Brief to OPM, 2 Jan 1985, in Continued Opposition to April 1981 Agency Application, Retaliating Against Pletten's Whistleblowing. The retaliation took the form of violations including but not limited to:
  • Inconsistencies and Due Process Violations Warranting Reversal: pdf, html
  • Violations of TACOM's Own Discipline Regulation: pdf, html
  • Violations Overview: pdf, html.
  • See also the Amicus Curiae Brief.
    The goal was to encourage OPM to continue fighting on Pletten's behalf.
    Area U.S. Attorney staff and federal judges were later corrupted to ignore this evidence.
    The corruption went to the extreme of corrupt judges falsifying the record of events including falsely saying Pletten applied! The judges' blatant falsification is in criminal violation of federal anti-falsification and mail fraud laws. The record shows Pletten fought, and continues to do so, still, in 2001.
    This Brief is one in a series. See also those of 21 March 1983, 29 March 1983, 27 July 1983, 10 Oct 1983, and 25 Nov 1983, as per Pletten working full-time+ developing every evidence for recognition of his remaining an employee absent a 30 days notice of charges IAW federal law 5 U.S.C. § 7513.(b) warranting removal, and recording his position, for anticipated use in the EEOC forum, which TACOM was claiming would be reviewing the matter. See also subsequent 10 May 1985 Appeal, 5 June 1985 Motion, and 7 June 1985 Motion.
    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
    JAN 2 1985
    TABLE OF CONTENTS
    Pages
    The Behavior called "Smoking" is Cited Medically as a Disease        3 - 6
    There is no Job Qualification Requirement for "Smoking"      7 - 19
    "Smoking" is a Disease That Causes Smokers to become
    Insane (A Long Known Medical Fact)    		    20 - 28
    Introduction to the Negligence of the Installation    29 - 42
    Medical Malpractice/Negligence by the Installation    43 - 49
    Medical Data on Smoker Rebelliousness    50 - 53
    A Common Danger Arises from Smoker Behavior    54 - 60
    Smoking Is A Disease That Causes Multiple Injuries to
    Multiple Body structures/Functions, and Such Injuries
    Are Sometimes Given Names (as diseases are given names)    		    61 - 74
    The Smokers Who Made Application for My Disability
    Retirement Display Typical Symptoms of Insanity    		    75 - 82
    Hiring and Retaining Smokers Is Negligence    83 - 89
    Smoker/Government Behavior against Me Shows Malice    90 - 98
    Ousting Me Was Not on the Merits and Violated Adverse
    Action Principles of Law    		  99 - 107
    Ousting Me was Reprisal for My OWCP Claim108 - 109
    Confabulation Vitiates the Government behavior at Issue110 - 111
    Ousting Me Was Void Ab Initio Due to Smokers' Inability
    to Render Mentally Sound Decisions    		112 - 126
    Applicable Criminal Law Principles and Background127 - 135
    Fraud by the Installation136 - 144
    Extortion/Embezzlement by Installation Offenders145 - 149
    MSPB Pattern of Errors150 - 166
    Ex Parte Communciations/Bribery Data167 - 176
    Data on Local/MSPB Obstruction of Justice177 - 194
    No Union Role Exists195 - 199
    Conclusion Requesting your Assistance200 - 211
    Enclosures (17)   

    P 2 of 211 Pages

    Cert P 234 080 744

    This is an appeal of a continuing suspension and termination imposed retroactively without advance notice/specificity. My agency is the Department of the Army. The agency referred me to appeal to your agency by letter dated 14 December 1984, encl. 5. Your jurisdiction is clearly to reverse the adverse action, encl. 2, and as evident in the text that follows. This letter also constitutes my request for a hearing.

    Please note enclosure 1, a letter from the Office of Personnel management dated 30 Jan 1984. OPM has confirmed that no job qualification requirements exist relative to tobacco smoke. The OPM letter is accurate, note my deposition, p. 4, encl. 9. Since my testimony and the OPM letter are uncontradicted, and are accurate, please reverse the "disqualification" accordingly, as there is no basis for it. (When data is uncontradicted, please do your duty as evident from Ceja v. U.S., 710 F2d 812 (1984). Here, the OPM analysis must be honored by you, since OPM is the expert on the Handbook X-118, etc. Smoking preference/ability by nonsmokers is not a selection/retention factor in the federal service; hence, OPM has not established any medical questions/tests for it. Selection/retention decisions must be based on established criteria, not on ad hoc desires. The OPM letter/analysis/refusal to establish a requirement for nonsmoker smoking is res judiciata, and binding on the agency and MSPB.)

    The material herein shows severe misconduct by J. Benacquista and E. Hoover, etc., in violation of principles of law noted in precedents such as Sullivan v Navy, 720 F2d 1266 (1984). Please reverse the suspension/ termination on that basis alone, quite apart from the lack of any qualification requirements of record (a defect by itself mandating reversal).

    Note that no advance notice/specificity was provided. Please reverse on that basis by itself. No advance notice/specificity was provided concerning unstated enforcement difficulties, union contract role, ventilation difficulties, actual job site as distinct from that of co-workers, if any, etc. Since such matters are so critical as that great reliance has been placed upon them (years after the fact), advance notice/specificity is especially vital.

    The record herein and as previously submitted, and to be brought out in hearing, reveals multiple res judicata matters mandating reversal. Much installation/MSPB misconduct is also apparent, and undisputed as well. The following pages provide an overview of the situation. Please reverse my suspension/termination based on the above and following data.

    Page 2 of 211 pages

    It is well established that smoking behavior is not normal. Smoking behavior is not characteristic of a healthy, sound, sane mind. Indeed, smoking is "one of our most serious diseases," data from Lennox Johnston, in The Lancet, Vol 263(6732), p. 482, 6 Sept. 1952. "The administration of nicotine provokes a grand mal-like EEG discharge illustrating a central action of the drug," data from V. Longo, D. Bovet, et al., in the Journal of Pharmacology and Experimental Therapeutics, Vol. 111(3), p 358, July 1954. P. 354 notes, "The site of action is considered to be at the level of the reticular substance."

    Note that "amount of smoking tends to be associated with the personality traits of . . . impulsiveness . . . . (sensation-seeking), and psychopathy (Schalling 1977) . . . . These personality traits are among the few for which biological correlates have been consistently found. Among these are indices of a low level of reticular-cortical arousal (Schalling 1978), e.g., a low frequency of spontaneous fluctuations in skin conductance, and some EEG characteristics," data from D. Schalling and D. Waller, in Acta Physiol Scand, Supp. 479, p 53, 1980.

    Note data from J. Conrin, in Clin. Electroencephalography, Vol. 11(4), pp. 180-187, Oct 1980. At 181, "General EEG differences appeared between smokers and nonsmokers." At 185, "Green and Arduini (1954) . . . found that cortical desynchronization was accompanied by regular waves in the hippocampus, andcortical synchronization was accompanied by hippocampal desynchronization. . . . On the other hand, Longo, Guinta and deCarolus (1967) presented data that indicated multifocal seizure activity . . . rather than just hippocampal foci. In any cases, these studies demonstrated some basic effects of nicotinen on cortical arousal."

