful measure to avoid penalties for prior crimes committed. Smokers began by endangerment. Thus, AR 1-8 was initiated as a control measure. Smokers violated that. I sought compliance. Smokers refused. The 25 Jan 80 Report specified compliance. Smokers defied it. I sought implementation. Smokers fired me. I appealed. Smokers began a series of additional crimes. Falsifications were committed. Extortion attempts occurred. Ex parte communications occurred. Falsification were issued from MSPB. Etc. Etc.
The entire cycle of local [TACOM] and MSPB misconduct could have been avoided. At the very least, the “unqualified and absolute” safety duty [Nat’l Rlty. & C. Co, Inc v OSHR Comm, 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973)] could have been obeyed years ago. Even before that, rules such as on negligence should have been obeyed. By 1977, at the latest, there should have been compliance with AR 1-8.
But the cycle of violations began. So, at this point, data on falsifications provides insight. Local [TACOM] and MSPB frauds on tribunals are clear. Had there been any desire at all for them to halt their unlawful behavior, they would have demonstrated such desire at some point. But they choose to be mute. Thus, cases such as White, supra; U.S. v. Myers, 131 F.Supp. 525 (1955); U.S. v. Blackmon, 225 F.2d 249 (1955); etc. provide insight. The local [TACOM] and MSPB behavior is to be distinguished from that cited in Matter of Rabideau [102 Wis. 2d 16], 306 N.W.2d 1 (1981), since the refusal of retraction for so long shows that they are not “penitent in the sense of a revised or reformed personal moral view.”
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Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292 (3d Cir. 1961), provides insight. For example, the issue of causation was raised. The tobacco company wrongly “contends that even though the plaintiff's experts may have given categorical opinions concerning the relationship between smoking and cancer, such opinions should have no validity since there was no proof of the acceptance of this relationship by the medical profession.” The tobacco company claim, wrong as it is, is insightful in showing the intentional errors of local [TACOM] and MSPB offenders. They make statements, including false statements, that deal only inadequately with the alleged effects, but utterly disregard the data on the causes. Endangerment is a cause, so is discomfort, unreasonable annoyance, and malicious reprisal. AR 1-8 and other rules forbid such misconduct by smokers. Moreover, even the fraudulent local [TACOM] and MSPB claims do not specifically and directly assert the lack of a hazard. But even if they did make such claims, bizarre and disconnected from reality as they would be, they “will not rebut an employee's statement that smoke in the air in his or her workplace is damaging his or her health.” [DHEW, Soc Sec Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982), p 1.]
The court answer rejecting the tobacco company position, and thus, the local [TACOM] and MSPB position, is “Aside from the fact that the testimony in question reveals that such acceptance existed, this contention has no merit unless we are to overrule what we said in Brett v. J. M. Carras, Inc., 3 Cir., 1953, 203 F.2d 451, which was approved by us in Deitz v. United States, 3 Cir., 1955, 228 F.2d 494. See also Puhl v. Milwaukee Automobile Ins. Co., 1959 . . . 99 N.W.2d 163; People of the State of New York v. Williams, 1959 . . . 159 N.E.2d 549; McKay v. Texas, 1950 . . . 235 S.W.2d 173 . . . . This we have no intention of doing.” In my case, the record clearly shows that my “personal determination” of the hazard exists, along with overwhelming evidence on the hazard. The record shows perverse response by local [TACOM] and MSPB culprits. The sadistic emphasis on rejecting dealing with the cause is pronounced; the decision by Mr. [Martin] Baumgaertner is particularly sarcastic in the rejection of his duty, and in maliciously twisting the evidence as provided.
Note that the [Pritchard] decision was in the year 1961. Note “that such acceptance existed” “by the medical profession” which local [TACOM] and MSPB offenders, clearly bizarre and disconnected, purport to reject, directly or by innuendo. The Court behavior is consistent with the evidence, including that ten (10) years later, referenced in Larus & Brother Co. v. F.T.C., 447 F.2d 876 (1971), “. . . the detrimental effects of cigarette smoking on health are beyond controversy” based on the “'overwhelming evidence.” Cf. Austin v. State [101 Tenn 563], 48 S.W. 305 (1898) [aff’d 179 US 343 (1900)]. Clearly, the local [TACOM] and MSPB behavior is obviously wrong, directly flouting the basis for AR 1-8, and is clearly contrary to the principle “designed to insure to the whole world, governmental employees and the general public alike, that any record, document, instrument or statement made by a governmental employee, great or small, in his official capacity and in the course of his official duties can be relied upon by all,” insightful words from U.S. v. Myers, 131 F. Supp. 525 (1955). The court in Pritchard, supra, had “no intention of doing” anything contrary to the law and evidence. Local [TACOM] and MSPB issuances do not reflect such restraint. They ignore what “acceptance existed” so long ago, what exists in AR 1-8, what was upheld in the 25 Jan 80 USACARA Report, etc., etc.
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Concerning criminals and smokers, p. 453 provides insight, “Any of them can do almost anything at any time, owing to the violating patterns that have been present in their thinking.” At 448, “Newspapers often carry accounts of ‘impulsive’ crime and ‘crimes of passion,’ which do not seem based on . . . scheming and deliberation. We must address this issue. If we were to speak of a crime as having been committed ‘impulsively,’ we would mean that the act was sudden, that hardly any time elapsed between thought and act; and we would be referring to an act that was not deliberate or premeditated. . . . Similarly, if a crime was the result of a 'compulsion,’ it means that, try as he might, the person could not have acted other than as he did. The action would be forcing itself on the person; it would be something that he 'had to do.’”
Such data provides insight on the falsifications by MSPB [6 MSPB 626; 7 MSPR 13 (18 June 1981), by Ronald P. Wertheim, Ersa H. Poston, etc.], for example, making claims of “actions the agency [TACOM] allegedly took,” when [in fact] “such actions were not even attempted [as EEOC determined, Docket 03.81.0087, 83 FEOR 3046].” It is clear that the false statements were not issued “impulsively” or by “compulsion.” Likewise, the false 29 April 1980 claim (“the agency had no choice but . . . sick leave status”) was not issued “impulsively” or by “compulsion.” Significant “time elapsed between thought and act.” Concerning criminals, p. 453, “Any of them can do almost anything at any time.” Criminal behavior can include falsification, as in the case at car, manslaughter as in Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976), or murder as in People v.Battles [93 Ill App 3d 1093; 49 Ill Dec 378], 418 N.E.2d 22 (1981). Indeed, the use of falsifications is a foreseeable tactic in the perpetration of manslaughter and murder.
At 449, “We maintain that the concepts of impulse and compulsion are not applicable to the criminal. . . . Thinking about an act and discarding the idea, only to have it pop up again, may recur hundreds of times before it is implemented.” At 413, “It is a matter of his choice.” Concerning falsifications, p. 486 provides insight, “The criminal knows that a given act is illegal from society's point of view, but he deems it proper for him. He knows what the laws are; in fact, he has a more detailed knowledge of the law than many responsible people.” Such data is applicable to local [TACOM] and MSPB offenders, whose foreseeable work includes disposition of cases concerning federal employees who have engaged in falsifications. An MSPB appeals official “knows what the laws are.”
At 408, “Sometimes a criminal is evaluated in light of the details of a single crime that are brought out by an investigation. But one crime for which a criminal is apprehended does not tell the whole story. He has usually committed many undetected crimes.” At 419, “the criminal progressively gets himself into more trouble.” At 405, such is foreseeable since “The criminal's tubular vision leads him to make decisions in line with how things look to him at the time. . . . there is no conceptual thinking . . . Thus, he habitually forms erroneous conclusions and makes faulty decisions.” In this case, MSPB officials lacking “conceptual thinking” are acting only on a case by case basis, overlook the pattern they are displaying by their “many” issuances. Local offenders behave similarly.
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(p 232)

P. Lorillard Co. v. Federal Trade Commission, 186 F.2d 52 (4th Cir. 1950), provides insight. It was a false advertising case. "The company was ordered to cease and desist 'from representing by any means directly or indirectly,’” that the cigarettes at issue “‘will not harm or irritate the throat’” and “‘will not irritate the throat or mouth of a smoker, or is cool, or is free from bite, burn, or harshness,’” and that their length “will filter out or eliminate the harmful properties in the smoke from such cigarettes’ . . . .” The company admitted its behavior, i.e., “The company does not contend that the falsity of the representations referred to in paragraphs (1), (2) and (4) of the above order was not established by substantial evidence . . . .” At 56, “. . . the Commission found . . . that the advertising was false, misleading and deceptive. The evidence amply supports this finding.” At 57, what the company had done “shows a perversion of the meaning . . . to cause the reader to believe the exact opposite of what was intended by the writer . . . .” At 58,"To tell less than the whole truth is a well known method of deception . . . .”
The local [TACOM] and MSPB behavior, fabrications, innuendo pattern, etc. shows a like pattern, a “false, misleading and deceptive” pattern. Clearly “a perversion of the meaning” of the evidence is involved.
At 58, “In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have . . . .” In this case, no “excuse” has been made for the local [TACOM] and MSPB behavior pattern. The pattern of violations is still in process. Thus, it is not necessary to reach the subtle wisdom of the Court decision to deal with the local [TACOM] and MSPB violations. Their violations are brazen. The falsehoods are clear and not a matter of “fine spun distinctions.” The refusal of correction for so long a period confirms that the falsehoods are intentional.
The Court rejected the company claims that its violations could not be controlled because of “alleged procedural irregularities.” Here, local [TACOM] and MSPB offenders refuse corrective action on like insubstantial grounds. The real fact is––they hate the rules and are willing to commit falsifications and other offenses to “repeal” the rules. As part of their pattern of refusing compliance, insubstantial claims such as on time limits and “res judicata” and on alleged corrections are made. When the falsity of such claims is made an issue, the response is––muteness. Pretense of concern for time limits is made by some offenders; as such claims are clearly disconnected from their own behavior pattern, words such as “blunted,” “deranged,” and “perversion of the meaning” come to mind.
It is public policy to control falsifications, control the insane, eliminate hazards, etc. “Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials. United States v. City & County of San Francisco, 310 U.S. 16 . . . Utah Power & Light Co. v. United States, 243 U.S. 389 . . . .” Here, the local [TACOM] and MSPB behavior is not “mistaken”; it is intentionally wrong. The legal duties protect employees as well as the “public.” Obeying the legal duties is what local [TACOM] and MSPB behavior opposes.
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Guidance on extortion and embezzlement provides insight. Cf. State v. Gates [182 Ind. App. 214], 394 N.E.2d 247 (1979), on “use of the tax monies to . . . keep the business going.” Installation officials want to “keep” disregard of guidance limiting smoking “going.” Col. Benacquista alleges, “It doesn't make sense to have a Command getting involved in the personal habits or its employees . . . .” (T. 25). Then he demanded that I retract my “personal habits” concerning not wanting to smoke, “All he [Pletten] had to do was to say, ‘I agree that this [TACOM] is reasonably free of contaminants.’” (T. 62). Col. Benacquista admits that “personal habits” are involved, yet he disregards guidance that removals are not authorized for personal reasons, Knotts v. United States [128 Ct Cl 489], 121 F. Supp. 630 (1954).
“The existence of the requisite criminal intent is not dependent upon a statement by the defendant as to the precise state of his mind.” People v. Zunno [ 384 Mich 151], 180 N.W.2d 17 at 20 (1970). Cf. People v. Carmichael [5 Mich 10], 71 Am. Dec. 769 (1858), “the intention is in law deducible from the act itself.” The fabrications and pressure upon the suggestible [TACOM] Dr. [Francis J.] Holt led to the fraudulent claims seeking “clearance from . . . personal physician,” based on Dr. Holt's suggestibility, and thus the retraction of the 24 March 1980 note [in Pletten’s favor].
Concerning the fraudulent “determination that the doctors had required a smoke-free environment,” Col. Benacquista is the culprit in that extortion aspect; he admits that he “made that determination” (T. 13). But for that misconduct by Col. Benacquista, I “would still be fit for duty,” an admission from [TACOM’s] Dr. Holt. “The existence of the requisite criminal intent is not dependent upon a statement by the defendant,” People v. Zunno, supra. Here, we have multiple culpable statements from the defendants. They make explicit their various intents and concepts, especially the hostility to AR 1-8, “It doesn't make sense to have a Command getting involved in the personal habits of its” smokers, meaning––under the circumstances––insubordination against AR 1-8, plus extortion and embezzlement directed against a nonsmoker such as myself, based on my seeking to follow my “personal habits” of not smoking.
[TACOM] Dr. Holt has made clear, “We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working” (T. 10). Clearly, extortion is evident as the reaction by the installation [TACOM] when I did not do what [Col. Benacquista says] I “had to do . . . say, ‘1 agree that this [TACOM] is reasonably free of contaminants.’” (T. 62). “So but for those . . . words” unsaid by me, I “would still be fit for duty” (T. 105).
“The term 'aiding or abetting' includes all forms of assistance. The term comprehends ‘all words or deeds which may support, encourage, or incite the commission of the crime.’ People v. Palmer . . . 220 N.W.2d 393 (1974),” words from People v. Usher [121 Mich App 345], 328 N.W.2d 628 at 631 (1982). The various local individuals engaged in “aiding or abetting” the misconduct of each other. Once overruled by Col. Benacquista, Dr. Holt aided and abetted the extortion to “keep” smoking “going.” Dr. Holt admits, “I would just want a statement that he can tolerate the work environment as is” (T. 71). That is the “smoke-filled environment which the agency [TACOM] refuses to alter,” words from the 8 April 1983 EEOC letter [Docket 03.81.0087, 83 FEOR 3046]. Nonsmokers have to agree to be forced lo smoke, “they have to be able to” (T. 58).
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(pp 235-245)

Pritchard v. Liggett & Myers Tobacco Company, 350 F.2d 479 (3d Cir. 1965), provides insight. The tobacco company “pleaded assumption of risk as an affirmative defense” against its smoker customer. The tobacco company opposition to smokers' rights to collect compensation is part of the pattern of opposition to basic legal principles evident in the record. The local [TACOM] and MSPB behavior parallels tobacco company opposition to smokers' rights; nonsmokers’ rights are also opposed, even when expressly protected by specific guidance including but not limited to AR 1-8 and the 25 Jan 80 USACARA Report.
The court rejected the tobacco company position. “It has been held by the Superior Court of Pennsylvania, an intermediate court of appeals, that contributory negligence is inapposite as a defense in an action for breach of warranty. Jarnot v. Ford Motor Company , 191 Pa.Super. 422, 156 A.2d 568 (1959). We have found, and the parties to this appeal have cited no other case on point. We are therefore obliged to follow this decision . . . The rule as announced by the Superior Court appears to represent the majority view and is supported by substantial authority in other jurisdictions. Green v. American Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963), cert. den. 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306; Brown v. Chapman, 304 F.2d 149, 163 (9th Cir. 1962); Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254, 258 (6th Cir. 1960) . . . It was held in the cited cases that . . . the defense of contributory negligence is inapposite. There are other decisions to the same effect. . . . We are of the view, and so hold, that since contributory negligence is not available as a defense . . . assumption of risk in the sense of contributory negligence is likewise not available.”
Compare Michigan guidance such as Swick v. Aetna Portland Cement Co ., 147 Mich. 454 at 467 [111 NW 110] (1907), “we cannot hold that the plaintiff assumed the risks . . . This question was passed in the case of Sipes v. Starch Co ., 137 Mich. 258 [100 NW 447; 16 Am. Neg. Rep. 401 (1904)], where it was said by Mr. Justice Montgomery, following the case of Narramore v. Railway Co ., 96 Fed. 298 (48 L. R. A. 68) [37 CCA 499, C.C.A. 6th, 1899], that, as the assumption of risk is the result of a contract of employment, and as the master could not legally contract to violate a statute, he is not in a position to assert, as against the servant, the doctrine of assumption of risk . . . .”
OSHA [29 USC § 651 - § 678] guidance on the subject is consistent. “An employer has a duty to prevent and suppress hazardous conduct by employees, and this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence,'' Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 142], 489 F.2d 1257 (1973), p. 1266, n. 36. Also, OSHA “is remedial and preventative in nature. . . . In view of the clear purpose of the statute to set new standards of industrial safety, we cannot accept the proposition that common law defenses such as assumption of the risk or contributory negligence will exculpate the employer who is charged with violator the Act,” REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974).
It is evident that local [TACOM] and MSPS offenders share with L & M Tobacco Co. a disregard for basic legal concepts. It is clear that local and MSPB offenders oppose the limitations, including that the government “could not legally contract to violate a statute” or rule, so they resort to deviance such as (a) reprisal for my quoting rules, and (b) extortion to halt such quoting. Freedom of expression cannot be waived even by “assumption of the risk” of reprisal.
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Understanding criminals helps in understanding smokers and local [TACOM] and MSPB behavior. At 449, “Throughout his life, the criminal has considered it a putdown not to be in total command of himself, as well as in control of others.” At 411, “It is not humanly possible for the criminal to implement every criminal idea that occurs to him, and most of the crimes considered are not committed.” At 413, “It is a matter of his choice.” At 411, “The criminal's fragmentation makes it impossible for an outsider to predict . . . .” Such data provides insight on the installation [TACOM] reaction to the 25 January 1980 USACARA Report. Various responses were possible. “It is a matter of . . . choice.” Compliance could have begun. But the installation [TACOM] officials decided on a pattern of extortion, embezzlement, falsification, delays, etc. “It is a matter of . . . choice.” AR 1-8 is designed to be a deterrent to smoker misconduct.
At 413, “The most important factor in the criminal’s response to deterrents is that he has to decide whether or not to heed them. It is a matter of his choice. . . . Eventually either the idea is eliminated by choice in favor of something else or the deterrents are removed by the process of corrosion and cutoff. ‘Corrosion’ is our designation for a mental process in which . . . deterrents are slowly eliminated until the desire to commit an act outweighs the fears to the point where the desire is implemented. . . . he considers himself immune from apprehension, and thus a successful crime seems ensured.” The installation [TACOM] chose to defy the rules, and no longer “even recognized them,” as EEOC noted 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046]. MSPB joined in with the criminal process, aiding and abetting it, thereby reassuring the offenders of being “immune from apprehension,” i.e., having successfully corroded the rules (unlawfully “repealed” them).
At 413, “The gradual process of corrosion occurs up to a point, and then a mental process that we call ‘cutoff’ comes into play. Cutoff allows the criminal instantly to dispose of deterrents . . . freeing him to act. . . . It could be said that corrosion is a gradual cutoff, giving way to an abrupt final cutoff before violation.” The installation [TACOM] had ignored and not “even recognized” AR 1-8 for so long that corrosion was at the advanced stages. The “cutoff” on 17 March 1980 resulted in the “suspension or termination” noted on 8 April 1983 by EEOC 1983 [Docket 03.81.0087, 83 FEOR 3046].
At 414, “The criminal makes the cutoff . . . a cornerstone of his life. It allows him to do as he wants. In search of triumph and conquest, he cuts off deterrents, including experience.” At 413, “It is a matter of his choice.” Cf. the 29 April 1980 assertion by Emily Bacon, “the agency had no choice but to place Mr. Pletten in sick leave status.” That assertion is clearly a brazen defiance of 18 U.S.C. § 1001. The installation [TACOM] offenders had so “cutoff” AR 1-8 that they no longer “even recognized” its limitations on smoking. Nonetheless, at 413, “The most important factor in the criminal’s response to deterrents is that he has to decide whether or not to heed them. It is a matter of . . . choice.” At 416, “The criminal . . . can cut off the cutoff,” “The criminal always has control over his own thinking.”
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[Chicago MSPB's] Mr. V. Russell's personal view is that “an installation-wide ban on smoking, is not reasonable,” p. 8 of his 20 June 1983 brief on behalf of the installation [TACOM]. That assertion revives a claim the installation had abandoned once it was rejected by the 25 January 1980 USACARA Report. The revival of the claim, by itself, warrants reversal [pursuant to Horne v MSPB, 221 US App DC 381; 684 F2d 155 (1982) and SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947)]. The claim continues the MSPB practice of using different reasons than used/asserted by the installation in the March 1980/November 1981 letters. Mr. Russell's personal view is “incorrect” and is “arbitrary” and “capricious,” words from McNutt v. Hills, 426 F.Supp. 990 at 1004 ([D DC] 1977). He has not “even recognized” the preceding duties that must be adhered to before smoking can even be "permitted." He ignores the ventilation guidance. He summarily dismissed the multiple USACARA findings. He ignores the fact that there are other position classification specialists, who themselves service organizations.
But taking Mr. Russell at his word, “a total ban . . . would be the only accommodation,” it is clear that he has not followed any “applicable standards of proof,” much less, the “applicable standards” for “accommodation,” even though this is a case on safety, falsification, mental disorder, alcoholism, etc. In deciding what his “reasonable,” “The power to protect the public health lies at the heart of the . . . police power,” Banzhaf v. F.C.C., 405 F.2d 1082 (CADC, 1968). Cf. Kelley v. Johnson, 425 U.S. 238 [96 S Ct 1440; 47 L Ed 2d 708] (1975). Note that 32 C.F.R. 203 and AR 1-8 are agency regulations. They apply agency-wide, not just “installation-wide.” The installation is only one part of a vast agency. It is only a small portion of one local municipality—Warren. Warren is only a part of Michigan. Michigan is only one of 50 states in the U.S. Mr. Russell lacks a sense of perspective. The installation is only one employer, among many in Warren.
He [Victor Russell] ignores “experience,” Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 [27 EPD 32,251] (1981). OSHA applies nation-wide. The police power applies nation-wide. In other discrimination settings, solutions are state-wide, city-wide, school-district-wide, voting-district-wide, etc. See cases such as Truax v. Raich, 239 U.S. 33 [36 S Ct 7; 60 L Ed 131] (1915), which involves a state-wide application. See cases such as Brown v. Board of Education of Topeka, 347 U.S. 483 [74 S Ct 686; 98 L Ed 873] (1954), which involves a school-district-wide application. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337 [59 S Ct 232; 83 L Ed 208] (1938), on a combined university-state-wide application. Mr. Russell has not “even recognized” such “experience” [normal stiumuli].
While “a total ban” is not an “accommodation,” and certainly not an “only accommodation” (routine compliance with laws and rules is not “accommodation”), now that Mr. Russell has himself raised the issue, he has certainly made clear that it is necessary—as a matter of resolving the “class action” aspects. He has blurted out the hazard, and to such an extent that it is clear that there is not any place on the installation where a nonsmoker can choose not to smoke. Since nonsmokers are the majority, the lack of any place to choose not to smoke—that is what is unreasonable.
Controlling smoking even on a state-wide basis is reasonable; see Austin v. Tennessee [101 Tenn 563], 48 S.W. 305 (1898) [aff'd 179 US 343 (1900)]; State v. Olson [26 ND 304], 144 N.W. 66l (1913) [app dism 245 US 676 (1917)]; etc. The installation is only a small part of one city (Warren). A city-wide ban of guns was upheld in Quilici v. Morton Grove, 695 F.2d 26l ([CA 7] 1982) [cert den 464 US 863 (1983)]. An “installation-wide ban” is de minimis. Mr. Russell needs a sense of perspective.
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The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on criminal behavior provides insight on the behavior of local [TACOM] and MSPB offenders. At 372, In a criminal’s “‘equation, rule equals how to avoid. . . . I never look at the reason for a rule because it would usually involve some consideration for others, some interaction, and when I want something, that's foreign to my nature.” The AR 1-8 guidance and the 25 January 1980 USACARA Report require of smokers, “some consideration for” nonsmokers, which is “foreign to” smoker “nature” to the extent that they grunt that they “cannot” do it, or that it is an “undue hardship” for them.
At 377, “When the criminal is held accountable for failing to honor obligations, he responds with a variety of excuses.” The record shows smoker “excuses.” “What is left unsaid is that he never had any intention of doing what was required.” One “ploy is to say that circumstances beyond his control arose, so that a task is left undone.” The local and MSPB behavior is clearly a “ploy,” since they have “never had any intention of doing what was required.” At 445, “Misrepresentation, vagueness, distortion, and calculated lying are among the means to accomplish this end,” i.e., that corrective “actions were not even attempted,” though alleged falsely [6 MSPB 626; 7 MSPR 13 (18 June 1981) by Ronald P. Wertheim, Ersa H. Poston, etc.] as EEOC [Docket 03.81.0087, 83 FEOR 3046] noted on 8 April 1983, p. 5.
“Therefore, the Commission finds that the agency did not establish such accommodations.” Since the offenders “never had any intention of doing what was required,” the lack of compliance was known to local [TACOM] and MSPB offenders all along. The compliance process had not even begun. “The agency does not argue” it. Cf. the 23 February 1982 EEOC letter [Dockets 01800273 et al], p. 2, “In none of the appeals . . . did the agency ever consider the merits of appellant's allegation.”
At 372-373, “This . . . is understandable: it allows the criminal to preserve his self-image. His mind is closed . . . To examine an alternative position could damp his plans. That is, if he is really sensitive to others and listens to them, he runs the risk that he will hear ideas opposed to his position. It can be truly said that, for this very reason, the criminal rarely holds a discussion with anyone. He wants to be the one who prevails. Thus, he does not ‘discuss’ a topic . . . he imposes his view. An interchange of ideas would become a power contest; so, rather than seriously consider the merits of another's position, he demands that his ideas be accepted. The criminal has little, if any, basis for understanding a noncriminal's perspective on most things. . . . In this and a multitude of other instances, the criminal is deaf and blind to responsible viewpoints.” At 372, in the criminal’s “‘equation, rule equals how to avoid.’”
Rules on smoking, on safety, on specificity in advance notices, on time limits, etc., are “responsible viewpoints.” The 25 January 1980 USACARA Report, the MESC decisions, the EEOC decisions, etc.–all are “responsible viewpoints.” The guidance against discomforting nonsmokers, against unreasonably annoying them, etc.–those are “responsible viewpoints.” However, the smoker “mind is closed.” They contain “ideas opposed to” the smoker “position.” Refusal to process cases “imposes” the smoker “view.” Since smoker criminals use their jobs to promote their personal views, “demands that” smoker “ideas be accepted” are effected and implemented, during the pendency of the appeals to seek compliance with “responsible viewpoints.”
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EEOC on 8 April 1983 [Docket No. 03.81.0087; 83 FEOR 3046] found that the MSPB behavior in this situation “constitutes an incorrect interpretation of the applicable regulations and is not supported by the evidence in the record as a whole.” When MSPB deciding officials do not respond to normal stimuli, it is foreseeable that MSPB officials would continue to follow their established habit as shown in this case—disregard of rules and evidence.
Consider the bizarre p. 8 claim in the 20 June 1983 issuance from MSPB, asserting without evidence from the job description or any current assignment data, “that the appellant's job requires that he move about the entire facility on a continuing basis ([smoker] Hoover Deposition at 58).” Thus, on his own, Mr. Russell asserts “that a total ban on smoking throughout the installation” is necessary just for me. Mr. Russell's claim is not consistent with the evidence. USACARA on 25 January 1980, p. 14, cited the alternatives as “less smoking or more ventilation.” The installation's own industrial hygienist, Mr. E. Braun, provided much testimony [T. 34] on air conditioning as a resolution. The 18 June 1981 MSPB issuance, bizarre as it was, cited some alternatives, which “treated most favorably,” I accepted 7 July 1981. Cf. the medical letter, 8 July 1981. Also see the assertion of Mr. Manrose of MSPB, 9 November 1981. AR 1-8 provides guidance, such as “remove smoke,” and “equitable balance” to achieve specified duties, upon which USACARA based its “less smoking or more ventilation” guidance.
Mr. Russell displays his rigidity when he says that there is only one “solution,” his—and that “solution” he considers “unreasonable.” Mr. Russell displays his lack [of] insight concerning his own odd description of his own rigidity.
Col. Benacquista, Mr. Hoover's superior, provides evidence that Mr. Manrose ignored. Concerning the issue stated as “a ban on smoking in the Command,” Col. Benacquista indicates, “I don't know if it was unreasonable or not. I think it was unnecessary.” (T. 73). Col. Benacquista, Mr. Hoover's superior, was Chief of Staff and Deputy Commander at various times.
EEOC on 8 April 1983 [Docket No. 03.81.0087; 83 FEOR 3046] stated the situation in words better reflecting the regulatory guidance, AR 1-8 does not treat me as unique [uniqueness is a smoker delusion]; it considers other nonsmokers and their rights. It also cites criteria for when smoking is not permitted. EEOC provided a good summation in this respect [in Docket No. 03.81.0087; 83 FEOR 3046], p. 5, “The agency presented no evidence that it considered the rights of the non-smokers or even recognised that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others.” In contrast, [smoker] Mr. Hoover does not even consider the existence of other position classification specialists. He does not even consider my job description. He provides no specificity. Col. Benacquista, a hostile witness (a smoker involved in my “suspension or termination” in 1980) knew that, for me, “I think it was unnecessary.” Of course, that is true. There are other position classifiers. My job description has no such requirement as [smoker] Mr. Hoover asserts.
Mr. V. Russell does not go by rules or evidence. He uses the word “ban” instead of the regulatory words. Of course, he admits he considers AR 1-8 and the “unqualified and absolute” OSHA safety duty “not relevant,” p. 5, n. 3. Foreseeably he would [insubordinately] ignore their [OSHA's and AR 1-8's] criteria and terminology.
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(pp 251-252)

The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on the “thought processes” of criminals gives insight on the local [TACOM] and MSPB behavior pattern. P. 452 gives an example, “C indicated that he not only gives his victim a choice in his own mind, but announces it to them. He tells them that he will not shoot if they will not stir up any trouble. But he warns them that, if they do, he will have no compunction about firing.” The principle illustrated is that “Every criminal has his way of dealing with the question of what to do if someone interferes Not all announce it.” Such data provides insight on the criminal pattern as evident in the record. Criminal intent is evident, since my “personal determination” “interferes” with smoker behavior. Hence, extortion, falsification, embezzlement, etc., are foreseeable responses that arise and are directed against a nonsmoker who “interferes” as authorized by law and regulation.
At 452, ''The criminal resorts to whatever he deems necessary to deal with a threat to his control of a situation. Many follow the basic pattern shorn in the following specific instance. C held up a public official and his wife as they were getting into their car. When the man came around the side or the car, C saw him as 'going to play the superman hero' and shot him in the stomach.” Such data provides insight on the pattern of abuse directed against me for accurately raising issues in my 1979 grievance, sustained 25 January 1980, concerning non-compliance with AR 1-8. USACARA noted the “personal determination” aspects. and that “the other nonsmokers also have rights even though they have not actively pursued such rights.” Considering the authority given to even one nonsmoker, the “affirmative action” duty on “the rights of all nonsmokers,” the “threat to” smoker “control of” the “situation” was clear. In such “a situation,” “The criminal” smoker “resorts to whatever he deems necessary,” including but not limited to extortion, falsification, embezzlement, delays, and/or other misconduct and crimes. Crimes arose to squelch the merely one nonsmoker “personal determination.” Others were foreseeable, based on the USACARA sustaining the duty to obey AR 1-8, the “broadest intendment” raised by me, and thus posing “a threat to” smoker “control of” the “situation.”
At 372, “From early in childhood, youngsters are taught to put themselves in the shoes of others. Most people learn to do this in a responsible way, but not the criminal. He demands every consideration and every break for himself, but rarely stops to think about what other people think, feel, and expect. . . . Along with his lack of consideration of others, he has little regard for rules, customs, and laws. ‘My thinking would never extend as far as a consideration of what might be the reason for a rule and how it might be helpful to others. Not only that, but the circuit of my thinking is far shorter. All I think is, “There's a rule. How do I get around it?” In my equation, rule equals how to avoid. . . . I never look at the reason for a rule because it would usually involve some consideration for others, some interaction, and when I want something, that's foreign to my nature.’” Such data provides insight on smoker hostility to AR 1-8, and the grunting of “cannot” comply, and “undue hardship” to comply. Delays by MSPB are thus part of the pattern of criminal behavior, with delays used to aid and abet in the prolongation of the crimes. There is no “consideration for others,” even when “present rights” [Watson v City of Memphis, 373 US 526, 533; 83 S Ct 1314; 10 L Ed 2d 529 (1963)] are involved.
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Pertinent information is readily available in court precedents. A summary of certain handicapper aspects is in Valparaiso University Law Review, Vol. 13, “Private Rights of Action for Handicapped Persons Under Section 503 of the Rehabilitation Act,” pp. 453-500, a 1979 article by Eugene A. Schoon. At 453, “Congress recognized the severe employment problems . . . as a national problem responsible for economic waste and social dislocation. Congress also recognized that employment barriers were also barriers to integration of handicapped persons into society.” See “S. Rep. No. 318, 93d Cong., 1st Sess. 26.” The USACARA guidance against “relocating one nonsmoker” is based on AR 1-8. Thus, it is not necessary to reach the “integration” purposes of other guidance such as the Rehabilitation Act. The various duties, including on safety, all command the same result––integration.
At 454-455, what Congress mandates and establishes in the law is “a direct tripartite attack on handicap employment discrimination.” The local [TACOM] and MSPB behavior is clearly inconsistent with the overall Congressional mandates, by opposing even routine compliance which is a prerequisite for even reaching issues under the Rehabilitation Act. Cf. 29 CFR § 1613.703, “The Federal Government shall become a model employer of handicapped individuals.” Cf. Executive Order 11807 [28 September 1974], “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.” A “model” or “example” takes the lead; it is not a mere follower. The mere fact of the necessity for me to cite private cases confirms that the “model” and “example” guidance is not met.
At 457, Section 503 affecting private contractors is discussed. It includes guidance “to take affirmative action” and “not discriminate.” At 455, “Of all the programs established by Congress, Section 503 . . . potentially has the most drastic impact on handicap employment discrimination in the private sector.” Local [TACOM] and MSPB offenders should be setting an “example” as a proper “model.”
At 455, note 17 cites, “‘The obligation to take affirmative action imports more than the negative obligation not to discriminate.’ Southern Ill. Builders Ass'n v. Ogilvie, 471 F.2d 680, 684 (7th Cir. 1972).” Clearly, the installation [TACOM] has not even halted the endangerment, so the “not to discriminate” guidance is still violated. “Affirmative action” has clearly not been reached, or even considered. Clearly, setting an “example” of “affirmative action” has not been reached, or even considered. It is likewise obvious that local offenders are not a “model” of an “example.” Each “obligation . . . imports more than” the preceding “obligation.” Clearly, the process has not even started. It has not even been considered, as the 25 Jan 80 USACARA Report makes clear.
At 459, the article observes that “Section 503 adopts a broad definition of who is handicapped.” At note 36, for example, “Congress recognized that persons who are perceived as having an impairment, persons who were at one time erroneously thought to have an impairment . . . are also the victims of discrimination.” That data is particularly relevant in my situation, where enforcement of pertinent rules such as AR 1-8 would preclude the need to ever reach the issue of actual or perceived “not ready. willing and able to” do what I am “not employed to” do in the first place. At 460, “Congress recognized that discrimination on the basis of handicap is as much a result of employers' perceptions of disability as it is of actual disability.”
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13 Valparaiso University Law Review 453 at 460 (1979) observes that “Congress recognized that discrimination on the basis of handicap is as much a result of employers' perceptions of disability as it is of actual disability.” Thus, “In order to combat discrimination based on erroneous perceptions, the Act prohibits employment discrimination against persons ‘regarded as being handicapped.’” Assertions that a nonsmoker is or “was not ready, willing and able to” do something “not employed to” do reflects, treated most favorably, “erroneous perceptions.” The local [TACOM] and MSPB claims are bizarre, disconnected, fragmentary, senselessly malassociated, disoriented for time, apathetic to reality, etc. [These statements are pre-bribery-pattern awareness].
At 460, note 41 refers to “the above-average safety record of handicapped employees.” Evidently such employees comply with the “unqualified and absolute” safety duty “above all other considerations.” Moreover, a comparison of nonsmoker vs. smoker behavior in safety and related matters shows that nonsmokers have fewer accidents such as car accidents that are fatal, far fewer suicides, and significantly less “lost time” for illnesses. Nonsmoker efficiency is greater, as is foreseeable from the “‘overwhelming evidence.’” Smoker disorientation for time and place, difficulty concentrating, irritability, and other symptoms of mental disorder including brain damage, clearly impairs efficiency and thus is unsafe.
At 461, “Clearly, when dealing with a person merely perceived as disabled or with an erroneous record of disability, the employer has no particular problems because the individual's ability is not affected. The employer must simply put aside his bias when dealing with the individual in employment relations.” In the case at bar, the malassociated claim is made of “not ready, willing and able to” smoke despite even though “not employed to smoke.” The bizarre MSPB issuance 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.], unretracted 26 Jul 82, calls to mind concepts of mental disorder including but not limited to “incoherence, marked loosening of associations, markedly illogical thinking,” etc. The odd associations made are senseless. They are disconnected from the body of laws and facts. They do not move in the direction of reality, but counter to reality. They contribute nothing to compliance. [These statements are pre-bribery-pattern awareness].
At 462, “Congress intended to eradicate vestiges of charity wherever feasible and to assure handicapped persons a life of dignity, fully integrated into the social mainstream.” Note 47 indicates, “The Congress finds that . . . the complete integration of all individuals with handicaps into normal community living, working, and service patterns be held as the final objective. Pub. L. No. 93-651 . . . 89 Stat. 2-16 (1974) . . . .” Cf. 460 data on “erroneous perceptions,” where the higher ideation concept of “complete integration” applies with even greater force. At 461, “The employer must simply put aside his bias.” In the current case, USACARA found that AR 1-8 rejects “relocating one nonsmoker” without need to show a second violation (for example, of safety rules), third and more violations of other unitary laws, and without reaching the “final” guidance on “complete integration.” Action to “put aside . . . bias” is involved in, for example, action “'to . . . put” any endangering smoker “out of the building.” Compliance is what the law specifies; compliance with law is not “charity” and is not “reasonable accommodation,” as such need not even be reached, once there is prerequisite compliance.
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[Eugene A. Schoon, "Private Rights of Action"] 13 Valparaiso University Law Review 453 at 462 (1979) cites Congressional guidance for “complete integration . . . into normal . . . working . . . patterns . . . .” Note 46 cites cases such as Weeks v. Southern Bell Tel. & Tel., 408 F.2d 288 (5th Cir. 1969) rejecting discrimination regardless of actual ability to perform a job, such as relative to occasional handling of a fire extinguisher by a woman. Cf. LaFleur v. Cleveland Board of Educ., 414 U.S. 632 (1974). In the case at bar, the refusal of “complete integration” by insistence on “relocating one nonsmoker” confirms multiple violations. Cf. Am. Smelting & R. Co. v. OSHRC, 501 F.2d 504 at 515 (1974), on behavior that “did not eliminate or even reduce the hazard; it merely disclosed it.” The local [TACOM] and MSPB behavior violates the unitary aspects of law including safety and anti-discrimination law.
At 463, there is a discussion on guidance that does “specifically forbid reduction of compensation” due to discrimination. Note 50 cites 41 CFR § 60-741.4 (1977) guidance against discrimination in “‘rates of pay and other forms of compensation’ . . . Other compensation presumably includes insurance benefits which are frequently of special importance for handicapped employees because of the difficulties they often have in obtaining insurance.” In the case at bar, local [TACOM] offenders have discriminated and taken reprisal in that aspect as well. The pattern of misconduct includes but is not limited to behavior resisting my right to unemployment compensation insurance, giving false and misleading information to OWCP relative to my workers' compensation insurance claim, violating the local one year absence limit rule [TACOM-R. 600-5.14-29.b.(2)] thus adversely affecting health insurance, etc.
At 464, there is a discussion of the enforcement mechanism under Section 503, including “compliance review of affirmative action programs.” Compliance involves eradication “of any systematic discrimination.” In the case at bar, local [TACOM] offenders are neither a “model” nor an “example.” There is no “affirmative action.” The rights of nonsmokers are ignored and suppressed. Such behavior conflicts with the safety duty to “suppress” unsafe behavior, not people who report unsafe behavior. The unimplemented inted out the [TACOM] violations. MSPB should have told the installation [TACOM] to halt its violations. It should have implemented the 25 Jan 80 USACARA Report shows a local lacking in this area.
P. 465 cites a range of penalty actions, up to debarment of the contractor. In this case, civil service rules provide for a range of penalties for unsafe behavior, harming others, harming self, discrimination, etc. (There is no penalty for being harmed; the local [TACOM] and MSPB innuendos to the contrary are delusional or otherwise deviant.) As a personnel specialist, I have processed disciplinary cases, including for discrimination by management officials. In this case, debarments are reasonable considering the severity and duration of the violations, including the pattern of violations, and the protracted refusal of review.
P. 465 also provides information concerning “lacking the will and commitment to enforce Section 503.” Here, local [TACOM] and MSPB behavior is a “model” and “example” in terms of hostility to compliance. They commit a range of improper practices, including discrimination, non-compliance with prerequisite rules, reprisal, falsifications, delays, refusal to comply with guidance from reviewers such as EEOC and USACARA when such occurs, opposing review thereafter, etc., etc.
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Eugene A. Schoon, "Private Rights of Action," 13 Valparaiso University Law Review 453 at 465 (1979) indicates that the “remedies for non-compliance clearly focus on the enormous leverage the government wields in its power to” eradicate discrimination. In my case, it is clear that claims of “undue hardship” are disconnected from reality, impoverished to the extent that concreteness is lacking, unresponsive to the examination of evidence, and irritable at the “unqualified and absolute safety” duty “above all other considerations,” etc. The “will and commitment” to comply is “lacking.” Hence, there is no “will and commitment to enforce.”
At 467, “All of these factors suggest that the prospective benefits to individual handicapped persons . . . are in serious danger of being diluted . . . Recognizing administrative inability to effectively enforce federal laws . . . remedies include both actions against the enforcement agency and actions against the offending party.” P. 468 cites “action . . . to force the agency to perform its legal duties.” In this case, “the offending party” and the “enforcement” personnel are generally the same. Disciplinary action is a normal personnel technique when violations occur, especially after rehabilitation occurs or is refused by offenders.
P. 469 discusses “duties to handicapped individuals protected by the act. Those duties are two-fold: to receive and promptly investigate complaints alleging non-compliance and to take such action as the complaint and its circumstances warrant. The duty to receive and investigate complaints is fairly self-evident. An aggrieved handicapped person is given an explicit right in the statute to complain. . . . The Department must ‘promptly investigate’ each complaint.” In this situation at bar, it is clear that there are not only multiple violations on the merits, there are also multiple procedural violations. Each violation separately is improper. When considered together, in viewing the record as a whole, a pattern of discrimination is clear when the violations, procedural and merits. are considered as they increased in number over time, and compounded in interaction with each other. The pattern of substantive discrimination is one pattern; the pattern of procedural discrimination is also a pattern; they are not “disconnected” patterns, but an overall whole––an overall pattern of discrimination, a pattern by various means, as is foreseeable from the pattern of disregard of rules that gave rise to the situation. The pattern, of course, continued during the attempted review process, and was and is clearly designed to obstruct review.
P. 472 discusses “injury due to agency action which, if unredressed, would not only harm himself, but also undermine the congressional purpose of eliminating employment discrimination on the basis of handicap . . . .” At 473, “the Act requires the agency to investigate every complaint it receives . . . the agency must apply law in its decisions of what is appropriate action. . . . a vast amount of experience from sex and race discrimination cases to draw upon . . . concepts of discrimination can be applied . . . .” It is clear that the local [TACOM] and MSPB pattern of discrimination, reprisal, falsification, delays, etc. “undermine the congressional purpose” relative not only to discrimination, but also on falsification, safety, timeliness, etc. The behavior ks disconnected from the body of law and related precedents, to the extent that review is opposed and fabrications are invented, to divert attention away from the local [TACOM] and MSPB misconduct. The “vast amount of experience” in the various areas is brazenly disregarded.
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(p 258)