    Such data helps to explain the data from Schalling, supra, on impaired "reticular-cortical" brain activity as "biological correlates" of "personality traits" such as impulsiveness and psychopathy characteristics of smokers.

    Thus, "it cannot be said that" a smoker "is a person of normal sensibilities," Aldridge v Saxey, 242 Or 238; 409 P2d 184 at 188-189 (1965). Cigarettes' "every tendency is towards the impairment of . . . mental vigor," data from Austin v State, 101 Tenn 563; 48 SW 305 at 306 (1898), aff'd 179 US 343 (1900).

    Thus, "Non-smoking should be regarded as the normal social behaviour, and . . . all action which can promote the development of this attitude be taken," data from M. Ashley, W. Forbes, and R. Frecker, in the Canadian Med Ass'n Journal Vol. 125(1), p. 1077, 15 Nov 1981. Instead, smoking is a a loathsome disease. The "spreading infection" of that loathsome disease made it "one of our most serious diseases," Lancet, supra, 1952. But now, "smoking is no longer the norm," data from The Lancet, Vol. 2(8361), p 1234, 26 Nov 1983. Concerning that loathsome disease, "cure of tobacco-smoking lies in its prevention," Johnston, supra, p. 482. That is the "cure" "for controlling the smoking epidemic," Ashley, supra. The word "epidemic" refers to "disease," specifically, to "one of our most serious diseases."

    Page 3 of 211 pages
    "Smoking . . . as a disease" data

    "Overwhelming clinical evidence supports characterizing smoking as a physical addiction . . . as a disease," as noted in the Mich. Law Review, Vol. 81(1), p 240, November 1982. "When something 'new' in medical literature is published, it is a wise precaution to read previous literature on the subject—that 'something new' may not really be new," as noted by A. Froese and A.Bryan, in Am. Rev. Resp. Dis., Vol. 123(3), p. 249, March 1981.

    "Clinical experimental data indicate that a definite physiologic addiction to nicotine exists," as noted by Maurice J. Barry, Jr., in "Psychologic Aspects of Smoking," in Proc. Staff Meetings Mayo Clinic, Vol. 35(13), p. 386, 22 June 1960. Dr. Barry cites data "indicating pharmacologic addiction to nicotine."

    E. G. W. Hoffstaedt, M.D., notes that "the smoking habit is primarily and foremost a psychological condition--however strong the pharmacological effect of the habit-forming drug, nicotine, may be," in "The Treatment of the Unwilling Smoker," in The Practitioner, Vol. 195(1170), p. 794, December 1965. He cites cure of the disease in terms "of replacing the 'morbid preoccupation' of the mind with the cigarette by diversion of thought to more essential and positive thoughts . . . 'nipple substitutes' are recommended." P. 796 notes smoker withdrawal symptoms.

    "'Tobacco Addiction and Withdrawal Symptoms" are discussed in Applied Therapeutics: The Journal of Practical Therapy, Vol. 4(10), p. 891, October 1962. "During the Second World War many consultants and regimental medical officers had an opportunity to observe tobacco addiction in a large number of serving men and officers." Indeed, "the signs of the true tobacco-addict could be seen." Smoker behavior did "reveal marked resentment patterrns towards those who were trying to reduce" their "smoking . . . The existence of the addiction pattern and the withdrawal syndrome were very real to those who saw any number of service men." Even now, "we still have tobacco-addicts with us."

    Lt. Col. Carles T. Brown, Army Med. Corps, discusses "Tobacco Addiction" in the Texas St. Journal of Medicine, Vol. 50(1), pp 35-36 ,January 1954. P. 35 states that "Tobacco is a narcotic capable of producing tolerance, dependency, and withdrawal phenomena in those persons accustomed to its use. Thus it fulfills the requirements for the definition of an addicting substance." Lt.Col. Brown, cites the Manual of Pharmacology, 3rd ed., 1926, by T. H. Sollman, indicating "Nicotine is one of the most fatal and rapid of poisons . . . . It acts with a swiftness equalled only by hydrocyanic acid." He notes similarities with "other narcotics" such as opium, cannabis, mescaline, and peyote. P. 36 cites "the goal of detoxification common to all drug withdrawal plans." He states, "relapse in drug addictions is the rule rather than the exception. . . . the premorbid personality of the subject is the decisive factor."

    "Overwhelming clinical evidence supports characterizing smoking . . . as a disease," p. 240, Mich. Law Rev, supra. At 243, "Neither alcohol nor even heroin exerts a more powerful addictive effect than nicotine." Note "smoking . . . as a disease" as "not . . . new."

    Page 4 of 211 pages.
    The article, "Cure of Tobacco-Smoking," by Lennox Johnston, in The Lancet, Vol. 263(6732), pp. 480-482, 6 September 1952, states that "As smoking proceeds . . . the urge becomes increasingly compulsive: the psychological urge has been reinforced by a pharmacological urge, the craving for tobacco . . . . there is a recurring urge to perform the now largely habitual and often ritualistic actions of smoking." Cf. data on schizophrenia, "Marked distortions of normal behavior appear in the form of odd stereotyped gestures," data from Psychology, 1961, by Allen D. Calvin, et al, p. 430.

    Dr. Johnston continues at 481, "craving precludes . . . objective thinking on this subject." At 480, smokers "suppress the facts, particularly the more damaging facts, against smoking, and circulate in their place favourable untruths: in short, they use deception." Cf. Allen, supra, "In schizophrenia, reality orientation is especially weak; the patient lives in a world of fantasy."

    At 481, Dr. Johnston notes, "Psychotherapy consists in building up the patient's determination to end smoking by persuasion, encouragement, undeception, and re-education--patient and oft repeated." Persons around the smoker being treated for the "disease" known as smoking "ought perhaps to be warned against irritability" by the smoker. The reason is clear from data in Applied Therapeutics, Vol. 4(10), p. 891, October 1962, smokers "reveal marked resentment patterns towards those" persons " who were trying to reduce" the smoker "smoking." Such "resentment patterns" take the form of "implicit or overt actions designed to rebel or retaliate," data from The Journ. of Nervous and Mental Disease, Vol. 141(2), p. 170, August 1965.

    Smoker hostility towards "Cure of Tobacco-Smoking" disease is discussed at 482, "Smokers dislike contemplating the ill effects of smoking . . . They tend to repress them, and hence dislike hearing them spoken of. Thus they discourage serious discussion of the subject, imposing, in fact, a 'drug taboo.' Those who, in defiance of the taboo, speak out about the ill effects of smoking, are disapproved, derided, or ostracized in proportion to their outspokenness." At 482, "Addiction to tobacco, like addiction to opium, is a specific disease." "Its protracted course, the enormous numbers affected, and spreading infection make smoking one of our most serious diseases." Thus, "cure of tobacco-smoking lies in its prevention."

    "After smoking has started, the development of craving for tobacco is evidenced not only in increasing application to the drug, but in increasing resistance to undeception. As a result, confirmed smokers are often largely inaccessible to the facts against smoking: the simple deception which took place in the 'pre-smoker' becomes, with development of craving, an increasingly fixed delusion of the smoker. . . . The fixity of smokers' delusions is doubtless related to the strength of their craving for tobacco, and in many cases this is so strong that the smoker projects his represssed self-criticism on to his would-be undeceiver, characterising him as a crank or fanatic, or at the least, as hopelessly biased." Cf. the like analysis by James L. Tracy, M.D., in Medical Review of Reviews, Vol. XXIII(12), pp. 815-820, December 1917.

    Page 5 of 211 pages.
    The article, "Underlying Mechanisms in Substance Abuse: Examples from Research on Smoking," by Ovide F. Pomerleau, in Addictive Behaviors, Vol. 6(3), pp. 187-196, 1981, provides insight consistent with the fact of smoking as "one of our most serious diseases," data from Lennox Johnston, in The Lancet, Vol 263(6732), p. 482, 6 Sept. 1952.

    P. 187 states, "Smoking is chosen as a representative disorder . . . because of its prevalence . . . and its importance as a public health problem." P. 482 in The Lancet, supra, expressed the same concept, "Its protracted course, the enormous numbers affected, and spreading infection make smoking one of our most serious diseases." When medical professionals want to study a "representative disorder," they study the mental disease called by the name of "smoking."

    P. 187 discusses disorders such as smoking, alcohol abuse, and heroin addiction, citing a common attribute of these disorders, "a discouragingly high rate of recidivism." Smoking as a "representative disorder" helps provide insight for "Underlying Mechanisms in Substance Abuse."

    P. 194 notes that "an understanding of homeostatic and pathophysiological mechanisms leading to rational therapies is generally credited with the singular successes of modern medicine." Smoking is a disorder; that is the udnerlying premise for seeking, for example, "common conditioning mechanisms," with, for example, heroin addiction.

    p. 189 states, "evidence for the possible role of conditioning factors in substance abuse comes almost entirely from research on heroin addiction, alcohol abuse, and obesity. In the opiate area, conditioning phenomena have been clealry demonstrated in physically dependent animals and people."

    P. 190 cites "another characteristic of addiction" that is common. "Stimuli which constitute the ritual of repeated drug consumption can elicit conditional compensatory reactions which, by opposing the usual drug response (Wikler, 1965), serve to increase the dosage required to get an effect. . . . Using the analgesic effect of morphine on the response to various painful stimuli as an indicator, Siegel (1979) demonstrated that larger doses were required in the presence of stimuli associated with drug presentation than of stimuli without such associations." It is clear that the smokers "'morbid preoccupation' of the mind with the cigarette" (an apt description by Dr. E. Hoffstaedt, in The Practitioner, Vol. 195(1170), p. 794, Dec 1965) fixates their thinking to the extreme that they display a narrow world view: outer reality is judged in terms of contributing to smoking. (Thus, persons who do not contribute to smoking, but want rules enforced, are foreseeeable victims of smoker fixated, retaliatory propensities.)

    P. 190 also cites "a conditioned craving model of recidivism" taken from alcoholism research "on the cognitive processes by which problem drinking is re-established following treatment."

    P. 198 states, "Smoking is a representative disorder." Indeed, it is "one of our most serious diseases."

    Page 6 of 211 pages.
    Smoking is not a job requirement/qualifications matter. Hence, on the merits, the installation case has not been presented. On the matter of smoking, the "employer could not have been interested in that act," Kaletha v Hall Mercantile Co, 157 Minn 290; 196 NW 261 (1923). "Workmen are not employed to smoke," Maloney Tank Mfg. Co. v Mid-Continent Petroleum Corp., 49 F2d 146 (1931). Smoking on the merits is the opposite of a job requirement, indeed, it is "relatively trivial," Diefenthal v C.A.B., 681 F2d 1039 at 1042 (1982). smoking is not part of the job requirements of anybody. No court has ever found smoking to be a job requirement. hence, smoking is not a matter concerning which "qualifications" exist. Smoking is not a job requirement for any occupation, including mind.

    Examples of Smoking Not a Job Requirement Matter

    Not for Dishwashers
    Bradford's Case, 319 Mass 621;
    67 NE2d 149 (1946)

    Not for Students
    Tanton v McKenney, 226 Mich 245;
    197 NW 510 (1924)

    Not for Building Workers
    Mack v Hugger Bros Construction Co,
    153 Tenn 260; 283 SW 448 (1926)
    Dickerson v Reeves, 588 SW2d 854 (1979)
    Whiting-Mead Commercial Co v Industrial Accident
    Com'n    , 178 Cal 505; 173 P 1105 (1918)

    Not for Engineers
    Keyser Canning Co v Klots Throwing
    Co    , 94 W Va 346; 118 SE 521 (1923)

    Not for Workers with Gasoline
    Secor v Penn Service Garage,
    19 NJ 315; 117 A2d 12 (1955)
    Feeney v Standard Oil Co, 58 Cal
    App 587; 209 P2d 85 (1922)
    Wood v Saunders, 288 App Div 69;
    238 NYS 571 (1930)
    McAfee v Travis Gas Corp, 137 Tex
    314; 153 SW2d 442 (1941)

    Not for Ink Workers
    Commonwealth v Hughes, 468 Pa 502;
    364 A2d 306 (1976)

    		 Not for Ship Workers
    Petition of Republic of France,
    171 F Supp 497 (1959)
    U.S. Lighterage Corp v Patterson Lighterage & Towing Corp,
    142 F2d 197 (1944)

    Not for Electricians
    Rish v Iowa Portland Cement Co,
    186 Iowa 443; 170 NW 532 (1917)

    Not for Restaurant Employees
    Edgewater Motels, Inc v Gatzke,
    277 NW2d 11 (1979);
    Alford v City of Newport News,
    220 Va 584; 260 SE2d 241 (1979)

    Not for Plumbers
    Pullman Kellogg v Work Comp App Bd, 26 Cal 3d 450; 161 Cal Rptr 783; 605 P2d 422 (1980)

    Not for Lawyers
    Hentzel v Singer Co, 138 Cal App 3d 290; 188 Cal Rptr 159 (1982)

    Not for Laborers
    Haller v City of Lansing, 195 Mich 753; 162 NW 335 (1917)
    Tiralongo v Stanley Works, 104 Conn 331; 133 A 98 (1926)
    Lovallo v American Brass Co, 112 Conn 635; 153 A 783 (1931)
     

    Here, "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009 at 1011 (1975), to include smoking. The "employer could not have been interested," Kaletha, supra. Thus, on the merits, the installation case fails.