The local [TACOM] and MSPB massive resistance to the controlling rules is clear. The "massive resistance'' to desegregation in the 1950's and thereafter involved various tactics such as “interposition” laws that purported to reject the controlling guidance; violence; phony “freedom of choice” plans; and other tactics and combination of tactics. In the case at bar, such tactics are being used by local [TACOM] and MSPB offenders. The “interposition” tactic is used to reject the medical evidence, to vitiate my “personal determination,” to preclude a hearing and review of the merits, to cause delay, etc. Smoker personal desires are interposed against the rules including but not limited to the rules on the merits, on the procedures, on time limits, etc. Innuendos are used as a tactic as well, to preclude the establishment of an equitable balance specified by AR 1-8 to achieve the duties on endangerment, discomfort, equality with property, etc.
The various bodies of law are consistent. American Smelting & R. Co. v. O.S.H.R.C., 501 F.2d 504 at 515 ([CA 8] 1974) noted the inadequacy of actions that “did not eliminate or even reduce the hazard” but “merely disclosed it.” The legal standard is to “eliminate” hazards; “what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard . . . whether it usually is complied with or not,” Texas & Pacific Ry. Co. v. Behymer, 189 US 468 at 470; 23 S Ct 622 [623]; 47 L Ed 903 (1903). About 70 years later, the same well-established legal precept is found in Nat'l Rlty. & C. Co., Inc. v. O.S.H.R.C. [160 U.S.App.D.C. 133], 489 F.2d 1257 at 1265 (1973). “A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace . . . .”
One tactic to fight desegregation was the “freedom of choice” plan. In reality, it did not accomplish the legal duties and instead, it preserved custom, in violation of the legal duties. Legal duties must be obeyed—in schools and at "a workplace." Pockets of discrimination or unsafe air confirm that a unitary system has not been established. See Green v. County School Board of New Kent County, Va., 391 U.S. 430 at 437-438 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968), “In the context of the . . . pattern of long standing, the fact that” freedom of choice was established “merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual . . . system. Brown II was a call for the dismantling of well-entrenched dual systems . . . clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which . . . discrimination would be eliminated root and branch.”
Safety is “unitary” in that unsafe areas are not allowed; the safety adjective is “unqualified and absolute” and “above all other considerations.” A “dual system” is not allowed--safe some places but endangerment allowed in other places. Safety is “unitary.” In the case at bar, the entire “workplace” is unsafe, i.e., a “unitary” violation. Time for a transition to “unitary” safeness and implementation of nonsmoker “personal determinations” has long since been exceeded. AR 1-8 was issued in 1977. No more delays are proper. There is no excuse for the disregard of my “personal determination” which simply quotes the law, and applies it to “a workplace” at issue, not to some other or “average workplace.” Clearly, “what ought to be done is fixed by a standard,” by the personal standard envisioned by AR 1-8.
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(pp 260-265)

The 20 June 1983 MSPB issuance [from Victor Russell] repeatedly and falsely claims that “accommodation” is needed. and then turns around and says that “accommodation” is “unreasonable.” A “standard” of unreasonable is not evident in 29 C.F.R. § 1613.704(a), as recently cited by EEOC in its 8 April 1983 letter [Docket 03.81.0087, 83 FEOR 3046]. Contrary to the latest MSPB claim, the actual “standard” cited in the guidance, is “undue hardship,” which EEOC noted is up to the agency to “prove” (emphasis in original). Once again, as noted by EEOC at 5, “the Board decided” for the agency, considering the lack of agency effort to “prove” its position.
Instead of making a strong case for the local [TACOM] “cannot” position, the non-existent installation case is now even weaker than before. [TACOM] Dr. ]Francis J.] Holt, who lacks legal training had claimed “cannot.” But at 59, he offers nothing to “prove” his view. A weak assertion, “To the best of my knowledge,” does not “prove'” what the [EEOC] guidance [29 C.F.R. § 1613.704(a)] specifies must be proved. A weak assertion, “I have no reply to that,” does not “prove” what is the installation duty to “prove.” At 115, Dr. Holt admits, concerning whether he is even “familiar with” the 25 January 1980 USACARA Report, “No, I’m not.” He has not “even recognized” the Report, AR 1-8, or AR 600-20.2-1. EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] had noted what the installation [TACOM] had not “even recognized.” Clearly, it has also not “even recognized” its lacking on what it is to “prove.”
Once again, since the installation [TACOM] has no case, and what it does have is now weaker than Dr. Holt’s previous assertions, MSPB has jumped to the rescue. Dr. Holt had claimed “cannot” brazenly. But under “benefit of a” cross-examination, the inadequacy of his assertions is evident. Cf. Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981), concerning when “the employer presents credible evidence that indicates accommodation . . . would not reasonably be possible.” Dr. Holt's view, “I have no reply to that,” “To the best of my knowledge,” etc., is not at the level of “credible evidence.” Moreover, the EEOC decision of 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] expressly notes that “The clear intent or the mandatory language of this regulation requires an agency to make . . . accommodations unless it can prove . . . an undue hardship.”
MSPB on 18 June 1981 [6 MSPB 626; 7 MSPR 13 (18 June 1981) (by Ronald P. Wertheim, Ersa H. Poston, etc.] had claimed that “accommodations” were made. I accepted. My doctor accepted. The MSPB assertions have not been shown (“prove”) by the installation “not reasonably . . . possible.” I am still trying to get the process started. I did not “remain silent.” The 25 January 1980 USACARA Report shows my “coming forward with evidence.” However, Dr. Holt has not “even recognized” it. He continues to make the same installation assertions as have already been rejected.
The MSPB claim of ''unreasonable'' is arbitrary and capricious. The EEOC letter [Docket 03.81.0087, 83 FEOR 3046] cites “mandatory language.” It cites the specified standard, “undue hardship.” Without reaching the issue of “smoking” per se, the installation has shown no “business necessity” for not complying with the “mandatory language.” When “no reasons . . . were given,” words such as “arbitrary” and “capricious” come to mind, McNutt v. Hills, 426 F.Sipp. 990 at 1004 (1977), applying 5 U.S.C. 706(2)(A). A claim of “unreasonable” is not even as extensive as a “one-sentence determination” “rejected” therein.
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Not all “discrimination” involves “accommodation” for resolution. For example, see Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 ([CA 5] 1971) cert den 404 US 950 (1971]; in that case, supposedly “passengers overwhelmingly preferred to be served by female stewardesses.” Resolution of the case did not involve “accommodating” men but simply the application of law. Weird statements that the person bringing the case was somehow “unique” or had a “peculiar sensitivity” do not appear in the decision.
Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 [98 L Ed 873] (1954), also shows that resolution of “discrimination” does not per se involve “reasonable accommodation.” Medical data was utilized in the case on the “detrimental effect” of the “discrimination.” Nonetheless, that medical data did not give rise to bizarre and mentally disordered allegations that Ms. Brown was somehow “unique” or “peculiar.” Sound minds are able to recognize “universal” situations in cases brought by individuals.
Resolution of Missouri ex rel. Gaines v. S. W. Canada, 305 U.S. |337, 59 S.Ct. 232 [83 L Ed 208] (1938), was also not “accommodation” in a “discrimination” case. Nor was Mr. Gaines considered “unique” or “peculiar.”
Browder v. Gayle, 142 F. Supp. 707 (1956) [cert den 352 US 903 (1956)], concerned public accommodations (i.e., buses), but the resolution of the “discrimination” involved application of fundamental law, not “accommodation.” No person bringing the case was cited as “unique” or “peculiar.”
Vietnamese Fishermen's Ass’n. v. Knights of the Ku Klux Klan, etc, 543 F. Supp. 198 ([S.D. Tex] 1982), shows “discrimination,” but resolution involved application of law, not “accommodation.” Moreover, the number of “Vietnamese fishermen” is demonstrably fewer than the number of nonsmokers in America; yet no claims of “unique” or “peculiar” were made in that case.
It is clear that when smokers are suffering from mental disease, their “thinking” is deranged to the extent that it is fragmentary, impoverished, bizarre, concrete, depraved, and/or otherwise deviant. Weird remarks about “accommodation” are both raised and rebuffed by them. In their mentally disturbed and incoherent writings, abruptness is obvious. They are supposedly addressing an issue on smoking; yet they do not cite any precedents on smoking. To insane people, with delusions of grandeur, they are their own authority.
Such behavior is in marked and unfavorable contrast with the professional techniques seen in competent issuances. For example, note the 23 Feb 1982 EEOC decision [Dockets 01800273 et al]. It cites precedents. Moreover, it shows a resolution of a case by the application of rules, not by “accommodating” the matters raised.
“Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 ([CA 10] 1931). That is a “universal” principle, but mentally ill smokers are not able to bring such “higher ideation” to bear on the specific duties (position classification duties) in the case at bar. Where no “duty” is involved, no duty “restriction” is involved, as a matter of law. Hence, in addition to the general principles concerning resolution of “discrimination” without “accommodation,” such is particularly appropriate in this case. Simply stop the “discrimination.”
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The “reasonable accommodation” process is ill-fitting for a variety of reasons, not merely because smoking leads to alcoholism, is a disease, and causes insanity, as repeatedly noted in a long line of medical data. Smoking involves discrimination, no doubt, but resolution of the discrimination is not “reasonable accommodation” as such. The EEOC decision [Docket 03.81.0087, 83 FEOR 3046], dated 8 April 1983, like the 25 January 1980 USACARA Report [No. 05-80-001-G] before it, clearly points to and sets out the wrongfulness of the weird and bizarre smoker behavior of (a) asserting that nonsmokers such as me need “reasonable accommodation,” and then (b) insanely refuse to make such accommodation!
The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046], like the 25 January 1980 USACARA Report [No. 05-80-001-G] before it, points to a clear refutation of the deranged MSPB insistence on fixating on “reasonable accommodation,” while refusing to provide what is claimed to be needed. Note p. 5 of the 8 April 1983 [EEOC] letter, “The agency presented no evidence that it considered the rights of the non-smokers . . . .” While it is admitted that insane, drunk, depraved, or otherwise deviant MSPB offenders lack the mental capacity to comprehend the fact, it is a fact that most nonsmokers are not handicapped.
Nonsmokers are normal; not smoking is normal. Smoking behavior parades mental aberration. It is not necessary to wait until smoke produces or initiates a handicap in a nonsmoker, before the nonsmoker rights are to be observed. Admittedly, insane, drunk, depraved, or otherwise deviant MSPB offenders lack the mental capacity to understand that smoking initiates disease. Smoking initiates handicaps. Brain-damaged MSPB officials who are disoriented for time, lack the mental capacity to understand that sane people, such as nonsmokers, are properly oriented for time, foresee the initiation of possible future handicaps or diseases which may ultimately become disabling, and seek (in the present) compliance with their rights, so as to prevent the initiation of a disease or handicap in the future. Insane or brain-damaged MSPB offenders muddle the past, present, and future, in a weird “word salad [schizophasia].”
The “rights of the non-smokers” are not contingent upon their filing requests under “reasonable accommodation” guidance. Those rights exist in a series of rules, long before ever reaching the last link in the series, “reasonable accommodation.” As noted by Kayla Bernheim and Richard Levine, in their 1979 book, Schizophrenia: Symptoms, Causes, Treatments, “A schizophrenic . . . may become confused if asked to follow a series of instructions,” pp. 24-25.
The “rights of the non-smokers'' are to be observed as a part of the “series of instructions” prior to ever reaching an individual case such as this one. Compliance in the case of the many other persons who are not perceived as “handicapped” who “also have rights even though they have not actively pursued such rights” (USACARA, 25 Jan 80, p. 11) involves the prior “series of instructions” aspects concerning which local [TACOM] and MSPB are “confused.” The requirement for “affirmative action” in that matter is another aspect of the “series of instructions” concerning which they are also “confused.” Indeed, when offenders have “become deranged from smoking tobacco” or some other “one of the causes of insanity,” they do not even display even de minimis comprehension of resolution of the case, from that aspect. Their “thinking” is seriously fragmented, deranged, and impoverished. [These statements are pre-bribery-pattern awareness].
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(p 269)

This case is seeking a halt to the numerous violations of basic rules. Violation of underlying rules is, of course, discrimination. [“The failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination.” Association for Disabled Americans, Inc v Concorde Gaming Corp, 158 F Supp 2d 1353, 1362 n 5 (SD Fla, 2001).] But the solution is not “reasonable accommodation.” For example, when basic voting rights are denied to black citizens, the solution includes directed compliance, but that is not “reasonable accommodation,” as a matter of law. People are not allowed to vote just to “accommodate” them and be a nice fellow. People are allowed to vote because it is the law. People are not provided a safe work environment just to “accommodate” them. Safe environments are specified by law.
Of course, refusing the right to vote is discrimination, and is often resolved via the EEO process. But that fact simply points out that the EEO process often involves the enforcement of other-than-EEO rules. In the personnel context, employees are sometimes discriminated against in terms of promotions, job assignments, training opportunities, discipline. etc. But rules on “discipline,” “promotion,” are not EEO rules for which enforcement/compliance is sought in the EEO process. They are simply regular, basic rules. Granting a promotion to a discrimination victim is not “reasonable accommodation.” Canceling an improper disciplinary action is not “'reasonable accommodation.” Taking such actions halts discrimination, no doubt, and as a matter of law, is often achieved through EEO channels. But some cases are resolved through grievance channels.
In this case, I wanted enforcement of, and compliance with, AR 1-8. After requests for compliance were rebuffed, a grievance under the Army grievance system (CPR 700, Chapter 771) was filed, and was successful. It was not an EEO matter, and was not treated as such. The USACARA Report of 25 January 1980 was not issued under the terms of the Army implementation of EEO rules. It was not a EEO matter or case. It still is not. The repeatedly noted refusal of the installation to abide by the 25 January 1980 guidance does not make the case an EEO case. Compliance with AR 1-8 is not “reasonable accommodation” under EEO rules. MSPB fixation on me, while disregarding the guidance on nonsmokers (in the plural) displays and parades fragmentary “thinking,” loosening of associations, and disconnection from reality. There is no justification in AR 1-8 for singling out a specific nonsmoker for “suspension or termination” as discussed in the 8 April 1983 EEOC letter [Docket 03.81.0087, 83 FEOR 3046].
It is clear from the EEOC letter, and the entire case record, that the installation [TACOM] did not initiate compliance with even the agency's “own regulations.” Such compliance is a prerequisite to application of “the applicable standards of proof required of an agency” concerning “reasonable accommodations,” words from the EEOC letter [Docket 03.81.0087, 83 FEOR 3046], p. 4. Such “standards of proof” are irrelevant and not “applicable” to the duty to comply with prerequisite rules, such as AR 1-8, OSHA, mental health and alcoholism guidance, leave rules, advance notice requirements. etc.
Of course, in mental illness, “standards of proof” are foreseeably disregarded for reasons other than proper reasons. For example, “‘In schizophrenia . . . thinking becomes confused, bizarre, incorrect, abrupt,’” data from K. Bernheim, and R. Levine, in their 1979 book, Schizophrenia: Symptoms, Causes, Treatments, p. 26, quoting [Prof. Paul Eugen] Bleuler [M.D.]. The MSPB issuance [6 MSPB 626, 7 MSPR 13 (18 June 1981) by Ronald P. Wertheim, Ersa H. Poston, etc.] which is the subject of the 8 April 1983 letter [Docket 03.81.0087, 83 FEOR 3046] is clearly “incorrect” and “abrupt,” among other defects. It disregards the “applicable standards of proof required of an agency” for an adverse action. Such extreme disregard in an area of law where MSPB is responsible to have expertise is bizarre.
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State of Missouri ex rel. Gaines v. Canada, 305 US 337, 59 S. Ct. 232 [83 L Ed 208] (1938), provides insight. Petitioner Gaines was told to go “elsewhere” for his rights even though there was “no express constitutional provision requiring” such. In my case, there are no rules requiring separation or going “elsewhere.” Safety rules are unitary; “relocating one nonsmoker” has already been rejected by USACARA as not the method of implementing AR 1-8. Since local [TACOM] offenders had already refused to implement AR 1-8, they also refused to implement the Report; EEOC noted this in its 23 Feb 82 decision [Dockets 01800273, et al].
In Gaines, supra, the government cited nothing valid to support its going “elsewhere” ideas. Tradition does not count, of course, as a lawful basis for refusing to obey rules. If the old ways were the only ways, new rules, especially remedial rules, would be nullities. [Note that “what ought to be done is fixed by a standard . . . whether it usually is complied with or not,” Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). Law, including constitutional law, is designed for a purpose. That is, it is “designed to disrupt” nonconforming practice (or lower laws), U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A “practice” “not based upon any rule of law” must be reversed and rejected, Biafore v Baker , 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932). Such “practice” must be superseded and ended.]
AR 1-8 is clearly remedial. Smokers are to be stopped from doing what they had been doing, endangering, discomforting, and harming people, and destroying property. Endangering people and property promotes inefficiency; AR 1-8 is remedial and unitary. Efficiency is essential to mission accomplishment. Smokers are forbidden to keep on doing as they had been doing in the past–impairing efficiency.
In Gaines, the government pretended to have “solicitude” for Mr. Gaines. Of course, violating the law is not “solicitude,” so the Supreme Court struck down the government behavior. The Supreme Court observed that “it cannot be said that a mere declaration of purpose, still unfulfilled, is enough.” AR 1-8 is being treated by local [TACOM] and MSPB offenders as “a mere declaration of purpose” to be entirely ignored, without even a claim of compliance. The endangerment is still extant, as are the other violations [ventilation system inability to “remove smoke,” thus unreasonable annoyance and discomfort]. The installation [TACOM] “failed to abide by the” Report [EEOC words, Dockets 01800273, et al., 23 Feb 1982, p 2], i.e., the regulation. Moreover, the other rules (safety, mental health, leave statues, etc.) are also treated as “a mere declaration of purpose” and so are also ignored, which thus involves violation of time limits for case processing.
The [U.S. Supreme] Court indicated,
“the obligation . . . to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. . . . It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do . . . . We find it impossible to conclude that what otherwise would be an unconstitutional discrimination . . . can be justified by requiring resort to opportunities elsewhere.”

Similarly, Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 (1973), indicated, “A workplace cannot be just ‘reasonably free’ of a hazard, or merely as free as the average workplace in the industry. . . . hazardous conduct must . . . be entirely excluded from the workplace.” Clearly, courts are able to comprehend legal concepts and principles (higher ideation) whereas local [TACOM] and MSPB issuances do not demonstrate such capacity, i.e., are concrete, impoverished, and blunted.
When there is discrimination or an unsafe workplace, the solution is not “elsewhere,” another State or another employer; the solution is compliance. Compliance is “above all other considerations,” American Textile Mfrs. Inst. v. Donovan, 452 US 490 [509, 101 S Ct 2478; 69 L Ed 2d 185] (1981). It is dangerous smokers who are to be relocated, “put out” according to Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 (1923), not their victims. Cf. Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979), for an alternate acceptable relocation of a mentally ill smoker–mental hospitals.
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Kelly v. Johnson, 425 US 238, 96 S.Ct. 1440 [47 L Ed 2d 708] (1976), provides insight. Some employees had complained abut a government regulation on hair. In rejecting their claim, the Supreme Court noted other rules, for example, that each employee “may not smoke in public.” People who have delusions that controlling smoking somehow (inexplicably) cannot be controlled or is an undue hardship find no solace in such Supreme Court observations. Fits of irritability and difficulty concentrating on reality reveal nothing abut the law; but they do reveal the state of mind of the persons making such unsupported claims.
The Supreme Court also noted that “The promotion of safety of persons and property is unquestionably at the core of the State’s police power.” The Supreme Court does not make outlandish and weird remarks that normal control techniques such as adverse actions and arrests are somehow an undue hardship or cannot be done. Law books do not provide any basis whatever for claims [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] that fulfilling the purpose of government “cannot” be done or is an “undue hardship.” If the basis is to be found, it will be necessary to look into the professional literature of other specialties. Works of psychiatry undoubtedly form a prime source.
The Supreme Court notes protection of people and property as a fundamental principle of law. Even if there were a constitutional right to smoke, which there is not, it is a mere peripheral matter. Lesser principles give way to and are subordinate to higher principles. The Court is noting the same concept as does AR 1-8. Smoking has no priority at all over the fundamentals. Ms. Latshaw makes clear that presiding officials are to know the law. Attorney malpractice cases make the same point; see for example, Matter of Rabideau [102 Wis. 2d 16], 306 N.W.2d 1, cert den'd 70 L.Ed.2d 469 (1981). When TACOM and MSPB employees fail to apply the law, they are aware of what they are doing.
Ed. Note: A long line of precedents, e.g.,
Wheaton v Peters, 33 US 591, 668; 8 L Ed 1055 (1834),
Davidson v Wheelock, 27 F 61 (C.C.D. Minn., 1866),
Banks & Bros v West Publishing Co, 27 F 50 (C.C.D.Minn., 1886),
Nash v Lathrop, 142 Mass 29, 6 NE 559 (1886),
Connecticut v. Gould, 34 F. 319 (C.C.D. N.D. N.Y., 1888),
Banks v Manchester, 128 US 244; 32 L Ed 425; 9 S Ct 36 (1888),
Callaghan v Myers, 128 US 617; 32 L Ed 547; 9 S Ct 177 (1888),
Howell v Miller, 91 F 129 (CA 6, 1898),
Banks Law Pub Co v Lawyers' Co-Operative Pub Co, 169 F 386 (CA 2, 1909) (per curiam)
app dism by stipulation, 223 US 738; 32 S Ct 530; 56 L Ed 636 (1911),
Building Officials & Code Adm v Code Technology, Inc, 628 F2d 730, 207 U.S.P.Q. 81,
1978-81 Copr.L.Dec. 25,180 (CA 1, 1980),
State of Georgia v Harrison Co, 548 F Supp 110, 114 (DND Ga, Atl Div, 1982), etc.,
show that case law, like enacted law, a public domain matter, is in essence owned by the public, and the public (which includes attorneys and adjudicators) is presumed, indeed, required, to know it.
Legal aphorisms make the latter aspect especially clear, e.g.,
Ignorantia eorum quææ quis scire tenetur non excusat; ignorance of those things which one is bound to know excuses not.
Ignorantia legis neminem excusat; ignorance of law excuses no one.
Ignorantia juris non excusat; ignorance of the law excuses not.
Ignorare legis est lata culpa; to be ignorant of the law is gross neglect.

Smoking has no priority over the fundamentals. It has no priority over people and property. AR 1-8 makes clear it has no priority over any governing rules at all. It [AR 1-8] lists examples of rules over which smoking has no priority; for example, rules on safety and efficiency. The Army is opposed to letting smokers cause hazards or loaf and litter or do anything to impair efficiency. The Army decision to reject such smoker behavior must be honored, even if smoking were a constitutional right, which it is not. Moreover, the Army takes an even tougher position against smoking. The Army forbids even subjective ill effects see as discomfort or unreasonable annoyance. The 25 Jan 80 Grievance Report expressly took note of such facts. The Army makes clear that each Commander has to achieve the regulatory goals. The Army wants the purpose of government honored. That is the reason for the Army even being in existence––we are a support function for the very purpose of government. Thus, the Army [in, e.g., Army Regulation 600-20.2-1, AR 1-8] gives each and every Commander the full authority to abolish all smoking, as the Examiner expressly noted [p 6].
Smokers cannot possible demonstrate “no rational connection between the regulation” forbidding them to endanger, discomfort, or unreasonably annoy nonsmokers, or impair efficiency. Achieving the goals does “not violate any right guaranteed by” the Constitution. This would be true even if smoking were a right under the Constitution, which it is not. No rational person thinks it is an “undue hardship” for the employer to tell his employees what to do.
Kelley v. Johnson makes clear that smoking is not salvageable when it may endanger persons or property. That is what AR 1-8 says. That is what 5 CFR § 752 says. That is what OSHA [29 USC § 651 - § 678] and federal safety laws [e.g., 5 USC § 7902] say. That is what other laws [e.g., MCL § 750.27, MSA § 28.216] and many Court cases say. The TACOM claims to the contrary should have been dismissed just as summarily as that case originally was. Indeed, the TACOM claims were dismissed just that way in the 25 Jan 80 Report. Res judicata prevents TACOM from using the rejected claims.
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The evidence shows that “the rights here asserted are, like all such rights, present rights; they are not merely hopes to some future enjoyment” of the personal standard envisioned by AR 1-8, the “unqualified and absolute” safety duty, standard personnel control techniques, hearing rights, reasonable accommodation, etc. When rights are “present rights,” they are “warrants for the here and now . . . promptly fulfilled,” Watson v. City of Memphis, 373 US 526 [83 S Ct 1314; 10 L Ed 2d 529] (1963). Time disorientation is evident when such basic legal principles are ignored. Prejudiced behavior is disconnected behavior.
The right to work is clear from cases such as Yick Wo v. Hopkins, 118 US 356 [6 S Ct 1064; 30 L Ed 220] (1886), and Truax v. Raich, 239 US 33 [36 S Ct 7; 60 L Ed 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915). Criteria are to be job-related, Griggs v. Duke Power Co., 401 US 424 [91 S Ct 849; 28 L Ed 2d 158] (1971). Safety hazards are not part of the job, Shimp v. New Jersey Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 (1976). In fact, safety hazards are prohibited, American Textile Manufacturers Institute v. Donovan, 452 US 490 [101 S Ct 2478; 69 L Ed 2d 185] (1981). The safety duty is “unqualified and absolute,” Nat'l Realty & C. Co. v. OSHRC [160 US App DC 133], 489 F.2d 1257 (1973). Legal duties apply all over, not just in one room or one state, Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S Ct 232; 83 L Ed 208] (1938). Legal duties clearly apply against “private conduct,” Shelley v. Kraemer, 334 US 1 [68 S Ct 836; 92 L Ed 1161] (1948), and especially when the rules envision not only a personal standard but also the anticipation of a personal determination that might be issued. The goal of the rules and duties is to protect not only one person but also “those similarly situated,” Rogers v. Paul, 382 US 198 [86 S.Ct. 358. 15 L.Ed.2d 265] (1965).
Affirmative action to protect and defend rights and to obey legal duties is a legal imperative, U.S. v. John R. Park, 421 US 658 [95 S Ct 1903; 44 L Ed 2d 489] (1975). Excuses for noncompliance are not well received, U.S. v. Y. Hata & Co., 535 F.2d 508 (1976), and U.S. v. Starr, 535 F.2d 512 (1976). The burden of proof to show compliance including but not limited to show job-related standards is on the employer, not on the employee, Prewitt v. U.S. Postal Service, 662 F.2d 292 (1981).
The accommodation duty is unmet and has not begun, as the 25 Jan 80 Report shows. That data is consistent with the findings of agencies such as OPM (“Reasonable accommodation not shown” nor any job-related aspects); MESC (repeatedly affirming ability to work as prerequisite to continued approval of unemployment compensation despite repeated employer [TACOM] appeals); and EEOC (non-implementation of USACARA Report, and local pattern of not processing cases right).
A hearing is essential especially on constitutional issues, Stanley v. Illinois, 405 US 645 [92 S Ct 1208, 31 L. Ed. 2d 551] (1972). Adverse action such as an “agency's decision to terminate” or take other disciplinary action in reprisal for freedom or expression is improper, Pilarowski v. Brown [76 Mich. App. 666], 257 N.W.2d 211 (1977). Repeated claims that cases would be processed right when refusal to do so is obvious reflect further reprisal as a double denial of rights. False statements even on collateral matters are unacceptable, U.S. v. Blackman, 108 F.2d 572 (1940). Local [TACOM] and MSPB officials knew better; see the full equivalence of knowledge [scienter] guidance in cases such as U.S. v. Olivares-Vega, 495 F.2d 827 (1974). Lawyers especially ought to know better than to repudiate, override, repeal, or abrogate laws and rules, Ex parte Wall, 107 US 265 [2 S.Ct. 569, 27 L.Ed. 552] (1882). Officials are responsible to know what they are doing, Escott v. BarChris Construction Corp., 283 F. Supp. 643 (1968).
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Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161; 3 A.L.R.2d 441] (1948), makes clear that the 14th Amendment protects constitutional rights by itself since official actions (and allegedly official actions––management pretends that the personal desire to smoke somehow justifies forbidding me to work) by government officials and Courts are already within the scope of the 14th Amendment. This is true even when the 14th Amendment does not directly reach "private conduct" by itself. “Private conduct” is no longer merely “private conduct” when government officials act to shelter it, as installation [TACOM] and MSPB officials are intensely doing. In the employment situation, rules on courtesy, loafing, littering, mental illness, alcoholism, assault, fraud, embezzlement, falsification, smoking, etc. do reach “private conduct,” thereby allowing use of the 14th Amendment to control government officials when they refuse to enforce rules such as those. The Supreme Court is able to understand that
“the difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of these rights on an equal footing.”

The difference between MSPB and local [TACOM] fabrications of actions and admitting truth is the difference between securing or not securing enforcement of the rules. The initial difference relates to the falsification that denies my clear ability to work. Once that falsification falls, the whole MSPB falsification [6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] falls. MSPB has clearly argued the [TACOM] management case so strongly even beyond the fabrications that management [TACOM] dares to invent, that management [TACOM] is not even willing to confirm what MSPB pretends.
In Shelley v. Kraemer, the Court concluded that “in granting judicial enforcement of” the wrong actions even when acceptable on a purely voluntary basis, such enforcement “denied petitioners the equal protection of the laws and . . . cannot stand.” MSPB has granted “enforcement” of endangering, discomforting, and unreasonably annoying conditions expressly forbidden; MSPB has granted “enforcement” of pretenses that I am somehow unable to work, without telling the installation [TACOM] to halt such endangering aspects. The MSPB action “cannot stand.”
AR 1-8 refers to protecting both “life” and “property.” Both have the right to be protected from tobacco smoke. Banning smoking around property is obviously not “impossible” and not “an undue hardship.” The local [TACOM] and MSPB allegations are sheer fabrication and nonsense. Buchanan v. Warley, 245 US 60 [38 S. Ct. 16, 62 L. Ed. 149] (1917), noted:
“That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.”

Even if smokers are so violently hostile to AR 1-8 that they insist on endangering, discomforting, and unreasonably annoying people (as the local [TACOM] and MSPB claims confirm by the stated inability to prevent unfitness for duty), that fact does not allow violating my rights. No matter how insane smokers may be, management must control them.
“‘An insane person is civilly liable for his torts,’” Barylski v. Paul, 38 Mich. App. 614 [196 NW2d 868] (1972). “‘The law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or condition, mental or physical, of the person causing the damage. . . . The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.’”