    Page 7 of 211 pages.
    Desires Do Not Create "Requirements"

    A long line of cases show that "desires" do not established validated job qualification requirements. A qualification requirement is a threshold condition precedent for even thinking of proposing a "dis"qualification case. The disqualification case must be overturned ab initio for lack of a threshold qualification. See multiple precedents including but not limited to:

    Griggs v Duke Power Co, 401 US 424; 91 S Ct 849; 28 L Ed 2d 158 (1971), desires do not create validated requirements for a high school diploma.

    Diaz v Pan American Airways, Inc, 442 F2d 385 (CA 5, 1971) cert denied, 404 US 950 (1971) desires do not establish validated job qualification requirements.

    U.S. v Bethlehem Steel Corp, 3 EPD 8257; 446 F2d 652 at 662-3 (CA 2, 1971), desires do not create requirements; there must be a business necessity ("an irresistible demand" of business, not mere personal employee hopes arising from mere expectations)

    Robinson v Lorillard Corp, 444 F2d 791 (CA 4, 1971), even a business necessity is insufficient, since freezing past improper actions has a continuing unlawful effect. Here, not even a requirement for tobacco smoke has been alleged, much less--any "necessity".

    Brown v Gaston Co D.M. Co, 457 F2d 1377 (CA 4, 1972), the lack of objective validated requirements cannot be upheld, since their presence must be "the controlling factor," p. 1382, and claims that compliance is "premature" in society are void. Cf. NAACP v DPOA, 591 F Supp 1194 at 1202 (1984) on shoving non-compliance off on the courts. Objective requirements are "the controlling factor," not "desires." Tobacco smoke is no an "objective" requirement, and OPM confirmed that 30 Jan 1984.

    Nance v UCC, CPD, 397 F Supp 436 (1975), desires for weight lifting requirements, do not create/validate such.

    Sabol v Snyder, 524 F2d 1009 at 1011 (CA 10, 1975), "the job requirements and qualifications had never been formally changed" to even reference tobacco smoke (not even de minimis reference).

    U.S. v City of Chicago, 549 F2d 415 at 430-435 (CA 7, 1977), there must be validation in terms of "major" work aspects, validation studies, compliance regardless of what others do, "clearly identified" criteria, etc. None exists for tobacco smoke. Cf. Stalkfleet v Postal Svc, 6 MSPB 536 at 541 (1981), on the need to show requirements from the job description. Smoking is unlisted.

    Many other cases show that personal desires do not create validated job requirements. See Barnes v Costle, 561 F2d 983 (1977);   Tomkins v Pub Svc El & Gas Co, 568 F2d 1044 (1977);   Montg. Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977), non-requirements "can never prevent performance of the job";   Hill v Nettleton, 455 F Supp 514 (1978), desires for a Ph.D. cannot create/validate a requirement; Bullock v Pizza Hut, 479 F Supp 424 at 430 (1977), that others are mistreated does not defend installation behavior here.

    Page 8 of 211 pages.
    Exposure to tobacco smoke is not a job qualification requirement of record. Both OPM and USACARA deny the existence of a requirement; the job description cites no tobacco smoke requirement. No advance notice/specificity has been provided alleging such. Hence, as the 11 Nov. 1983 amicus brief from Environmental Improvement Associates pointed out, and as I testified, p. 4, no qualification factor exists against which to disqualify me, as a matter of law. See well established anti-discrimination principles contained in cases such as Nance v Union Carbide Corp., Consumer Prod. Div., 397 F Supp 436 (1975).

    In that case, an unvalidated requirement on heavy weight lifting was used by the employer. At 452, "Plaintiff was never advised by her supervisor and foreman that she was not performing satisfactorily until the actual date of her disqualification." Here, I have never received any notice/specificity alleging my being unable to perform my duties of record. I have not received any "actual date" notice; anything provided after such date is retroactive, and hence invalidates an ouster--under well-established civil service rules. I have not received any such notice--clearly a defect warranting reversal of the case. I continue to be able to perform all the duties of record of my position, as Col. Benacquista admits, p. 62, "The job was available." (Note also that even months after ousting me, the installation granted me a within-grade increase, thus affirming my acceptable quality of work. The installation has not provided any documentation since that time, alleging anything to the contrary).

    P. 452 continues, "plaintiff was notified that she was disqaulified . . . She was given a choice of 'giving up' the job or being disqualified." Note Col. Benacquista's similar admission, my choice was ouster or retract my pointing out the hazard--the hazard Dr. Holt has since admitted "for all these other people. . . . Yes. Yes. . . . People smoking in their vicinity is hazardous to them" in violation of OSHA, 29 CFR 1910.1000.Z, etc. (See Dr. Holt's depositon, p. 42). (Col. Benacquista thus committed extortion, as well as violation of EEO principles.)

    At 450, "No validation studies were conducted with respect to the" supposed requirement. At 455, "Only if a challenged practice is found to be essential to overriding, legitimate . . . business purpose, such as safety and efficiency, can the practice in question be allowed to stand . . . there must be no acceptable alternative which would better accomplish the business purpose." Here, the government has already conceded that smoking involves personal "desires." No advance notice/specificity showing any "business purpose" at all has been provided. Since the qualifications issuing authority (OPM) has cited no requirement, the instllation has no foundation upon which to allege such at this late date. Clearly, "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009 at 1011 (1975). The ouster is to be reversed for lack of an advance notice/specificity.

    Page 9 of 211 pages.
    The presence of tobacco smoke is not a job/qualifications requirement. Tobacco smoke is not listed as required by either the Handbook X-118 or the job description. See my deposition, p. 4, and the amicus brief from Environmental Improvement Associates. No official document has "been formally changed" to require smoker behavior (smoking) and "desires." Any effort to alter official requirement documents would be invalid based upon lack of validation; cf. Diaz v Pan American Airways, Inc, 442 F2d 385 (1971) ("desires" have no legal standing). No advance notice/specificity showing a requirement has been provided by the installation, despite my long-standing requests.

    There is no job requirement or "necessity" for tobacco smoke. No court has ever found a requirement for tobacco smoke. (At most, smoker "desires" have been noted.) Necessity is a quite different matter. (See Bradley v Murray, 66 Ala 269 (1880).)

    "Necessity connotes an irresistible demand. To be preserved" in a qualifications requirements case, tobacco smoke "must not only directly foster safety and efficiency of a plant, but also be essential to those goals. . . . 416 F2d at 989," pertinent words applied to the matter at hand, from U.S. v Bethlehem Steel Corp, 3 EPD 8257, p. 6851; 446 F2d 652 at 662 (CA 2,. 1971).

    Here, the installation discharge of me is premised on the danger from implemented smoker "desires." Tobacco smoke at dangerous levels clearly is anti-safety, and does not "foster safety and efficiency of" the installation.

    The court continues, "If relief . . . can be denied merely because the majroity group of employees . . . will be unhappy about it, there is little hope of correcting the wrongs to which the Act is directed." Cf. Monroe v Board of Commissioners, 391 US 450 (1968)." Here, no advance notice/specificity has been provided from the installation identifying numbers of smokers, and numbers of smokers who may expect to be allowed to do as they did before safety rules were enacted, and before AR 1-8 was established, i.e., to endanger and discomfort nonsmokers.