Even when smoking “causes insanity” that endangers, discomforts, and unreasonably annoys others, the management duty to enforce AR 1-8 is clear. Even when smoking “causes insanity” that endangers to the point of sick leave, the rules must be enforced. The Barylski v. Paul incident occurred without notices, without multiple notices, from the victim seeking to be protected. Management [TACOM] and MSPB refusal of my multiple requests for aid intensifies their culpability. ["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).]
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Yick Wo v. Hopkins, 118 US 356 [6 S. Ct. 1064; 30 L. Ed. 220; 1886 U.S. LEXIS 1938] (1886) provides insight into the situation. Governmental officials arbitrarily said that certain persons “cannot” work. No reason––they simply “cannot.” Here, MSPB [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], pretends that enforcement of rules, some of which are included in actions purportedly done, is “an undue hardship,” making this claim “at its arbitrary and unregulated discretion,” “and it can do so if” its false claim “is valid,––then it seems to us that there has been a wide departure from the principles that have heretofore been supposed to guard and protect the rights, property, and liberties of the American people. . . . Can a court be blind to what must be necessarily known to every intelligent person in the state?”
To the trained eye with experience in discipline cases, it is clear that the MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], contains intentionally false claims. To the trained eye, the decision is replete with clues. There are no dates for when the alleged actions occurred. There is no indication sufficient time passed to meet the standard the Army examiner cited in a separate case, “Whether or not an accommodation will be prove to be successful cannot be determined until tried,” and tried for a reasonable period of time.
The lack of specificity confirms that MSPB is aware of the falsities. MSPB is also aware its “findings of fact” can carry legal weight. A ban on smoking in at least the personnel office would have been reasonable and would look good in the record; but management had not done it, so the claim was simply invented [by Ronald P. Wertheim and Ersa H. Poston]. Such an action could easily be pinpointed in time had it happened, but no date is cited for the reason that, like the other allegations, it never happened. Among clues to the falsifications, the lack of specificity is a key. MSPB lack of good faith is thus evident, by pretending that actions were taken, when it should have ordered management to take such actions.
The MSPB reputation is not unknown to personnel people; the MSPB hand is evident in the fabrications [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston]. However, as experienced in discipline, I generally find that people who lie tend to trip themselves up by careless acts. My copied requests for educational programs and adequate ventilation (copied out of the regulation [AR 1-8]) cannot be both done and “an undue hardship”! The ventilation either “does insure compliance with health standards” or it doesn't!
Providing false or misleading “collateral” as well as material information is a key. Of course, “the agency’s duty to accommodate is not unlimited.” But that duty presupposes compliance with the normal rules. Reference to “performance of the requested conditions” is a non sequitur from the preceding phrase, “appellant’s suggested accommodation.” Obeying AR 1-8 would moot the other requests. MSPB has also provided absolutely no linkage or rational nexus between “performance of the requested conditions” and my ability to work, for the obvious reason that there is none. The MSPB decision wobbles between incompetent and intentionally false.
MSPB is well aware of field conditions of personnel offices, despite the MSPB pretense otherwise. When an untrained Army doctor [Francis J. Holt] obsessed with smoking overrules the Grievance Examiner to make clear his continued insubordinate view that the Grievance Report “cannot” be implemented, that is the same position that was already rejected. Rejected management claims do not come before deciding officials with a momentum for respect; they come with a momentum for second rejection.
When management insists the same lack of authority as before, it is obvious the Grievance Report has not been implemented. Even de minimis MSPB competence would recognize that as a personnel management official, my case merely reflects the rules, and that management has repeatedly told me its disrespect for the Grievance Report.
The lack of specificity in the MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], confirms awareness that the actions [alleged therein] have not been taken [as EEOC verified in Docket 03.81.0087, 83 FEOR 3046], and will not be, unless management is directed to do so.
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The Supreme Court has ruled that “public employment . . . may not be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action,” Keyishian v. Board of Regents, 385 US 589 at 605-606 [87 S.Ct. 675, 17 L.Ed.2d 629] (1967). The right to enforcement of laws and rules can not be abridged except by repeal of the rules or laws. As long as the rules exist, the refusal of enforcement is tantamount to unlawful administrative repeal, far in excess of administrative authority [jurisdiction]. Some rights, as the right to life, constitute the purpose of government.
The right to work, and the right to remain at work in safe and sane conditions, is at the constitutional level. The laws and rules provide, add to, and go beyond what is provided by the Constitutional aspects; yet enforcement of every level of law and regulation is being refused in this situation. (The stated reason–that the rules “cannot” be enforced, and that enforcement is an “undue hardship” –– is not the real reason(s).) [“To put it simply, the Board here is merely guessing that petitioner is not now or will not in the future be able to perform. Mere 'guesswork' is arbitrary and capricious,” Parolisi v Bd of Examiners of City of New York, 55 Misc 2d 546; 283 NWS 2d 936, 940 (1967).]
Smoking has deleterious effects on health. It causes harm to nonsmokers. It hurts smokers by causing physical and mental disorders. It is the #1 preventable cause of death. All other causes are less than #1. Being overweight is not #1. The Supreme Court has upheld the discharge of an overweight fire department telephone operator; see Metropolitan Dade County v. Wolf, 274 So.2d 584 (1973), cert. denied, 414 US 1116 (1974). There is no indication that any personnel specialist was placed on involuntary sick leave for suggesting the discharge. Evidently courts do not have “difficulty concentrating” on the difference between a person who is dangerous and the victim. Courts are evidently able to grasp details and draw proper inferences.
It is proper to refuse employment when a person has a history of mental illness under certain circumstances. This principle was upheld in a case involving municipal bus drivers, Spencer v. Toussaint, 408 F.Supp. 1067 (E.D. Mich., 1976). The case does not indicate that personnel specialists suggesting that course of action were placed on involuntary sick leave.
It is important and instructive to note that the records in each instance were reviewed to determine the actual medical facts. Yet in my situation, management declines to verify whether decision-makers about me are suffering from mental illness or other judgement-impairing condition. Certainly management officials should be at least as sane as a bus driver!
It was not within the “bounds of 'professional practice’” for Dr. Moore to have ignored medical reality. He was chastised when “he gave inadequate physical examinations or none at all” and when “he ignored the results of the tests he did make.” See U.S. v. Moore, 423 US 122 at 142-143 (1975), 96 S.Ct. 335 at 345 [46 L.Ed.2d 333]. Here, there have been no psychiatric evaluations of smokers; inadequate TLV tests; no tests under AR 1-8; disregard of repeated evidence on my ability to work, etc.
The Supreme Court has made clear that the government is required to follow its own rules even when there was no legal requirement for having adopted such rules in the first place, Vitarelli v. Seaton, 359 US 535 [79 S. Ct. 968, 3 L. Ed. 2d 1012] (1959). The 18 June 1981 MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] to the contrary is thus legally inexplicable; MSPB personal reasons are thus meet in violation of the principles of Knotts v. U.S. [128 Ct.Cl. 489], 121 F.Supp. 630 (1954).
The MSPB decision upholds “relocating” my office on the job; yet government employees can legally be discharged for condoning segregation even off the job by sending their children to segregated private schools, Cook v. Hudson, 511 F.2d 744 (1975), cert. dismissed as improvidently granted, 429 US 165 [97 S.Ct. 543, 50 L.Ed.2d 373] (1976). Government officials cannot be tolerated on the rolls when they favor “relocating” people; going “elsewhere” for rights is not acceptable.
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Various Court decisions help shed light on the situation, particularly in support of the principles recognized in the 25 January 1980 Grievance Report recognition that “an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker.” Such evasion of achieving the legal and regulatory goals is tantamount to repealing them. It interferes with the right to travel safely to do one's job; and on the other hand, it is inappropriate to tell a person to go “elsewhere” for their rights to be protected.
The right to travel is a liberty which cannot be denied without due process of law. Nonsmokers are not criminals; in Kent v. Dulles, 357 US 117 at 130 [78 S.Ct. 1113, 2 L.Ed.2d 1204] (1950), the Supreme Court noted that “we are dealing here with citizens who have neither been accused of crimes nor found guilty. They are being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations.” Re smoking, the denial arises from reasonably foreseeable harm caused by failure of enforcement of safety, courtesy, mental health, littering, handicapper, and other rules. In the Kent case, the Supreme Court noted that the persons whose freedom of movement was being infringed “do not seek to escape the law nor to violate it.” In this situation, the denial arises from reprisal for my freedom of expressing demanding enforcement of rules and a halt to the violations. For personal reasons, certain management officials under color of law have violated that right as well as the right to travel.
In Aptheker v. Secretary of State, 378 US 500 [84 S.Ct. 1659, 12 L.Ed.2d 992] (1964), an act of Congress itself was declared unconstitutional (in part) due to its failure to consider the purpose of travel. That violates due process. My travel is for doing my job. That is a protected purpose, part of the right to work recognized in the Truax v. Raich [239 U.S. 33; 36 S.Ct. 7; 60 L. Ed. 131, LRA 1916D 545] case. In this situation, the laws and laws appear proper; it is the refusal to “exercise reasonable diligence in enforcing” them that is unconstitutional. It is the refusal to do any more than barely beginning to pay lip service to enforcement.
Courts take note of reality (the sun appears to rise in the east); civil servants should do so as well. In Heart of Atlanta Motel v. United States, 379 US 241 [85 S.Ct. 348 13 L.Ed.2d 258] (1964), the Supreme Court rightly took judicial notice of the fact that black persons tended to be discouraged from traveling due to reasonably anticipated difficulties in obtaining accommodations. Likewise, the reasonably foreseeable harm affecting millions of Americans from second hand smoke is obvious in the public domain. AR 1-8, the American Lung Association, the Shimp court, the American Cancer Society, etc., have all made this clear in published materials. There is absolutely no basis for singling me out as unique.
Rights are an illusion when their exercise involves unnecessary danger, discomfort, or unreasonable annoyance. (There is a vast difference between risk inherent in an activity and a risk imposed by others without relationship to the activity; smoking is not necessary for working.) There is no significant difference between telling a person, “You can't stay at this motel,” and “You can't stay here if concerned about your health”? Is there a significant difference between telling a person, “You can't have a job because you are black,” and “You can't have a job because of concern for your health”? The right to work is at least as important as the right to travel. Rights of individuals are subordinate to the welfare of the general public, as multiple civil service and Army safety rules make clear, and as AR 1-8 notes.
The right to travel is a fundamental right, United States v. Guest, 383 US 745 [86 S.Ct. 1170, 16 L.Ed.2d 239] (1966). Traveling across state lines is protected; such travel can be for basically any reason. Restricting travel to a few feet in safety is akin to jail [false imprisonment] and is cruel and unusual., especially when the detainee has committed no offense.
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When smokers endanger themselves or others, as the various court cases by and about amours show, and when the installation [TACOM] condones like behavior, that is granting a “preference or advantage not authorized by law, rule, or regulation” in violation of 5 USC § 2302. Endangering self or others (as smokers tend to do) is forbidden under rules such as FPM Suppl. 752-1, 5 USC § 7902, AR 1-8, etc. The installation [TACOM] disregard of the 25 Jan 80 Report saying to comply with AR 1-8 has been ignored. My rights under various civil service laws and rules and under Army policy are thus violated; clearly, “irreparable injury should be presumed from the very fact that the statute has been violated,” U.S. v. Hayes Int'l Corp., 415 F.2d 1038 (5th Cir. 1969).
The agency has failed to properly balance the harm to me vs. no demonstrated harm to the agency of having to comply with its own rules. Balancing is critical, and has long been recognized in court, as in, for example, Conway v. O'Brien, 111 F.2d 611 (2d Cir. 1940). AR 1-8 mandates an “equitable balance” so that nobody will be made sick by smoke, and so that nobody will be endangered, discomforted, or unreasonably annoyed. AR 1-8 not only forbids making nonsmokers sick, it forbids even pre-sick leave results [e.g., ventilation inadequate to “remove smoke,” unreasonable annoyance, discomfort]. Preventable harm is to be prevented, and courts have long made this clear, as long ago as the case of Heaven v. Pender, 11 Q.B.D. 503 (1883).
The duty is to protect the right to remain at work in safe conditions, as OSHA [29 USC § 651 - § 678] and 5 USC § 7902 provide; cf. 64 Cal. Law Rev 702 (1976). The even more basic right to work (at all) has been recognized in cases such as Yick Wo v. Hopkins, 118 US 356 [6 S Ct 1064; 30 L Ed 220] (1886), and Truax v. Raich, 239 US 33 [36 S Ct 7; 60 L Ed 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915). The FPM recognizes the same concept. See FPM Suppl. 752-1. S5-4c(1)(e),
“In view of the objective of keeping the employee in an active duty status in his regular position whenever practicable, it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss.”

The installation [TACOM] ignores that rule, and refuses to even cooperate in efforts to eliminate the hazard, and resolve the overall situation. The duty is especially clear considering the “irreparable injury” that the installation [TACOM] is causing.
The installation [TACOM] behavior is clearly arbitrary and capricious in that reasons for its actions of not complying with the rules and the 25 Jan 80 Report are not stated. The fact an employee such as me may react to arbitrary and capricious behavior is foreseeable. It is unacceptable for the installation to focus only on the reaction, and seek to divert attention away from its own role as the cause. The agency reaction is, in causing ''irreparable injury” to which a reaction is foreseeable whimsical, arbitrary, capricious, and evidencing that “no standards govern” which does indeed “cross the line” [Boyce Motor Lines, Inc v United States, 342 US 337, 340 (1952)] into misconduct. The alleged “difficulty in formulating remedy” is the result of “too much deliberation” and not enough speed and good faith. Shelley v. Kraemer, 334 US 1 [68 S Ct 836; 92 L Ed 1161] (1948) makes clear that “private conduct” such as of smokers harming nonsmokers such as me is not entitled to government protection; yet that is what the installation is doing by subterfuge. It refuses to enforce rules, then criticizes me for doing as trained when a violation becomes apparent. It says go “elsewhere” for assistance, though saying to go “elsewhere” is not a lawful response, Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S Ct 232; 83 L Ed 208] (1938). Also see Browder v. Gayle, 142 F.Supp. 707 [MD Ala. 1956], cert. denied, 352 US 903 (1956), for other court rejection of going elsewhere, and rejection of protection of “private conduct” from which a minority needed protection.
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Smoking “stupefies the moral sense,” “makes man selfish, unmannerly, and sometimes worse,” and “callous to the requests of others,” as Dr. ]Matthew] Woods noted in [32 J Am Med Ass'n (#13) pp 683-687] 1899. Symptoms of brain damage include “Impairment of inner reality and ethical controls––with lowering of behavioral standards,” as Dr. [James] Coleman noted in [Abnormal Psychology and Modern Life, 5th ed.] 1976.
The law takes into account aspects of behavior that reflect indifference to other people. For example, State v. Massey, 20 Ala. App. 56, 100 So. 625 (1924), discusses “universal malice” in terms of behavior “without knowing or caring who may be the victim” and “evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life.”
Wallace v. State, 216 Ga. 180, 115 S.E.2d 338 (1960), indicates that a “wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill” as warranting sustaining a conviction. The “apt and correct principle of law” is well-established.
Nestlerode v. United States, 74 App. D.C. 276, 122 F.2d 56 (1941), discusses “an act done with a depraved mind and attended with circumstances which indicate a wilful disregard or the rights or the safety of others.” “Precisely what happened is what might have been expected as the result of the events which appellant set in motion and is the natural and probable consequence of these acts. Malice is presumed under such conditions.”
State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442 (19 73), indicates “A depraved mind lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment. A depraved Mind has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm.”
Ziegler v. State, 146 Wis. 531, 131 N.W. 837 (1911), indicates, “But the facts and circumstances were such that the perpetrator of the act may well be held to have known that in its necessary and ordinary consequences it was dangerous to the life of another . . . .”
Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12 at 17 (1955) indicates, “The risk incident to dealing with fire, firearms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence.”
Lash v. Worker's Compensation Appeals Board [491 Pa. 294], 420 A.2d 1325 (1980), indicates “unconscionable” and “barbaric to require an employee to continue in a position where he is exposed to a toxic substance until he is so ill that he physically is incapable of performing his job.”
Such data provides insight on the local [TACOM] and MSPB behavior. The behavior causing the hazard is depraved; the refusal of correction is depraved; the falsifications concerning correction are depraved; the requests for medical clearance for return are depraved. Cf. Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965)], “it cannot be said that” a smoker “is a person of normal . . . sensibilities.”
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(pp 280-300)

The harm from tobacco smoke produces discriminatory results. For example, men are affected differently than women. Incidence and death rates from smoking are higher for blacks than for whites. The use of false and misleading data such as is discussed in cases like P. Lorillard Co. v. F.T.C., 186 F.2d 52 (1950), shows an institutionalized “negative attitude not found in the mind of a normal, reasonable person. . . . the recognition others desire to live . . . is innate in the mind of a normal person,” State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442 at 445 (1973). False advertising shows such “negative attitude” toward smokers. And see tobacco company views and discrimination against blacks as discussed in cases such as Quarles v. Philip Morris Incorporated, 279 F. Supp. 505 ([ED Va] 1968); Robinson v. Lorillard Corp., 444 F.2d 791 ([CA 4] 1971); Patterson v. American Tobacco Co., 535 F.2d 257 [CA 4], cert. den’d, 429 U.S. 920 (1976); etc.
A “negative attitude” is evident. Smoking includes harm to black smokers. Such harm occurs on a daily basis. When such harm “is in fact produced, the intention is in law deducible from the act itself,” People v. Carmichael, 5 Mich. 10, [17,] 71 Am. Dec. 769 (1858). Deaths of blacks are a foreseeable “natural and probable consequence of” smoking. “Malice is presumed under such conditions,” Nestlerode v. United States [74 US App DC 276, 279], 122 F.2d 56 at 59 (1941).
See the 1979 “Cancer Facts and Figures,” from the American Cancer Society. p. 6. “A study of cancer rates over the last 25 years shows that the cancer incidence rate for blacks is higher than for whites, and that blacks also have a higher death rate than whites. . . . The overall cancer incidence rate for blacks went up 8 percent while for whites it dropped 3 percent. Cancer mortality for blacks increased 26 percent while for whites it rose only 5 percent. Cancer sites where blacks had significantly greater increases in incidence and mortality rates included the lung . . . .” Lung cancer is a tobacco induced disease; cf. data on “no reported cases of lung cancer” among “the purest nonsmoking population that can be obtained in the USA,” data from Dr. G. H. Miller in [“Lung Cancer: A Comparison of Incidence Between the Amish and Non-Amish in Lancaster County”], The J. of the Indiana St. Med. Ass’n., Vol. 76(2), pp. 121-123, February 1983.
See also “Cancer in the United States: Is There an Epidemic?”, third printing, August 1980, from The American Council on Science and Health, pp. 6-8. It shows lung cancer rates per 100,000 population:
White Males: 78 White Females: 24
Nonwhite Males: 113 Nonwhite Females: 26

These differences in harm are “in fact produced.” As a matter of law, “the act itself” is noted. The “act” occurs, and “the intention is in law deducible from the act itself,” Carmichael, supra. The harm to smokers adversely impacts nonsmokers such as me. See Gettings v. State [32 Ala.App. 644], 29 So.2d 677 (1947), relative to harming additional parties (including me) as well as “the object of” “the” “deducible” “intention.” “The intent is transferred to the person” harmed, and “‘The intention follows the bullet,’” State v. Batson, 339 Mo. 298, 96 S.W.2d 384 (1936). “The intention follows the” tobacco smoke. The discriminatory impact on men/women, whites/blacks as smokers “is transferred to” the also harmed nonsmokers, including to me. Discrimination is thus shown in multiple ways, not only for handicap.
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(pp 302-312)

The installation action against me is not supported by substantial evidence. Indeed, the adverse action pattern is contrary to the evidence. The lack of evidence provides insight on the extreme opposition to review on the merits. EEOC on 23 Feb 82 already noted a portion of that opposition. The MSPB pattern arises from the insistence that the burden of proof is on me, as is evident from the 26 Jul 82 MSPB issuance, and throughout the MSPB behavior pattern. Even if the burden of proof were on the employee (me), which it is not, I have more than met the burden. The decisions by various impartial reviewing bodies cover all the pertinent aspects. For example, the 23 Feb 82 EEOC decision shows non-implementation of the 25 Jan 80 USACARA Report, a pattern of errors, etc. The OPM analyses 17 Sep 81 and 5 Oct 81 show a lack of accommodation and lack of showing “of a medical condition which has caused a deficiency in service.” The repeated MESC decisions confirm my ability to work. The 25 Jan 80 Report shows a hazard to me. (The numerous court precedents show that when there is a hazard to one or more persons, the safety duty to eliminate the hazard is "unqualified and absolute" and "above all other considerations.") These analyses were made independently on the facts.
In none of the above cases was information from the on-point case, Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 ([CA 10] 1931), provided. “Workmen are not employed to smoke . . . .” I did not cite that case to EEOC, OPM, USACARA, or MESC, none of them cited it. Indeed, only the EEOC decision of 23 Feb 82 cites any court precedents at all. (EEOC citations were on the procedural, i.e., non-merit, aspects.) It is clear that (a) the installation has not met the burden of proof, and (b) I have. I have, on the merits, on the facts, without the need to ever reach issues of law. Nonetheless, based on my personnel background, I am trained to be thorough. (That thoroughness undoubtedly figures in the reprisal; reprisal is more likely, not less likely, when the person is trained in accuracy and thoroughness.)
It is well-established that a federal agency must make at least two separate determinations in its “decision to terminate” an employee. It must show the pertinent event(s), facts, and/or act(s) allegedly responsible for the termination; and the agency must show a nexus between the merits and the efficiency of the service. See cases such as Wathen v. United States [208 Ct Cl 342], 527 F.2d 1191 (1975), cert. den. 429 U.S. 823, 97 S.Ct. 69 [50 L Ed 2d 82] (1976); Young v. Hampton, 568 F.2d 1253 ([CA 7] 1977); and Masino v. United States [218 Ct Cl 531], 589 F.2d 1048 (1978). Both determinations must be supported by substantial evidence. (There must of course be determinations on matters such as on issuing an advance notice, willingness to consider a reply, etc., all lacking in this case, as characterized by local muteness.) Here, there is no evidence on facts to support the local behavior. Moreover, the behavior is purely personal. Any allegations, if made, on efficiency of the service, would run afoul of AR 1-8 guidance against letting smoking cause inefficiency in the first place. Moreover, the Maloney Tank case, supra, is dispositive as a matter of law. Cf. Prewitt v. U.S. Postal Service, 662 F.2d 292 ([CA 5] 1981), “the employer must bear the burden of proving that the physical criteria are job related.” That process has not started even yet after so many years, for the reason not only of the local muteness, but also due to the disposition as a matter of law. Also see Shelby Fire Dep't v. Shields [115 Mich App 98], 320 N.W.2d 306 [1982].
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The local misbehavior, including the [Averhart-Alef-Hoover] application for [involuntary, outside-eligibility-requirements] disability retirement, is void ab initio. No job-related standards exist, as a matter of fact and law. The installation's “decision to terminate” me had been effected long in advance [1979] and prior to the application [1981], making it a clear fraud on OPM [which requires advance application]. It [the retroactive application] is the unlawful and tainted product of refusal to obey the pertinent rules, including the “unqualified and absolute” safety duty, and the personal standard envisioned by AR 1-8. Words borrowed from Matter of Knust, 288 N. W. 2d 776 ([ND] 1980), provide insight, “our law makes no provision for any refusal, reasonable or otherwise” [to obey the law]. The safety rules, AR 1-8, and the personal determination issued thereunder are sufficiently definite for men of common intelligence to reasonably understand what conduct is prohibited and what is allowed, and when and where—words borrowed from cases on vagueness challenges to rules. The [TACOM smoker management] violations are clearly intentional and malicious. It is a well established rule of law that there is “a difference, a constitutional difference, between voluntary adherence to custom and the perpetuation and enforcement of that custom by law” or insubordination against rules, Browder v. Gayle, 142 F. Supp. 707 ([MD Ala.] 1956), and Shelley v. Kraemer, 334 US 1 [68 S Ct 836; 92 L Ed 1161] (1948). It is clearly odious and deranged when, considering the basis of the [5 Oct 1981] OPM decision [correctly finding none of the disability critieria met! and no accommodation!! i.e., affirming my position], the installation did not immediately proceed to provide “reasonable accommodation” and return me to duty, and that MSPB likewise refused to direct compliance, or a finding of reversal based on the lack of compliance, without directing compliance, since it is clear that local officials are not capable of that degree of comprehension characteristic of “men of common intelligence.”
The [TACOM smoker management] misbehavior is clearly intentional violation of the right to work as upheld in cases such as Yick Wo v. Hopkins, 118 US 356 [6 S Ct 1064; 30 L Ed 220] (1886). Alcoholics are to be controlled even by discharge if necessary, Spragg v. Campbell, 466 F. Supp. 658 ([D SD] 1979). Normal personnel control techniques are repeatedly referred to in the various smoker control cases arising from the “negligence” of not using normal personnel techniques. For example, Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 [31 ALR 283] (1923), refers to “put him [smoker] out of the building,” which in personnel language refers to a suspension of the [smoker] culprit as an “immediate threat.” Suspension of the waste basket he endangered [set afire] was not cited, as “men of common intelligence,” especially courts, would understandably consider such an idea—to be the deranged raving that it so clearly is, as applied by local and MSPB employees to me, who has the same rights under AR 1-8 as “property.” “Putting out” the [smoker] offender is a proper method of dealing with littering, safety violations, mental disorder, etc. (Littering was objected to at 524, [the smoker] “negligently threw the unused portions of lighted cigars, cigarettes, and the contents of pipes upon the floors and property”).
OPM guidance contained in FPM Supplement 831-1, S10-la(3), is insightful. Disability retirement is not proper as a “result of vicious habits, intemperance, or willful misconduct on his or her part.” That guidance poses a bar to disability retirement for smokers/alcoholics, etc. On 16 Nov 79, I had filed a complaint to the Inspector General concerning local failure to implement this guidance. The later [involuntary disability] application [1981] directed against me reflects reprisal, as [smoker] Mr. Hoover was involved in both the disregard of the rules, and the application. It is clear that the disability retirement application was void ab initio.

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FPM Suppl. 752-1 shows multiple well-established principles. For example, S5-4c(1)(e). p. 60, indicates “'it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss.” When there is an “'environment'” problem, FPM 630.11 on “Excused Absence” is controlling, yet that has not even been addressed. When the basic rules have not been addressed, it is clear that the “reasonable accommodation” process has not even started, since it [that process] presupposes compliance with the preceding and underlying rules. In my case, excused absence was first granted, and then revoked, in part, when the overall reprisals and other misconduct already found, began in greater earnest.
FPM Suppl. 752-1.S3-2b(1). establishes, “No cause because no change in circumstance.” There is “''overwhelming evidence''” on the dangers of smoking behavior, Larus & Brother Co. v. F.C.C., 447 F.2d 876 ([CA 4] 1971). When a person is admittedly endangered, the FPM guidance applies, as the danger of smoking and fire-setting behavior was known prior to the initiation of the cause of action. Words borrowed from Quarles v. Philip Morris, 279 F.Supp. 505 at 515 (1968), provide insight: “The plain language of'" OSHA, 5 USC § 7902, DOD Instruction 6015.18 [32 CFR § 203], etc. are met when a person is “'endangered.” Elimination is mandatory; the hazard must be “excluded.”' Any other course of action, even disability retirement, causes “loss” greater than “the least possible loss.” As compliance is mandatory, refusal is a prohibited personnel practice.
The hazard is well-established; there is “'no change in circumstances.” See Banzhaf v. F.C.C., 405 F.2d 1082 at 1097 (1968), “it is a danger inherent in the normal use of the product . . . It threatens a substantial body of the population, not merely a particularly susceptible fringe group.” Claims of “uniqueness'” or “'peculiar physical sensitivity” are clearly false when what happens in both smokers and nonsmokers is normal reaction to the presence of clear-cut poisons and radiation. It would be a lack of reaction that would be abnormal. The “'inherently bad” effects have been known since prior to Austin v. State, 48 S.W. 408 (1898), aff'd sub nom. Austin v. Tennessee, 179 U.S. 343 (1900). (That decision also alluded to the known adverse mental effects.) Claims of “uniqueness” or “peculiar physical sensitivity” when made contrary to data clearly in the possession of the makers of such claims run afoul of principles of law such as are contained in cases such as U.S. v. Blackmon, 24 F.Supp. 830 (1938); U.S. v. Myers, 131 F.Supp. 525 (1955); and U.S. v. Olivares-Vega, 495 F.2d 827 (1974).
The various cases brought by nonsmokers confirm that “'uniqueness”' claims are false. The mere existence of rules such as DoD Instruction 6015.18 belies “'uniqueness” claims. The various workers' compensation claims from nonsmokers likewise belie the “uniqueness” claims. Even the various cases received by MSPB on the matter belie the claims. For guidance on intention in such matters, see such cases as People v. Carmichael, 71 Am. Dec. 769 (1858). Moreover, since “Workmen are not employed to smoke'” even passively, Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931), any assertions of inability to perform the actual job duties must be considered in light of the source. A trained personnel specialist such as myself (Pos Class Spec), having written numerous job descriptions, avoids such fallacies, which arise from the non-“normal sensibilities”' of smokers who feel that nonsmokers are weird or “unique'”; cf. Aldridge v. Saxey, 409 P.2d 184 (1965) .
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On 9 April 1980, Henry Perez, Jr., “advised that I am not now [April 1980] in a position to interfere with or disrupt the agency's decision to terminate you.” As a local EEOC representative, he was “not . . . in a position to” review the personal “decision to terminate” me, unless a formal EEO complaint were allowed to be processed by the local smokers. The 23 Feb 82 EEOC decision shows that local smokers used various improper tactics to interfere with and obstruct the [my] right to secure review [of] the late 1979 or early 1980 “decision to terminate” me. At 3 [EEOC said], "It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection” of the cases, cases caused in part by “the agency's decision to terminate” me without regard to the advance notice and specificity rules.
The 23 Feb 82 EEOC decision also accurately noted that “In none of the appeals . . . did the agency ever consider the merits of appellant's allegations.” It is clear that smokers reacted as they did for the purpose of obstructing and preventing a finding that “the agency failed to abide by the” 25 Jan 80 USACARA Report, so “appellant filed even more EEO complaints,” in retaliation for which “the agency's decision to terminate” me came about by early 1980 (17 March) at the latest. Local smokers continued that pattern in dealing with MSPB. The insistence that MSPB lacked jurisdiction to review the merits of “the agency's decision to terminate” me by early 1980 is particularly reprehensible since MSPB jurisdiction expressly [5 CFR § 1201] covers adverse actions. EEOC noted [23 Feb 1982] that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints,” p. 2 of the 23 Feb 82 decision. The “decision to terminate” followed immediately thereafter or in the same time frame.
The many reprisals and interferences are clear. Improperly rejecting cases is but one example. Refusing counseling is but one example. Using erroneous information, miscalculations, and other misrepresentations show other examples. The adverse action is another example. It is clear that local smokers do not consider themselves duty-bound to obey rules and laws. [Cf. People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).] It is clear that local smokers do not consider themselves duty-bound to honor facts and evidence.
When smokers are willing to punish nonsmokers for seeking rule enforcement, it is clear that the “craving for tobacco” is intense. That intense “craving for tobacco” explains why local smokers refused compliance and “failed to abide by the” 25 Jan 80 Report. It is also clear why AR 1-8 strips management of the authority to decide nonsmoker endangerment, discomfort, etc., and why AR 1-8 envisions a personal standard [empowers nonsmokers to make the decision]. Smokers simply refuse to cooperate voluntarily. Indeed, smokers choose “to terminate” nonsmokers rather than comply. If smokers were allowed to decide, there would be no protection for nonsmokers. That fact explains why it is Army policy that AR 1-8 envisions a personal standard [empowers nonsmokers, the DoD and Army policy]—against which local smokers are so insubordinate.
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Knotts v. U.S., 121 F.Supp. 630 ([Ct. Cl.] 1954), is another case wherein a federal employee (also a classification specialist) was punished for supervisory “personal” reasons. That action was taken for a friendship case; a supervisor wanted a friend in the job. Smoking is far more deeply embedded in the mind. It involves their very own personal mannerisms. Those odd [stereotyped] gestures involved in smoking are “highly overlearned” as the DSM-III notes. Alcoholics can resist rehabilitation. Smokers clearly vehemently resist rehabilitation. The smoker suicide rate is high. The medical evidence of a long-standing duration shows smoker apathy towards their fellow man. Their desperation is directed inward and is self-centered. They clearly will to act most viciously to be allowed to carry on their deviant behavior, and woe to whomever gets in their way. Smokers do not see very willing to act on behalf of others. Suicide certainly hurts others, including their family and friends and those closest to them. Yet that does not deter their excessive and disproportionate suicide rate.
The Knotts case involved adverse action for what smokers would consider mere friendship. Smoking is far more important to smokers, certainly far more important than mere human beings. Smoking is clearly more important to smokers than life itself. It is thus obvious that they have no concern for “the good of the service.” AR 1-8 forbids letting smokers get out of hand so as to harm nonsmokers. AR 1-8 makes clear the proper emphasis on “the good of the service.” The 25 Jan 80 USACARA Report noted the full authority and duty to comply. Supervisors who should have implemented that report disagreed with it, ridiculed it, and manipulated the agency [TACOM] for their personal reasons. The result was, as EEOC noted [Dockets 01800273 et al.] on p. 2 of its 23 Feb 82 decision that “. . . the agency failed to abide by the . . .” Report, “appellant filed even more EEO complaints,” and the culpable offenders decided to take adverse action against me to get rid of me.
Courts recognize legally cognizable harms, worthy of judicial protection. One basic principle is the right to the inviolability of one’s body. See 1 Restatement, Torts 2d Sec. 18. Intrusions far more limited than in my case have evoked judicial response in a wide variety of contexts. See e.g., Alcorn v. Mitchell, 63 Ill. 553 (1872) (single instance of spitting in the plaintiff 's face); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (single instance of snatching plate from the plaintiff’s hand, accompanied by racial slur); etc. The local offenders know how easy it would be to remove them under civil service rules [for their repeated violations]. See e.g., Ruffin v. U.S., 144 Ct. Cl. 689 (1959) (a single “slapping incident”). The decision cites no evidence of harm disabling the federal employee who was slapped. The Court said “It would indeed not only promote the efficiency of the . . . Department, but all other services if persons resorting to violent acts were dismissed for that reason.” It would promote efficiency and AR 1-8 goals on smokers not endangering and discomforting nonsmokers if smokers were dismissed when they perpetrated such violations. The Court said, “we can find noting improper in this action” [removing the slapper].
When the Knotts and Ruffin cases are juxtaposed, it is clear why smokers take such savage reprisal against me. It is clear why I am falsely identified by Emily Bacon (the personal lawyer for the culpable smokers) in her 29 Apr 80 letter as other than the victim. Her letter directly contradicts the [25 January 1980] USACARA Report, which clearly has not been implemented. If smokers admitted their behavior were the source of the hazard, adverse action against them would follow as a matter of course. It is clear that smokers are using a pattern of falsification and deceit in order to divert attention from the real problem. Such is “personal” and wrong.
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Mental disorders are foreseeable in smokers. The historical medical evidence shows the relationship of smoking and mental disorder. The data accumulated by actuaries shows the problem of smoking and mental disorder. The analysis in the DSM-III and the observation about the numbers involved (“obviously widespread”) show the problem, and show it as foreseeable. It is also foreseeable that mentally ill individuals––disoriented, unresponsive, paranoid. inflexible, etc.––are likely to pose problems under safety law, equal opportunity law, criminal law, etc.
Judicial notice has been taken of the following: “In a number of cases, the probable bias of an adjudicator or reviewing agent was so self-evident that he could not be permitted, compatibly with due process, to make any adjudication at all. Morissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).” In the case at bar, it is clear that all stages show the “unacceptable risk of bias” which is not acceptable in due process. Even mentally healthy individuals may have an “unalterably closed mind” on a specific issue. Mental illness is clearly beyond that point, with years of therapy sometimes needed for specific mentally disordered people to recover if they do recover. The deranged behavior at issue is normally fatal, evidencing that lack of recovery is “obviously widespread.”
It is clear that the deciding officials cannot objectively review the evidence. Indeed, it is clear that when the initial documents that gave rise to the situation were issued, that incapacity to respond to reality was already evident. Delusions of grandeur, paranoia, stereotyped inflexibility, disoriented and disconnected assertions, and clearly blunted aspects permeate the issuances.
All smoker input should have long ago been stricken as hopelessly bizarre and biased. The record shows that as early as May 1980, in the first appeal, I sought to have the matter resolved by such means.
Refusal to deal with the smoker mental problems by such means as rehabilitation, discipline, and other normal personnel and legal means, allows the disorder(s) at issue to worsen. Untreated conditions worsen. Such is particularly true when the brain-damaging and/or insanity-causing behavior continues on and on for years, even decades.
Worsening is clearly evident in the odd local [TACOM] and MSPB behavior. In Prewitt v. U.S. Postal Service, 662 F.2d 292 (!981), it is clear that management at least was willing to tell Prewitt about the nature of the environment in specific terms, over a period of time. The case shows specificity: at 297, “lifting seeks of mail up to 80 pounds”; at 298, “lifting up to seventy pounds”; “required to lift above shoulder level with both hands to remove stacks of mail from a six-foot-high top ledge,” at 305, etc. Here, in contrast, the severity of the mental derangement of deciding officials can in part be “understood” from the fact that the nature of the requirements and the environment has not been specified. No “before” and “after” data exist, obviously.
Such disregard of rules makes for “lawless” decisions and behavior. MSPB [6 MSPB 626; 7 MSPR 13] intentionally falsified alleged “accommodations” nevertheless, without reference to standards. The repeated acceptances have been disregarded. The process has not even started when the nature of the environment has not yet been defined. It is clear that the smokers involved must be disqualified.
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Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946), petition for cert. dismissed, 329 US 694 (1946), provides insight. At 560, the Court noted that, “When all the facts of this case are taken into consideration it is difficult to find that there was a real compliance with the terms of the law and the rules.” My case is far more obvious. In my experience as a personnel specialist, the officials purporting to be acting for the government have committed more violations of laws and rules than in any situation of which I am aware. The Court noted that “The law was enacted for the protection of the employees and to assure a fair consideration of their rights. . . . To construe the . . . [alleged notice] letters as a compliance with the law when each of them contains the statement that the matter has already been determined is almost to make a mockery of the provisions of the [advance pre-decision notice] law.” In the case at bar, the multiple rules (safety, mental health, alcoholism, smoking, etc.) were made for the protection of the public and co-workers from dangerous co-workers. There is absolutely no provision for adverse action against the victim instead of resolving the situation by initiating rule enforcement [against the pereptrators causing hazardous conduct].
The many letters confirm that the decisions have long ago been made. Local officials for personal reasons have long ago determined to use [falsified] TLVs [contrary to Surgeon General data] instead of AR 1-8; to deny authority to enforce AR 1-8; to stonewall at every step; to refuse to process cases; to consider every reviewer wrong who supports my position, etc. MESC supports my ability to work; res judicata applies. EEOC on 23 Feb 82 noted that “. . . the agency failed to abide by the . . .” 25 Jan 80 USACARA Report. Invoking res judicata on that aspect “seems far better calculated . . . to achieve the congressional goal . . . .” My affirmed good health (ability to work) combined with the fact of the non-implementation of the 25 Jan 80 USACARA [Report] leave nothing of substance to bar immediate cancellation of the adverse action pattern up to and since l7 March 1980.
The Court in the Elchibegoff case at 561 noted that “it seems in going over the entire record that the plaintiff allowed no grass to grow under his feet. If there ever was a case in which a man was active in trying to secure his rights, the plaintiff was in this instance. He protested all over the place.” My efforts to secure compliance with the rules would be foreseeably effective, thus [TACOM] management [with ex parte arranged MSPB connivance] determined on a course of obstruction. The 23 Feb 82 EEOC decision shows one tip of that iceberg of obstruction. Management's guilty knowledge of the [disciplinary and criminal law] consequences of what would happen to them once reviewers noted their pattern of misconduct prompted them to embark upon a campaign of multiple savage reprisals, including but not limited to the long-term suspension tantamount to removal, the psychiatric examination [contrary to Standard Knapp v IAM, 50 LA 833 (1968) guidance], false claims to MSPB and others, disregard of the MSPB-asserted accommodations, etc., etc. By gross delays, miscalculations, and obstructions, management sought to exhaust me, long before I exhausted administrative channels. Halting all review on the merits would prolong administrative stages interminably. Their only hope was that I would give up, so their [illegal] use of their positions to defend their personal behavior would succeed by default.
“The record precludes any other reasonable conclusion than that no consideration whatever was given to plaintiff's answer and justifies a finding that it was not even seen by the personnel officer before the action was made final.” The violation in my case was even more gross than with Elchibegoff. He at least received a few days advance notice. The action against me was made retroactive. It is impossible to visualize a more clear situation wherein “the matter has already been determined.” Elchibegoff at least had a few days to dispute the matter before the already determined matter would be effective by its own terms. It is clear that [in my case] local [TACOM] employees acted for their personal reasons “without any real consideration for the rights of the plaintiff.”
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Multiple Violations in the Adverse Actions
Smoking is personal behavior. Mr. [Edward] Hoover, a smoker, has ridiculed AR 1-8 and the 25 Jan 80 USACARA Report in my favor. In a case involving his personal interests so directly and strongly, each was an insensitive and indeed, knowingly provocative, behavior that should have been avoided. Cf. Offutt v. U.S., 348 US 11 (1954). The [abuse] is especially clear considering the 23 Feb 82 EEOC assesment of the wrongdoing in the late 1979 - early 1980 period. Mr. Hoover's behavior in removing me for an improper reason (personal desire to smoke) is yet another example of wrongdoing in that period. An independent reviewing official analyzing that period used the past tense each time he referred to my employment with TACOM. It is significant that the analysis of the July 1979 - February 1980 period was conducted by that independent reviewing official in the March - September 1981 time period. Already my employment with TACOM was obviously in the past tense.
Other independent analysts also have noted aspects of the local pattern. MESC provided me unemployment benefits for January - November 1981. See Decision B81 09032, 30 July 1981, rehearing denied, 2 September 1981. It is clear that Mr. Hoover decided to remove me once I won the 25 Jan 80 USACARA Report at the time “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints,” an analysis from the EEOC decision 23 Feb 82, p. 2. Placing me on sick leave for a medically impossible duration was a way of achieving my removal in substance. Thus, EEOC noted that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints.” In [TACOM] management's mind, I was already fired. They had not accommodated me [the term to avoid saying rule enforcement] as an employee; they clearly saw no reason to accommodate me [obey the rules] as (in substance) an ex-employee. [They dealt with the class action aspect by ousting me, to imtimidate coworkers].
FPM Suppl. 752-1, S4-4a, commands “A notice must make it clear that it concerns only a proposed action and not a matter already decided (see Elchibegoff v. U.S.).” Claims about what “cannot” be done are not merely "proposed"; they are final and already decided [by TACOM]. (Indeed, they are made directly in defiance of the 25 Jan 80 USACARA Report.) Claims that [falsified] OSHA TLVs are to be used instead of AR 1-8 criteria are not merely “proposed”; they are clearly “already decided” even though the USACARA Report considered such [falsified] studies “no evidence” of compliance. Claims that are made so emphatically for such an extended duration are clearly “already decided.” The 28 March 1980 [ouster] letter from Mr. Hoover is the same in substance as the perfunctory notice given to Elchibegoff, cited at 106 Ct. Cl. 541 at 544 [1946].
Like that employee, I too have sought to obtain the specifics. Each level has given different reasons, none specifically. The words of pp. 558-559 come to mind: “Plaintiff asserts that his discharge was illegal and was in effect no discharge at all because the matter was determined without first setting out the charges in specific and definite form.” Here, no charges have ever been made. What claims of accommodation rule compliance] “were later made, they were made after the matter was determined.” Such behavior is wrong under civil service guidance [e.g., 5 USC § 7513 and 5 CFR § 752], and indeed, under guidance in all forums of due process. The Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (1973) case shows an example of after-the-fact [agency] ideas. The Court rejected them since they “came too late in the proceedings. . . . unfairly deprived . . . when it [the accused] learns the exact nature [of specifics] . . . only after” the right time frame [notice letter]. An “empty record” is not acceptable. MSPB ignores such guidance. The Court language in Brennan v. OSHRC, 491 F.2d 1340 at 1343 ([CA 2] 1974) is insightful: Normal Court practices against retroactive invention of reasons “seems far better calcalated than the” MSPB's “to achieve the congressional goal” in requiring advance statement of reasons as a measure in dealing with federal employees.
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Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11 [99 L Ed 11] (1954), provides insight. That case involved “Almost from the outset, a clash between the presiding" official "and petitioner . . . which, it is fair to say, colored the course . . . with increasing personal overtones.” In my case, the local offenders were provided “in January, 1980 with a recommendation of ways the agency had to” enforce pre-accommodation guidance (AR 1-8). The 25 Jan 80 USACARA Report alluded to in the 23 Feb 82 EEOC decision arose from the failure of compliance, based on local misuse of jobs to support purely personal desires to smoke, regardless of what the rules say. Those offenders “failed to abide by the” Report, so “appellant filed even more EEO complaints.” By 14 March 1980, the malpractice of the installation physician [Dr. Francis Holt] was also being reported in writing; hence, the next workday after 14 March 1980, the local offenders fired me—on 17 March 1980, after a pattern of misconduct by them, predicated on the belief that I, based on my background, would foreseeably note the malpractice of the installation physician.
Local malice against me shows clearly “increasing personal overtones.” I have been trained to be impartial and to use conservative analysis techniques, including the copying of rules. Local offenders aware of the “unqualified and absolute” safety duty and the full authority and duty to implement it clearly chose a malicious pattern of “increasing personal overtones” as part of refusal “to abide by the” rules and the 25 Jan 80 USACARA Report. Such misconduct “sets up an unjustified clash of interests . . . to reduce the likelihood and . . . effectiveness . . . to achieve . . . legitimate goals under the” guidance and to produce “an apathy or docility which inhibits . . . asserting . . . rights against the perpetrator . . . ,” United Packinghouse Workers v. NLRB, [135 US App DC 111] 416 F.2d 1126 (1969) [cert den 396 US 903 (1969)]. EEOC officials are undoubtedly familiar with the unlawful motives behind [employer] misconduct. The 23 Feb 82 decision notes “that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints and seek counseling.”
In Offutt, supra, there was also “a clash.” Whatever were the causes of such “clash” in the Offutt case, it is clear that the causes here arise from local and MSPB irritability at my copying rules, rules which they have a personal desire to disobey. In Offutt, “Each responded to great provocation from the other.” Evidently those persons did not have (or use) training such as has been provided me in dealing with employees with personal or health problems such as alcoholism, drug addiction, unauthorized absences, family problems, etc. Such background is most helpful to me when faced with “great provocation” from local and MSPB people with obvious severe psychiatric difficulties. Such persons are clearly “increasing personal overtones” as a product of those psychiatric difficulties, including the “projection” thereof.
Even when no psychiatric symptoms are evident, deciding officials are not allowed to engage in misconduct for personal reasons, Knotts v. U.S. [128 Ct Cl 489], 121 F.Supp. 630 (1954). Offutt provides insightful words such as “assuring alert self-restraint.” Misconduct such as refusing rule enforcement, refusing EEO counseling and case processing, opposing review on the merits including by MSPB, making false claims, etc., is not “alert self-restraint.”
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When mental disorder exists, disordered behavior and symptoms are expected and foreseeable. For example, with “permanent destruction of brain tissue,” “Where the damage is severe,” “symptoms typically include” “Impairment of orientation” “for time” and “often also for place and person.” The local [TACOM] and MSPB behavior is clearly disoriented in these ways, including the treatment of me as unique. The very existence of AR 1-8 shows to the contrary. The extent and severity of their disorder is evident by their unresponsiveness to reality.
In the case at bar, employees [of TACOM and MSPB] have chosen to document themselves, thus precluding disputes that arise in verbal situations, where denial of statements alleged can occur. Here on 24 Sep 81, Mr. [Edward E.] Hoover documents himself by alleging, “The uniqueness of this case abrogates the normal situation to which this regulation speaks.” AR 1-8 makes clear the absurdity of his bizarre behavior–of unashamedly “repealing” a regulation.
Ed. Note: See also judicial rejection of employee action “equivalent to a repeal of the statute, [as] a continuing invitation to [action by] the company to forbear compliance with its provisions,” American Zinc Co. v. Graham, 132 Tenn 586, 589; 179 SW 138, 139-140 (1915).

Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662, 288 N.Y.S. 423 (1936), provides works that answer Mr. Hoover's odd assertion. “Counsel states that the proposition is a novel one. The above statement is made because it does not seem to have been directly passed upon.” The court gave short shrift to the assertion; the next sentence was that “the motions . . . are denied.” MSPB lacks such competence as to reject disorientation of time, place, and person, delusions, other deviant or bizarre behavior, or any aspect thereof, by local smokers. Delusions of grandeur in overruling the evidence that I am able to work is the cause of the situation; then management uses its own delusions of grandeur as the basis for even more weird behavior, such as paranoid repeal of rules.
Even before the Jones case, supra, there had been cases arising from dangerous smoker behavior. For example, see Eaton v. Lancaster, 10 A. 449 (1887); Palmer v. Keene Forestry Ass'n, 112 A. 798 (1921); Feeney v. Standard Oil Co., 209 P. 85 (1922); Keyser Canning Co. v. Klots Throwing Co., 118 S.E. 521 (1923); Adams v. Southern Bell Telephone & Telegraph Co., 295 F. 586 (4th Cir., 1924); Yore v. Pacific Gas & Electric Co., 277 P. 878 (1929); Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 F.2d 146 (10th Cir., 1931); Allen v. Posternock, 163 A. 336 (1932); and Triplett v. Western Public Service Co., 260 N.W. 387 (1935). Considering the pattern of cases continuing to the present, it is clear that asserting “uniqueness” is medically, mentally disoriented, and in law, arbitrary and capricious.
As “no reasons for the conclusion were given,” that “one-sentence determination” issued 24 Sep 81 “must also be rejected,” McNutt v. Hills, 426 F.Supp. 990 at 1004 (1977). Cf. Nat'l Ass'n of Food Chains, Inc. v. I.C.C., 535 F.2d 1308 at 1313-15 (1976). Also see note 33 in McNutt at 1005, referencing Day v. Matthews, 530 F.2d 1083 at 1086 (1976), “it is only equitable that any . . . uncertainty be resolved against the party whose action gave rise to the problem” as “in accord with the principle placing upon a party the burden of proving facts peculiarly within its own knowledge.” Since all the evidence, medical and legal, shows no “uniqueness,” the word “peculiarly” is particularly relevant here, considering that the source of the “uniqueness” claims is evidently some local mental aberration, delusion, or hallucination at odds with all known medical and scientific knowledge, including but not limited to the repeated publications of the Surgeon General.
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Data on schizophrenia and other psychoses provides insight into the assertions and behavior of culpable government employees. The 9 Apr 80 letter from EEOC official Henry Perez, Jr. noted “the agency's decision to terminate” me and concerning which I had appealed to [EEO, then to] MSPB. However, MSPB employees reviewing my appeal of “the agency's decision to terminate” me “do not respond to and are not motivated by normal stimuli.” One of the “normal stimuli” to which they did not respond is 5 CFR 1201.3 guidance on MSPB jurisdiction which includes review of adverse actions. The 23 Jul 80 MSPB decision [by MSPB Presiding Official Baumgaertner] shows “marked deviation from normal human behavior” in not only refusing to “ever consider the merits of appellant's allegations” on “the agency's decision to terminate” me, but also citing “other avenues for redress.” MSPB is the avenue for redress of adverse actions; the p. 3 reference reflects listlessness, difficulty concentrating on the duty to review, irritability at my appeal, indifference to reality and human considerations, and some sort of fantasy world of altered MSPB jurisdiction. The 23 Jul 80 decision is clearly callous.
The 23 Jul 80 pretense of no jurisdiction to review the adverse action of “the agency's decision to terminate” me is, of course, delusional. It is based on the underlying delusion that reasonable accommodation and rule enforcement “is not relevant.”
Ed. Note: MSPB's anti-rule-of-law behavior defies decades of case law, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).
Note the rule of law on person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982)

The [MSPB] decision expressly refused to consider accommodation under AR 1-8 such as the "recommendation of ways the agency had to accommodate appellant" by complying with AR 1-8 which “the agency failed to abide by.” EEOC on 23 Feb 82 noted the local violations along those lines. The 23 Jul 80 MSPB decision reflects the odd kind of behavior when “the patient withdraws from reality into a world of his own.”
Ref. Ernest R. Hilgard, Introduction to Psychology, 3rd ed (New York: Harcourt, Brace & World, 1962), p 525.

With such people, one tragic effect is that “Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.”
Ref. Lyle Tussing, Ph.D., Psychology for Better Living, 5th ed (New York: John Wiley, 1965), p 357.

A tragic consequence of dealings with such “inadequate persons” is harm to those around them and who come in contact with them. In my case, the harm has been to me and to my career, as well as the harm of impaired efficiency for my installation by the loss of my duty time. Loss of efficiency caused by smoking is also prohibited by AR 1-8; that prohibition is also being ignored.
Reference in the 23 Jul 80 MSPB decision to “other avenues” is delusional in another way. It is based on the fantasy world idea that insane smokers who refuse to enforce rules would consent to having their deranged behavior reviewed. Smokers are a danger to themselves and others; insane people who are dangerous are to be restrained by force if necessary.
Ref. Jacobs v Michigan Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979).

Having mentally ill people investigate themselves when they refuse to honor the first investigation (25 Jan 80) is senseless and reflects indifference to reality. The fact of "the agency's decision to terminate" me instead of implement that Report put MSPB on notice of the absurdity of the reference to “other avenues.” Indeed, malicious smokers went to extremes to prevent action to “ever consider the merits,” as the 23 Feb 82 EEOC decision noted. Veal v. Califano, 610 F.2d 495 at 498 ([CA 8] 1979), provides insight pertinent to the MSPB remark on “other avenues,” “this statement is most likely the rationalization of a sick individual.”
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Data on conditions such as schizophrenia, paranoia, and delusions of grandeur provides insight on the assertions and behavior of culpable government employees. There is “'a certain lack of harmony, integration, and coordination between” assertions. The 23 Jul 80 [MSPB, Martin Baumgaertner] decision says that the compliance process is “'not relevant,” while the 18 Jun 81 decision [6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] asserts that the process is completed. The 27 Jul 80 decision upheld the local view that compliance does not have to start; the 18 Jun 81 decision pretended that the process had not only started, but that the process had come to an end before the 23 Jul 80 decision was even issued! Management refusal to even start the process is, of course, clear. The 23 Feb 82 EEOC decision [Dockets 01800273 et al.], p. 2, references the 25 Jan 80 [agency, USACARA, Norma Kennedy] “recommendation of ways the agency had to accommodate appellant”' which “'the agency failed to abide by.”
Management locally [TACOM] agrees with the 23 Jul 80 [MSPB, Baumgaertner] claim that even beginning the process of implementing the guidance is “not relevant.” The 23 Jul 80 decision is sinister. Management has made clear to me that it refuses to begin compliance--because MSPB does not care. 0f course, management had disagreed with AR 1-8 even prior to the wrongful MSPB reaction.
When MSPB decisions conflict so wildly (the process need not even start vs. the process has been completed), indifference to reality is clear. Clarity of thought is lost in the confusion. The lack of regard for rules reflects a serious loss of self-control on the part of deciding officials. In the real world, rule enforcement is required; so is the subsequent “reasonable accommodation” process. Disregard of such duties involves a withdrawal “from reality into a world of” their “own,” i.e., “a world of fantasy,” or a “make-believe world.” Ignoring the duty to begin the process and calling that duty “not relevant” reflects a “'marked deviation from normal human behavior.” It is certainly a “most marked deviation from normal . . . behavior” expected of deciding officials. It is “severe” when deciding officials “do not respond to and are not motivated by normal stimuli” such as rules they are responsible for enforcing.
Pretending that the unstarted process is already completed when the installation [TACOM] officials had not even considered starting the process and thus had not started it also reflects disorientation. The assertion also arises from withdrawal “from reality into” “a world of fantasy.” EEOC on 23 Feb 82 [Dockets 01800273 et al.] noted agency opposition to even considering “the merits.” MSPB had similar evidence––the whole premise of the local input was opposition against action to “ever consider the merits.” The essence of what was needed was to “consider the merits.'” When MSPB missed the whole point, that is a “marked deviation from normal human behavior” and especially for supposedly professional deciding officials. MSPB unresponsiveness shows that the involved MSPB employees [Martin Baumgaertner, Ronald P. Wertheim, Ersa H. Poston, etc.] “do not respond to and are not motivated by normal stimuli,” including obvious. admitted opposition to “ever consider the merits.”
Local employees opposed to the rules noted the odd MSPB behavior. They had refused compliance before, and they continued to refuse. The 23 Jul 80 MSPB [Baumgaertner] decision especially reinforced local views and guaranteed continued refusal to begin compliance thereafter. Local personnel made that fact clear.
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5 CFR 752 evidences that federal employees are not supposed to endanger themselves, property, and others. When the government allows violations, it is not even being neutral, and it is clearly not meeting its duty under law. Even clever slogans such as “No Smoking—Oxygen in Use” are ineffective to control smokers. They are not effective signs in offices; and they are not effective for a reason. Smokers do not have a choice not to smoke; they have lost that important capability. They do not protect themselves; they refuse to protect others. That fact explains the MSPB [Wertheim, Poston, et al.] fabrication of actions taken; none had been; the lacking was clearly improper, so MSPB [Wertheim, Poston, et al.] invented claims.
Consider a smoker who has been warned several times in a hospital not to smoke under her oxygen tent. Consider even having removed all cigarettes and matches from the table. But consider the failure to have confiscated tobacco from the smoker's purse. Would a smoker nevertheless try to smoke even under such circumstances. When smokers kill themselves at hundreds of thousands per year, the answer is obvious. Of course a smoker would smoke in an oxygen tent. An example is cited in Evans v. Newark-Wayne Community Hospital, Inc., 35 App. Div.2d 1071 [316 NYS2d 447] (N.Y. 1970). Not every smoker burns himself to death smoking in a hospital. Sometimes the consequences are not fatal: There is only a fire. See Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (N.D. 1965).
Smokers refuse to protect themselves. They refuse to protect me. That explains why management refused "advising fellow workers and visitors not to smoke in appellant's presence," for example [citing a lie invented by Wertheim, Poston, et al.]. Smokers are not sufficiently rational to have done this. Indeed, even if it had been done—which it was not—it would be a significant question whether smokers would have the capacity to comply. When removing tobacoo is not enough, because smokers hide tobacco in purses, a mere ["advising" or] order would be inadequate. Enforcement of TACOM-R 190-4 on property control would be essential. Management officials who themselves smoke in my presence would also have to be controlled. My complaints of smoking in my presence were ignored; who will cause enforcement? Since [TACOM] personnel officials refuse enforcement, they now as of 24 Sep 81 are now so bold as to admit that my complaints such as on smoking in my presence were denied; relief was refused. Yet MSPB has given credit for [doing] what [TACOM] management now brazenly admits [refusing]. Management is clearly confident that MSPB is in its corner. It now [by ex parte means] feels free to deny that action was taken concerning smoking in my presence. MSPB wrongdoing on TACOM's behalf has emboldened TACOM to stonewall even more.
“Working and smoking don't mix” [says William A. Weis, Ph.D., C.P.A., “Profits up in Smoke,” 60 Personnel Journal (#3) 162-165 (March 1981)]. Consider the department store Santa Claus. On his first day of work, it was important to him to step out for a cigarette. He was not concentrating on the inferences to be drawn from wearing a beard. The smoker set fire to his false beard, Kaletha v. Hall Mercantile Co., 157 Minn. 290 (1923), 196 N.W. 261. Smokers hurt people. One smoker on a bus hurt a passenger with ashes from his pipe. Like TACOM and MSPB, the authority (the driver) who could have solved the problem, refused to do so. Like TACOM and MSPB, he chose to do nothing. See Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662 (1936), 288 N.Y.S. 523. Liability against dangerous smokers arises in a multitude of ways. Consider the situation of a country club that sold liquor to an underage nonmember. (Here is the alcohol link again.) A woman's dress was set on fire when the drinker lit a cigarette, Tyson v. Plymouth Country Club, 57 Montg. (Pa.) 140, 41 Pa. D & C. 116 (1941). Smokers are not capable of protecting themselves even when 90% of smokers reportedly want to stop smoking; they are clearly not capable of protecting others. MSPB was notified in May and August 1980 of smoker mental problems; MSPB chooses to take smokers' views as of greater weight nonetheless. It is not prudent for MSPB to go “perilously close to an area of proscribed conduct,” a valuable insight from Boyce Motor Lines, Inc. v. U.S., 342 US 337 at 340 [72 S Ct 329, 331; 96 L Ed 367] (1952).
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(p 326)

Muscare v. Quinn, 520 F.2d 1212 (7th Cir., 1975), provides insight. That employee was suspended with undue haste. At 1216, the Court quoted the appellant's comment in his brief that: “The present case hardly presents an emergency requiring the . . . Department to act without any prior process, where the . . . Department utilized the services of” the appellant “for a period of . . . months” before. The Court noted the precedents (something local [TACOM] and MSPB employees do not do) and found “a matter of considerable dispute in the decided cases.” However, because of the unseemly haste, “we find it unnecessary to resolve that controversy in this case . . . .”
Mr. [Henry] Perez [of EEOC] noted “the agency's decision to terminate me” as long ago as his 9 April 1980 letter. The civil service rules [e.g., 5 USC § 7513] on advance notice, specificity, right to reply, etc., had not been followed. Indeed, considering the existence of AR 1-8, it is evident that local employees acted on their own. They have provided false and deceptive data to MSPB; such misconduct by them in dealings with the agency above them in thus foreseeable.
In this case, the various cases about the harm by smokers and by smoking behavior do not show “considerable dispute.” The cases are consistent in finding that smoking is not a business necessity, hence, “undue hardship” [claim] is false as a matter if law. All cases presuppose that management can control smoking, i.e., “workmen are not employed to smoke.” See, for example, such cases as:
Palmer v. Keene Forestry Ass’n [80 NH 68], 112 A. 798 (1921)
Feeney v. Standard Oil Co. [58 Cal App 587], 209 P. 85 (1922)
Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 [31 ALR 283] (1923)
Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 F.2d 146 (1931)
Allen v. Posternock [107 Pa Super 332], 163 A. 336 (1932)
Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935)
Jones v. Eastern Greyhound Lines, Inc. [159 Misc 662], 288 N.Y.S. 527 (1936)
Vincennes Steel Corporation v. Gibson [194 Ark 58], 106 S.W.2d 173 (1937)
Petition of Republic of France, 171 F. Supp. 497 (1959)
Shimp v. New Jersey Bell Telephone Company [145 N J Super 516], 368 A.2d 408 (1976)

Here, the duration of the endangerment (once a proper time orientation is considered) evidences the unseemly haste. Reprisal is clear––anger at my winning the favorable Report 25 Jan 80, anger at my noting [TACOM] Dr. [Francis J.] Holt's evident malpractice, normal smoker irritability, etc. Thus, mute local [TACOM] smokers hoped to repeal the rule enforcement process and the reasonable accommodation duty. The duration and the disregard of intervening events confirms malice, including malice to cause a situation financially worse than cited at 1215, note 3, showing judicial concern at a mere $1,400 situation.
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(pp 328-329)

Adverse actions are not valid when they are found to be arbitrary, capricious, an abuse or discretion, unsupported by substantial evidence, without a rational basis, improperly motivated, contrary to law, or not in substantial compliance with procedural regulations. The MSPB pattern of behavior is disconnected from these well established legal principles. A review of pertinent precedents shows that one or more violations invalidates the action. Here, in this case, the many violations are so numerous as to be burdensome in simply listing the multiple errors with precedents for rejection in each area.
The local and MSPB pattern of falsification, confabulations, delusions, hallucinations, and/or other deviance brazenly defies the principles on evidence cited at 5 CFR 1201.56. The facts and law establish clearly my position, and show the multiple fallacies of the local [TACOM] views. I have met the burden or proof, though it has been improperly imposed on me; the local offenders have not met the burden ot proof, and cannot meet it in fact or as a matter of law.
The fabrications, confabulations, and/or other deviance are not only the entirety of the local case in overruling the facts based on the local delusions and/or insubordination, the deviance is doubly improper. It arises as the tainted fruit of ex parte communications. Opportunity for cross-examination of witnesses has been refused since the beginning. The local and MSPB misconduct denies fundamental rights. When local and MSPB falsification exists, the individual must have “an opportunity to show that it is untrue. . . . this is important in the case of documentary evidence” and “testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy,” Green v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).
The Supreme Court has consistently rejected the abuse of rights that is clearcut in this case. See cases such as Mattox v. United States, 156 U.S. 237 (1895); Kirby v. United States, 174 U.S. 47 (1899); and others for the principle (higher ideation) involved. The bizarre assertions by MSPB [Martin Baumgaertner, Ronald P. Wertheim, Ersa H. Poston, etc., 6 MSPB 626; 7 MSPR 13 (18 June 1981), etc.] on what has happened are contrary to reality and foreseeable smoker behavior; even if smoker mental disorders were not well-established, the assertions 18 Jun 81 “can be primarily established only by witnesses.” (Principles of law and regulations must be found by other means; it is clear that MSPB delusions of grandeur produced references to non-existent principles of law, to non-existent “hea1th standards,” etc.) Cf. State v. Olson, 144 N.W. 661 at 669-670 (1913) for pertinent limitations of evidence in a particular case on a widespread matter. For example, since “Workmen are not employed to smoke,” the views of a person such as Dr. Holt that a nonsmoker such as me cannot work at what “not employed to” is nonsensical and absurd. That such claim is disconnected from reality is clear even if I were to provide no evidence at all on the facts of the matter. The “overwhelming evidence” was [judicially] noted as long ago as Austin v. State, 48 S.W. 305 (1898), in Larus & Brother Co. v. F.C.C., 447 F.2d 876 (1971), and in other cases.
A person such as me “is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence . . . when . . . the exact nature” of the claims, includes disconnected claims “only after” the decision, words borrowed from Nat'l Rlty & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (1973), a principle consistent with the above cases.
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(pp 331-332)

The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Criminal views such as in premeditating their behavior provide insight on the premeditation displayed by smokers and by local [MSPB] and MSPB offenders. At 227, “In some instances, a criminal may plan in advance to use mental illness as a defense if he gets caught. He knows that others already regard his behavior as deviant, if not bizarre.” At 449, “The more we know of the criminal mind, the more we understand that a man may plot and scheme for a very long time.”
At 453, “all his life, the criminal has been calculating, scheming, and controlling. His behavior may appear to be impulsive or compulsive, because it is sudden to the observer.” Such data provides insight concerning the weeks of delay after the 25 January 1980 USACARA Report, and before the adverse action effected 17 March 1980. Local [TACOM] smokers were furious that “Mr. Pletten has established that” “the agency's smoke-filled environment which the agency refuses to alter” “does constitute a safety hazard to him,” p. 7 of the Report, juxtaposed with p. 6 of the 8 April 1983 EEOC Decision [Docket 03.81.0087, 83 FEOR 3046]. The meaning of what USACARA said was clear. It was unmistakeable. When I refused to “say” that the hazard was resolved, the “suspension or termination” was effected [Benacquista's extortion admission].
At 453, “Incipient criminal thinking has preceded the crime in question.” “No crimes have occurred when they were thought of for the first time. No criminal is foolish enough to act so rashly. Incipient criminal thinking has preceded the crime in question. The idea has been considered. but rejected, many times before. . . . What has been so striking and consistent is that, to a man, our criminals have eventually revealed to us that what they did was an exercise of choice, and that all crimes were products of prior thinking.” At 516, “the criminal is using the tactic of trying to make someone other than himself the target of discussion.” At 516-7, “Another tactic is threatening to ruin the reputation of the” victim “or to embarrass him . . . .” Such data provides insight on the installation [TACOM] behavior directed against me for seeking implementation of the pertinent rules.
At 450, “The criminal is mentally ready to commit crimes of one or more types. He may not have chosen a particular time and place, but he is ready for any occasion. . . . A variety of circumstances determine the commission.” At 453, “Any of them can do almost anything at any time, owing to the violating patterns that have been present in their thinking. When a ‘Madison Avenue’ executive cracks someone's skull, it is no surprise to us, because we know that, even if he has never been violent before, violence has been present in his thoughts as a way in which he would like to deal with the world.” At 450, “The crime itself appears to be impulsive, because of its suddenness, but the fantasy pattern has occurred repeatedly. . . . To the observer, the crime may be totally out of character for a person who has not been a ‘criminal.’ But in every case that we have studied, we have established that the crime at issue was preceded by long-standing violating patterns in thought and action.” Such data provides insight on the falsifications as committed by local [TACOM] and MSPB offenders. Such falsifications are foreseeably part of “long-standing violating patterns in . . . action.”
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The 23 June 1983 issuance from Mr. V. Russell displays and parades his symptoms. On p. 6, he refers to “conduct on which the proposed removal is based,” but the remainder of his decision shows bizarre disconnection from “conduct.” EEOC has already noted that MSPB behavior and conduct “is not supported by the evidence in the record as a whole,” 8 April 1983 [decision] letter, p. 6.
There has been no advance notice, and no opportunity to reply, to charges concerning any “conduct.” No specificity relative to any “conduct” by me has been provided. The installation provided none at the time of the initial “suspension or termination” in March 1980, see Mr. Hoover's letter. The installation provided no data on my “conduct” with Ms. Averhart's letter. (As a subordinate of Mr. Hoover, Ms. Averhart is clearly inappropriate as issuer of the November 1981 letter. Moreover, the decision for “suspension or termination” had already long since been made, and effected.)
Mr. V. Russell provided no data on my alleged “conduct.” Thus, his reference to “conduct” “came too late in the proceedings.” He has “unfairly deprived” me of the data required [by law, 5 USC § 7513] to be provided in an advance notice (i.e., years ago) when he provides only the vaguest “nature of . . . alleged violation only after the hearing,” Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (CADC, 1973). Mr. Russell's charges as devised by him are not “exact,” but are impoverished, fragmentary, and disconnected from data in the job description relative to actual duties and working conditions (environment); worse, “after the hearing” [1982 depositions] in this case means long, long after [June 1982], indeed, after the decision has already been made [September 1979].
“To merit judicial deference,” Mr. Russell “must operate upon, not seek to replace, record evidence,” Nat'l. Rity., supra, at 1267. There is no “record evidence” concerning “exact” or any other “conduct” of mine.
Under Michigan law, had there been evidence of “conduct” that was pertinent, unemployment compensation could not have been granted. But the installation has conceded that such was granted, despite the numerous installation appeals. No evidence of my “conduct” exists. That is why none has been provided. MSPB is responsible to adhere to the “record evidence,” Horne v. MSPB [221 US App DC 381], 684 F.2d 155 (CADC, 1982). Here, the agency “never exercised its discretion” to file any charges at all, vague or “exact,” concerning “conduct.” “The Board adopted the” “conduct” “rationale after the fact,” as “there was nothing” in the “record evidence,” Horne, supra, at 158, juxtaposed (i.e., connected) with the MSPB assertion of “conduct,” and the Nat'l. Rlty. phrase, “record evidence.”
In “in this case had several rights that require protection . . . the Board . . . must determine whether the agency deprived petitioners of those rights,” Horne, supra, at 159. Rights include specificity re “conduct,” nexus with “employment,” compliance with AR 1-8, implementation of the 25 Jan 80 USACARA Report even if it was wrong (Spann v. McKenna, 615 F.2d 137 [CA 3, 1980]), etc. Smoking is initially to be “permitted” only if criteria set by rules and noted by EEOC and USACARA are met. The repeated references to the danger show that the criteria have not been met. See note 4 in Horne, re when it is “wasteful to send a decision back . . . for further action.” Here, simply halt the wrongfully “permitted” endangerment, discomfort, etc.
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The record is clear that MSPB officials “made a factual determination, without benefit of a hearing or the compliance with any of the applicable standards of proof required of an agency,” as noted by the 8 April 1983 EEOC decision, p. 4. Such bizarre behavior by MSPB officials is “most troublesome.” EEOC people are “unable to perceive how the Board was able to reach any conclusion regarding the agency's” behavior [p 5]. The odd MSPB assertions are “not supported by the evidence in the record as a whole,” p. 6.
The EEOC analysis is foreseeable from the data on smoker mental disorders. Data on mental derangement is an efficient predictor of smoker behavior. As I have pointed out previously, EEOC is not by law charged with the responsibility to maintain psychiatrists on its rolls. It is foreseeable that laymen at EEOC might not “perceive how the Board was able to” say what it did. However, as I have pointed out previously, the answers are found in the realm of psychiatry.
“It is not necessary for a person who is not a psychiatrist to know all the rules and the special [warped] laws of logic that the schizophrenic uses in support of his complexes or ideas, which to us seem delusional. It is important, however, to keep in mind that” what “seems absurd to us is expressed . . . by the patient . . . To him, his idea is rational, unquestionable, based on an absolute conviction of its truth. His unconscious motivation, a desire that cannot be controlled . . . obliges the patient to use unusual ways of thinking,” p. 65, “Understanding and Helping the Schizophrenic, [New York: Basic Books], 1979, by Dr. Silvano Arieti. At 46, “The patient does not attempt to demonstrate the validity of his ideas. He 'knows'; that is enough. His knowledge comes from an inner, unchallenged certitude that does not require demonstration. 'He knows.'”
Some of the MSPB assertions are “absurd,” “delusional,” and insane on their face [prima facie]. The MSPB claim about the installation having banned smoking in the personnel office when the case arises from long refusal to do such, is obviously parading severe mental problems, and is one example among several. Smokers are not sane enough to protect themselves. Derangement is obvious from the bizarre MSPB claim [by Ronald P. Wertheim, Ersa H. Poston, et al.] that they [smokers] are protecting others, such as me, when the entire installation case is based on the unsupported grunting that it “cannot” do so.
Untrained laymen [untrained in abnormal psychiatry], including EEOC officials, foreseeably would not “perceive how the Board was able to” assert what it did. Untrained people foreseeably, commonly do not “perceive how” insane people and alcoholics with delirium tremens, for example, say what they say contrary to reality. “It is not necessary . . . ."
In a schizophrenic, when there is “an inner, unchallenged certitude that does not require demonstration,” especially on the subject of his personal delusions, such person would foreseeably not provide “benefit of a hearing” or follow “applicable standards of proof.” The “applicable standards of proof” involve “demonstration,” whereas an insane person with “an inner, unchallenged certitude . . . does not require demonstration.”
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The 8 April 1983 EEOC decision took note of the bizarre behavior of MSPB officials, which MSPB behavior does “not respond to and” is “not motivated by normal stimuli,” words borrowed from Dr. Lyle Tussing, in Psychology for Better Living [New York: John Wiley], 1959, p. 345. MSPB officials clearly derive no meaning from law and evidence, and thus do not display compliance with and responsiveness to such data.
EEOC noted various bizarre MSPB behaviors. At p. 4, EEOC says, “Initially we note that the Board made a factual determination, without benefit of a hearing or the compliance with any of the applicable standards of proof required of an agency . . . .” A “hearing” request as made by me is a “normal” stimulus which sane persons would have properly responded to and been motivated by. To sane people, the lack of a hearing is a glaring omission or gap that would foreseeably be noted. As is foreseeable, EEOC did note and comment on the lack of a hearing. The MSPB failure to foresee such foreseeable reaction is consistent with data from Dr. Tussing on “those individuals who are psychotic (insane in the legal sense of the term). These persons are suffering from a real derangement of their mental lives . . . Generally, they have very little insight. . . .”
MSPB inadequacies include disregard “of the applicable standards of proof required of an agency . . . .” The whole case hinges on the fact that I have made a “personal determination” that I do not want to be forced to smoke any more.
MSPB behavior displays “a real derangement of their mental lives,” which is foreseeable considering that people have “become deranged from smoking tobacco,” data from Dr. Samuel Solly, in The Lancet, Vol. 1 for 1857, p. 176, 14 February 1857. MSPB behavior, including but not limited to delusions, hallucinations, etc., does “affect third persons in much the same sense as a disease may be communicable,” words from Mcintosh v. Milano [168 N J Super 466], 403 A.2d 500 at 512 (1979). I no longer want to be forced to smoke. MSPB ignored “the applicable standards of proof,” and in a display of severe mental aberration, simultaneously claimed that a prohibition of smoking had taken place and was an “undue hardship.” The abruptness of such claims precluded my right to respond, in a reply to a proper advance notice. The disease which is smoking has been “communicable” from local offenders, and has spread so that the words “undue hardship” even appear in the EEOC decision. While EEOC rightly demands proof, such proof can never be provided as a matter of law. AR 1-8 does not provide for its own disregard, if compliance would somehow be an “undue hardship” under a definition nowhere contained in AR 1-8. (Like analysis applies to the multiple other rules--on safety, crime, mental illness, etc.) Smokers are abnormal and diseased. Controlling diseased people is not at all an anticipated function of the [safety law and AR 1-8] guidance concerning which, the phrase “undue hardship" may sometimes arise as an [invented, fabricated, fraudulent] issue.
I do not want to be forced to smoke any longer. The bizarre MSPB claims in that regard are “far from accurate and, moreover, even contradicted by the record . . . .” MSPB officials “do not respond to and are not motivated by normal stimuli” such as the evidence that local offenders want to force me to agree to continue to be forced to smoke, which is clearly evident from their opposition to “compliance with any of the applicable standards of proof” which is, in turn, evident from their opposition to a hearing and MSPB jurisdiction.
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The 8 April 1983 EEOC decision provides insight consistent with data on smoker insanity. As a fundamental matter, EEOC noted at p. 5, “Insofar as the record is incomplete and often contradictory, the Commission is unable to perceive how the Board was able to reach any conclusion regarding the agency's [MSPB-pretended but in fact non-existent] efforts to accommodate petitioner.” The agency had not even reached prerequisite compliance under agency guidance, for example [p 5], “The agency presented no evidence that it considered the rights of the non-srnokers or even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others,” i.e. , protection at a point far before ever the issue of even small intermittent amounts of sick leave might be used by nonsmokers harmed by second-hand smoke, might even be reached.
EEOC has clearly pointed to a fundamental aspect of mental derangement. EEOC noted the void in the record. Local and MSPB deciding officials have not displayed such mental capacity. They “seem feeble-minded,” words borrowed from Dr. Lyle Tussing, in Psychology for Better Living, 1959, p. 357, in his discussion on schizophrenia. Many insane people “are . . . like cattle, sitting around until someone tells them what to do next,” words from pp. 361-362. Luckily for me, EEOC has the function that “tells” MSPB “what to do next,” since MSPB officials “are . . . like cattle,” disregarding the void, and evidently not even perceiving the inadequacies.
EEOC shows the local and MSPB inadequacies. “The agency presented no evidence . . . .” also, “the record is incomplete and often contradictory . . . .” Data on insanity is an efficient tool for analysis of the local and MSPB inadequacies noted by EEOC. See the book, Understanding and Helping the Schizophrenic, 1979, by Dr. Silvano Arieti, which helps in “Understanding” local and MSPB behavior. At 46, “The patient does not attempt to demonstrate the validity of his ideas. He 'knows'; that is enough. His knowledge comes from an inner, unchallenged certitude that does not require demonstration. 'He knows.'” Such data is precisely on point in understanding the void and the inadequacies in the record, which trained local and MSPB offenders, “like cattle,” “seem feeble-minded” about, since they do not display perception of the inadequacies. Dr. Arieti at 43 notes, “Although the patient has undergone a change that has made him become ill, he does not realize that a transformation has taken place within him.” Local and MSPB offenders were undoubtedly professionally trained on legal cases, and undoubtedly displayed back then during their training [e.g., in law school], at least a satisfactory level of competence, to have graduated from such training [with law degrees]. However, the record shows “a transformation.” Clearly, “a deteriorative process” can come about, words from Hicks v. United States, 511 F.2d 407 at 413 ([DC] 1975).
Ed. Note: Hicks is in the Tarasoff, Rum River, et al. line of cases, affirming government duty to protect others from mentally ill persons in its control, which on-duty employees are.

A deteriorative process is consistent with data on brain damage, for example, from Dr. James C. Coleman, in Abnormal Psychology and Modern Life, 5th edition, 1976. Dr. Coleman repeatedly uses the word “impairment,” which is a term consistent with “a deteriorative process.” Dr. Coleman uses the phrase, “fill in gaps,” in a discussion on “permanent destruction of brain tissue . . . Where the damage is severe . . . ,” pp. 460-461. In such cases there is “a tendency to confabulate . . . to fill in gaps.” Here, the mental problems displayed in the local and MSPB behavior show “gaps” concerning which false claims of action were made [e.g., June 1981], false claims foreseeable from the [known] “tendency to confabulate” when brain “damage is severe.”
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The bizarre and delusional rambling word salads that have emanated from MSPB [e.g., 6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] reflect paranoid views and fragmentary and disconnected ideas tantamount to an insane flight of ideas as described in medical literature concerning insane individuals. The absurd claims of actions taken as made in the weird 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13] “were not even attempted” actions, as noted by EEOC [Docket 03.81.0087, 83 FEOR 3046] on 8 April 1983, in rejecting the MSPB claims. In mental disease, delirium tremens, depravity, and/or other deviance, claims foreseeably would be “not supported by the evidence in the record as a whole.” MSPB word salads are not consistent with the issuances from other reviewers (MESC, USACARA, EEOC, OPM, etc.) The problem is at MSPB. MSPB officials [e.g., Wertheim, Poston, etc.] have been displaying and parading that “they do not respond to and are not motivated by normal stimuli” such as a “record as a whole.” When people “do not respond to and are not motivated by normal stimuli,” they are foreseeably “suffering from a real derangement of their mental lives,” and are foreseeably “psychotic (insane in the legal sense of the term),” borrowed from Lyle Tussing, Ph.D., in his 1959 book, Psychology for Better Living, p. 345.
None of the claims of actions taken as cited in the 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13] were true. The actions “were not even attempted,” not even after MSPB [Poston, Wertheim] made the claims. They “were not even attempted,” not even after I relied on the claims, and accepted them by my 7 July 1981 note. MSPB indicated [6 MSPB 626; 7 MSPR 13] that the alleged actions “would . . . reasonably be possible,” and indeed, that they had already occurred. I did not remain silent. My efforts show compliance with the principles cited in Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981), even before the Court comments borrowed above.
The weird MSPB notions [6 MSPB 626; 7 MSPR 13] are “not supported by the evidence in the record as a whole.” Such lack of support is foreseeable in delusions and hallucinations. On 25 January 1980, USACARA had already noted local [TACOM] violations. However, MSPB offenders “do not respond to and are not motivated by normal stimuli.” In such a situation, MSPB offenders are not even functioning mentally as well as “like cattle, sitting around until someone tells them,” words borrowed from Dr. Tussing, supra, pp. 361-2. MSPB offenders are not doing as well as “like cattle, sitting around until” “normal stimuli” occur to “respond to and” be “motivated by.” With MSPB offenders, even when “someone tells them what to do next,” they don't do it.
Col. Benacquista's words provide insight on the bizarre MSPB failure/refusal to “respond to and” be “motivated by” rules such as AR 1-8, “It doesn't make sense to have a Command getting involved in the personal habits of its employees, you know.” [Deposition, p 25]. AR 1-8 “doesn't make sense to” local and MSPB offenders. Thus, none of the MSPB claims [6 MSPB 626; 7 MSPR 13] were true. They were not intended to be true, based on their behavior as evident from the record in the various cases, considered as a whole. Dr. Holt feels that employees “have to be able to” “tolerate some smoke” based on “the issues that would be raised by smokers” if AR 1-8 were obeyed. Nonsmokers must “tolerate the work environment as is,” Dr. Holt's impudent defiance of AR 1-8. Nonsmokers must “‘agree that'” the installation “‘is reasonably free of contaminants,’” or else be fired, an admission from Col. Benacquista. Hence, compliance actions “were not even attempted.”
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In schizophrenia, “when a statement or a belief that seems absurd to us is expressed with great sincerity and even defended by the patient . . . To him, his idea is rational, unquestionable, based on an absolute conviction of its truth. His unconscious motivation, a desire that cannot be controlled or from which he cannot escape, obliges the patient to use unusual ways of thinking,” data from Dr. Silvano Arieti, in Understanding and Helping the Schizophrenic, 1979, p 65. At 46, “The patient does not attempt to demonstrate the validity of his ideas. He 'knows'; that is enough.” Such data provides insight on the bizarre MSPB behavior pattern.
EEOC on 8 April 1983 called attention to various odd MSPB assertions. For example, “In a footnote, the Board summarily dismissed other accommodations [compliance actions] . . . stating, 'The record is silent as to the viability of these alternatives since petitioner never raised them for consideration and therefore the agency was unable to respond.'” EEOC noted disregard of the pertinent guidance, as well as lack of a hearing to present evidence, noncompliance with the 25 January1980 USACARA Report, etc. Moreover, in addition, the severity of MSPB unresponsiveness to normal stimuli is clear from the fact of the “suspension or termination” imposed. The “suspension or termination” imposed meant that the reasonable accommodation process had not even started. Even the prerequisite process had not even started. Based on the malicious local behavior in reprisal for my seeking implementation of AR 1-8 and the 25 Jan 80 Report, "petitioner no longer worked at the agency.” Non-employees are not entitled to pre-“other accommodations,” much less, to “other accommodations.” Thus, the process never started; MSPB ignored that [obvious fact, and ridiculed my effort to get TACOM to begin the compliance process].
The 25 January 1980 Report had made clear what the EEOC letter of 8 April 1983 points to, p. 5, “Clearly, the agency had the authority to ban [cease permitting] smoking from its buildings.” That Report had successfully refuted the local position insubordinately [and knowingly falsely] claiming a lack of authority to implement AR 1-8. Although Prewitt v. U. S. Postal Service, 662 F.2d 292 at 308 [27 EPD 32,251] ([CA 5] 1981), had not been issued, I had aiready succeeded in “coming forward with evidence” (i.e., the 25 Jan 80 Report), as EEOC alludes to [p 2].
The severity of the mental derangement of MSPB is clear from what then happened. MSPB rejected even considering the issue of “reprisal,” without even allowing a hearing. Reprisal is obvious, as the installation has never come forward with any position other than what has already been rejected [by, e.g., USACARA, MESC, OPM, etc.]. If the installation has anything else, I am still waiting. Prewitt, supra, connotes the agency responsibility to provide some basis for its refusal to act, prior to a “suspension or termination.” Only if I were to “remain silent,” would there even be a remote likelihood that adverse action could follow. Nay, such could not follow; see pp. 309-310, a person would need to have “a handicap that prevents him from meeting the physical criteria for employment.” “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petrol. Corp., 49 F.2d 146 (193l). Smoking is not a “business necessity.”
Ed. Note: See 21 March 1983 listing of pertinent cases.

An advance notice [as mandated by another TACOM- and MSPB-ignored law, 5 USC § 7513] would have to show some job nexus, but there is none, as a matter of law. MSPB “does not attempt to demonstrate the validity of" the innuendos to the contrary.
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Anglo-Canadian Shipping Co. Ltd. v. Federal Maritime Commission, 310 F.2d 606 (9th Cir. 1962), provides insight. At 613, “What we find lacking here is compliance with those provisions of the Administrative Procedure Act [5 USC § 706] which call for the production of evidence and the making of findings based thereon to support the conclusions of the administrative body.” [Compare Barnhart v U. S. Treasury Dept, 588 F Supp 1432 (D CIT, 1984).] Neither local officials nor MSPB show compliance with the pertinent duties. OPM, MESC, EEOC, and USACARA have shown [found] local failures. Those failures and deficiencies are longstanding. There is a pattern. The pattern of errors has been noted by USACARA and EEOC, which told the local officials to take corrective action. If any of what MSPB has asserted is true (and IT IS NOT) as to corrections taken, “There must be an abundance of available evidence to disclose just how” such was done. Once the violations are halted [as MSPB knowingly falsely alleged 18 June 1981], why was I not allowed to return?
At 6l3, “The record is wholly wanting [lacking] in any information that might answer these questions, but we think we can take judicial notice that evidence on this subject is obtainable, available, and can be procured.” (No doubt—other reviewing institutions have found and examined the evidence—they found violations.) “As the Supreme Court has said in matters calling for administrative determinations similar to this one: 'There must be a full hearing. There must be evidence adequate to support pertinent and necessary findings of fact.' Morgan v. United States, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288. This requirement of hearing applies to the respondent . . . .” (MSPB admits the hearing requirement at 5 CFR 1201.24(c), but refuses to obey its own rule.) “Not only was there a want [lack] of hearing and evidence,” the Court continued, “but also a complete failure . . . to conform to the requirements of . . . the Administrative Procedure Act . . . whereby parties are afforded an opportunity to propose findings and to note exceptions to decisions or recommended decisions.” In my case, there was no advance notice, so no opportunity to reply. MSPB changed the findings so completely from reality as to be directly contrary to the position taken by local officials. The 23 Jul 80 decision considered the rules and compliance “not relevant.” [This attitude defies decades of case law, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02 (1974)]. The 18 Jun 81 MSPB decision pretended that the actions accepted 7 Jul 81, though not needed for ability to work, had been done. These diametrically opposed positions are clearly false and wrong, and intentionally so. Lack of specificity was objected to by me; instead of MSPB acting with integrity and admitting its errors, it has chosen a pattern of even less specificity.
Blunted and incoherent decisions have no weight. There is not even an attempt at showing compliance with the rules including but not limited to each aspect of the OSHA “mixture” guidance, with specific reference to a pattern of daily, even hourly test results. There is no showing that endangerment has halted. The goals are to be achieved, by whatever means necessary. A ban on the causative behavior is what is fixated on, when neither local nor MSPB employees have made a showing that that is the only method of achieving the regulatory goals. Seeking enforcement of the regulatory goals was and is the entire sum and substance of the requests for corrective action during and after the June 1979 grievance as upheld 25 Jan 80. Judicial insight at 617 rejects “mere expressions of opinion” which are clearly wrong concerning a closed [won] grievance.
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(p 341)

MSPB and TACOM disrespect for AR 1-8 and the 25 Jan 80 Grievance Report is, of course, obvious. One disdainful remark against the rules is at p. 4, footnote 4, of the 18 June 1981 bill of attainder. What the Grievance Report uphold, MSPB snubbed. At 12, the Grievance Report rightly noted the decision authority of a "personal determination." MSPB says I merely "claimed." Perhaps MSPB officials are unaware of American legal principles. People make "personal determinations" on who to vote for; such decisions are final and binding and not subject to governmental challenge, disagreement, or interference. The government is compelled to honor such decisions! it has "no choice." People engage in freedom of speech; people engage in freedom of the press. It is deliberate, wanton "overbearing" behavior to trivialise a right as merely what the citizen "claimed." Such remarks are intentionally contemptuous.
Relative to voting, speech, the press, discomfort, unreasonable annoyance, etc.—in America—the way the government is informed is by verbal and/or written notice from the citizen. Discomfort and unreasonable annoyance involve "a personal determination to be made by that individual." That is how violation of that aspect of AR 1-8 is brought to management attention—especially when mentally disordered officials refuse to do studies. The violation is occurring before the report is made to management. Once the report is made, it is management's duty to halt the violation. This is what TACOM and MSPB refuse to do; thus, they fake having done so, although in a slipshod way, so the falsity of their pretenses is made clear on review. "Once the conditions . . . are met, the duty . . . is . . . mandatory," Matter of Knust, S.D., 288 NW2d 776, at 778 (1980).
An intellectually honest footnote 4 wuld have observed the fact of the non-resolution of the endangerment, discomfort, and unreasonable annoyance, without the use of knowingly offensive word "claimed." The fact of resolution is not apparent from the record; the record shows that endangement, discomfort, and unreasonable annoyance caused by smokers continued. Resolution will be apparent only when I report a halt to such prohibited behavior. Management makes clear the problem is installation-wide; it is not something merely "claimed" by me considering the input however distorted from persons such as Messrs. Holt and Shirock. See p. 22 of ny 9 May 1980 letter to Mr. Baumgaertner; see the information on tihe TACOM refusal to allow me to "come on-post to assess the situation by my 'personal determination.'" Do TACOM and MSPB realise that the previous notices of my "personal determination" have not been honored? that corrective action still has not been begun? Of course.
It is not just MSPB that has ridiculed the Grievance Report and the strong AR 1-8 guidance. The pattern began locally. When officials disagree with rules they are responsible to enforce, the fact becomes evident. Even the tone of voice and facial expression is affected. The hearing will not limit itself to just TACOM officials; the responsible MSPB officials will also be displayed so their attitude will be evident. The rule entitling appellants to a hearing is clear. MSPB nevertheless refused me a hearing; MSPB officials do not want their anti-rule views explicitly revealed. Hearings are the norm in America. The lawbooks are replete with references. A hearing would show multiple violations, and devastate the very initial basis of the TACOM pretenses, i.e., Dr. Holt's March 1980 assertions made contrary to the input from the examining physicians and contrary to the rules and Grievance Report. Striking at the basis is a right even criminals have, Dunaway v. State of New York, 442 US 200 (1979). Here, I am the victim of crimes, many crimes, assault and battery, falsification, etc. as repeatedly indicated. Courts are impatient with victims being mistreated. The government should be setting an example of concern for victims' rights. Yet this case involves the government as the abuser. This case involves government officials using their jobs for their personal reasons against me.
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(pp 343-346)
"The flat earth people have more company than we know of."
People are entitled to safe conditions and the government doing its duty in all locations, not just in one room (if that), as the 25 Jan 80 USACARA Report notes. AR 1-8 is an Army-wide rule, not just for my room. Cf. Sleeper v. Sandown, 52 N.H. 244 (1872), and Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S Ct 232; 83 L Ed 208] (1938). On 23 Feb 82, EEOC noted [at p 2] that “the agency failed to abide by the” USACARA Report. The March 1981 Michigan Law Review [Vol. 79 (Issue # 4), pp 754-756 at 754, review of Mental Disabilities and Criminal Responsibility by Herbert Fingarette and Anne Fingarette Hasse (Berkeley: Univ of Calif Press, 1979)] states that “criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned.” One [TACOM-MSPB] reason for refusing enforcement of AR 1-8 despite the many employees who want it enforced is that such unIawful management behavior “sets up an unjustified clash of interests . . . to reduce the likelihood and the effectiveness of their [fellow employees] holding in concert to achieve their legitimate [pro-law] goals." The savage and viciously sadistic reprisal against me is a warning to others; "discrimination creates in its victims an apathy or docility whuch inhihits them from asserting their rights against the perpetrator of the discrimination." See United Packinghouse, Food & Allied Workers v. NLRB [135 US App DC 111], 416 F.2d 1126 (D.C. Cir. 1969) [cert den 396 US 903; 90 S Ct 216 (1969)]. Such unlawful [TACOM-MSPB] motives help to explain the multiple intentional false claims by both TACOM and MSPB.
Ed. Note: For background of the sadistic and vicious federal policy of reprisal, see documentation by, for example:
David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979)
Thomas M. Devine and Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection," 4 Antioch Law J 5-71 (Summer 1986)
Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection--Gap Between Law and Reality," 31 Howard Law J (#2) 223-239 (1988).
Peter Lance, 1000 Years for Revenge: International Terrorism and the FBI: The Untold Story (New York: Regan Books, August 2003), pp 172, 214, and 373-374.
Threats and events of reprisal are common throughout Federal Civil Service; see the government's own MSPB Retaliation Rate Study (December 2000) www.mspb.gov/studies/00decnws.pdf, citing a seven - twelve per cent retaliation rate, meaning hundreds of thousands of incidents.

The scientific evidence on smoking shows “no safe level of consumption” and “no level of tobacco smoke exposure below which there are no human effects.” Those facts notwith standing, local employees such as Braun and Shirock for their own personal reasons pretend there is no hazard. They fraudalently manipulate scientific evidence on TLVs and ignore the synergistic aspects in a twisted effort to support their own purposes. The weak, ineffective, and ignored Dr. Holt tries to play it both ways. In writing to management, he asserts the environment is safe, for that is what management wants to hear. Yet as a doctor, he knows better, so he tells USACARA examiners about the nature of the hazard including the fact “that inhalation of tobacco smoke whether 'mainstream' or 'ambient' constitutes an endangerment to Mr. Pletten as well as to any other employee,” p. 7 of USACARA Report 12 Dec 80.
Messrs. Baumgaertner, Wertheim, etc. also know better. MSPB decisions clearly avoid saying that the environment is safe. MSPB prefers decisions by innuendo.
Claims that smoking is safe are as nonsensical as claims that the earth is flat. The Detroit Free Press, 12 April 1982, p. 12A, discusses the dangers of smoking. The absurdity of efforts to defend smoking is cited. Such “opinions indicate that somewhere, somehow, support can be found for the most unlikely proposition.“ Also, “smoking is in such disrepute that smokers are hard put to find somebody to defend their habit.” (If TACOM looks hard enough, they might be able to find some crackpot somewhere [MSPB, OSC, judiciary.) Also, “The flat earth people have more company than we know of."
The latter statement does not apply to [RICO] MSPB. MSPB carefully avoids saying that the environment is safe. Yet a finding on safety is precisely what is needed. TACOM has repeatedly been invited to back up the local claims of safety by letting me return. Since the many doctors statements repeatedly confirm that I am ready, willing and able to work, all that is needed is that TACOM believe its own claims. Admittedly, MSPB refuses to say “specifically and directly” that the TACOM claims of safety are true. Out of its own words, MSPB does not want the crackpot label pinned on its officials such as Messrs. Baumgaertner, Wertheim, etc. But their innuendos about safety do suggest the fact they so much want to avoid. Their insistence on supporting a medically impossible duration simply hits the nail on its head.
There is no escape for MSPB. Views as absurd as a “flat earth” idea show their possessors for what they are.
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(pp 348-354)

Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb., 1980), provides insight. It was issued only a few days before the bizarre assertions by Mr. Baumgaertner reflecting his incapacitation to deal with the concept of "dangerousness." His weird response stands in marked, and wholly unfavorable, contrast to the competent analysis by the federal court. At 190, that court cited with approval language from McIntosh v. Milano, 403 A.2d 500 (1979).
"'To an admittedly uncertain but nevertheless sufficient extent, 'dangerousness' must be considered identifiable . . . and although not a 'disease' as that term is commonly used, may affect third persons in much the same sense as a disease may be communicable.'"
Courts do not engage in weird and disjointed tirades against the victims, unlike MSPB; courts restrain themselves to rational analyses of the law and facts, and focus on the duty to halt harm.
The odd behavior of local and MSPB employees ignores the duty to implement AR 1-8, control dangerous people, control insane people, etc. The bizarre idea of "undue hardship" was flatly rejected by the Court. At 190, "The argument of the United States ignores the fact that psychiatrists and mental hospitals have been held liable for failing to predict the dangerous propensities of their patients. See Hicks v. United States, 511 F.2d 407, 415-17 (D.C.Cir. 1975); Eanes v. United States, 407 F.2d 823 (4th Cir. 1969); White v. United States, 317 F.2d 13, 17 (4th Cir. 1963) . . . ." AR 1-8 forbids such harm; there is not even the saving attempt aspect of being able to allege "inherent difficulties in predicting dangerousness." Local and MSPB employees are not being asked to write AR 1-8 ab initio. They are not being asked to decide if smokers are sufficiently dangerous to warrant a rule controlling their dangerous propensities and desires. The "predicting dangerousness" aspect is long past; local and MSPB time disorientation, delusions of grandeur in overruling AR 1-8, and paranoia at the possibility of its being enforced, and other symptoms, are evident. AR 1-8 "predicting dangerousness" already exists.
At 193, "Moreover, this Court refuses to rule as a matter of law that a reasonable therapist would never be required to take precautions other than warnings, or that there is never a duty to attempt to detain a patient." Such matters "can only be determined after the parties have had an opportunity to prove . . ." their cases. Here, in marked and unfavorable contrast, the bizarre local and MSPB behavior rejects the "only" proper procedure. Psychiatric symptoms in local and MSPB employees explain/provide insight on the intense and protracted refusal to "ever consider the merits." Unwillingness to communicate is far worse than merely "sullen reluctance." It is at the "mute" level. Such tragic extremity of symptoms rejects the "only" lawful approach. Worse, another bizarre consequence arises, rejection "as a matter of law" of corrective action as an "undue hardship" alleged without regard to facts and evidence. Effort "to attempt to detain a" dangerous person is not inappropriate as a matter of law. At 193, the Court expressly cited the Tarasoff analysis including that
"The discharge of this duty may require . . . one or more . . . steps . . . it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps . . . ."
There is no "undue hardship" as a matter of law; the accommodation process has not started, because the "only" method for review has not started, but was rejected by MSPB; so local mutes remained mute.
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(pp 356-357)
“Disciplinary Intent” Assertions as Symptoms/Behaviors
Mr. [Martin] Baumgaertner [of Chicago MSPB] on 25 July 1980 alleged “not disciplinary in nature.” Ms. Bacon on 29 April 1930 alleged “no disciplinary intent.” Ms. Bacon made a like denial in her 18 September 1980 letter, “not . . . disciplinary purposes.”
In Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], Dr. [Lyle] Tussing at 361-2 indicates, “The vast majority of mental-hospital patients . . . are more like cattle, sitting around until someone tells them what to do next. Modern psychiatric treatment aims to help mentally sick patients find themselves again as living human beings.” At 357, words such as “fragmentary” and “seem feeble-minded” are used in a discussion on common symptoms of schizophrenics. Such data provides insight when people, trained in legal and personnel matters presumably, consider only a "fragmentary" aspect of the concept of “adverse action,” disconnected from the body of guidance on the subject. Words such as “like cattle, sitting around until someone tells them” more than the “fragmentary” aspect they cite, and then “tells them what to do next” with such data.
Ed. Note: These “like cattle, sitting around until someone tells them what to do next” symptoms continued among TACOM and MSPB officials (Hoover, Benacquista, Bacon, Baumgaertner, Wertheim, Poston, Ellingwood, et al.) until overruled by the Supreme Court and the Federal Circuit Court of Appeals, e.g., by Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); and Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987).
An Army's own analyst would say: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR § 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Review 143, p 35 of 39, n 206 (Fall 1987).

Data on stereotypy also comes to mind concerning such “fragmentary” assertions [as TACOM and MSPB made]. See [Profs. Ernest R.] Hilgard and [Richard C.] Atkinson, Introduction to Psychology [Harcourt, Brace & World, Inc., 1967], 4th edition, pp. 512-3. Stereotypy is “a tendency to blind, repetitive, fixated behavior. . . . Once adopted, it is very resistant to change, so much so that it has been called an 'abnormal fixation.' For example, if the rat that has come to jump regularly to the right is now punished every time he jumps, he may continue to jump to the right for as many as 200 trials. . . . The behavior is so stereotyped that the alternative does not exist for the rat (Maier, 1949).”
When an “alternative” or more than merely “fragmentary” aspects do “not exist” for people because of “blind, repetitive, fixated behavior” or other symptoms, it is foreseeable that such condition would continue until “someone tells them what to do next,” such as in the rehabilitative process. A marked prolongation of the process is foreseeable when rigidity, apathy and indifference to reality, irritability, and/or unwillingness to be responsive upon the presentation of evidence, is part of the symptom pattem as well. At 474, Dr. Tussing indicates, “When a person wants to support a prejudice, even though he is not conscious of this desire, he sees only the bad and unpleasant things about the people at whom his feeling is directed.” In mental illness, the word “fragmentary” provides insight. In this case, the [TACOM and MSPB] behavior/fixation on disciplinary intent is part of the pattem of refusing case processing. Words such as “extreme withdrawal from personal contacts, ranging from sullen reluctance . . . to actual muteness” come to mind. Mr. [Martin] Baurngaertner [of MSPB] displayed “sullen reluctance” and “actual muteness.” He refused to consider my case by the normal means such as by a hearing. His second issuance, 4 August 1980, confirmed his pattern. Even years later, his condition has shown no improvement. Ms. Bacon's behavior is even more pronounced.
The 23 Feb 82 EEOC decision noted that “the agency failed to abide by the” 25 Jan 80 USACARA Report, “made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling,” “went so far as to utilise erroneous information or miscalculations,” and did not “ever consider the merits.” When lawyers are asked to engage in plans to violate laws, words borrowed from State v. Collentine [39 Wis 2d 325], 159 N.W.2d 50 [at 53] (1968), come to mind, “it is the absolute duty of the attorney to refuse to act.” Cf. Disciplinary Board v. Amundson, 297 N.W.2d 433 [at 443] ([N.D.] 1980), “Even personal illness does not shield an attorney from his professional responsibility. State ex rel. Oklahorna Bar Ass'n v. Fore, 562 P.2d 511 (Okl.1977).” When “fragmentary” assertions are made, “it cannot be said that” the maker “is a person of normal sensibilities,” words from Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965).
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(pp 359-360)

Army did not write a regulation saying, Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. However, the installation [TACOM] and the MSPB have made clear that they feel that is the meaning of AR 1-8. The guidance that AR 1-8 in fact provides is “unqualified and absolute.” Any number of measures may and must be taken to achieve the criteria. The 25 Jan 80 Grievance Report in my favor by USACARA makes clear that there is no limit. None of the claims by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] on what the installation purportedly has done were true. But suppose all the MSPB claims were true. The test of whether the regulatory goals are met was simply ignored by MSPB. Instead, it used an irrelevant test, “reasonable accommodation.” Even then, it simply invented “undue hardship” ideas. MSPB acted on an empty record.
A proper decision would simply note that endangerment is evident; therefore, the agency action involves non-compliance with its own rules.
A proper decision would simply note that a medically impossible duration is involved; therefore, the action is clearly a suspension, without any of the required advance notice and reply rights.
A proper decision would simply note that the installation [TACOM] has not provided specific facts to support its claims. Re studies––what items, when, by whom, what equipment, what standards, how are they relevant, why did the Examiner 25 Jan 80 disagree, what relevance to AR 1-8, what relevance to FPM Suppl. 752-1 [5 CFR § 752], etc. There are not specifics for the claims. Moreover, considering the inadequacies of TACOM behavior, it is clear that there was not compliance from the [November 1977] time of issuance of AR 1-8 until at least years later, if at all. And considering smoker mental disorders and alcoholism, it is not realistic to think that compliance suddenly began to happen once management decided that getting rid of me would be an easy way out. I ask questions that local officials do not want asked. They do not want a hearing.
Michigan law provides pertinent insight. Michigan courts take note of Prosser, Torts (4th ed.), Section 105, pp. 885-886, summarized as follows:
“1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact. 2. Knowledge or belief on the part of the defendant that the representation is false—or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’”

The elements of fraudulent misrepresentation go on to provide more data. In Cormack v. Am. Underwriters Corp, 94 Mich. App. 379, 288 N.W.2d 634, the Prosser “definition is supported by Michigan case law. See, Graham v. Myers, 333 Mich. 111, 52 N.W.2d 621 (1952), Michael v. Jones, 333 Mich. 476, 53 N.W.2d 342 (1952) . . . Rose v. Wertheimer, 11 Mich.App. 401, 161 N.W.2d 406 (1968).”
The 18 Jun 81 MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] admits only “some analysis.” Based on that, MSPB did not even bother looking for reprisal, when it should have been obvious to MSPB that only reprisal (personal reasons for smoking) causes the situation. MSPB alleges “reasonable attempts to accommodate” without regard for mandatory regulatory guidance. AR 1-8 does not say “attempt” to achieve the goals. It says—do it. This is the Army we are talking about. “Attempts” to obey rules are not listed. AR 1-8 does not say “attempts” to “take affirmative action,” “Full cooperation,” “be controlled in accordance with,” etc. The word “will” appears quite often in AR 1-8; the word “attempts” is an MSPB invention. MSPB does not just act on an empty record; it defies what evidence it did allow into the record. “Smoking will be permitted only if” goals are met.
MSPB knows better. That is why, on page 4, it did not stop with citing the guidance by the doctor on achieving the regulatory goals against endangerment, etc., but dredged up a stale grievance, closed but not implemented. The doctor stuck to the goals; I had provided motivating data on consequences of prior non-compliance.
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(pp 362-364)

Shelby Township Fire Dep’t. v. Shields, 115 Mich.App. 98, 320 N.W.2d 306 (1982), provides insight for rejecting the odd [MSPB] 20 June 1983 revival of the abandoned local [TACOM] claims on compliance with rules as unreasonable and beyond “authority.” Such claims are, of course, disconnected from reality, the 25 January 1980 USACARA Report, and multiple precedents. OSHA by itself confers ample authority; compliance with law is “reasonable” as a matter of law. The installation [TACOM] claims to be obeying OSHA; that claim by itself is inconsistent with the odd 20 June 1983 issuance [by MSPB’s Victor Russell].
However, Mr. V. Russell's odd/bizarre view is not only wrong; it is fragmentary and impoverished. It overlooks the multiple rules, not merely AR 1-8. When “ideation” is fragmentary and impoverished, disconnection from data such as the 25 Jan 80 USACARA Report is foreseeable. Such disconnection is evident in Mr. Russell's symptoms.
But Mr. Russell's view is wrong, even if AR 1-8 were the only pertinent rule, and even if there were no Court precedents whatsoever on smoking and safety. Even if not “permitting” smoking were unreasonable under some rule, and even if there were no “authority,” in non-medical situations of nonsmoker “personal determinations” under the personal standard envisioned by AR 1-8, a different principle applies in medical situations. (Here, of course, smoking disease is not job related; there is no business necessity for it.)
The Shelby Township case, supra, provides insight in a real “medical” situation, as distinct from this (“perceived”) case. There, the employer at least attempted to show some nexus with employment. Here, neither the installation [TACOM] nor MSPB makes any such attempt. There are no “specific requirements of the job” for smoking. Indeed, as a matter of law there are no “requirements” at all for smoking, not even non-specific requirements. Moreover, as a matter of fact, there are no requirements for smoking in the job description, or in any qualifications criteria. (Qualifications criteria, of course, must demonstrably bear a nexus with the job description.)
The Shelby Township case, at 103, noted Shields' position on the lack of a “medical exception” in the Township rule. That was a constitutional argument. However, under “reasonable accommodation” guidance, that issue was not reached, since the employee won anyway, under the rules. Here, MSPB refused to apply any criteria (law or Constitution). The MSPB behavior is lawless. Even if in non-medical situations, “authority,” etc., were lacking, as Mr. Russell (falsely) claims, a “medical exception” is appropriate in a medical situation. Here, my “personal determination” based on AR 1-8 criteria is made in accordance with those criteria, i.e., are at the pre-endangerment, pre-sick leave, pre-absence, level, as a nonsmoker foreseeable may do based on the nature of the AR 1-8 criteria.
Mr. Russell's odd view that not all locations on an installation need be safe, is bizarre. Safety is unitary. OSHA applies everywhere; “property” and “life” are protected everywhere. Even if they are not, a “medical exception” will foreseeably “plug” the “gap,” if there were a “gap,” which there is not. A “medical exception” is not an “objective impossibility,” a phrase from U.S. v. Y. Hata & Co., Ltd., 535 F.2d 508 (1976), and is foreseeable and “reasonably . . . possible,” Prewitt v. U.S. Postal Svc., 662 F.2d 292 at 708 (1981). It is a concept quoted out of a case, and is not only a theoretical possibility, it is a Court-cited phrase.
Page 365 of 453 pages. Affiant's initials _________

The bizarre [TACOM-MSPB] fixation on the two-word synonym for a “remove smoke” situation under AR 1-8 is foreseeable in “permanent destruction of brain tissue.” Dr. James C. Coleman, in Abnormal Psychology and Modern Life 5th edition, 1976, notes that “where the damage is severe . . . symptoms typically include . . . ideation tending to be concrete and impoverished,” p. 561. Such fixation is impoverished and fragmentary even if the bizarre issuances locally and from MSPB did not claim that compliance with the [legal and regulatory] guidance to “remove smoke” is an “undue hardship,” “unreasonable,” etc. Such [narrow-focus] claims by local and MSPB offenders (especially when the local claim never says “undue hardship,” and the installation abandoned its [contrary-to-law] claim of “unreasonable) call attention to the symptoms.
The emphasis on rejecting the “remove smoke” synonym is fragmentary and impoverished. Court precedents show no such fixation. Smoking is a dread disease; control of disease rationally is not fixated on the accompaniments of disease (vomit, pus, blood, the apray from sneezes, etc., which the tobacco spray in the air is tantamount to). Control of disease is, in law, rational. It is directed towards the whole person. Quarantines of the persons with the dread diseases are noted, for example. The name, address, and other specificity pertinent to the person(s) with the communicable or dangerous disease have been indicated by law to be reported; see People v. Brady, 90 Mich. 459, 51 N.W. 537 (1892). In this case, no specificity has been provided, as OPM has noted, and as I have reported. Which mentally diseased smokers at the installation are so deranged and out of control? Cite them by name.
Of course, it is not necessary to identify the insane offenders by name, except where claims of out-of-control are made. Here, that smokers are beyond control/beyond rehabilitation is implicit in the bizarre local and MSPB issuances. Their disease spreads tobacco smoke more pervasively throughout the installation than in other diseases where vomit, pus, blood, the spray from sneezes, etc. occur.
In controlling the accompaniments of dread disease, precedents show that the entire person of the smoker(s) is controlled, i.e., restrained, for the protection of society. There is no fixation on just one of the accompaniments of the disease (the smoke). See precedents dealing with the whole person of the smoker(s):
Commonwealth v. Hughes [468 Pa 502], 364 A.2d 306 (1976): control of the whole smoker by prosecution
Bluestein v. Scoparino [277 App Div 534], 100 N.Y.S.2d 577 (1950): control of the whole smoker by discharge
Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979): control of the whole smoker by commitment to a mental hospital
Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346, 361], 118 S.E. 521 [31 ALR 283] (1923): control of the whole smoker “to have put him out of the building”
It is clear that [TACOM-MSPB] fixation on just the “remove smoke” synonym relates to only one aspect. Such fixation displays fragmentation, and impoverished ideation. Such symptom of brain damage is linked to the impoverished ideation that fixates on the word “environment” [while carefully avoiding the words “conduct or behavior”] to the exclusion of all but that fragment, a non-descriptive fragment when the entirety of reality is taken into account.
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(pp 367-371)

The 20 June 1983 MSPB [Victor Russell] issuance confirms the continued disregard of AR 1-8 and the 25 January 1980 USACARA Report. MSPB continues to accept local [insubordinate TACOM] ideas that were clearly rejected by USACARA. For example, p. 4 of the MSPB [Victor Russell] issuance [falsely] claims, “Dr. Holt testified that Army policy does not permit an installation-wide ban on smoking . . . (Holt Deposition at 16 and 42).” MSPB [lies and] does not accurately allude to Dr. Holt's actual position as stated at those pages.
Ed. Note: Even if MSPB had honestly summarized Dr. Holt's testimony, which MSPB did not, and even if MSPB had naively relied on Dr. Holt's “legal opinions” on the lack of “authority,” that would still have been gross error.
Dr. Holt is not an “expert” witness on law. Even if he were an “expert,”, his “opinion of the law is both incompetent and irrelevant,” People v. Matulonis, 115 Mich App 263; 320 NW2d 238 (1982). Ignoring such basic-in-law data confirms MSPB lawyers as displaying personal incompetence, legal malpractice.
MSPB also ignored Dr. Holt's psychiatric symptoms. They include disconnection from, and unresponsiveness to “normal stimuli,” such as the 19 June 1979 legal opinion, the 25 Jan 80 USACARA Report, AR 1-8 and AR 600-20, the AR 385 series, and principles of law such as on safety, mental illness, nuisances, crime, etc.
The USACARA analysis is not only res judicata, it is also the “law of the case.”
Dr. Holt's psychotic insistence that I am not “ready, willing, and able to work” derives from his psychiatric symptoms of non-responsiveness to “normal stimuli.” His symptoms produced his overruling the medical evidence showing my ability to work. He insanely misread them to mean the exact opposite!
Dr. Holt's psychiatric symptoms include his odd view that smoking is part of employment (duties, environment, etc.), contrary to law.
His delusions of grandeur concerning his own legal expertise are evident. They confirm that the installation misconduct of ousting Pletten without 30 days advance notice is void “ab initio.”
Dr. Holt, defying the USACARA Report guidance, supported, aided and abetted, Col. Benacquista's overruling the medical evidence on my ability to work, based on his own mentally distorted view of law.
Dr. Holt's ignorance of law is clear. The severity of his symptoms of obliviousness is evident from the fact that the 25 Jan 80 Report citing the rules has been brought to his attention from the very beginning. His unresponsiveness to “normal stimuli” and delusions of grandeur are clear.
Due to his own psychiatric symptoms, showing him to be clearly an incompetent witness.

In addition, such action is not what has been sought, and has not been recommended as a “requirement” by my doctor. On 8 July 1981 (encl. 6 with my 17 July 1981 appeal to EEOC, Petition No. 03810087), the medical fact was made clear that a so-called “smoke-free” work area is not “sinequanon (sic) for the ability . . . to work."
Tobacco smoke is not part of employment, and not part of “environment,” as a matter of law, as Col. Benacquista admitted, “The job was available. All he [Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants.'” (T. 62). Private doctors foreseeably would not retract requirements that they had not established. Col. Benacquista made the “determination that the doctors had required a smoke-free environment . . . I had made that determination.” (T. 13). A private doctor cannot “retract” a decision [extortionate or otherwise] made by a high-ranking Army officer.
"The job was available.” There are other Position Classification Specialists besides myself. Mr. Hoover's assertions cited at p. 8 of the 20 June 1983 MSPB issuance are fragmentary, disconnected from reality, and disoriented for time and place. See the p. 8 assertion claiming that I must “move about the entire facility on a continuing basis (Hoover Deposition at 58).” There are other Specialists. Specific citation to the job description is not made. Supportive information from the supervisor is not apparent. Data on duration of supposed exposure is not provided. AR 1-8 provides for “ventilation . . . to remove smoke . . . .” Data on the ventilation in areas other than the limited tests asserted (which were not of tobacco smoke) is not provided by the record. The installation has no case. Where the ventilation does “remove smoke,” the so-called “smoke-free” situation is thus extant, perhaps in various areas of the installation. Some buildings are apparently air-conditioned; and that is a solution as installation official [Industrial Hygienist] E. Braun made clear [Dep. p 34].
MSPB continues to support the local [insubordinate] assertions [contrary to law and regulation] even though they [said TACOM assertions] were [long ago] rejected by USACARA. MSPB at 8 expressly asserts, “Contrary to the appellant's assertion, a total ban on smoking is not authorized by AR 1-8.” That claim is false. It is fragmentary and contrary to the evidence. It points to me, and disregards USACARA as the source for that [full authority] information. See the 25 January 1980 USACARA Report, p. 14, “The Commander has the authority . . . to ban all smoking . . . .” Note that USACARA takes AR 600-20.2-1 into account, at p. 6 of the USACARA Report. MSPB falsely claims “that a total ban on smoking . . . would be the only accommodation that would produce a smoke-free environment.” Ventilation “to remove smoke” is another way. Mr. Braun cited air conditioning. [Dep. p 34.] Moreover, MSPB ignores the data from Col. Benacquista, “It's quite obvious . . . that what the doctor was saying was that the environment in his present work space was not reasonably free of contaminants.” (T. 24). Providing such an environment is not an “accommodation.” USACARA made clear that it was speaking to resolution under AR 1-8.
Page 372 of 453 pages. Affiant's initials _________

"Experience” from other sources is appropriate for use, Prewitt v. U.S. Postal Service [27 EPD 32,251], 662 F.2d 292 ([CA 5] 1981). Such “experience” is pertinent concerning the relief sought. Indeed, in smoker brain damage, such “experience” is essential, since typical symptoms of brain damage include but are not limited to impairment of orientation for time, impairment of memory, impairment of learning and comprehension, and impairment of ethical controls, as noted by Dr. [James C.] Coleman [Abnormal Psychology and Modern Life, 5th ed (Scott, Foresman & Co, 1976), pp. 460-461].
The bizarre issuances from local and MSPB offenders reflect severe mental incapacitation to distinguish “proscriptive” and “corrective” relief. Shimp v. New Jersey Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 (1976), is an example of “proscriptive” relief concerning smoking; and Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (1979); McKinney v. Bland [188 Okla 661], 112 P.2d 798 (1941); Wood v. Saunders, 238 N.Y.S. 571 (1930); and Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931), all examples of after-the-fact relief, i.e., compensation.
Both types of relief, “proscriptive” and “corrective” or “compensatory,” are well-established. Legal malpractice and/or other deviance is evident when issuances, especially the 18 June 1981 MSPB issuance [by Ronald Wertheim and Ersa Poston], senselessly malassociate or otherwise garble the clearly discrete legal principles. Such is particularly evident when correction of the errors [verified by EEOC] is refused [by MSPB]; and the errors remain extant for a protracted period.
In personnel matters, MSPB is responsible for having expertise. The refusal to display such expertise is thus intentional. Rules against endangering people are well-established. There are rules for the private sector, and there are rules for the federal government. The federal government is to be an example. [See, e.g., then Executive Order 11807.] Federal precedents in terms of compliance with safety rules and mental health rules should be numerous, as an “example” to others. Yet MSPB nonetheless refuses to either (a) direct compliance, or (b) at least note the non-compliance, and overturn the adverse action-on either basis.
Ed. Note: MSPB hatred for whistleblowers causes it to defy decades of case law concerning agency non-compliance with rules, case law obeyed for others. See precedents such as Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).