    "Assuming arguendo that the expectations of some" smoker "employees will not be met" by the installation recognizing Army rules after all these years, "their hopes arise from an illegal system." The installation has not even recognized the rules, as EEOC accurately pointed out on 8 April 1983. See also the 25 Jan. 1980 USACARA Report, pp. 11-12, e.g. Smoking is not to be permitted when the threshold conditions precedent for permitting smoking are unmet. That is quite a different matter from a ban imposed if the conditions precedent were met, which they are not. (The adverse actions are premised on the danger not being corrected--much less any action on rights of other nonsmokers, and concerning the discomfort and unremoved smoke which arise from the ventilation system inability to achieve the regulatory goals at this site in particular. The ventilation clearly cannot deal with dangerous levels of smoke, much less, tobacco smoke per se.

    Page 10 of 211 pages.
    An "employer could not have been interested in" smoking, Kaletha v Hall Mercantile Co, 157 Minn 290; 196 NW 261 (1923). Hence, "the record is barren of appellant's position description," Stalkfleet v U.S. Postal Service, 6 MSPB 536 at 541 (1981). As a matter of law, smoking is not a job requirement. However, the reverse is of interest. Smokers can be disciplined for smoking, e.g., when they endanger, discomfort, or bother others. In one case the smoker "swore that he had been discharged from smoking," Bluestein v Scoparino, 277 App Div 534; 100 NYS2d 577 (1950). AR 1-8 and 32 CFR 203 are employer rules that are to be enforced. Smokers are not allowed to endanger nonsmokers. However, the installation has not "even recognized . . . its own regulations," as EEOC accurately noted 8 April 1983. Penalties do not apply to being endangered, i.e., penalties do not apply to victims. Penalties apply to the person who engages in the dangerous conduct. The key word is "conduct."

    Smoking is not a job requirement for smokers, and definitely not for nonsmokers. On the other hand, employers can specify that not smoking is a condition of employment, cf. Bluestein, supra. Moreover, employers (such as the agency at issue) can specify that not endangering nonsmokers, not discomforting them, etc., is a condition of employment; i.e., a regulation against such behaviors can be established. Here, the agency has issued such a rule. But the installation has not "even recognized" it.

    Smoking is not a job requirement, and "the record is barren of appellant's position description." No reasons for the lacking have been provided, despite my requests for specificity. Thus, the installation case is void ab initio. Moreover, since reasons for the failure to identify requirements have not been provided, words such as "arbitrary" and "capricious" apply, cf. McNutt v Hills, 426 F Supp 990 at 1004 ([D DC] 1977).

    The installation refusal to identify job requirements is not only arbitrary and capricous. It is based on raw power, combined with discrimination (as distinct from accommodation). The installation opposes AR 1-8, and uses argumentation like that rejected in Brown v Gaston County Dyeing Machine Co, 457 F23d 1377 at 1379 (1972), "it was premature to try" compliance actions," so they "were not even attempted," Brown juxtaposed with the the 8 April 1983 EEOC analaysis. In Brown, the employer felt "that it was premature to try to place a Negro in a job." Here, the employer feels "that it was premature to try to" comply with AR 1-8 guidance and conditions. It feels that it is "premature" to admit the full "authority" and that the real standard is what is "necessary" locally, considering the poor ventilation at the installation. The installation ignores the fact that "There is no requirement that a local" action "be a response to a uniquely local situation," People v Cook, 34 NY2d 100; 312 NE2d 453 (1974), or be like what "the average workplace" does, Nat'l Rlty & C Co, Inc v OSHRC, 489 F2d 1257 at 1265 (1973). Safety is "above" such considerations," Am. Textile Mfrs. Inst v Donovan, 452 US 490 at 509 (1981). "The Government offers no concrete evidence . . . to support its view" to the contrary," Frontiero v Richardson, 411 US 677; 93 S Ct 1764 at 1771 (1973).

    Page 11 of 211 pages.


    (pp 12-28)

    Smoking "causes insanity, as Dr. Woods said, "to repeat again familiar facts." The mechanism which produces brain damage is also known. See Mich. Law Rev. 81 (1): 237 at 240, November 1982, "Overwhelming clinical evidence supports characterizing smoking as a physical addiction, one that persists even though the addict knows it subjects him to serious risk of death. Both medical and legal authorities now recognize such a condition as a disease." At 243, "Nicotine addiction differs from alcohol and drug abuse, however, in the strength of the dependence and the physical dangers which attend it. Neither alcohol nor even heroin exerts a more powerful addictive effect than nicotine." Cf. note 36, ". . . Linder v. United States, 268 U.S. 5, 18 [45 S Ct 446, 449; 69 L Ed 819, 823] (1925)) (persons addicted to narcotics 'are diseased and proper subjects for . . . treatment.')."

    See The Journal of Respiratory Diseases, May 1981, pp. 10-16, for additional data. At 11, ". . . smoking is a dependence disorder. Cigarette smoking is a physical dependence on nicotine." At 12, "Nicotine is rapidly absorbed after inhalation, and peak blood levels are obtained within minutes after lighting up. The blood-brain barrier is easily traversed by nicotine, so peak levels in the central nervous system are rapidly absorbed." At 15, "some smokers will smoke through tracheostomies. Others begin again immediately after being moved to the wards from the intensive care unit after respiratory failure." Such data shows the severity after the brain damage process has been in effect for some time. The process begins early in life. See p. 12, "the dominant influences on the acquisition of smoking behavior . . . seem to have their major impact prior to the age of 20." At 15, "The dependence-producing features of cigarette smoking have not been emphasized to adolescents in the past." That data provides insight on the pattern of false and deceptive advertising directed at young people, especially since, p. 12, "If one is a nonsmoker at age 20, it is quite unlikely that one will become a regular smoker after this age."

    See J.Am.Med.Ass'n 247 (17): 2333-2338, May 7, 1982. At 2338, At 2333, the DSM-III is cited, "tobacco dependence is classified as an addiction and as an organic mental disorder."

    See Tobaccoism or How Tobacco Kills, by Dr. Kellogg. At 77, "every irritant poison produces immediate damage . . . ." At 79, "Dr. Bremer . . . asserts . . . The more recent authorities upon the effect of tobacco, alcohol and other irritating poisons upon the brain, have shown changes which have been formerly overlooked."

    Nicotine is communicated from the lungs to the brain. Smoking endangers smokers and nonsmokers. The entire premise of AR 1-8 is that smokers are dangerous. Smokers, "like cattle, sitting around until someone tells them what to do" (words borrowed from Dr. Tussing), lack the mental capacity and willingness to not endanger others. Smokers "are diseased" and spread disease. The mechanism producing smoker brain damage is "communicable" inside smokers, and affects others.