The MSPB behavior is in marked, and unfavorable, contrast to the 25 Jan 80 USACARA Report. Indeed, the MSPB behavior is in marked contrast to the behavior of a separate review agency, EEOC, whose 23 Feb 82 decision specified [at p 4] “further processing in accordance with this decision.” No doubt the installation would refuse to comply; but at least there was guidance. Installation representatives refuse to obey the rules; thus, it is foreseeable that they would refuse to obey a decision, as a decision is a mere creature of the rules, a subordinate creature.
Ed. Note: TACOM management, criminals, did indeed refuse to obey the 23 Feb 1982 EEOC order. No processing as ordered ever occurred [1982 - 2010].

MSPB did not even specify [to do] implementation of the 25 Jan 80 Report. Cf. Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980) [compliance is mandatory!]. Implementation of the USACARA Report would resolve the situation, producing return to duty even according to the odd local claims, which involve refusal to let me stay on-post when I periodically returned [pursuant to precedents such as Bevan v N Y St T R Sys, 74 Misc 2d 443; 345 NYS 2d 921 (1973)]. EEOC noted [p 2] that the installation “failed to abide by the” Report. MSPB offenders undoubtedly noted the same; however, MSPB offenders disagree with the ruies, so they leave significant facts out of their decisions, as well as place fabrications in the issuances.
The [MSPB] misconduct is particularly noticeable, based on the fact that the misconduct takes the form of a multiplicity of criminal violations, one aspect of which is embezzlement of funds/leave account, i.e., embezzlement in the form of an “adverse action,” but nonetheless, embezzlement in substance
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(pp 373-375)

The MSPB pattern of depravity and universal malice is “indifferent to the life of others. Such negative attitude is not found in the mind of a normal, reasonable person,” State v. Weso [60 Wis 2d 404], 210 N.W.2d 442 at 445 (1977). MSPB offenders use a pattern of falsifications as a method for implementing their malice and depravity. EEOC on 8 April 1983 [Docket 03.81.0087, 83 FEOR 3046] found falsifications based on “evidence in the record” indicating the falsity of MSPB [6 MSPB 626; 7 MSPR 13] claims of actions, i.e., that in fact, “such actions” as MSPB had falsely claimed “were not even attempted,” p. 5.
MSPB did not even attempt to adhere to, or even advert to, the criteria and “applicable standards of proof.” The AR 1-8 guidance to control smoking to protect “life” and “property” is brazenly flouted.
MSPB has a pattern of using falsification. MSPB invents some of the falsehoods; and MSPB uses local falsifications as well. Data from Drs. Yochelson and Samenow, in their book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson (1976)], provides insight on the MSPB pattern. At 308, “Inconsistencies in the criminal's behavior are readily apparent”; at 499, “the criminal . . . tends to view an offense as less serious than others do”; at 375, when “confronted with the harm he has inflicted, he blames others or minimizes the harm done”; at 309, “The most common characterization of the criminal is that he is unreliable and a liar.”
Such data provides insight concerning the 18 June 1981 and 20 June 1983 MSPB issuances. The issuers are “unreliable.” They are “unreliable” in that they do not conform to facts; they do not adhere to physical criteria; they reverse the safety duty so as to get rid of victims as distinct from perpetrators; they project their odd views onto others (“blames others”); they are unwilling for the compliance process to even start; they lack the willingness or mental capacity to comprehend that the rule compliance process is the way to achieve an environment free of the hazard complained of.
Mr. V. Russell at p. 8, n. 6, “minimizes the harm done” by Mr. Wertheim's falsifications MSPB [6 MSPB 626; 7 MSPR 13]. He ignores that the claims were written in the past tense, as though they had already occurred. “The most common characterization of the criminal is that he is unreliable and a liar.” Cf. Bishop v. E. A. Sprout Realty Agency, 182 F.2d 503 at 505 (CA4, 1950), on “a liar and and a scoundrel” who would foreseeably “defend on the ground that his own word should not have been believed.” My 17 July 1981 appeal to EEOC, Docket 03.81.0087, decided 8 April 1983, called attention to Bishop, supra, at p. 14 and p. 54. The same case was cited to Chicago MSPB with my 25 January 1982 letter, at p. 28 and p. 74. Mr. V. Russell has now done what was foreseeable of MSPB. When an MSPB “liar and scoundrel” is caught, MSPB does “defend on the ground that his . . . word should not have been believed.”
EEOC Docket 01.81.0324 concerns “Wrong information conveyed to Merit Systems Protection Board.” On 23 February 1982, EEOC told the installation to process the case properly. The installation refuses. Cf. Bishop, supra, at 506, when the offender “avoided an interview with” the victims. Cf. Wangerin v. State [73 Wis 2d 427], 243 N.W.2d 448 at 453 (1976) on “flight”' from review which “has probative value to guilt.” Mr. Hoover is a prime offender locally [TACOM], even misrepresenting my organizational assignments.
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(p 377)

It is clear that “the burden of proving inability to accommodate is upon the employer,” Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). We have not yet reached that issue because the local [TACOM] officials have not yet complied with AR 1-8 to the point of halting the entanglement, removing smoke, and establishing an equitable balance including healthful conditions, prior to reaching the “personal determination” aspect under the personal standard envisioned by AR 1-8. The safety duty, for example, has not yet been met. The “unqualified and absolute” safety duty recognized by the Courts years ago is “above all other considerations,” American Textile Mfrs. Inst. v. Donovan, 452 US 490 [509; 101 S Ct 2478; 69 L Ed 2d 185] (1981). It is clear that the results show that the cause has not been dealt with. OPM noted lack of accommodation. EEOC noted lack of AR 1-8 implementation. USACARA noted many violations.
However, MSPB did not seek local [TACOM] evidence for its alleged inability to implement the 25 Jan 80 Report. “Courts ought not to have to speculate as to the basis for an administrative agency's conclusion,” Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 at 586 (1964). It is far worse for the unaccommodated person to have to speculate. I am simply not qualified to “undertake to catalogue all the deficiencies in the Board's decisions,” while simultaneously being ignored by local [TACOM] officials who are unwilling or unable to communicate with me to begin the enforcement process. In Prewitt, supra, at 308, “The employer can look to its own experience, or, if that is not helpful, to that of other employers . . . Furthermore, the employer may be able to obtain advice . . . from private and government sources.” The 25 Jan 80 Report is part of the agency “experience.” So is the AR 1-8 guidance based on the common problem of smokers endangering, discomforting, and bothering others, as well as endangering property. The agency experience includes recruiting harm noted as long ago as Austin v. Tennessee, 179 US 343 [21 S Ct 132; 45 L Ed 224] (1900) and recruiting advice as recently as March 1982 in Army brochure RPI 914 “How Not to Blow A Job Interview,” which states
“Don't smoke. If the interviewer doesn't, he probably won't like you smelling up his office. This also avoids accidents like setting your application on fire or marring the furniture.”

Smokers are not simply to wait for a “personal determination” as that would not be “affirmative action.” Smokers are to anticipate a “personal determination” and not smoke, even though a specific nonsmoker may in fact not make such a “personal determination.” When the Army writes a regulation envisioning a personal standard, the Army means it. As a matter of time orientation, March 1982 is months and years after the weird and disconnected assertions of “cannot” and “undue hardship.”
The December 1978 RPI 914 uses the exact identical words. That was many months before my June 1979 grievance. The February 1980 RPI 914 was issued just before local smokers made the unlawful “decision to terminate” me obvious 9 April 1980. That Feb 80 brochure was issued just after the 25 Jan 80 Report. The March 1981 edition of RPI 914 was after the odd 27 Jul 80 MSPB decision and before the even more strange 18 Jun 81 MSPB claims [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.]. The local [TACOM] and MSPB behavior in regard to the Army words “Don't smoke” is inexplicable in law; that fact provides insight on the need to cite data on mental disorders to provide insight. [These statements are pre-bribery awareness.]
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In Re United Corporation, 249 F.2d 168 (3rd Cir. 1957), provides insight. For example, an Examiner who issues a report such as the 25 Jan 80 Report “is a guide to our conclusion and should have been given due regard by the” Board as well as by the installation prior to the unlawful local “decision to terminate” me without advance notice or specificity so long ago. At 178, the Court said that such a “practical determination” “should be accorded the relevance that they reasonably command in answering the over-all question whether the evidence supporting the Board's order is substantial.” [Cf. Donovan v Phelps Dodge Corp, 228 US App DC 260; 709 F2d 86, 92; 1983 OSHD (CCH) P 26,579 (1983).] The local and MSPB behavior that is blunted, disoriented, and/or disconnected from reality gives no weight at all to the Report. The Report deals with causes; the malicious local and MSPB behavior refuses to even advert to, much less explain, the refusal to deal with causes.
The Court in the United Corporation case referred to the Supreme Court guidance as cited in Universal Camera Corp. v. N.L.R.B., 340 US 474, 71 S.Ct. 456 [95 L Ed 456] (1951). Local lawyers as well as MSPB are presumed to be familiar with well-established legal concepts, so the disregard of them is clearly willful. In the Universal Camera case, said the United Corporation court at 179, “it was found that the recommendations of the examiner were supported by substantial evidence while the findings of the Board were not. Accordingly, the enforcement of the Board Order was denied.” The MSPB decision pattern is disconnected from the evidence, is disoriented in time, fixates on the remote and irrelevant past, makes no relevant findings, ignores the rules, fabricates claims deliberately contrary to the evidence, refuses to correct its own egregious errors even given more than ample opportunity, etc., etc. In contrast, the many other reviewers (MESC, USACARA, OPM, EEOC) all go by the evidence. Their findings on the non-implementation of the Report, the local violation pattern, my clear ability to work, my long ago termination, the refusal of reasonable accommodation, etc., etc. are “supported by substantial evidence while the” pattern of “findings of the Board were not” and evidently do not intend to become supported by evidence.
OPM found that reasonable accommodation is not shown. MESC found that I am ready, willing, and able to work. USACARA found multiple violations too numerous to summarize here. EEOC found efforts to limit EEO rights, lack of consideration of the merits, erroneous information or miscalculations, and indeed, a pattern of errors warranting reversal “in all the instant cases” decided 23 Feb 82 [Dockets 01800273 et al.]. All these decisions and findings mesh together harmoniously. When violations are found, opposition to further review is an expected consequence, when local officials decide to refuse to comply with the rules they have been told to obey. An improper decison to terminate the employee pointing out the pattern of violations is part of the pattern of [management] misconduct and resultant reprisals.
Here local officials in ousting me summarily, and MSPB in refusing to take jurisdiction to review the merits, failed, nay refused, “to make the explicit findings required . . . by both judicial decision and the Administrative Procedure Act” and other rules and the need for fairness for opportunity for me to reply. Local and MSPB officials ignore the many adverse findings, and fail to make competent, responsive findings of their own. They know their violations and falsifications are obvious, and that findings show that. By refusing to make competent findings, they are stalling. Words at 181 are insightful, “That this violates the unequivocal mandate of the law is clear.”
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Equal Employ. Opportunity Com'n v. Bell Helicopter, 426 F. Supp. 785 (D. N. D. Texas, 1976), provides insight. Priority is given to “public action” aspects as a matter of promoting national policy. In the case at bar, the “public action” aspects include but are not limited to securing compliance with time limits, securing action to “ever consider the merits,” halting a pattern of misconduct tactics such as violations designed “to restrict and/or deny appellant the right to file EEO complaints and seek counseling” and review, securing compliance with specificity and explanation guidance of civil service and administrative procedures rules, securing due process and equal protection, etc. Relative to the merits as distinct from the above matters, the “public action” aspects include but are not limited to securing enforcement of laws and rules on safety, alcoholism, mental health, federal employee behavior, leave and attendance, reasonable accommodation, truthfulness, good faith, etc.
Obstacles or apparent obstacles to “public action” are generally not acceptable. For example, see Chromcraft Corp. v. EEOC, 465 F.2d 745 at 746 (5th Cir. 1972), “Nor is the equitable doctrine of laches applicable to a governmental agency acting to vindicate a public right,” also cited at 789 in EEOC v. Bell Helicopter, supra. A doctrine such as of laches does not bar corrective action, including against a government agency refusing to process cases, violating laws, and otherwise engaging in a pattern of misconduct. Vindicating public policy is a well-established concept, not only in EEO matters, but also in safety matters, for example, see [Prof. Alfred Blumrosen, et al, “"Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,”] 64 Cal. Law Rev. [#3] 702 ([May] 1976).
Even state law does not bar corrective action in a “public” matter. “Where the government is suing to enforce rights belonging to it, state statutes of limitations are not applicable,” United States v. Georgia Power Co., 474 F.2d 906 at 923 (5th Cir. 1973), cited at 789.
The overwhelming power of the government to enforce rules is a pale shadow of the individual power to protect himself, as is well-established in cases such as Brown v. United States, 256 U.S. 335, 4l S.Ct. 501 (1921). In a self-defense matter involving an admitted/ stated “immediate threat,” an “equitable doctrine” such as of laches, or “state statutes,” or any administrative rule or policy such as may otherwise appear to limit (for example) jurisdiction, is subject to the fact that “The promotion of safety of persons and property is unquestionably at the core of the State's police power,” Kelley v. Johnson, 425 US 238 at 247 (1976). Such power has historically been repeatedly needed to crush discrimination. Such power exists for the duration of the “immediate threat.” As long as “plausible” grounds exist, “a conclusive showing is not necessary,” Casey v. F.T.C., 578 F.2d 793 at 799 (1978), especially when the situation is an “immediate threat” in which “Detached reflection cannot be demanded,” Brown v. U.S., supra.
In EEOC v. Bell Helicopter, at 792, three criteria are cited for rejecting government behavior: (a) delay (b) which is unreasonable, and (c) prejudicial. Considering the “present rights” flouted by the installation, and the circumstances, immediate relief is imperative regardless of any obstacles or apparent obstacles.
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Salazar v. Hardin, 314 F. Supp. 1257 (D. Colorado, 1970), provides insight. Rules [by agencies] must conform to law and national policy. It is thus obvious that decisions must likewise conform. In this case, local and MSPB officials have decided to abrogate and repeal the rules, and in effect, to fabricate their own [rules]—along these lines: Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. Smoke is not to be removed, and an equitable balance is not to be established. USACARA Reports are to be ignored. Safety guidance such as on “mixture” situations is rescinded. The “unqualified and absolute” safety duty is wrong, and only alleged "attempts" to comply are to be asserted; real attempts need not be made. Any person who wins a grievance Report rejecting such misconduct is to be placed on sick leave; and MSPB jurisdiction is to be denied. Etc.—End of summary of the de facto smoker position. The smoker view is, of course, obviously disconnected, blunted, and bizarre. How should a reviewer deal with such an odd position as [insubordinate] local and MSPB employees have devised?
Salazar v. Hardin, supra, provides insight. At 1259, “the regulation on its face destroys the very scheme which Congress envisaged.” Here, “Congress envisaged” an “unqualified and absolute” safety duty, “job-related” standards, control of dangerous government employees, efficient use of government resources for government purposes, working on government time instead of loafing, etc. Smokers refuse. AR 1-8 envisions a personal standard. Smokers resist. They resist compliance with review mechanisms to “ever consider the merits.” Such behavior “on its face destroys the very scheme which Congress” and others such as EEOC “envisaged” to prevent violations and to secure review when violations occur. Such behavior “is plainly inconsistent with the statute and operates in a manner which frustrates Congressional intent,” so “it can be given no force and effect and must be declared invalid. See, e.g., Celebrezze v. Kilborn, 322 F.2d 166 (5th Cir. 1963).”
At 1259, “The evidence . . . establishes that the above” pattern “has been used as a means of frustrating this intent of Congress.” This includes both on the merits, and on the right to have due process such as by review of the situation, adherence to specificity guidance, decision based on evidence, explanation for unequal treatment, etc., in accordance with civil service specificity and advance notice rules [e.g., 5 USC § 7513], as well as under the Administrative Procedures Act, 5 USC § 706] and pertinent court precedents.
At 1259, “we are unable to perceive that the regulation advances any desirable social purpose.” Endangering people, refusing to conform to safety rules, violating agency rules, refusing review rights, making false allegations, etc.—none “advances any desirable social purpose.” Indeed, such behavior is contrary to law, rules, and “desirable social purpose.” Safety rules constitute a “desirable social purpose.” Review mechanism rules constitute a “desirable social purpose.” AR 1-8 constitutes a “desirable social purpose.” “Reasonable accommodation” constitutes a “desirable social purpose.” At least in the Salazar v. Hardin case, there was “a convenient and expedient method.” Here, opposing safety, review, truthfulness, accommodation, etc. is neither. The many rejections (by USACARA, OPM, MESC, EEOC, etc.) [of TACOM smoker views] show that.
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Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 82, “The Commission here found 'that the proposed schedules are just and reasonable, and are not shown to be unlawful.' This does not constitute a finding that the rates were lawful, since rates 'may lie within the zone of reasonableness' and yet be unlawful. United States v. Illinois Cent. R. Co., 1924, 263 U.S. 515, 524, 44 S.Ct. 189, 193, 68 L.Ed. 417; I. C. C. v. Inland Waterways Corp., supra, 319 U.S. at page 685, 63 S.Ct. 1296, 87 L.Ed. 1655.” The fact of local and MSPB decisions by innuendo has been noted and objected to by me. Decisions by innuendo are not valid. Some of the defects include but are not limited to: no finding on safety, on “job-related” aspects, on courtesy, on smokers as dangerous to themselves, on compliance with AR 1-8, on implementation of the 25 Jan 80 Report, on the [agency] authority under AR 600-20 [to ban the conduct at issue], on “reasonable accommodation,” etc., etc.
The 25 Jan 80 Report already covered the key aspects. The reason for the continued disregard of the Report is the local and MSPB animosity towards the Report and the rules it upholds. Such disregard of reality brings to mind mental disorders including but not limited to paranoia, delusions of grandeur, schizophrenia, etc.
[TACOM] Dr. Holt's legal opinions of 24 and 25 March 1980 are, of course, inadequate as a matter of law. They do not provide basic findings, advert to precedents, cite pertinent rules, etc. Thus, the entire case is void ab initio.
The malicious animosity that underlies the situation is based on violation of fundamental legal concepts. Decisions say that I have not shown that I am not “not ready, willing, and able to work” or some variation thereof. Such assertions are, of course, based on the disconnected and disoriented disregard of the examining physicians' findings that I am ready, willing, and able to work. The decisions start off wrong—from a fundamental delusion, an obvious error. Then they deteriorate into even greater disconnection from reality and become more blunted. Refusal of jurisdiction is clear, as a malicious effort for [to obstruct] me to [not be able to] present my case even on their own bizarre terms. One of the characteristics of the insane is their unresponsiveness, nay unwillingness, to react to reality.
However, once we examine the law and the precedents, that shows where the problems actually arise. The burden of proof is on the adverse party to show that I am unable to work—in relation to job-related standards, and, even first, to show that a safe environment (not extant as the 25 Jan 80 Report shows) has now been provided. A "not shown" clearly, as the Court says, "does not constitute a finding," and certainly not on the merits, which here the installation avoids. Here, the problem is simply the malice against providing a safe environment, and the normal status [excused absence] pending same. This arises from the bizarre behavior of Dr. Holt, namely, his intentionally overruling the assessments of the examining physicians, as well as his overruling USACARA, AR 1-8, and AR 600-20.
I have met the burden of proof; the USACARA Report shows that. So the “not shown” aspects are doubly improper, they disregard reality, and they are blunted. Disturbed officials have evidently deceived themselves into thinking their negatives prove a positive.
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Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 81, “'The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' S. E. C. v. Chenery Corp., 1943, 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626.” The record shows that the entire proceedings arise from Dr. Holt's bizarre legal opinions of 24 and 24 March 1980 issued by him based on the local desire to overrule the 25 Jan 80 USACARA Report and to continue the local unauthorized repeal of AR 1-8. Dr. Holt's "cannot" [obey control the behavior at issue] claim was false, and is false, at all times herein cited. All the local and MSPB gyrations thereafter arise from that blunted and disconnected view. Even the bizarre assertions MSPB made thereafter arise from that view. The behavior of the installation is thus void ab initio.
The 24 and 25 March 1980 legal pronouncements by Dr. Holt clearly attempt to re-decide the 25 Jan 80 USACARA Report. Dr. Holt does not agree with the Report and with the USACARA analysis of AR 1-8 and AR 600-20. Dr. Holt thus does not analyze the rules, advert to the 19 June 1979 guidance from the installation legal office, or address the various legal precedents. Dr. Holt's legal opinions are, first of all, incompetent; secondly, outside his field of medicine—to which he ought to confine himself; and thirdly, blunted, and apathetic to and disconnected from reality.
At 82, the Court said, “we hold that the order should be annulled because of the absence of any finding or other showing in the record of any investigation or consideration of” the pertinent aspects. Dr. Holt's behavior is part of the pattern of refusal to “ever consider the merits.” The Court remarked on “the silence” on the merits. Here, too, “the silence” is obvious. MSPB is responsible for noticing lack of consideration of the merits, disregard of the rules, refusal of implementation of a Grievance Report, etc. under the circumstances. However, MSPB employees, including at the presiding official and Board levels, also display blunted, disoriented, apathetic, disconnected, irritable, and/or paranoid behavior and symptoms. They too oppose the rules and would like to be able to re-decide the USACARA Report. Hence, their decisions/behavior is bizarre as well. Their behavior brings to mind data on delusions of grandeur.
The bizarre local and MSPB behavior reflects the delusion that everybody is wrong but them. An unresponsiveness to reality is a typical characteristic of the insane. Unresponsiveness is not only a psychiatric problem; under the circumstances, it is also a legal problem. Unresponsiveness is legally unacceptable.
It is clear that there is a “'lack of the basic or essential findings required to support the . . . order.' State of Florida v. United States, 1931, 282 U.S. 194, 215, 51 S.Ct. 119. 125. 75 L.Ed. 291.” Those insightful words from p. 79 are pertinent here. Indeed, “The settled policy of our law is to require every tribunal, administrative as well as judicial, to reduce to writing the essential findings of fact and conclusions of law upon which decision is predicated.” Irritability with a Report that does that is not lawful. The disturbed hatred of the rules that produces psychotic attempts to re-decide the Report requires refection and annullment. Moreover, as a matter of being humane, rehabilitation of the culpable local and MSPB employees is recommended.
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Cantlay & Tanzola v. United States, 115 F. Supp. 72 (D. S. D. California, C. D. 1953), provides insight. At 80, “It is clear from the cases that all relevant factors . . . must at least be considered . . . in every proceeding. E. g. American Trucking Ass'ns v. United States, supra, 344 U.S. at pages 313-314 . . . King v. United States, 1952, 344 U.S. 254, 263-264 . . . United States v. Rock Island Co., 1951, 340 U.S. 419, 434-436 . . . I. C. C. v. Parker, 1945, 326 U.S. 60, 66, 73 . . . Eastern-Central Ass'n v. United States, supra, 321 U.S. at page 194 . . . Cf. Ann Arbor R. Co. v. United States, 1930, 281 U.S. 658 . . . .” The 24 and 25 March 1990 legal opinions by Dr. Holt do not even advert to the guidance of AR 1-8, AR 600-20, the 25 Jan 80 USACARA Report, etc. There is no citation of job-related aspects, for the reason that there are none. There is no indication of compliance with safety rules such as the “unqualified and absolute” duty, the “mixture” guidance, etc., for the reason that there is no compliance, and “no evidence” of such, or of any intent to ever come into compliance. The refusal of consideration of the “all relevant factors” has continued to the present. EEOC [23 February 1982] noted the pattern of no action to “ever consider the merits.” MSPB noted the same but said that only “some” aspects need be covered, whereas other MSPB personnel felt that consideration of any aspect at all was “not relevant.” The blatant and brazen MSPB insubordination is a mockery and travesty of its role. The [Martin Baumgaertner] 23 Jul 80 “not relevant” assertion shows MSPB contempt for rules; so does the [lying] 18 Jun 81 statement [accepted 7 July 1981] on “some.” Even worse, thereafter, MSPB behavior became even more blunted and bizarre. The opportunities offered to correct its misconduct were summarily rebuffed.
At 80, the court also said that “'general statements . . . to the effect that the Commission, in reaching its conclusions, considered all the pertinent evidence, add nothing . . . Complete statements . . . showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions . . .' Beaumont, S.L. & W. R. v. United States, 1930, 282 U.S. 74, 86, 51 S.Ct. 1, 6, 75 L.Ed. 22l.” Dr. Holt did not even claim to have considered “all.” He surely did not consider the 25 Jan 80 Report, AR 1-8, AR 600-20, etc. His disregard of “all” was supported by MSPB on the bizarre basis that following the rules was “not relevant.” MSPB insists that only “some” of the evidence need be considered—and that, falsely, with inventions of actions that the installation denies, denies by “the silence” tactic rejected by the Court at 82. The local and MSPB behavior is of such low quality (i.e., blunted, disoriented, disconnected, etc.) that is still beneath the inadequate levels rejected by the court. They do not even assert “all”; instead, they admit none (“not relevant”) or “some.”
At 82, “To borrow language from Eastern-Central Ass'n v. United States, supra, 321 U.S. at page 210 . . . 'our function in review cannot be performed without further foundation than has been made . . . we cannot say . . . it . . . has the sanction of law without further basis than we now have.'” If specificity is ever devised by the installation, it will be responsible for issuing a proper advance notice and for giving consideration to any reply. Until then, the adverse action is void, and “make whole” action is essential.
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MSPB and local officials continue to fail to provide “subordinate factual findings” to support any “ultimate finding” on the situation, despite the Court guidance in Northern Pacific Railway Co. v. U.S., 241 F. Supp. 816 ([D Minn, 3rd Div] 1965), and normal specificity requirements. The lack of specificity is intentional; the pattern shows lessened data rather than improvement. There is no progress shown on, for example, reference to the deficiencies noted in the 25 Jan 80 Report. There was “no evidence” of compliance with OSHA such as the “mixture” guidance, “affirmative action,” etc. There is still no analysis of the lack of implementation of the Report and AR 1-8. Facts such as were cited by OPM and MESC are ignored. The EEOC guidance and letters are disregarded. Army statements against disregard of actual or anticipated “personal determinations” such as cited in RPI 914 and the Report are disregarded.
These failings continue even though the [OSHA] safety duty is “above all other considerations” as “unqualified and absolute.” An equitable balance must be established to eliminate harm, endangerment, unhealthful conditions, etc. A “personal determination” that a nonsmoker might make is to be anticipated as the “affirmative action” guidance indicates. The duties are clear; the blatant refusal to obey the rules is unthinkable. The blatant refusal to implement the 25 Jan 80 Report is thus [legally] unexcuseable [as medically abulic]. Instead of compliance, local smokers continue to insist upon the same claims as the agency USACARA Report already repudiated. The continued claims of “cannot” comply are nowhere substantiated; they are simply asserted without explanation. When the basic rules and guidance are flouted, it is clear that the reasonable accommodation process has not even started. Local officials refuse to communicate with me and defy EEO rules on counseling, as EEOC noted 23 Feb 82. How can the process start without communication? Local officials with MSPB blessing have derailed the process before it even started.
Claims of inability to obey the rules to provide a healthful environment are simply [objectively] false [medically abulic]. AR 1-8 is consistent with repeated Army statements such as are in the various RPI 914 brochures. The purpose of safety rules is to save money, save lives, and save property. Safety is a cost-saving program. That explains why the [OSHA] duty is so strong—“unqualified and absolute.” It is a rare person who objects to saving money! But suppose that there were some cost. Safety is “above all other considerations.” That duty is juxtaposed with the reasonable accommodation duty. Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981) indicates that once the issue of reasonable accommodation is reached, if ever, “Congress clearly intended the federal government to take measures that would involve more than a de minimis cost. As the debate over the McClure amendment shows, Congress was even unwilling to approve language that would have limited the government's duty to make reasonable accommodation to instances in which the cost of accommodation does not 'disproportionately exceed actual damages.'” Contrary to the knowingly false [18 June 1981] MSPB claims, the reasonable accommodation process has not begun. The 23 Jul 80 decision [had] recognized that the process had not started, and [but] declared it “not relevant,” thus assuring continued malicious local refusal to begin the process. Thus there has been no showing of any cost at all, even as much as de minimis. It is clear that AR 1-8 contemplates only benefits will arise from protecting nonsmokers and honoring their “personal determinations” and preventing impaired efficiency, which is otherwise one of the excessive costs of allowing smoking that the Army opposes.
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Marco Sales Company v. F.T.C., 453 F.2d 1 (2nd Cir. 1971), provides insight. At 6, the Court notes Supreme Court guidance against “unbridled power to institute proceedings which will arbitrarily destroy one of many law violators in an industry.” That fundamental legal principle sheds insight on the wrongfulness of the malicious “proceedings which will arbitrarily destroy one of many” victims of the disregard of AR 1-8 for having sought implementation of the rule which itself envisions a personal standard, and for having sought implementation of the Report which EEOC noted 23 Feb 82 has not been implemented. Since there is no “unbridled power to . . . arbitrarily destroy one of many law violators,” there is no “unbridled power to . . . arbitrarily destroy one of many” persons expressly granted protection by express phraseology of agency regulation AR 1-8, for having sought such protection to which entitled.
At 6, “The arbitrary character of the . . . action here consists of . . . total failure to even advert to, much less explain, its reason for the rigid ad hoc adjudicatory stance it adopted toward the petitioner,” while disregarding others with the same entitlement to healthful conditions. The 25 Jan 80 Report had noted the disregard of others; the local and MSPB behavior brazenly disregards that fact, and does not “even advert to, much less explain” it. The oversight is not an oversight; it is intentional. FPM Supplement 752-1 clearly warns against singling people out. Clearly, any effort to “advert to” or “explain” would draw attention to their wrongdoing, so they remain silent. The pattern of uncommunicativeness is clear.
At 7, the Court notes “That an administrative agency is obligated to provide petitioner with an explanation for the difference in their treatment, is well established. Secretary of Agriculture v. United States, 347 U.S. 645, 652-655, 74 S.Ct 826, 98 L.Ed. 1015 (1954), FTC v. Crowther, 139 U.S.App.D.C. 137, 430 F.2d 510, 514-515 (1970); ABC Freight Co. v. CAB, 391 F.2d 295, 300-303 (2d Cir. 1968); Burinskas v. NLRB, 123 U.S.App.D.C. 143, 357 F.2d 822, 827 (1966); Melody Music, Inc. v. FCC, 120 U.S.App.D.C. 24l, 345 F.2d 730 (1965); City of Lawrence, Mass. v. CAB, 343 F.2d 583, 588 (Ist Cir. 1965). See also Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 206-209.” When a duty is “well established,” the conscious, intentional, deliberate, voluntary disregard of the duty is willful.
At 6, the Court noted that the FTC at least tried to explain, however inadequately, the difference in treatment. In this case, no explanation at all is offered or even attempted. The duties cited on pp. 11-12 of the 25 Jan 80 Report were so clearly unmet that the Report showed that the installation had not even “considered the rights of all nonsmokers,” much less taken affirmative action to implement those rights. Refusal of implementation is likewise true in my case; non-implementation was noted by EEOC 23 Feb 82, and by OPM 5 Oct 81. The remarkable consistency in findings between reviewers acting independently rings true and confirms both non-implementation of rules for me and for others. It is MSPB that is out of line, that is disconnected from reality. Thus the anomalous MSPB behavior “has made no findings and has articulated no reasons for its disparate treatment of petitioner.” MSPB does not “even advert to, much less explain” the marked disregard of the clear inconsistencies.
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N.L.R.B. v. Clement-Blythe Companies, 415 F.2d 78 (4th Cir. 1969), provides insight, similar to the decision in Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 (1st Cir. 1964). “The need for the Board to provide its reasons is based on something more than insistence on technical compliance with the Administrative Procedure Act [5 USC § 706].” It [in this case] is also based on more than simply the normal civil service rules [e.g., 5 USC § 7513] on the agency having to provide an advance notice with specifics, with opportunity to reply. None of these rules were followed in “the agency's decision to terminate” me [Perez's April 1980 term]. In the decision of the Court, at 81, the court noted that each side cited precedents in its favor. The Board did no proper analysis, i.e., “did not state its reasons” for the course of action decided on. The local installation had done likewise; the Board refused to do its review duty, and instead, like a zombie, copied the actual or supposed agency-position, in a weird, disconnected, disoriented, and blunted fashion.
The installation cited no basis for its bizarre claims. It has no acceptable basis for insubordination—insubordination is “arbitrary and capricious.” USACARA rejected its inaction. I cited that precedent as well as others. MSPB ignores the evidence and refuses to consider the violations. It refused to consider the accommodation process on the bizarre grounds of “not relevant.” The bizarre and disproportionate emphasis on “jurisdiction” means that the burden of proof on the merits is on me, instead of on the installation. Yet MSPB refuses to allow a hearing which is the normal way of meeting the burden of proof. The bizarre MSPB fixation disregards its own misconduct and disregards precedent such as Missouri Pacific Railroad Company v. U.S., 203 F. Supp. 629 ([ED Mo] 1962).
The installation and MSPB ignore the many precedents that show smoking as personal and not part of the job. Many Court precedents from worker compensation cases show that fact. Product liability cases brought by smokers and/or their survivors show smoking as a hazard to the smokers as alleged by the users and/or their survivors themselves. Smoking is the #1 hazard causing preventable death and disability among smokers. The local and MSPB behavior disregards such reality. The bizarre correspondence from local and MSPB personnel does not even advert to such facts. Such denial of reality is in marked contrast to the competent and sane analysis in the 25 Jan 80 USACARA Report. Other aspects of the disregard of precedents include but are not limited to cases brought under safety law, mental health law, criminal law, constitutional law including but not limited to due process, equal protection, right to work, etc. The pre-accommodation process has clearly not started. Local officials refuse to speak to me, since they oppose even beginning the process, and since MSPB declared the process “not relevant.”
The NLRB v. Clement-Blythe Companies case, supra, rejected the detective government behavior. It is not proper “to have to speculate as to the basis for an administrative agency's conclusion.” At 82, “the reasons for the Board's decision become essential, for lack of clarity in the administrative process infects review with guesswork.”
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Northern Pacific Railway Company v. United States and I.C.C., 241 F. Supp. 816 (D. Minn., 3rd Div. 1965), provides insight. At 818, the Court indicated that “ultimate finding . . . must necessarily depend upon subordinate factual findings . . . .” MSPB has made no findings on elimination of the endangerment, discomfort, and unremoved smoke giving rise to the situation; compliance with the “mixture” guidance on which there is still “no evidence” of compliance; implementation of the 25 Jan 80 Report which EEOC has noted [23 February 1982 (Dockets 01800273 et al.) and 8 April 1983 (Docket 03.81.0087; 83 FEOR 3046)] has not been implemented; and on the full “authority” and “unqualified and absolute” duty to eliminate the hazard. MSPB has made no findings on the fact that reasonable accommodation has not been shown, as OPM noted [October 1981]; or on the MESC finding that I am ready, willing, and able to work. MSPB allegations are disconnected, disoriented, blunted, and/or delusional. The examining doctors unanimously indicate that I am “ready, willing, and able to work.” The MSPB assertions to the contrary are clearly disconnected. MSPB has made no findings that smoke is removed, that the environment is healthful, and that the goals against endangerment and loss of efficiency from tobacco-induced conditions are met. MSPB is clearly ignoring its own de minimis assertions of actions allegedly taken, as [Ronald Wertheim, Ersa Poston, et al. abruptly, sua sponte] fabricated 18 June 1981. MSPB has made no findings on the repeated acceptances of those alleged actions taken [beginning 7 July 1981].
The list of matters about which MSPB avoids making findings is significant. The disregard is intentional. MSPB officials are clearly well aware that the assertions MSPB made were, and are, false. Thus, the acceptances are disregarded. MSPB simply refuses to correct its own errors. MSPB refuses to correct its own errors even when several other agencies note the errors. OPM, MESC, and EEOC noted aspects of the MSPB pattern of errors. MSPB refuses to even acknowledge its errors, as part of that refusal, MSPB refuses to grant a hearing for me to present my case, and thus—as an incidental matter but one of foundational significance—obtain record evidence of MSPB errors. MSPB ignores its own 5 CFR 1201.24(c), “Under 5 U.S.C. 7701, an appellant has a right to a hearing.” A hearing is especially needed considering “the agency's decision to terminate” me as noted 9 Apr 80 [by EEOC's Henry Perez, Jr.]. A hearing will provide “subordinate factual findings” that show the MSPB refusal of analysis is improper.
The order simply refers to “a blanketed entity” (the whole installation). But the installation has “boundaries,” i.e., separate buildings, floors, quadrants, etc., in most of which my job does not ever take me. The “pertinent supporting factors” are ignored by MSPB. Indeed “there is no dispute now that” endangerment is occurring, that the 25 Jan 80 Report has not been implemented (EEOC noted this [23 February 1982: Dockets 01800273 et al.; 8 April 1983: Docket 03.81.0087; 83 FEOR 3046]), and that I am ready, willing and able to work (MESC noted this). “There is no dispute now” except for MSPB disregard of the evidence, its refusal of a hearing, its mailing back evidence, etc. Court emphasis on specificity is clear. Competent reviewers have already shown the local violations. MSPB has displayed no interest. MSPB “provides no rational basis for the ultimate finding reached.” That is because of its refusal to make its own “subordinate factual findings” and disregard of others when they do so.
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Missouri Pacific Railroad Company v. United States and I.C.C., 203 F. Supp. 629 ([ED Mo] 1962), provides insight. The agency there “argues that this lack of evidence is chargeable to the railroads' failure to carry the burden of proof,” at 635, like MSPB argues on me. The Court rejected such assertions, saying, “On the contrary, the railroads have sustained their burden of proving . . . .” The problem in the case at bar is local and MSPB refusal to go by the evidence. The problem is their blunted, disoriented, and disconnected reaction to the record. At 634, the Court noted that the agency behavior contrary to the law “would drain its strength and negate its effect entirely.” Ignoring the endangerment that gives rise to the situation (ignoring causes) violates AR 1-8 and “would drain its strength and negate its effect entirely.” The Court rejected such behavior. Blunted, disoriented, and disconnected behavior is unacceptable.
The burden of proof that endangerment and discomfort are and have been occurring, and that the Report telling the installation to halt such behavior harmful to others has not been implemented, has been met. OPM, MESC, USACARA, and EEOC have noted the various violations. The local and MSPB behavior is predicated upon the occurrence of the endangerment. But even if neither I nor the evidence were able to show any such impartial reviews (considering that MSPB refuses to consider the evidence, the outside reviews are most insightful), the Missouri Pacific case shows that something more than assertions of alleged failure to meet the burden of proof is necessary for a specific finding that sick leave is appropriate in a safety hazard situation involving a matter that is not “job-related” by even an attempt to show such. The fact is that the agency has failed to meet the burden of proof, so MSPB maliciously disregarded that fact by
(a) claiming such lacking is “not relevant,” and then
(b) claiming [18 June 1981] that the agency had done what the agency had been insisting it could not do!
The MSPB behavior is tantamount to unlawful repeal of the guidance on burdens of proof, among many other unlawful repeals. The one-year [LWOP] rule [TACOM-R 600-5.14-27 et seq.] was unlawfully repealed (abrogated) at the stroke of an unauthorized pen. MSPB clearly does not respect rules.
The Court emphasized that “we are bound by the basis of the order as originally promulgated,” at 633. MSPB simply chose to ignore the March 1980 blunted remarks by [smoker] Dr. Holt acting under the improper influence of the personnel office, specifically [Colonel] Charles D. Phillips, who is not a doctor. MSPB should have summarily overruled Dr. Holt's [March 1980] legal opinions as directly contrary to the Report just issued [January 1980]. But MSPB does not consider itself “bound by the basis of the order as originally promulgated,” so it sets out to engage in a pattern of fabrications and blunted, disconnected remarks contrary to the evidence. When questions arise, it reduces specificity in reprisal.
The Court noted Supreme Court guidance "As stated in Securities & Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626: “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.'” Otherwise, it “cannot be upheld.” MSPB chooses to ignore that guidance as well. MSPB repeals any rules it opposes. MSPB spurns subsequent opportunities to correct its own errors. Such apathy and indifference is unbecoming.
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Association of Nat. Advertisers v. F. T. C., 460 F. Supp. 996 (D.D.C. 1978), provides insight. “The parties to this proceeding are as a matter of fundamental due process entitled to a . . . decision that will be premised on factual determinations which have not been prejudged in advance or tainted by the participation of one whose objectivity is subject to serious question.” Local officials refuse to alter their views, even when repeatedly their errors are called to their attention by various outside reviewing bodies including but not limited to USACARA, MESC, EEOC, and OPM. Once the multiple violations were recorded by USACARA 25 Jan 80, resolution should have occurred. Instead, the environment was worsened in reprisal for my success—a success foreseeable to a reasonable person considering that the violations were obvious. Disregard of the OSHA “mixture” guidance, the “unqualified and absolute” safety duty, the various criteria in AR 1-8, etc. is obvious, and was known to management prior to the 25 Jan 80 Report. However, since they [local management, MSPB, adjudicators] do not agree with the rules, they are insubordinate to them. Their views, already rejected, they continue to insist on—an obvious “prejudged in advance” situation. An unalterably closed mind is clear. Unresponsiveness to evidence is clear. The persons who chose to oust me did so—knowing that their views and behavior were wrong and, indeed, already rejected.
At 997, the Court cited “The test for disqualification” as “whether 'a disinterested observer may conclude that' deciding official 'has in some measure adjudged the facts as well as the law of particular case in advance of hearing it.'” The duty is that a decision or hearing “'must be attended, not only with every element of fairness but with the very appearance of complete fairness' . . . .” The Court cited “the standards of conduct laid down in Cinderella Career and Finishing Schools, Inc. v. FTC, 138 U.S.App.D.C. 152, 160, 425 F.2d 583, 591 (1970]” and “Accord, Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 336 F.2d 754 (1964), vacated and remanded on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d. 714 (1965).” All the criteria have been disregarded by local officials and by MSPB. The case file is replete with disregard of evidence, the record, and reality. The unresponsiveness shows “prejudged in advance.” Local officials make claims already rejected [by USACARA, MESC, EEOC, OPM, etc.]. MSPB reduces specificity rather than increases it. When evidence is ignored, “prejudged in advance” is clear. There is no intent of ever coming into compliance. There is no intent of ever responding to the evidence.
The Court rejected a deciding official's “use of conclusory statements of fact, his emotional use of derogatory terms and characterizations, and his affirmative efforts to propagate his settled views” which thus “made his further participation improper.” The entire case file is in conclusory terms by local and MSPB officials misusing their jobs for personal reasons. Conclusory words such as “cannot” have no factual support at all. Various assertions have no factual support and indeed, appeared as assertions for the first time in MSPB decisions—denying me any opportunity to respond prior to decision. Malicious and false claims to discredit me had no purpose but “to propagate . . . settled views” and to attack me in “derogatory terms,” in order to keep those already rejected “settled views” contrary to the rules. Opposition to review to “ever consider the merits” is obvious and provides insight on the motives, motives in opposition to further review to again reject their “settled views.”
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Garrett v. F.C.C., [168 US App DC 266;] 513 F.2d 1056 (D.C. Cir. 1975), provides insight. At 1060, “Hitherto, we have had occasion to deal with claims of disparate decisional treatment accorded parties by administrative bodies. Speaking of one agency, we have twice said that it 'cannot act arbitrarily nor can it treat similar situations in dissimilar ways,” in Herbert Harvey, Inc. v. NLRB, 424 F.2d 770 at 780 (1969), and in Burinskas v. NLRB, 357 F.2d 822 at 827 (1966). “These rulings reflect the underlying principle that agency action cannot stand when it is 'so inconsistent with its precedents as to constitute arbitrary treatment amounting to an abuse of discretion.'” Army opposition to endangering, discomforting, and bothering nonsmokers is expressly spelled out in AR 1-8. FPM Supplement 752-1 expressly prohibits behavior harmful to others. No rule refers in even a de minimis way to forbidding the "capacity to be harmed." The local and MSPB insistence on such concept is irrational, blunted, and disconnected.
The Army has been adversely impacted by smoking since at least when it was noted in Austin v. Tennessee, 179 US 343 (1900). The Army has noted incidents of harm to property. Army rejects fire hazards. Army rejects explosive hazards. Army opposes smoking “because of fire, explosive, or other safety considerations.” The Army pamphlet RPI 914 goes so far as to state “Don't smoke. . . . This also avoids accidents like setting your application on fire or marring the furniture.”
Smoking is the #1 cause of fires. The Army responds to real concerns.
The Army has also noted impairment of the efficiency of nonsmokers when they are harmed or made ill by others' smoking. Federal employee compensation cases result. It is Army policy to forbid the harm in the first place. Army commands its employees to note impaired efficiency caused by the harm from smoking. Impaired efficiency is to be anticipated. The Army opposes allowing the inefficiency to happen and then play “catch-up.” A tobacco-induced absence for year after year undoubtedly impairs efficiency, which is forbidden. Any impairment of efficiency shows non-compliance with the mandate “to remove smoke from work areas and provide a healthful environment,” paragraph 4.a.(7) of AR 1-8.
One example of the use of the prohibition on letting smoking impair efficiency is with computers. Computers are “ready, willing and able to work,” compute, issue printouts, etc., but computers have demonstrated that second-hand smoking “does constitute a safety hazard to” them. There are no blunted, time disoriented, or disconnected reactions to such obvious facts. If someone smoked by [near] a computer, the computer would not be declared “sick” for any longer than really true [at all!!!]. It [the computer] would not be asked, maliciously, to bring in a medical (or engineering) clearance. Instead, smokers would be directed not to impair its efficiency any more, or else.
Army concern for people and property is clear in both AR 1-8 and RPI 914. Thus, the local action is “so inconsistent with . . . precedents” as well as the rules “as to constitute arbitrary treatment amounting to an abuse of discretion.” Mistreating a computer would be understood as irrational and counter-productive. Mistreating a human being is malicious.
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When “an unalterably closed mind on matters critical to disposition of” a case is apparent, “An agency member may be disqualified,” Association of Nat. Advertisers, Inc. v. F. T. C., 627 F.2d 1151 (1979) [cert den 447 US 921; 100 S Ct 3011; 65 L Ed 2d 1113 (1980)]. Clues to “an unalterably closed mind on matters critical to disposition” on my case are evident; indeed, the local and MSPB behavior is replete with evidence showing such “unalterably closed mind.” Action to “ever consider the merits” is summarily rejected, time and again. Errors, miscalculations, false statements, and other misconduct has been used to obstruct action to “ever consider the merits.” Previously rejected [e.g., by USACARA] assertions are unblushingly continued. The absence of “job-related” aspects is brazenly disregarded, and, indeed, not even noticed. The disregard of the 25 Jan 80 Report goes on and on, even when that disregard is specifically noted.
In Re United Corporation, 249 F.2d 168 (1957), shows that an Examiner's Report “is a guide to our conclusion and should have been given due regard by the” installation as well as by MSPB. Such “due regard” is significant when “the recommendations of the examiner were supported by substantial evidence while the findings of the" local officials and "of the Board were not.” In the case at bar, there have been several reviews—by OPM, MESC, and EEOC, as well as by USACARA. Clearly, “an unalterably closed mind on matters critical to disposition of” the case is obvious on the part of local and MSPB officials who utterly ignore and do not even advert to data other than their own “settled views” that show “an unalterably closed mind.” Here, of course, the many rules involved are not merely “a guide to our conclusion,” they are the standards against which decisions are to be made. AR 1-8 sets standards against endangerment, discomfort, unreasonable annoyance, unremoved smoke, etc. OSHA involves “mixture” guidance as well as an “unqualified and absolute” duty. Yet the decisions are unresponsive to those standards. Disregard of rules is lawless, and lawless decisions are improper, arbitrary, capricious, and void.
All around the nation, closed minds by decision-makers are rejected, Prejudgment of a case is improper. Juror misconduct is evident when, during the presentation of evidence, jurors are not paying attention. Reading a novel or doing crossword puzzles is not acceptable at such a time. See Hasson v. Ford Motor Co., 126 Cal.App.3d 52, 178 Cal. Rptr. 514 [1981].
Association of Nat. Advertisers v. F. T. C., 460 F. Supp. 996 (1978), cites “fundamental due process” as providing entitlement to “factual determinations which have not been prejudged in advance or tainted by the participation of one whose objectivity is subject to serious question.” Reading novels or working crossword puzzles is not listed as involving mental disorder; whereas smoking “causes insanity.” Mental disorder involving “an unalterably closed mind” requires disqualification. Such is particularly needful when “a chronic disorder is irreversible because of permanent damage to the nervous system.” “Cell bodies and nonmyelinated neural pathways do not have the power of regeneration, which means that their destruction is permanent.” Considering the persistence of the refusal to “ever consider the merits,” recovery of the culpable smokers is not of any degree of probability as would preclude their disqualification.
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Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 (1st Cir., 1964), provides insight. The Court noted “vital flaws in the Board's decision” such that in review, “we cannot be sure of the basis on which the Board rested its refusal.” In this case, the Board's refusal to be specific is clear. There are neither agency showings nor Board findings on compliance with the rules [e.g., AR 1-8, OSHA, 5 USC § 7513, etc.], on any job-related aspects [e.g., job description, qualifications, performance record], on “affirmative action,” etc. etc. The many voids in the local and MSPB behavior are clear. The contradictions are obvious.
In Northeast Airlines, supra, at 586, “There should be no room for this dispute. Courts ought not to have to speculate as to the basis for an administrative agency's conclusion. Indeed, to prevent just such speculation . . . the Administrative Procedure Act [5 USC § 706] . . . provides that all agency decisions shall include not only the appropriate rule, order, sanction, relief or denial thereof, but also findings and conclusions as well as the reasons or basis (emphasis added) therefor, upon all the material issues of fact, law, or discretion presented on the record.'” In this case, there is no basis for the blunted, disoriented, disconnected and other personal behavior and misconduct in clear violation of freedom of expression, safety duties, accommodation duties, etc. etc. The irrational nature of the stereotyped behavior at issue involves multiple speculations, to the extreme that the repeated acceptance of the actions alleged to have occurred is refused [e.g., acceptance 7 July 1981]. The refusal includes refusal of even the courtesy of an acknowledgement, showing the malice of the smokers involved—their malice and reprisal against me for seeking enforcement of a rule [AR 1-8] on smoking that envisions a personal standard.
The Court indicated, “We do not undertake to catalogue all the deficiencies in the Board's decisions.” The many deficiencies [by TACOM, etc.] are simply too grotesque. Assertions that are delusional, blunted, disconnected from reality, disoriented, or otherwise deviant are, from a personnel management [human resources] point of view, normally to be catalogued in proceedings such as fitness for duty examinations of the persons who make such deviant remarks. This is especially insightful when false assertions known to be false are made in decisions.
The Court rejected both “irrelevant or inadequately developed” aspects. MSPB fixation on the contents of a closed grievance as distinct from the reprisaL for winning it, and the refusaL of implementation, is clearly “irrelevant.” Indeed, malice and paranoia are evident. MSPB simply fixated on the wrong aspects, and refuses even the opportunity to develop evidence showing refusal of compliance [with e.g., AR 1-8, OSHA, 5 USC § 7513, etc.]. Of course, the refusal of implementation is obvious, no doubt, but that fact renders MSPB and local culpability greater, not lesser. When every proper review (by OPM, MESC, EEOC, and USACARA) shows the local violations, the problem is with the MSPB reviewers' blatant disregard of the facts that were allowed into the record. Even the undeveloped record shows local violations and lack of showings. There is clearly no showing as to any changes that “will meet the statutory requirement” on safety, the AR 1-8 guidance on smoking, etc., “when it did not in the past,” when local behavior had the many violations and deficiencies noted by the 25 Jan 80 Report. The reason that there is no showing of improvement includes (a) non-implementation as EEOC noted 23 Feb 82 [Dockets 01800273, et al.], and (b) worsening, as even the undeveloped record clearly shows.
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(pp 394-396)