    Page 29 of _______ pages.Affiant's initials _________


    (p 30)

    Introduction to Psychology [Harcourt, Brace & World, Inc.], 4th edition [1967], by [Ernest R.] Hilgard and [Richard C.] Atkinson, at 537, indicates that certain mental disorders "are classified as 'psychogenic' or 'functional,' meaning that there is no identifiable organic change in the brain or nervous system associated with them. There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system—with alcoholism, acute infections, syphilis, tumors, head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries). Usually the individual has shown normal adjustment prior to the disease or injury, and his subsequent peculiarities in behavior are attributed to damage of the nervous system." The book goes on to caution that reaction might be different with "An already unstable individual." The book indicates that once "damage of the nervous system" occurs in such a person, "An already unstable individual might become psychotic following a brain injury, while a better-adjusted person might show little change in behavior."

    "An already unstable individual might become psychotic following a brain injury." Tobacco organic mental disorder is an organic disorder. Smoking behavior is known for the adverse organic effects it produces. The suicidal nature of smoking is a matter of public domain knowledge; smoking behavior is "slow-motion suicide."

    In Psychology for Better Living, Dr. Tussing at 361 - 362 notes, "The treatment for mental illness is called psychotherapy. The patients are interviewed periodically . . . Some have to be confined to cells with padded walls to keep them from doing harm to themselves; others have to be confined to keep them from doing harm to other people." In the situation at bar, honoring AR 1-8 guidance against letting smokers "endanger" others would be a solution. Dr. Tussing continues, "But unless they are violent, they are encouraged to relax and engage in conversation with each other, and they are taught arts and crafts such as painting, sewing, and clay modeling." In the case at bar, smokers are uncommunicative. They are unable to speak or write coherently. Their communications, if any, appear at the "word salad" level. The culpable offenders appear to lack the insight to recognize the incomprehensible nature of their incoherent disregard of rational meanings of words and phrases. Data on neologisms sheds insight on such deviant misuse of language. When smokers are suffering from aphasia or other communication disorder(s), the therapy of "conversation with" others is indicated, to such extent, if any, that the causative brain damage that has already occurred is reversible. Therapy such as teaching them arts and crafts may also be of value in controlling their fixation on their "highly overlearned" "odd stereotyped gestures" of hand-mouth motions. Arts and crafts therapy may be useful in rehabilitating persons with an obsession for compulsive deviant hand movements.

    Dr. Tussing notes that "The vast majority of mental-hospital patients . . . are more like cattle, sitting around until someone tells them what to do next." When smokers are apathetic and indifferent to reality, it is therapeutic when "someone tells them what to do next." Hence, AR 1-8 envisions a personal standard. A nonsmoker makes a "personal determination" which informs listless and disturbed smokers of AR 1-8 guidance and "tells them what to do next."

    Page 31 of ___211____ pages.Affiant's initials _________


    (pp 32-129)
    (click here for pages 101-211 as .pdf)

    EEG studies show the accuracy of the 1857 analysis that “crime keeps pace with the increased consumption of tobacco . . . Witness . . . juvenile delinquents–the inveterate smokers of the present,” data from The Lancet, Vol. I(1751), p. 303, 21 March 1857. One example given by W. N. Spong in The Lancet, Vol. I(1753), p. 360, 4 April 1857, is “increase of cowardly assaults . . . .”

    Examples are cited in Brain, Vol. 92[3], pp. 503-520,   [March] 1969:
    “Murder of great ferocity with trivial cause,” p. 507;
    “Wife murder in a depression,” p. 508;
    “Recurring rages with trivial cause . . . being exceedingly abusive to everybody,” p. 510;
    “unprovoked assaults,” p. 510; and
    “Habitual gross cruelty . . . burned down four buildings,” p. 511.

    Examples are cited in The Am. J. of Psychiatry, Vol. 98(4), pp. 499-503,   January 1942:
    “destructive,” “hit other” people, “persistent stealing,” p. 501;
    “theft,” “unusual laziness and inattentiveness,” p. 501; and
    “persistent stealing and incorrigibility,” p. 501.

    Examples are cited in The Am. J. of Psychiatry, Vol. 98(4), pp. 494-498,   January 1942:
    “liked to see dead people,” p. 495;
    “frequently stole appreciable sums of money . . . and lied constantly,” p. 495;
    “stealing, fighting, using vile language,” p. 495;
    “attempted suicide,” p. 495; and
    “stolen on many occasions and did not seem to recognize that it was wrong . . . lying . . . with no remorse about any of his actions,” p. 496.

    An example is also given in The Am. J. of Psychiatry, Vol. 95(3), pp. 641-658,   November 1938, of a person who “had a terrific temper and occasionally injured other” people, “and broke furniture when he became angry” with “frequent unprovoked temper displays.”

    “The action of smoking on the brain” includes “great irritability of temper,” data from Samuel Booth, L.S.A., in The Lancet, Vol. I(1748), p. 229, 28 Feb. 1857.

    Smoking behavior includes “an alarming passion for fraudulently obtaining . . . money. This propensity to . . . vicious habits . . . I . . . ascribe . . . to tobacco,” data from J. Taylor, L.S.A., in The Lancet, Vol. I(1749), p. 250, 7 March 1857.

    Smoker “irritability” is cited in the DSM-III, p. 160. Thus, it continues to be a part of smoker behavior. And “crime keeps pace,” i.e., “crime keeps pace with the increased consumption of tobacco,” Lancet, supra. Smokers engage in “cowardly assaults,” murder, recurring rages, stealing, suicide, and incorrigibility in dealings with people even after rules are brought to their attention. Smokers are unresponsive to normal stimuli.

    Page 130 of ___211____ pages.Affiant's initials _________


    (pp 131-196)

    No Collective Bargaining Role

    As a matter of law, there can be no bargaining agreement role to operate as a bar, 1n this case of disqualification, even if matters of smoking per se, or the hazard per se, are muddled in with the real issue: disqualification based on alleged failure to meet a non-existent qualification requirement. [See denials, OPM 1984, OPM 1989, DoL 1986, OMB 1986, MCR 1987, Army 1991, DoD 1991, AR 1-8, MCL § 750.27, etc.] EEOC has expertise in dealing with discrimination, including that perpetrated by unions in collusion with employers. EEOC expertise to entitled to deference, which MSPB has unlawfully disregarded. EEOC has already found multiple MSPB errors of law and fact. There has been no “compliance with any of the applicable standards of proof required of an agency,” p. 4, 8 April 1983 EEOC decision [Docket 03.81.0087, 83 FEOR 3046]. The union, even if it wanted to interfere (which is not shown) has no lawful role on qualifications, hazards, etc., as is clear from the accurate EEOC finding of fact, p. 5, “the agency had the authority to ban smoking from its buildings,” which is simply the authority of any employer to direct the workforce (regardless of any considerations of hazards, discomfort, nuisances, etc.) “Workmen are not employed to smoke,” MTM Co. v. MCP Corp., 49 F.2d 146 at 150 (1931). Consent of the employer is a condition precedent for smoking, and “reasons given for failure or refusal to act or give consent are immaterial (citations omitted), data from Evans v. PVPP & IR, 144 Neb. 368, 13 N.W.2d 401 at 402 (1944).