The book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D., provides insight. Data on criminals’ characteristics provides insight concerning smokers. At 403, “We are describing a general pattern of the criminal: failure to ascertain the facts. The criminal is not a fact-finder . . . He gets an idea, forms an opinion based on it, and then believes it as an established fact. Facts are not sought, because the criminal thinks that he already has the information he needs. As one scholarly criminal put it, his style of thinking is ‘Cogito, ergo est’––‘I think, therefore, it is.’” Such data provides insight on the MSPB behavior pattern of disregarding reality. EEOC noted that lacking. The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] is the product of the behavior of MSPB officials [e.g., 6 MSPB 626; 7 MSPR 13 (18 June 1981), by Ronald P. Wertheim, Ersa H. Poston, etc.] adherence to this “general pattern of the criminal: failure to ascertain the facts.”
At 401, “The responsible person and the criminal approach making major decisions very differently.” The MSPB behavior pattern makes clear that the phrase “responsible person” is not applicable in describing MSPB employees whose behavior is at issue. By a process of elimination, the choice of which description is pertinent and accurate, is clear.
At 403-404, “the criminal prejudges people. The prejudgments are usually erroneous, being based on many other thinking errors. Innumerable situations are misconstrued in a single day.” Such data provides insight on the MSPB behavior. EEOC decided that the MSPB behavior reflects both (a) “an incorrect interpretation of the applicable regulations,” and (b) “not supported by the evidence in the record as a whole.” Considering the many errors in this case alone, and particularly the contradictions committed by MSPB, “Innumerable situations are misconstrued in a single day.”
At 401, “All his life, people have begged and pleaded with the criminal to make the effort to change. However, he has put the burden on others to give him reasons why he should.” Such data provides insight on MSPB behavior in shifting the burden of proof onto me, when it belongs on the agency. The MSPB behavior is particularly consistent with criminal behavior, considering that the 25 January 1980 USACARA Report shows that I have already met the burden of proof. The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] includes significant repetition of the 1980 data, based on the 1979 data, based on the [TACOM] non-compliance with the 1977 regulation [32 CFR § 203, AR 1-8]. The installation [TACOM] has not changed its misconduct, except for worsening it.
At 405, “The criminal has little comprehension of how responsible people think. Thus, he habitually forms erroneous conclusions and makes faulty decisions.” “Long-range prospects and possibilities are not taken into account. . . . In addition, he lacks facts about both the present and the future. The range of his considerations is very narrow.” At 404, “The failure to establish and consider different options severely restricts him. This is a consequence of never having learned enough about responsible living to know that there are alternative courses of action.”
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The 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046] noted “that the Board [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] made a factual determination, without benefit of a hearing or . . . compliance with any of the applicable standards of proof . . . .” Data on criminality provides insight concerning such Board behavior. Pertinent data is provided by the book, The Criminal Personality, Vol. 1, A Profile for Change [New York: J. Aronson], 1976, by Samuel Yochelson, PhD., M.D., and Stanton E. Samenow, Ph.D.
Uniqueness. At 316, “The criminal generally tends to see himself as more knowledgeable than anyone else.” “In the job world, he thinks that, although others need training, he is equipped to step right in and do the job batter than those already there.” Even “Advice in line with his objectives is likely to be repudiated simply because he considers advice of any kind demeaning. He does not need it; he knows it all.” Thus, while MSPB contempt for the pertinent rules is obvious, the MSPB “knows at all” attitude led to inclusion of claims of actions which “were not even attempted.” Disregard of the rules and of the record was rendered conspicuous by refusal of the “benefit of a hearing . . . .” Such exceptionally outrageous behavior rendered conspicuous the installation [TACOM] disregard of rules, even though such disregard is “in line with” MSPB “objectives.” Moreover, the MSPB behavior renders conspicuous the installation [TACOM] misconduct. MSPB behavior of refusing review is “in line with” installation [TACOM] “objectives,” but rendered them conspicuous. Rules and guidance such as from USACARA and EEOC and MESC are extant. Each (TARCOM and MSPB) “considers advice of any kind demeaning.” Thus, they flout “advice.”
At 317, “A belief in his superiority over others is an important component of the criminal’s uniqueness. It is a sense of being better than others at anything he wants to undertake. As one man mused, 'How many supermen can there be? I am it.’ . . . the criminal wants to be number one in everything. It goes beyond that: he wants to be a unique number one. . . . This aspect of the criminal has broader implications. The importance of being number one leads the criminal to refuse to submit to any person, program, or system.” The MSPB view is remarkably like that of the criminal. The “superiority over others” view is clear from the MSPB disregard of rules, time limits, evidence of record, standards of evidence, the USACARA Report, etc. Moreover, due to the smoker feelings of “superiority over others” such as nonsmokers, AR 1-8 was necessary as a command to smokers “to submit to” limits, such as EEOC [Docket 03.81.0087, 83 FEOR 3046] noted 8 April 1983 (as USACARA had before it), and which the [TACOM] installation (foreseeable from the data on criminality) “refuses to submit to,” in reference to “the agency's smoke-filled environment which the agency refuses to alter,” p. 6.
Lack of Time Perspective. At 370, “the criminal expects to be on a par immediately with people who have worked a lifetime for what they have. He wants the achievement without the work: ‘I wanted to be in a position of responsibility without being responsible.’ He balks at acquiring skills and experience, building step by step.” A hearing involves “building” facts “'step by step.” MSPB offenders [Martin Baumgaertner, Ronald P. Wertheim, Ersa H. Poston, etc.] ignore the long experience on the common dangers of tobacco smoke developed by persons “who have worked a lifetime” in the field. Thus, legal [including due process] precedents are ignored, along with the medical data. MSPB wants “‘responsibility without being responsible.'” Foreseeable from data on criminal views, MSPB disregarded facts and rules.
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(pp 399-402)

Prohibited Personnel Practices
Violation of Regulation

29 CFR § 1613.701 etc. The required “reasonable accommodation” presupposes compliance with basic rules. Local [TACOM] employees deny any hazard or violation [exists] and thus [they] refuse to begin regular rule enforcement. As the process has not starred, local [TACOM] employees also refuse to begin “reasonable accommodation.”
For example, AR 1-8 requires that the environment “not endanger . . . cause discomfort or unreasonable annoyance.” The environment does these things to the extent [TACOM] management refuses to let me return to duty, but it refuses to halt the endangerment and discomfort the regulation prohibits.
[TACOM] Management refuses to implement the “unqualified and absolute” safety duty specified by OSHA [29 USC § 651 - § 678] in Nat’l Rlty & C. Co., Inc. v. OSHRC [160 U.S. App. DC 133], 489 F.2d 1257 (1973). Compliance with OSHA (or 5 USC § 7902) would undoubtedly preclude need for superimposing “reasonable accommodation” on top of the “unqualified and absolute” duty. Achieving a non-endangering, non-discomforting environment would likewise undoubtedly preclude need for superimposing the “reasonable accommodation” duty on top. However, achieving them would most assuredly provide a sound basis for then beginning the “reasonable accommodation” process.
The local [TACOM] employees involved also refuse to enforce other rules such as on courtesy, littering, loafing, efficiency, property control, etc. Enforcement of any one rule would resolve the situation. The local property control regulation, TACOM-R 190-4 is based on the same police power authority as was upheld in Austin v. Tennessee, 179 US 343 (1900). The rule forbids any habit-forming drug without a valid doctor’s prescription. It also limits personal effects to non-dangerous items. Even if personal effects were allowed to be dangerous, such would not allow personal reasons to be a basis for adverse action against a victim such as myself harmed by such personal effects.
No reason has ever been provided for the refusal to (a) enforce the pertinent rules and (b) begin reasonable accommodation. Even if there are reasons (and there are none, or they would have been articulated––although untimely), there is no cause for adverse action until after any alleged reasons are stated and opportunity to reply provided. Cf. 5 CFR § 752 and advance notice [5 USC § 7513(b)] requirements.
As made clear in cases such as State of Missouri ex rel. Gaines v. Canada, 305 US 337 (1938); Brown v. U.S., 256 US 335 (1921); and Sleeper v. Sandown, 52 N.H. 244 (1872), movement in safety is extensive and not limited to one room. Cf. OSHA cases and 5 USC § 7902. Reasonable accommodation superimposed on top of these basic legal facts will assuredly allow immediate return to duty in safe conditions.

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Prohibited Personnel Practices
Unconstitutional Local Acts

Equal Protection
Refusal to let me return to duty to verify whether AR 1-8 is being complied with as per guidance of 25 Jan 80 USACARA Report, p 14, on “personal determination.” It is not lawful to refuse a person the right to take a test, Gurmankin v. Costanzo, 556 F.2d 184 [14 Fair Empl. Prac. Cas. 1359, 14 Empl. Prac. Dec. ¶ 7519, 1 A.D. Cases 20 (3d Cir, 1977)].
Refusal to allow right to work in safe conditions in work area where I am called to be. See Brown v. U.S., 256 US 335 [41 S.Ct. 501; 65 L.Ed. 961] (1921); Yick Wo v. Hopkins, 118 US 256 [6 S.Ct. 1064; 30 L.Ed. 220] (1886); Truax v. Raich, 239 US 33 [36 S.Ct. 7; 60 L.Ed. 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915); Sleeper v. Sandown, 52 N.H. 244 (1872) [Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 Cal. Law Rev. [#3] 702 (May 1976)].
Insistence on use of tradition, that excused absence is traditionally only for all hazards except smoking, when tradition is not a lawful reason, Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Browder v. Gayle, 142 F. Supp. 707 ([M.D. Alab.] 1956) [cert. den. 352 US 903 (1956)].
Insistence on segregating me instead of acting on the rights of all nonsmokers as cited in the 25 Jan 80 Report, p. 11, and of handicappers sensitive to tobacco smoke, Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S.Ct. 232; 83 L.Ed. 208] (1938); Hairston v. Drosick, 423 F. Supp. 180 (S.D.W. Va. 1976).
Insistence that I or my doctor must accept the current endangering environment or else––an all or nothing approach––of a perfect solution or nothing, Buchanan v. Warley, 245 US 60 [38 S.Ct. 16, 62 L.Ed. 149] (1917); Bartels v. Biernat, 427 F. Supp. 226 (E.D. Wis. 1977); Swick v. Aetna Portland Cement Co., 147 Mich. 454 [111 NW 110] (1907).
Violations are “readily apparent” including for those “similarly situated” while there is insistence on “too much deliberation” and no speed at all, including the clear (in substance) cancellation of all my EEO cases, Goss v. Bd. of Education of Knoxville, 373 US 683 [83 S.Ct. 1405, 10 L.Ed.2d 632] (1963); Rogers v. Paul, 328 US 198 [86 S.Ct. 358; 15 L.Ed.2d 265] (1965); Griffin v. City School Bd. of Prince Edward County, 377 US 218 [84 S.Ct. 1226, 12 L.Ed.2d 256] (1964).
Insistence that involuntary smoking is an essential part of successful job performance when involuntary smoking is in fact no part at all of the job or of any job requirement whatsoever, Griggs v. Duke Power Co., 401 US 424 [91 S.Ct. 849; 28 L.Ed.2d 158] (1971); Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A. 2d 408 (1976).
Use of aphorisms such as “unfit for duty” instead of actually conducting a proper analysis and noting that tradition is not a proper substitute for rules, and that no action can be for an obviously medically impossible duration, by use of ex parte communications as a stratagem to circumvent policies such as AR 1-8 to preclude endangerment from occurring, much less causing long-term sick leave, Snead v. Stringer [454 U.S. 988; 102 S. Ct. 535], 70 L.Ed.2d 402 (dissent); Clements v. Logan [454 U.S. 1304; 102 S.Ct. 284], 70 L.Ed.2d 461 (1981); Mattox v. U.S., 156 US 237 [15 S Ct 337; 39 L Ed 409] (1895); Phelps Dodge Corporation v. N.L.R.B., 313 US 177 [61 S.Ct. 845, 85 L.Ed. 1271] (1941).
Personal reasons and smoker private conduct used as basis for adverse action without notice or opportunity to reply, Knotts v. U.S. [128 Ct.Cl. 489], 121 F. Supp. 630 (1954); Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946); Money v. Anderson [93 US App DC 130], 208 F.2d 34 (1953); Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981).
Due Process
Refusal of a hearing for so long is obvious. Also see Linn, “Uncle Sam Doesn’t Want You: Entering the Federal Stronghold of Employment Discrimination against Handicapped Individuals,” 27 De Paul Law Rev 1047 (1978).
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Prohibited Personnel Practices
Violation of Law
5 USC § 7902. Section (d) provides for actions including to “eliminate work hazards and health risks.” Local [TACOM] officials for personal reasons refuse to do this. The Public Health Service notes that “we know of no level of tobacco exposure below which there are no human effects.” Mr. [Robert] Shirock [Safety Officer] thus refuses to confirm that the [TACOM] environment is safe; so unqualified persons such as Ms. [Carma] Averhart and Ed Hoover simply make such assertions.

29 USC §§651-678 The safety duty is “unqualified and absolute,” yet people such as Ms. Averhart and David Stallings indicate refusal to meet the duty. Even though a hazard is clear, they refuse even though “All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace.” Cf. Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 [1 O.S.H. Cas.(BNA) 1422] (1973). The right to remain at work in safety is refused.

29 USC § 791 Refusal to initiate reasonable accommodation of my handicap, and refusal to protect the many others to whom the hazard also poses a danger and can cause short and long term effects.
Over-accommodation of persons suffering from mental illness caused by drug abuse such as smoking or alcoholism, even though persons who are dangerous to themselves, property, and others are not to be accommodated. Persons such as Ms. [Carma] Averhart and Ed Hoover engage in disruptive behavior that impairs efficiency, for example, forbidding me to work for their own personal reasons instead of dealing with the cause––the prohibited endangerment. See Doe v. Hampton [184 US App DC 373], 566 F.2d 265 (1977) and Spragg v. Campbell, 466 F. Supp. 658 ([D. S.D.] 1979).
The 25 Jan 80 Examiner’s findings in my favor showed no local [TACOM] consideration of the rights of non-smokers. Disregard of the rights of the majority is not an equitable balance. Freedom of choice includes the right to choose not to smoke. Local [TACOM] officials using their positions for their personal reasons insist on forcing others to smoke.

18 USC § 1001 False statements have been made by local [TACOM] officials such as claiming [as cited at 6 MSPB 626; 7 MSPR 13] to have done the following: “prohibiting smoking in the entire Civilian Personnel Division”; “advising fellow workers and visitors not to smoke in appellant’s presence”; “conducting an air content study of the appellant’s immediate work area to determine toxic substances present”; providing “an adequate ventilation system” adequate to prevent endangerment, discomfort, etc. as required by law and regulations such as AR 1-8; “conducting periodic air quality surveys of appellant’s immediate work area to insure compliance with health standards”; “relocating his office to improve air quality”; “initiating an educational program to discourage smoking within the general workforce”; etc.
Claims have also been made that the duty is “‘reasonable’ attempt” as distinct from the legally required “unqualified and absolute” duty; that compliance with the legally required “unqualified and absolute” duty is an “undue hardship”; that achieving the core of the police power of government is an “undue hardship”; that my ability to work is contingent upon compliance with requests supposedly made by me but which I did not make; that smoking is essential for job performance; etc. Such claims by government officials are false or misleading. [See EEOC Docket 03.81.0087, 83 FEOR 3046, 8 April 1983, verifying accordingly.]

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Prohibited Personnel Practices
5 USC § 2302 specifies prohibited personnel practices including but not limited to violations committed in this case. Example 6 has been violated in numerous ways. Example 6 prohibits grating unauthorized preferences or advantages intending to harm or improve “the prospects of any particular person for employment.” The prohibition includes altering “the requirements for any position.”
Examples of the violations of the cited clause include but are not limited to:
(a) inventing a non-existent qualification standard from which to disqualify me. [See OPM verifications 30 Jan 1984 and 2 June 1989.] TACOM has invented a requirement requiring me to choose to smoke. Synonyms for the non-existent requirement include but are not limited to requiring me to accept being endangered, discomforted, and/or unreasonably annoyed; to stop seeking rule enforcement; to disregard the past misconduct and reprisal; etc. The Command [TACOM] insists I must accept smoke as though it were a condition of employment. My request for hazard pay under 5 CFR § 550.I is ridiculed. Yet, tobacco smoke is not a condition of employment, and is certainly not a part of the duties of a Position Classification Specialist, GS-12. When my co-worker Evelyn Bertram filed OWCP Case A9-190131 based on tobacco-induced injury, her supervisor admitted that “She is not exposed to fumes, chemicals, or other irritants as a condition of her work.” The 25 Jan 80 USACARA Report had addressed and relieved my concern that such a “condition” or “requirement” would be invented to use against me; my concern arose from the initial medical statement concerning me––“Patient is unable to work within 25 feet of people who are smoking”––issued by Dr. Pollak 11 May 1979. At p. 9, the 25 Jan 80 Report noted this, “Furthermore, suitability and qualification standards established with respect to federal employment do not identify the personal habit/choice to smoke or not smoke tobacco as germane.” Shimp v. N. J. Bell Telephone Co. [145 N. J. Super. 516], 368 A. 2d 408 at 411 (1976), had said likewise, calling smoke “a nonnecessary toxic substance.” Such is in line with the numerous Court decisions in worker compensation cases filed by smokers, i.e., that smoking is “personal.”
(b) trying to get me to leave TACOM “voluntarily”––by pressuring me to seek to induce the equivalent of, or an actual, involuntary resignation. A pattern of such efforts is alluded to in the 28 March 1980 DF by [supervisor] Carma Averhart, and the 29 April 1980 letter by [TACOM attorney] Emily Bacon. Ms. Averhart complained that “Mr. Pletten continued to report for duty . . . refuses to request leave” from which it is clear there would be no return. Because I refused to resign or “request leave,” and unlike Mrs. Bertram, demanded rule enforcement assertively and effectively (with USACARA), the Command [TACOM] chose to get rid of me by forced leave. Ms. Bacon admitted that “the action here being appealed was one which was brought about by Mr. Pletten.” Indeed––for I refused to stop seeking rule enforcement, and refused to go away voluntarily.
(c) TACOM grants preferences to smokers in opposition to AR 1-8. AR 1-8 precludes smoking from harming non-smokers’ prospects for employment by being endangered, etc., by smoking. TACOM intentionally and knowingly allows endangerment, in full awareness that foreseeable harm and endangerment will result. The harm is foreseeable based on the available evidence of an overwhelming nature, including but not limited to AR 1-8, the many smoker-filed compensation cases, the smoker-filed product liability cases, the cases filed by non-smokers for unemployment compensation and other relief, and last but not least, the many reports of the U.S. Surgeon General. The preferences include disregard of rules on courtesy, smoking, safety, health, alcoholism, mental illness, littering, loafing, endangering self and others, etc.
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Prohibited Personnel Practices
Violation of Regulations
CPR 771/FPM 771 A grievance report is to be implemented once USACARA makes recommendations, unless the local Command asks permission of Headquarters otherwise. [See Army Regulation CPR 700.771, and Spann v Army, Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).] Local [TACOM] officials have acted in bad faith by pretending acceptance while denouncing the Report. As the local Command [TACOM] did not appeal the 25 Jan 80 Report, res judicata precludes disregard. The time limits for appeal have also expired. Yet [TACOM] management objects to the Report. Examples of USACARA statements objected to by local [TACOM] officials are the following:

P. 6: “. . . smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful.” (under scoring provided by the Examiner)

P. 6: “‘Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction . . . .’” The Examiner also called local [TACOM] attention to AR 600-20.2-1.

P. 7: “Mr. Pletten has established that, insofar as he personally is concerned, smoke does constitute a safety hazard to him." (This precludes charging sick leave.)

P. 9: “. . . the [TACOM] reply that the [TACOM] Commander has no authority to act appears to be not wholly accurate.”

P. 10: “. . . the smoking of tobacco can constitute a hazard to health . . . an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker. . . . No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.”

P. 12: “Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. . . . whether or not an individual is discomforted by smoke is a personal determination to be made by that individual.”

P. 13: “The Commander is not as devoid of authority as [TACOM Chief of Staff] COL Thomas’ letter indicates.”

P. 14: “The Commander has the authority . . . to ban all smoking or take whatever action is necessary to control smoking in areas under his jurisdiction . . . .”

P. 14: “That the Commander initiate an air content study . . . .”

P. 15: “That the Commander take further action necessary . . . Ventilation in Mr. Pletten’s immediate work area to be evaluated periodically.”

Officials who have expressed disagreement with some or all of the above include but are not limited to John Benacquista, Evelyn Bertram, Francis Holt, Archie Grimmett, Edward Hoover, Frank Ortisi, Emily Bacon, Carma Averhart, David Stallings, Edwin Braun, Robert Shirock, Charles Phillips, Constantine Thomas, James Best, etc. [thereafter aided and abetted by MSPB, DoJ, etc.].
The purpose of such disagreement is to evade compliance, use tradition instead of rules, continue to over accommodate smoking, refuse implementation of the “unqualified and absolute” safety duty, insist on medical clearances instead of “personal determination,” insist correction “cannot” occur or is an “undue hardship,” etc.
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Prohibited Personnel Practices
Violation of Regulations
5 CFR § 752 Federal employees are not allowed to engage in behavior that “may be . . . injurious to the employee, his fellow employees, or the general public.” Smoking behavior involves all these violations, as many lawsuits reveal:

Smokers as Dangerous to Themselves Sue for Compensation
Whiting-Mead Commercial Co v. Industrial Accident Comm’n, 178 Cal 505, 173 P. 1105 [5 ALR 1518] (1918)
Kaletha v. Hall Mercantile Co, 157 Minn. 290; 196 N.W. 261 (1923)
Puffin v. General Electric Co., 132 Conn. 279, 43 A.2d 746 (1945)
Waskevitz v. Clifton Paper Bd. Co., 7 N.J. Super. 1, 71 A.2d 646 (1950)
Petrie v. Crucible Steel Co. of America, 166 N.Y.S.2d 780, 4 App.Div.2d 905 (1957)
Crotty v. Driver Harris Co., 49 N.J.Super. 60, 139 A2d 126 (1958)
Bouillier v. Samsan Co., 100 R.I. 676; 219 A.2d 133 (1966)
Fuentes v. Workers Compensation Appeals Board [16 Cal.3d 1] 128 Cal.Rptr. 673, 547 P.2d 449 (1976).
Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335 [ LRA 1917E, 324] (1917)
Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980)
Smokers as Dangerous to Themselves Sue for Damages
Rushing v. Texas Co., 199 N.C. 173, 154 S.E. 1 (1930)
Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 ([ND] 1965)
Lawsuits Concerning Harm to Property from Smokers
Feeney v. Standard Oil Co., 58 Cal.App. 587, 209 P. 85 (1922)
McKinney v. Bland, 188 Okla. 661, 112 P.2d 798 (1941)
Eacurco v. Haddad, 3 Ill.App.2d 480, 122 N.E.2d 605 (1954)
Petition of Republic of France, 171 F.Supp. 497 (S.D. Tex, 1959) [rev’d and remanded, 290 F.2d 395 (CA 5, 1961),
cert. den. 369 US 804; 82 S Ct 644; 7 L Ed 2d 550 (1962)]
Lawsuits Concerning Harm to People from Smokers
Allen v. Posternock, 107 Pa.Super. 332, 163 A. 336 (1932)
Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662, 288 N.Y.S. 523 (1936)
McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941)
State v. Giles, 183 Neb. 296, 159 N.W.2d 826 (1968)
Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super 516, 368 A.2d 408 (1976)

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(pp 409-410)

Attorney misconduct, particularly the making of false statements, is not acceptable. See Matter of Looby, S.D., 297 N.W.2d 487 (1980), and Matter of Voorhees, S.D., 294 N.W.2d 646 (1980). In Looby, the court vas especially concerned because the felony at issue “involves willful misrepresentation and the making of false statements.” Victims “complained of these misrepresentations.” Under the circumstances, the court indicated, “Not only has respondent transgressed the statutory prohibition against commission of a ‘serious crime,’ he has made a mockery of Disciplinary Rule 9-101 of the Code of Professional Responsibility . . . which requires avoidance of even the appearance of impropriety.”
The disregard of AR 1-8 led to the issuance of the 25 Jan 80 USACARA Report. EEOC on 23 Feb 82 [Dockets 01800273 et al.] observed that “the agency failed to abide by” it. The disregard violated Army guidance, cf. Spann v. McKenna, 615 F.2d 137 (1980). False assertions were made [by e.g., Edward E. Hoover, Emily S. Bacon, Ronald P. Wertheim, and Ersa H. Poston] in the process of the disregard of the Report. Local [TACOM] issuances from 18 and 29 April 1980 to the present reflect misconduct of various types. MSPB went along [as accessory] with the unlawful local [TACOM] pattern. MSPB disregarded its role as a reviewing agency. See its decisions, particularly the false assertions [by Ronald P. Wertheim and Ersa H. Poston] in the 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13, [falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. There is not even a de minimis reference to the USACARA Report; cf. proper behavior such as was referenced for guidance [“is a guide to our conclusion and should have been given due regard”] in In Re United Corporation, 249 F.2d 168 [22 P.U.R.3d 341] (1957). Examples of such nature should not be needful, considering the safety and EEO guidance for the federal government on being a “model” and an “example.” Thus, I have “complained of” the misrepresentations,” false statements, non-compliance, etc. I accepted the 18 June 1981 allegations, [thus enabling EEOC to determine their falsity, 83 FEOR 3046].
Voorhees, supra, provides additional insight. In that case, there were efforts made to show mitigating circumstances for the false statements involved. Nonetheless, the Court disbarred the offender. For example, “Counsel suggests that Voorhees was guilty more of naivete, stupidity and lack of perception then dishonesty.” In this case, “naivete, stupidity and lack of perception” cannot justify the local [TACOM] and MSPB false statements. The 25 Jan 80 [USACARA] Report contains answers to [rebuttals of] the false claims. AR 1-8 contains answers to [rebuttals of] the false claims. There simply is no basis whatsoever for a finding of any extenuating circumstances for the false statements. The MSPB deciding officials are acting in their specialty, personnel cases. The local [TACOM] legal office is involved in personnel cases, in accordance with TACOM Regulation 600-5, Chapter 18, p. 11, para. 18-12.e. The record provides ample evidence of the falsehoods committed. The circumstances also show a refusal to retract when errors are brought to the attention of the culprits. It is clear that the offenders are not “penitent to the sense of a revised or reformed personal moral view,” words borrowed from Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981) [app. dism. 454 U.S. 1025, 70 L. Ed. 2d 469, 102 S. Ct. 559], which also observed, “There is clearly a moral aspect to this behavior, and under the circumstances it may be characterized as turpitudinous.” Voorhees indicated, “There can be no question that the making and use of a forged document to obtain greater cash benefits reeks of dishonesty, fraud, deceit, and misrepresentation.” (United States v. Myers, 151 F.Supp. 525 (1955), indicates that under 18 USC § 1001, “establishment of . . . financial loss is neither necessary nor required . . . to prove its case,” p. 531). In this case, fabrications are clear, including but not limited to the reversal of my [victim] role as an “immediate threat” in the 29 April 1980 letter [by Emily S. Bacon], the fabrications in the 18 June 1981 issuance from MSPB [by Ronald P. Wertheim, Ersa H. Poston], etc. Fabrications of actions taken, which did not happen, brings to mind words such as: “reeks of dishonesty, fraud, deceit, and misrepresentation.” Considering that the whole case arises from the failure to comply with the rules and eliminate the hazard, it cannot be said that “naivete, stupidity and lack of perception” excuse the falsification. Instead, words such as “a mockery of . . . the Code of Professional Responsibility” come to mind.
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(pp 412-420)

Escott v. BarChris Construction Corp., 283 F. Supp. 643 (S.D.N.Y. 1968), provides insight on the lack of “due diligence” by government officials in the situation. It is not acceptable to not read documents. Reliance on experts cannot legally be overdone. People with executive authority or responsible to know/resolve matters cannot ignore their duties when they have clear knowledge of facts. Relying on supposed experts who make mistakes is not acceptable. Failure to inquire sufficiently into matters is not acceptable. Officials with intimate knowledge of facts and normal ways of conducting business and official transactions are expect to investigate thoroughly, and especially, to comprehend and act upon materials that are readily available. Officials are responsible to notice errors, false or misleading statements, omissions of data, and other types of matters and business with which they are to be familiar. Failure to acquire knowledge is not acceptable. Signing documents without understanding what is being signed is not acceptable.
Disregard of these simple, common sense principles is evident through out the government behavior. [TACOM] Dr. [Francis J.] Holt's notes of 24 and 25 Mar [19]80 to the present reflect his opposition to rule enforcement, his inexplicable view that recommending a healthful environment is not his “province,” his insistence on declaring me unfit for duty in advance, his opposition to preventive measures, his disregard of the 25 Jan [19]80 USACARA Report and of AR 1-8, his pretense that smoking may be safe, his disregard of the phony and incompetent TLV studies allegedly performed under OSHA “standards” not demonstrably relevant, reprisal and opposition to my effort to secure a safe environment as the installation is obligated to provide, etc.
The wrong data by [TACOM] Mr. [Edward E.] Hoover from the 28 Mar [19]80 and 18 Apr [19]80 letters to the present reflect like misconduct. As the alleged personnel officer, he ought to be setting an example of compliance with a personnel channels USACARA Grievance Report; instead he denounces it. [TACOM Legal Office’s] Ms. [Emily Sevald] Bacon's letters and statements from 29 Apr [19]80 to the present also reflect the like pattern of disregard of facts. As a lawyer, she is particularly responsible to know the law and rules. She is also supposed to familiarize herself with the pertinent facts. The evidence shows that such has not happened, even from her initial letter (29 Apr [19]80), when she misrepresented my presence as the “threat,” and not the presence of the tobacco smoke. Ms. [Carma J.] Averhart from 20 Mar [19]80 to the present has been involved in the like pattern of disregard of facts. Failure to familiarize herself with the pertinent facts is clear.
MSPB wrongdoing from 23 Jul [19]80 [and thereafter] is also obvious. When a person is endangered, the hazard is to be eliminated, not the victim. [“An employer has a duty to prevent and suppress hazardous conduct by employees” even going beyond what “the average workplace” does, National Realty. & Const. Co, Inc. v Occ. Safety & Health Rev Comm’n, 160 US App DC 133; 489 F2d 1257, 1266; 1 O.S.H. Cas.(BNA) 1422 (1973); and FPM Suppl. 532-1, S8-7, employer to do “elimination or reduction to the lowest level possible of all hazards . . . .”] Yet [MSPB’s] Mr. [Martin] Baumgaertner wrongfully attempted to evade his legal duty by using the “threat” synonym, to evade use of the AR 1-8 word “endanger.” Mr. [Ronald P.] Wertheim brazenly ignored the evidence, to invent claims contrary to the evidence [6 MSPB 626; 7 MSPR 13, falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. Mr. [Stephen] Manrose did likewise. Due diligence and taking normal measures to acquire familiarity with the facts was not done; indeed, my requests for proper action by them—a hearing—were brutally and summarily denied. Such misconduct is not mere negligence; it is far worse.
Culpability is obvious. The only questions that remain, pertain to the nature of the penalties to be imposed against the various culpable personnel.
Page 421 of 453 pages. Affiant's initials _________

(pp 422-423)

Parodi v. MSPB, 690 F.2d 731 (CA 9, 1982), arises from the MSPB decision of 7 July 1980, No. SF831L09012. That MSPB decision shows no comprehension of the fact that smoking is not a job requirement, and is not a business necessity, and is not even part of “employment.”
Ed. Note: See case list in Brief to OPM (21 March 1983), pp 3-6, and pp 122-132, supra.
It is clear that completed staff work has not been provided to Ms. Parodi, and has not been provided to the Court. However, it remains a precedent, until such time as MSPB confesses its pattern of behavior in that Court, or until such time as the MSPB pattern of misconduct is brought to the attention of some other reviewing body, such as OPM, EEOC, etc., and dissemination of the MSPB misconduct by that route.
The Parodi case cites criteria of interest for my situation. Here, the 20 June 1983 MSPB issuance already answers [bizarrely] the issue of “the availability of an appropriate job,” p. 739. The MSPB issuance asserts, based on assertions by Mr. Hoover [a smoker], that such is not possible in my situation, p. 8.
The Parodi case at 738, refers to “environmental limitation.” Here, the 20 June 1983 MSPB issuance is based on the same premise.
Ed. Note: This dishonestly evades the issue, smoker behavior, misconduct, spewing hazardous toxic emissions.
That [false, misleading] view is inherent in it, and explicit throughout the decision. Parodi, at 737, uses the expression, “unable to perform the specific position . . . last occupied.” Here, the MSPB decision emphasizes and asserts my [falsely alleged] inability to work in any position anywhere on-post [disregarding excellent performance record!].
Ed. Note: MSPB staffers' odd views on this point are disconnected from the rule of
law. See case list in Brief to OPM (21 March 1983), pp 3-6, and pp 122-132, supra.

Relative to the seriousness and permanency of Ms. Parodi's condition, the government is cited at 737 as feeling that “she would be able to work in an area with less cigarette smoke,” whereas Ms. Parodi “contends” otherwise, n. 10. Here, the MSPB decision shows installation insistence, and MSPB agreement, that the government position is stronger on the [smoker personal] need [abulic urges] to protect [retatiate against] me, due to the seriousness and permanency of my [alleged] “handicap.” Seriousness and permanence is clearly the inherent basis of the MSPB decision.
Ed. Note: My “handicap” is my whistleblowing, refusal to acquiesce to Col. Benacquista's extortion.

My answers are as a matter of law. The seriousness of the hazard is clear. My answers point out the pattern of local and MSPB behavior.
In Parodi, jurisdictional issues relative to the "voluntary" (employee-initiated) application arose. Here, of course, the agency initiated the application.
Ed. Note: OPM correctly disapproved it—at my request and based on the evidence I filed. In violation of federal rules, the agency nonetheless refused to return me to duty despite my continuing requests to do so.

At 738, the phrase “condition presents a prima facie case for disability benefits” is indicated. Clearly, here, the [abulic] MSPB position is in line with that phraseology. MSPB has overruled the OPM view that accommodation has not occurred. Indeed, MSPB considers the seriousness so great here that MSPB denies that I am even a “qualified handicapped person,” p. 8.
MSPB does [ineptly] refer to the OPM issuances. However, it is clear from the MSPB emphasis on the severity of the hazard, and the presence of it, that OPM was deceived by the installation's malicious denial of a hazard. Note the 16 June 1983 OPM letter, p. 2, and the questions on even the presence of the "agent." It is clear that, in malice, the installation understated [falsified] the severity af the hazard. Installation malice [retaliation, reprisal] is foreseeable considering the evidence as presented by me on the hazard, on smoker mental disorders, etc., and considering the favorable answers received by me from USACARA, EEOC, etc. [which TACOM resented, leading to its reprisal pattern].
Page 424 of 453 pages. Affiant's initials _________

(pp 425-429)

The word salads issued by local and MSPB employees reflect severely disorganized neural activity. Time disorientation is clear, for example. Bizarre garbling of past, present, and future is evident. Untreated conditions can worsen; the time disorientation becomes more pronounced.
The book Abnormal Psychology and Modern Life [Scott, Foresman & Co.], 5th edition, 1976, by [Prof.] James C. Coleman, provides insight. At 311, “. . . some chemical agents in the bloodstream, even in minute amounts . . . can lead to a temporary disorganization of thought processes and a variety of psychotic-like symptoms that have been referred to as 'model psychoses.'” At 310, a comparison of “Schizophrenic reactions” and “Drug-induced 'model psychoses'” is provided. The analysis of results on “Communication” is as follows:
“Schizophrenic reactions Speech vague, ambiguous, difficult to follow; no concern about inability to communicate; past tense common.”

“Drug-induced 'model psychoses' Speech rambling or incoherent but usually related to reality; subjects try to communicate thoughts; present tense used.”

Time disorientation is clear in both. The variation of “past tense” vs. “present tense” is insightful. Smoking involves both drug-induced mental disorder and organic mental disorder. The pre-existing mental instability that leads to smoking behavior is worsened as tobacco substances produce brain damage. Since smoking behavior involves both aspects, both aspects of time disorientation are medically foreseeable. Both aspects are evident, in the garbled time disorientation evident in the local and MSPB behavior.
Time disorientation (whether of past, present, future, or combination thereof) would be “vague, ambiguous, difficult to follow” and/or “rambling or incoherent.” In the case at bar, all aspects are evident [in TACOM and MSPB issuances]. Disorganized aspects could be overcome if there were a willingness to begin the rule enforcement/reasonable accommodation process. However, local officials display “no concern about inability to communicate,” and the 23 Jul 80 MSPB behavior also showing “no concern” by the assertion of “not relevant” reinforces that deviant schizophrenic reaction. When there is “no concern about inability to communicate,” a schizophrenic reaction would appear to be predominant over the drug-induced aspect of smoking. In the latter, there is at least an effort (however inadequate) to “try to communicate thoughts.” Dr. [Matthew] Woods had noted that smoking causes insanity; Dr. [John H.] Kellogg had noted smoking among schizophrenic inmates of the mental institution. The high death rate among smokers from mental illnesses would also demonstate a schizophrenic predominance, as distinct from a “model psychosis.” It is evident from the available evidence that the organic mental disorder aspect is paramount.
The specific nature of rehabilitation to be provided each culpable offender should be tailored to the specific cause(s) of the symptoms displayed. Fitness for duty examinations will aid in making such rehabilitative decisions.
Page 430 of 453 pages. Affiant's initials _________

Numerous cases show that there is no “right” to smoke. Such cases arise in the context of safety, nuisance, and other well-established legal principles. For example, see Commonwealth v. Thompson, 53 Mass. (12 Metc.) 231 (1847). The law is cited at 232, “‘Every person who shall smoke, or have in his or her possession, any lighted pipe or cigar, in any street, lane, or passage way, or any wharf in said town, shall forfeit and pay, for each and every offense, the sum of two dollars.’” The legal validity of such law is, of course, obvious to all who do not garble the “undue hardship” concept applicable to “reasonable accommodation” with the police power. Cf. Powell v. Texas, 392 U.S. 514 at 532 (1968), wherein “appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.” Controlling smokers “in any street, lane, or passage way” which is “for being in public while” smoking is clearly proper.
The Massachusetts decision is consistent with the body of law; it is not disconnected from the body of law. At 231, “A warrant was issued on” a “complaint, and the defendant was carried before . . . court, where he was tried, found guilty, and ordered to pay a fine and costs of prosecution.” There is no indication of “undue hardship” at any stage of the proceedings, at the “complaint” stage, at the “carried before . . . court” stage, at the “tried” stage, at the “found guilty” stage, etc. Sane people comprehend both concepts involved, the “complaint” and “carried” “concrete”-type aspects, as well as the higher ideation concept of the “police power.” It is clear that mental illness or other deviance as displayed by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] does not demonstrate either level of understanding; the 18 Jun 81 issuance “seems feeble-minded.”
At 233, “This damage would be equally great from smoking in any street, used as such, whether laid out by lawful authority or not.” Clearly compliance is mandatory regardless of who makes the decision that dangerous behavior is to be controlled. My “personal determination” is by “lawful authority,” i.e., AR 1-8. Moreover, endangerment is to be anticipated, under the [AR 1-8] “affirmative action” guidance. It is not acceptable to wait for the “lawful authority” of a “personal determination.” There is no “undue hardship” since “smoking in any street” is not a “business necessity.” Smoking that causes endangerment (even potentially) is not a “business necessity.” Indeed. smoking per se is not a “business necessity.”
At 232, “The case is precisely within the words of the statute.” Here, the case at bar “is precisely within the words of” AR 1-8. I am being endangered, etc., have made a “personal determination,” and am seeking implementation of the 25 Jan 80 USACARA Report, etc. My conservative approach (quoting) “is precisely within the words of the statute” and other quoted citations.
Thompson, supra, is insightful not only for law, but also on the facts. Smokers can indeed be dangerous outdoors, dangerous to lumber yards, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); dangerous to people, Wood v. Saunders [228 App Div 69], 238 N.Y.S. 571 (1930); dangerous to fields, Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935); etc. Clearly, smoker “dangerousness” “may affect” property and “third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano [168 N J Super 466], 403 A.2d 500 (1979).
Page 431 of 453 pages. Affiant's initials _________

(pp 432-436)

“The Federal Government shall become a model employer of handicapped individuals,” 29 CFR § 1613.707. “As the nation's largest employers 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,” Executive Order 11807. The safety duty is “unqualified and absolute” and “above all other considerations save those making attainment of this ‘benefit’ unattainable.”
At the installation, there is “not . . . any mechanism . . . to resolve . . . unsafe working conditions.” When I attempted to “resolve” them, the result was “the agency's decision to terminate” me. The adverse action occurred even though the fact “That the Grievant gathered these documents” such as the 25 Jan 80 “recommendation of ways the agency had to” “resolve . . . unsafe working conditions” and implement the personal standard envisioned by AR 1-8 “should not be held against him.” MSPB employees such as Messrs. [Martin] Baumgaertner and [Ronald] Wertheim falsely claimed that MSPB lacked jurisdiction, even though the purpose Congress had in mind for MSPB is resolution of adverse actions. Delusional statements were made by MSPB employees. Ex parte activities prohibited by the rules were routinely engaged in. MSPB incompetence and mismanagement at all levels is obvious. MSPB is not capable of accomplishing even simple administrative functions such as prompt assignment of a docket number on receipt of a case. Such ineptness is a clue to the much larger mismanagement of MSPB, mismanagement and negligence which produces system discrimination in addition to the personal discrimination generated by malicious or disturbed officials. The MSPB lackings include:
––No mechanism for compliance with time limits.
––No mechanism for compliance with guidance against prohibited ex parte communications.
––No mechanism for detecting delusions in decisions prior to issuance.
––No mechanism for detecting falsifications in decisions prior to issuance.
––No mechanism for trained medical review of decisions having medical implications.
––No mechanism for trained engineering review of decisions having engineering implications.
––No mechanism for identifying and promptly overturning agency adverse actions effected in gross violation of rules,
e.g., no opportunity to reply, lack of specificity, no advance notice, and the like.
––No mechanism for providing a hearing of specified under the MSPB guidance.
––No mechanism for “some analysis of the merits of the agency action” as “necessary to determine the threshold jurisdictional issue.”
––No mechanism “to seek out and remedy violations when they occur.”
––No mechanism or “measures that will insure that violations will not occur.”

[These statements are pre-bribery awareness.]

Page 437 of 453 pages. Affiant's initials _________

(pp 438-453)

My Responses and Government "Answers" to OPM Questions	4 - 9
Introduction to Medical/Public Domain Data on Tobacco	10 - 16
"what the doctor was saying"—installation confession under cross-examination	17 - 20
Compliance with the above data on "what the doctor was saying" would resolve the matter under AR 1-8 without reaching this issue (which also shows lack of local specificity)	21
Introduction to Smoker Mental Disorders, Impairments, and Brain Damage	22 - 38
Data on Radioactivity and Tobacco	39 - 40
Data on Causes of Smoker Mental Disorders/Brain Damage	41 - 52
After Insanity/Brain Damage Occurs, Tobacco Produces Physical Disorders: Gastrointestinal Problems, Emphysema, Tuberculosis, Heart Trouble, Alcoholism, etc,	53 - 61
Smokers are Hazards to Themselves and Others—Insight from S.F. 171 as Designed by the CSC (now OPM)	62 - 63
Smokers foreseeably cause accidents and fires	64 - 70
Considering smoker brain damage, alcoholism, etc., smokers foreseably parade bizarre ideas	71 - 75
Considering the bizarre nature of smoker ideas, data on pro- jection, prejudice, and stereotypy provides insight	76 - 78
In-depth Overview Analysis of the Legal Implications of Insanity and Symptoms thereof, as Displayed in the Various Issuances Which have Given Rise to the Case at Bar	79 - 94
Specific Symptoms Provide Insight: Confabulation	95 - 97
Trouble Comprehending a Series of Instructions	98 - 102
Fragmentation	103 - 104
Impaired Orientation/Responsiveness to "Time" and related aspects	105 - 110
Acalculia, alexia, and agraphia	111 - 112
Smoker Suicide	113 - 114
My Background Leads Me to Emphasize "Standards" of Various Types: On Legal Aspects, Psychiatric Aspects, and Criminal Views	115 - 121
Smoker Mental Problems Impair/Derange their Ability to Under- stand that Smoking is Not Part of "Employment," The Critical Nexus that Points Out Against Whom Adverse Action Lies	122 - 132
Data on Benefits of Coming into Compliance with Rules	133 - 136
Safety Rules Concerning Which Compliance Is a Benefit	137 - 150
The Disregard of Safety, and Disregard of Standard/Known Medical Data is Malpractice by the Installation	151 - 163

Data on Nuisances and Negligence Law Provides Insight	164 - 170
"Experience" on Smoking, And in the Agency, And the Local Abuse and Misuse of Such "experience"	171 - 178
Based on that "experience," and my Background, I "articulated" input on compliance (as did USACARA), and was punished for what was "articulated"	179 - 186
Data on the "police power" provides insight, and is foreseeably referenced herein (foreseeable from the 19 Nov 1976 letter)	187 - 195
Discharge of a Victim vs. Legal Principles on Not Retreating	196 - 209
Legal Principles on Criminals Taking The Victim As He Comes" —No Support Therein For Adverse Action Against a Victim	210 - 214
Data on "Objective Impossibility"—"No Support Therein for Claims of "hardship," "undue hardship," "cannot," "unreason- able," lacking "authority," etc. (even if no benefits arose, and even if costs were more than about de minimis)	215 - 221
Smokers, Lying, Falsification, and the Criminal Personality	222 - 233
Legal Principles on Extortion and Embezzlement—No Support Therein for the Adverse Action	234 - 242
Insight on The Purpose of Rules (Why They Are Issued)	243 - 253
Insight from Legal Principles Against Discrimination, and on the Fixation on "Accommodation" while Refusing It	254 - 270
Constitutional Principles Involved	271 - 278
Data on "Universal Malice," a Legal Principle Providing No Support for the Adverse Action	279 - 300
Application of Principles of Law on Discrimination and Harm Directed Against One Person or Group, Which Harms Another, in the Context of Race, Sex, and Color Discrimination, etc.	301 - 312
Principles on Adverse Actions Provide No Support for the Agency Application/Behavior: Lack of Specificity, Lack of Advance Notice, Inconsistencies among Agency Witnesses, Installation Not Complying with the MSPB Claims, "Conduct," etc.	313 - 334
Analysis of the Bizarre MSPB Behavior through 18 June 1981	335 - 363
Further Analysis of MSPB Behavior in Terms of "Standards" Such as Law and Psychiatry	364 - 377
MSPB Ineptness in the Administrative Context	378 - 393
MSPB Failure to Apply Jurisdictional Principles of Law	394 - 398
*Insight from Res Judicata* and Estoppel Principles of Law**	399 - 402
Prohibited Personnel Practices Summarized	403 - 408
A "negative defense"	409 - 410
Under the circumstances, attorney misconduct cases provide insight	411 - 422
Analysis of Parodi v. MSPB	423 - 424
MSPB Symptoms/Local Symptoms Not "to be ashamed of"	425 - 430
Conclusion	431 - 439
Motions	440 - 453

1. Question		None.

2. Question		None.

3. Question		None.

4. [Re action taken] retroactively imposed with advance notice not provided, hence no specificity.		None. “Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 (CA 10] 1931). Smoking is not a “selection criterion,” and is not required for “the essentials of the job,” Prewitt v. U.S. Postal Svc., 662 F.2d 292 at 306-308 ([CA 5 1981). As a matter of law, no nexus with “employment” can be shown. Smoking is a disease, not an “employment” matter; note the many cases on smoking in settings other than employment. SF 171 shows federal policy to protect nonsmokers from smokers–by its question about smoker diseases “which might be a hazard to” nonsmokers, and listing smoker diseases such as “heart disease, a nervous breakdown, epilepsy, tuberculosis, or diabetes.”

5. Availability of alternatives such as excused absence pending control/treatment/hospitalization of mentally diseased smokers.		Such alternative is clearly available. The installation [TACOM] should have returned me [to duty] as soon as OPM pointed out the [TACOM] violations. MSPB should have told the installation [TACOM] to halt its violations. It should have implemented the 25 Jan 80 USACARA Report, and AR 1-8 before that. Alternatives much as control of mentally diseased smokers are available; see Rum River Lumber Co. v. State, 282 N.W.2d 882 ([Minn.] 1979). Cf. Spragg v. Campbell [FAA], 466 F. Supp. 658 ([D SD] 1979). On the duty to implement the USACARA Report, see Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980).

Event	Source
“Death occurred in nearly all of the cases of nicotine poisoning within a few minutes to a few hours, although I find record of one instance in which death did not occur for two days after the drinking of wine in which Spanish snuff had been placed by a practical joker, causing the death of the French poet Santeul.”	*“Fontanelle, Julia: Jour. de Chimie Med., 1836, ii, 652.”*
“In another instance where death did not occur in a few hours, a child, age three, used for an hour an old pipe for blowing soap bubbles. Symptoms of poisoning developed and the child died on the third day.”	*“Pharm. Jour., 1877, p. 377. ”*
“Sonnenschein (quoted by Weidanz) relates the cases of two suicides in which death took place in three and five minutes respectively after swallowing one or two ounces of tobacco.”	*“Weidanz: Heilkunde, Berlin., 1907, pp. 333-390.”*
“Reynolds reports a singular case of nicotine poisoning in which tobacco had been accidentally dropped into food warming on the stove. The food was given twice to a baby five months old, the baby became cyanotic, vomited twice, extremities were cold and clammy to the touch, pulse weak and irregular. Death occurred 13½ hours after the first feeding.”	*“Reynolds: Jour. Am. Med. Ass'n., 1914, lxii, 1723.”*
“Huseman cites a case seen by Hellwig of two brothers who died after continuous smoking of seventeen and eighteen . . . pipefuls of tobacco.”	*“Husemann: Handbuch der Toxicologie, 1862, p. 481.”*
“In another case a man died in one hour after an enema of two drams of tobacco in eight ounces of boiling water.”	*“Edinburgh Med. and Surg. Jour., 1813, ix, 159.”*

	Employer "evidence" subjects for coverage	"evidence"
A.	"business necessity" aspects to be shown	none
	1. "business necessity" for "permitting" smoking	none
	2. "business necessity" for permitting "discomfort"	none
	3. "business necessity" for permitting endangerment of life or property	none
	4. "business necessity" for condoning disregard of the 25 January 1980 USACARA Report	none
B.	"job related" aspects to be shown	none
	1. "job related" re "employment" as a matter of law	none
	a. "job related" re "duties"	none
	b. "job related" re environment	none
	2. "job related" re job description (fact/law)	none
	3. "job related" under AR 1-8	admissions that smoking is "personal"
C.	impact "on the operation of its program" re agency	none
	1. overall size of the agency's program	none
	a. number of employees	none
	b. number and type of facilities	none
	c. size of budget	none
	2. type of agency operation, including the composition and structure of the agency's work force	none
	3. nature and cost of the accommodation	none

#1		#2
The employee is ready, willing, and		There is a hazard.
able to work.

Fragments		The fragments ignore reality (rules and evidence in the record as a whole).

MSPB repeatedly relies on Dr. Holt's “legal opinions” on the lack of “authority.”		Dr. Holt is not an “expert” witness on law. Even if he were, his “opinion of the law is both incompetent and irrelevant.” People v. Matulonis, [115 Mich App 263] 320 N.W.2d 238 (1982). Moreover, Dr. Holt's symptoms include disconnection from, and unresponsiveness to “normal stimuli,” such as the 19 June 1979 legal opinion, the 25 Jan 80 USACARA Report, AR 1-8 and 600-20, the AR 385 series, and principles of law such as on safety, malpractice, mental illness, negligence, nuisances, crimes, etc. Also, the USACARA analysis is not only res judicata, it is also the “law of the case.”

MSPB repeatedly relies on Dr. Holt's insistence that I am not “ready, willing, and able to work.		Dr. Holt's symptoms of non-responsiveness to “normal stimuli” produced his overruling the medical evidence, which emphasizes my ability to work. Dr. Holt’s symptoms include his odd view that smoking is part of employment (duties, environment, etc.), contrary to law. His delusions of grandeur concerning his own legal expertise confirm that the installation misconduct is void ab initio. He admits that he overruled the medical evidence by his confession of ignorance of the USACARA Report.

MSPB ignores Dr. Holt's confession of ignorance of the USACARA Report, which ignorance led him to overrule the medical evidence on my ability to work, based on his own view of law.		Dr. Holt's ignorance of the rules of law is massive. The severity of his symptoms of obliviousness to reality is evident from the fact that the 25 Jan 80 Report has been brought to his attention from the very beginning. His unresponsiveness to “normal stimuli” is clear.

MSPB ignores the many cases on smoking, the OSHA “general duty,” and other rules, when it limits itself to the “legal opinions” of incompetent witnesses.		MSPB claims to be relying on AR 1-8, which assertion is, of course, false. But taking MSPB offenders at their word, their disregard of the multiple court precedents on smoking (in this case on smoking) is clearly fragmented and impoverished. Such symptoms are foreseeable in brain damage, even though a victim does not foresee those symptoms, McAfee v. Travis Gas Corp., [137 Tex 314] 153 S.W.2d 442 (1941).

MSPB emphasizes the negative.		MSPB ignores all the things that “can” and “must” be done, and uses multiple falsifications, based on the malice against the laws.

Installation Claim:		Lack of Authority		Unreasonable
USACARA Response:		Full Authority		Whatever is Necessary

AR 1-8 Range of Equitable Balance	OSHA Range	5 USC § 7902	Police Power Range

Unreasonable Discomfort Endangerment Annoyance Area not “even recognized” as EEOC noted 8 Apr 83 [Docket 03.81.0087, 83 FEOR 3046]	“unqualified and absolute” safety “adjective" to “prevent a likelihood of harm”: “a different balance would be inconsistent”	“eliminate work hazards and health risks”	smoking “is so limited by” the multiple restrictions “that a ban” “does not violate” any legal principle, but is indeed in conformity with the multiple limitations, or any of them

tobacco organic mental disorder		Smoking “causes insanity”—Woods
craving for tobacco		indifference
irritability		a cause of mental decay
anxiety		diminishes mental capacity
difficulty concentrating		listless
restlessness		irritable
headache		callous to others' requests
drowsiness		often leads to drink
gastrointestinal disturbances

paresis		Tobaccoism--Kellogg
poor control of impulses		weak memory
irritable		impulsive ideas
restless		depression
disorganized		sleeplessness
memory impaired		ill-humor
deterioration of behavior		loss of self control
delusions of grandeur		aphasia
delusions of persecution		neuralgia
depression		difficulties in speaking
		and writing
		neurasthenic symptoms

In this range, 5 CFR § 752 rules against being a danger to self or others apply. NO SMOKING PERMITTED		Worst Endangerment––Death of Smoker (Threat to self) Worst Endangerment––Death of Non-Smoker (Threat to Others) Severe Endangerment––Excessive Absences Causing Smoker Disability Retirement (Threat to Self) Severe Endangerment––Excessive Absences Causing Non-Smoker Disability Retirement (Threat to Others) Moderate Endangerment––Excessive Absences Above Sick Leave Norm by Smoker (Threat to Self) Moderate Endangerment––Excessive Absences Above Sick Leave Norm by Non-Smoker (Threat to Others) More Endangerment––Absences Above Sick Leave Norm by Smoker (Threat to Self) More Endangerment––Absences Above Sick Leave Norm by Non-Smoker (Threat to Others) Endangerment––Absences in Normal Range by Smoker (Threat to Self) Endangerment––Absences in Normal Range by Non-Smoker (Threat to Others) Endangerment––Short Absences by Smoker (Threat to Self) Endangerment––Short Absences by Non-Smoker (Threat to Others)

In this range, AR 1-8 applies. NO SMOKING ALLOWED		Discomfort Unreasonable Annoyance

SMOKING PERMITTED [But see MCL § 750.27]		No Effects

White Males:		78		White Females:		24
Nonwhite Males:		113		Nonwhite Females:		26

Violation of Regulation

29 CFR § 1613.701 etc.		The required “reasonable accommodation” presupposes compliance with basic rules. Local [TACOM] employees deny any hazard or violation [exists] and thus [they] refuse to begin regular rule enforcement. As the process has not starred, local [TACOM] employees also refuse to begin “reasonable accommodation.” For example, AR 1-8 requires that the environment “not endanger . . . cause discomfort or unreasonable annoyance.” The environment does these things to the extent [TACOM] management refuses to let me return to duty, but it refuses to halt the endangerment and discomfort the regulation prohibits. [TACOM] Management refuses to implement the “unqualified and absolute” safety duty specified by OSHA [29 USC § 651 - § 678] in Nat’l Rlty & C. Co., Inc. v. OSHRC [160 U.S. App. DC 133], 489 F.2d 1257 (1973). Compliance with OSHA (or 5 USC § 7902) would undoubtedly preclude need for superimposing “reasonable accommodation” on top of the “unqualified and absolute” duty. Achieving a non-endangering, non-discomforting environment would likewise undoubtedly preclude need for superimposing the “reasonable accommodation” duty on top. However, achieving them would most assuredly provide a sound basis for then beginning the “reasonable accommodation” process. The local [TACOM] employees involved also refuse to enforce other rules such as on courtesy, littering, loafing, efficiency, property control, etc. Enforcement of any one rule would resolve the situation. The local property control regulation, TACOM-R 190-4 is based on the same police power authority as was upheld in Austin v. Tennessee, 179 US 343 (1900). The rule forbids any habit-forming drug without a valid doctor’s prescription. It also limits personal effects to non-dangerous items. Even if personal effects were allowed to be dangerous, such would not allow personal reasons to be a basis for adverse action against a victim such as myself harmed by such personal effects. No reason has ever been provided for the refusal to (a) enforce the pertinent rules and (b) begin reasonable accommodation. Even if there are reasons (and there are none, or they would have been articulated––although untimely), there is no cause for adverse action until after any alleged reasons are stated and opportunity to reply provided. Cf. 5 CFR § 752 and advance notice [5 USC § 7513(b)] requirements. As made clear in cases such as State of Missouri ex rel. Gaines v. Canada, 305 US 337 (1938); Brown v. U.S., 256 US 335 (1921); and Sleeper v. Sandown, 52 N.H. 244 (1872), movement in safety is extensive and not limited to one room. Cf. OSHA cases and 5 USC § 7902. Reasonable accommodation superimposed on top of these basic legal facts will assuredly allow immediate return to duty in safe conditions.

5 USC § 7902.		Section (d) provides for actions including to “eliminate work hazards and health risks.” Local [TACOM] officials for personal reasons refuse to do this. The Public Health Service notes that “we know of no level of tobacco exposure below which there are no human effects.” Mr. [Robert] Shirock [Safety Officer] thus refuses to confirm that the [TACOM] environment is safe; so unqualified persons such as Ms. [Carma] Averhart and Ed Hoover simply make such assertions.

29 USC §§651-678		The safety duty is “unqualified and absolute,” yet people such as Ms. Averhart and David Stallings indicate refusal to meet the duty. Even though a hazard is clear, they refuse even though “All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace.” Cf. Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 [1 O.S.H. Cas.(BNA) 1422] (1973). The right to remain at work in safety is refused.

29 USC § 791		Refusal to initiate reasonable accommodation of my handicap, and refusal to protect the many others to whom the hazard also poses a danger and can cause short and long term effects. Over-accommodation of persons suffering from mental illness caused by drug abuse such as smoking or alcoholism, even though persons who are dangerous to themselves, property, and others are not to be accommodated. Persons such as Ms. [Carma] Averhart and Ed Hoover engage in disruptive behavior that impairs efficiency, for example, forbidding me to work for their own personal reasons instead of dealing with the cause––the prohibited endangerment. See Doe v. Hampton [184 US App DC 373], 566 F.2d 265 (1977) and Spragg v. Campbell, 466 F. Supp. 658 ([D. S.D.] 1979). The 25 Jan 80 Examiner’s findings in my favor showed no local [TACOM] consideration of the rights of non-smokers. Disregard of the rights of the majority is not an equitable balance. Freedom of choice includes the right to choose not to smoke. Local [TACOM] officials using their positions for their personal reasons insist on forcing others to smoke.

18 USC § 1001		False statements have been made by local [TACOM] officials such as claiming [as cited at 6 MSPB 626; 7 MSPR 13] to have done the following: “prohibiting smoking in the entire Civilian Personnel Division”; “advising fellow workers and visitors not to smoke in appellant’s presence”; “conducting an air content study of the appellant’s immediate work area to determine toxic substances present”; providing “an adequate ventilation system” adequate to prevent endangerment, discomfort, etc. as required by law and regulations such as AR 1-8; “conducting periodic air quality surveys of appellant’s immediate work area to insure compliance with health standards”; “relocating his office to improve air quality”; “initiating an educational program to discourage smoking within the general workforce”; etc. Claims have also been made that the duty is “‘reasonable’ attempt” as distinct from the legally required “unqualified and absolute” duty; that compliance with the legally required “unqualified and absolute” duty is an “undue hardship”; that achieving the core of the police power of government is an “undue hardship”; that my ability to work is contingent upon compliance with requests supposedly made by me but which I did not make; that smoking is essential for job performance; etc. Such claims by government officials are false or misleading. [See EEOC Docket 03.81.0087, 83 FEOR 3046, 8 April 1983, verifying accordingly.]

CPR 771/FPM 771		A grievance report is to be implemented once USACARA makes recommendations, unless the local Command asks permission of Headquarters otherwise. [See Army Regulation CPR 700.771, and Spann v Army, Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).] Local [TACOM] officials have acted in bad faith by pretending acceptance while denouncing the Report. As the local Command [TACOM] did not appeal the 25 Jan 80 Report, res judicata precludes disregard. The time limits for appeal have also expired. Yet [TACOM] management objects to the Report. Examples of USACARA statements objected to by local [TACOM] officials are the following:
P. 6:		“. . . smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful.” (under scoring provided by the Examiner)
P. 6:		“‘Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction . . . .’” The Examiner also called local [TACOM] attention to AR 600-20.2-1.
P. 7:		“Mr. Pletten has established that, insofar as he personally is concerned, smoke does constitute a safety hazard to him." (This precludes charging sick leave.)
P. 9:		“. . . the [TACOM] reply that the [TACOM] Commander has no authority to act appears to be not wholly accurate.”
P. 10:		“. . . the smoking of tobacco can constitute a hazard to health . . . an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker. . . . No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.”
P. 12:		“Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. . . . whether or not an individual is discomforted by smoke is a personal determination to be made by that individual.”
P. 13:		“The Commander is not as devoid of authority as [TACOM Chief of Staff] COL Thomas’ letter indicates.”
P. 14:		“The Commander has the authority . . . to ban all smoking or take whatever action is necessary to control smoking in areas under his jurisdiction . . . .”
P. 14:		“That the Commander initiate an air content study . . . .”
P. 15:		“That the Commander take further action necessary . . . Ventilation in Mr. Pletten’s immediate work area to be evaluated periodically.”

“Schizophrenic reactions		Speech vague, ambiguous, difficult to follow; no concern about inability to communicate; past tense common.”

“Drug-induced 'model psychoses'		Speech rambling or incoherent but usually related to reality; subjects try to communicate thoughts; present tense used.”