    The union has no lawful role to allow disqualification of non-unit members such as me, to allow hazards, etc.––all matters governed by government-wide regulations. See 5 USC § 7117.

    Unions have a limited role, especially because of the “Janus-headed” nature of unions, a pertinent adjective from Evans v. Sheraton Park Hotel [164 US App DC 86; 5 FEP 393] 5 EPD 8079, p. 6922 [1972], quoted, 503 F.2d 177 at 184 (1974). The insightful word certainly describes the limitations on the union ability to represent all its members, discussed in depth in NAACP v. DPOA, 591 F.Supp. 1194 (1984). P. 1210 evidences that “the Court must be especially sensitive to the fact . . . .” A “Janus-headed” union has difficulty “to safeguard” the operation of law.

    This way be true here. “Assuming arguendo that the expectations of some employees” (or unknown union officials) “will not be met, their hopes arise from an illegal system,” U.S. v. Bethlehem Steel Corp., 446 F.2d 652 at 663 (1971). “Only if a challenged practice is found to be essential to overriding, legitimate . . . business” (not personal “desires”), repeat, “business purpose . . . can the practice in question be allowed to stand” (citations omitted), Nance v. UCC, CPD., 397 F.Supp. 436 at 455, item 14 (1975). No advance notice/specificity has been provided in these regards, even if there were something to present, which after all these years, there clearly is not.

    Due to the “Janus-headed” nature of unions, they vacillate both ways. See Soc. Sec. Admin. v. Goodman, 82-1 ARB 8206 (1982), pp. 3945-6. Unions have no role. MSPB speculation is no proof of anything. MSPB has repeated [23 MSPR 682] its [6 MSPB 626; 7 MSPR 13] error EEOC already rejected [Docket 03.81.0087, 83 FEOR 3046].

    Page 195 of 211 pages.Affiant's initials _________


    (p 196)

    Phony Issue re Alleged Union Contract

    MSPB officials have an undisputed pattern of making false and distorted claims. They misrepresent what happened in March 1980 when they alter the past to pretend installation recognition of an alleged ''accommodation'' matter, when no such installation consideration had occurred, and none has yet. MSPB officials even go to the extreme of not properly summarizing what EEOC said [Docket 03.81.0087, 83 FEOR 3046, 8 April 1983] in rejecting the MSPB misconduct [at, e.g., 6 MSPB 626; 7 MSPR 13]. Thus, the pattern of MSPB misrepresentations is clear. The pattern of MSPB misconduct has now been extended to include misrepresentations on p. 5 of the 24 Oct. 1984 issuance [23 MSPR 682].

    Recall that this is a case on “medical disqualification” not one on smoking. A disqualification case alleges that there is a federal-wide requirement for something, and/or that there is a job description requirement. For such a case to be commenced, a requirement is a condition precedent. Government-wide regulations such as the Handbook X-118 are non-negotiable. Job descriptions are non-negotiable. Hence, as a matter of law, no union contract could cover this “medical disqualification” case. No advance notice, and no specificity, has been provided showing any union contract.

    Moreover, personnel specialists, like other management personnel, are not part of any “unit” to which a contract may apply. No advance notice/specificity has been provided showing any relevance whatsoever of any alleged bargaining agreement. See also the 20 Jan. 1984 OPM letter. If the Handbook X-118 were subject to negotiations, with bargaining agreements covering qualification requirements, OPM would have such knowledge to have been able to respond with qualification data requested.

    Moreover, note that the installation [TACOM] case is premised on a hazard posing a danger. The case is not on the issue of banning a non-hazard. Here, the hazard is not to be ''permitted'' as distinct from being “banned” (the conditions precedent for permitting smoking do not exist, e.g., ventilation able to “remove smoke,” no endangerment, no discomfort, etc.). Hence, the matter of a ban is not properly reachable, since smoking has not yet been properly ''permitted'' considering the premising of the case on the extant danger, i.e., premising the case on not meeting the conditions precedent for permitting smoking [in the first place].

    Hazards are controlled under laws such as OSHA [29 §§ USC 651 - 678],   5 USC § 7902,   5 CFR § 752,   FPM Suppl. 532-1, S8-7a,   29 CFR § 1910.1000.Z, etc. Such federal-wide issuances are non-negotiable. No advance notice/specificity has been provided alleging that rules on hazards have been negotiated or that any bargaining agreement has any coverage whatsoever. Moreover, enforcing rules on hazards involves sovereign immunity, cf. Jacobs v. Mental Health Dep’t., 88 Mich.App. 503, 276 N.W.2d 627 (1979). Hence, the allegation that some unstated agreement is even a “question” is a fraudulent allegation. Moreover, accommodation rules are government-wide, and are themselves non-negotiable. A “question”' does not “prove” anything; MSPB is making errors such as EEOC has already rejected.

    Page 197 of 211 pages.Affiant's initials _________

    No Union Role

    NAACP v. Detroit Police Officers Ass’n., 591 F.Supp. 1194 (1984), provides insight on the local and MSPB pattern of errors. For example, note the 24 Oct. 1984, p. 5 [23 MSPR 682], intentionally misleading reference to an unstated union contract, concerning which no advance notice/specificity was provided. Note that EEOC has long experience with union efforts to obstruct the rights of discriminated against groups. Such union efforts have been unlawful since at least the time of Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1022 (1952). In contrast to EEOC competence, note MSPB’s hostility to EEO principles in, e.g., Lanphear v. Prokop, 703 F.2d 1311 (1983). The MSPB pattern of errors is “a piece in a mosaic which, along with other evidence,” is pertinent for “demonstrating a general discriminatory intent,” and other unlawful intent, Kyriazi v. Western Elec. Co., 461 F.Supp. 894 at 924 (1978).

    Contrast the outrageousness of the MSPB speculations in a perfunctory, non-analytical way, with the lengthy detail and analysis in Detroit, supra. Note that correspondence with the union and employer is cited and discussed. Note that clauses of the contract are cited and analyzed. Note the thoroughness; the decision covers printed pages 1196-1221 (25 pages printed, undoubtedly over 40 pages typed). Contrast that with the miniscule MSPB bare assertions of the type EEOC [at Docket 03.81.0087, 83 FEOR 3046] has already rejected. (Even if the MSPB claims were true, which they are not, no advance notice/specificity has been provided, voiding the action de novo. Cf. Siemering v. Siemering, 208 N.W.2d 881 at 883 (1980).

    MSPB ignored that unions can argue either way on the matter of smoking per se. So does management. See, e.g., Soc. Sec. Admin. v. Goodman, 82-1 ARB § 8206 (1982), pp. 3945-6. Here, no advance notice/specificity has yet been provided even alleging a union contract, much less any clause on smoking, much less, any relevancy to me (a management person excluded from the alleged bargaining unit(s), if any).

    Here, the ouster of me is premised on disqualification, and on a hazard. No union is allowed to negotiate OPM's medical retention standards, Handbook X-118 guidance, etc. Government-wide regulations are not negotiable. Congress has delegated to OPM the job of developing, issuing, validating, etc., on qualifications criteria. The installation [TACOM] and MSPB are unconstitutionally repealing the Congressional delegation of responsibility to OPM. Even if the union wanted to negotiate qualifications requirements, which it does not so far as the record shows, disregarding the actual Congressional delegation to OPM is an unconstitutional repeal of OPM’s jurisdiction. No contracts or unstated contracts can “stand in the way of full and complete remedies for constitutional violations,” NAACP, supra, p. 1201, not even “state laws.”

    Relative to hazards, unions are commonly anti-hazard: their raison d’etre. The Congressional safety law [29 §§ USC 651 - 678] is not negotiable. “Congress itself defined the basic relationship . . . placing . . . worker health above all other considerations . . . ,” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 at 509, 101 S.Ct. 2478 at 2490, 69 L.Ed.2d 185 at 202 (1981). Smoking as a hazard is not negotiable.

    Page 198 of 211 pages.Affiant's initials _________

    Controlling Smoking is Not Negotiable,
    As a Matter of Law

    Sovereign immunity is not negotiable. That is the legal doctrine upholding the control of smokers. See Jacobs v. Mental Health Dep’t., 88 Mich.App. 503, 276 N.W.2d 627 (1979).

    Unions have no role to limit sovereign immunity. For example, when the prosecutor prosecuted the smoker whose smoking led to a fire which in turn led to deaths, there was no role for a union to allege any type of immunity for smokers from criminal laws when smokers harm or kill people as a consequence of their smoking. See the case of Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976), upholding the indictment for manslaughter of the smoker, whose smoking on-the-job resulted in harm.

    When smokers worsen their behavior against a nonsmoker who seeks rule compliance, recourse applies as a matter or law, for the reprisal. Legal rights granted by law cannot be taken away by a union. See Hentzel v. Singer Co., 138 Cal.App.3d 290, 188 Cal.Rptr. 159 (1982).

    The issue of tobacco which arose in a marital situation was not subject to any collective bargaining agreement. Note that the court decided, in the case of Bradley v. Murray, 66 Ala. 269 at 274 (1880).

    Tobacco and smoking behavior arise in the criminal law context repeatedly. See multiple cases including but not limited to Com. v. Thompson, 55 Mass. (12 Metc.) 231 (1847); In re May, 82 F 422 (1897); Austin v. Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224 (1900); People v. Hudgins, 125 Mich.App. 140, 336 N.W.2d 241 (1983); U.S. v. Bunney, 705 F.2d 378 (1983); and State v. Olson, 26 N.D. 304, 144 N.W. 661 (1915), appeal dismissed, 245 U.S. 676, 38 S.Ct. 13, 62 L.Ed. 542 (1917), etc.

    There is no role for a collective bargaining agreement specification on smoking. Collective bargaining involves matters of “employment.” Note that “the act of smoking in itself is not in the course of the employment, but . . .. the employer will be liable for damages caused by smoking,” George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 at 1042 (1949). Note that smoking involves smoker personal desires, “a purpose of his own,” Dickerson v. Reeves, Tex.Civ.App., 588 S.W.2d 855 (1979). “Workmen are not employed to smoke,” MTM Co. v. MCP Corp., 49 F.2d 146 (1931). Smokers causing harm is “entirely independent of the relationship of employment.” Hill-Luthy Co. v. Industrial Commission, 411 Ill. 201, 103 N.E.2d 605 (1952).

    Collective bargaining agreements relate to matters of “employment,” not to matters such as smoking “entirely independent of the relationship of employment.” As a matter of law, smoking is not a negotiable matter, as smoking does not meet the threshold condition precedent requirement for negotiability: the matter must be “in the course of the employment.” Smoking behavior does not meet that threshold condition precedent.

    Page 199 of 211 pages.Affiant's initials _________


    (pp 200-208)

    Assuming Arguendo that the Loca1/MSPB Criminally False Claims
    Are true, what follows:

    Installation [TACOM] and MSPB criminal falsehoods in calculated, brazen chilling to 18 USC 1001, are undisputed. Note the installation’s non-processing of EEOC Case 01.81.0324, “Wrong information conveyed to” MSPB (ref. 23 Feb. 1982 EEOC decision). The installation had guilty knowledge of having corrupted MSPB, and having corrupted MSPB successfully.

    See U.S. v. Bethlehem Steel Corp., 3 EPD § 8257, 446 F.2d 652 ([CA 2] 1971). Assuming arguendo that the installation and MSPB false claims are true:

    —the job takes me to every building, room, lobby, men's and women's restroom, corridor, whatsoever on the premises, without my having any coworkers whatsoever to do anything.
    Solution: obtain some coworkers, assign them some organizations to service, of the “five people there to do the job” (Averhart Deposition, p. 30). Other solutions are obvious.
     
    —that not smoking is abnormal, and smoking is the norm, hence, nonsmokers are the ones to be accommodated.
    Solution: Smoking is a disease, not not smoking. Not smoking is the norm. (Smokers are the ones to seek accommodation).
     
    —criminally false claims of agency actions (unstated) as “improving . . . working environment.”
    Solution: The hazard still exists, as [TACOM’s] Dr. Holt admitted, p. 42, and as my personal physician stated 17 March 1980. Admit that EEOC is right; nothing was done by the installation.
     
    —a total ban on smoking is the only way to “remove smoke.”
    Solution: Correct the ventilation deficiencies [TACOM’s] Dr. Holt admitted, p. 25. Note the distinction between the uniform threshold conditions precedent to be met before smoking can be ''permitted'' (as distinct from a ban)
     
    —that the issue is smoking relative to solution, but that the issue is the danger relative to the problem.
    Solution: Apply safety rules such as in NR & CCI v. OSHRC, 489 F.2d 1257 ([CA DC] 1975) and ATMI v. Donovan, 452 U.S. 490 (1981) to deal with the admitted entanglement under rules on dangers.
     
    —emphasis on what my alleged requirements are.
    Solution: Emphasize that the job requirements of record are the key (smoking is not listed in the Handbook X-118, as OPM noted, and USACARA agreed, p. 9, 25 Jan. 1980). Stop overruling the doctors of record and their repeated showing of my ability to work. Stop [ad hominem] emphasizing me, and note the problem for all nonsmokers. A solution for them, solves the matter for me (without my even having then to ask and call attention to myself).
     
    —claim of MSPB jurisdiction.
    Solution: Admit that MSPB lacks jurisdiction except to reverse the case for lack of a qualification requirement by which to disqualify me.

    Page 209 of ___211____ pages.Affiant's initials _________

    Ed. Note: “The tobacco industry is the greatest killing organization in the world. The harm done by all the armies in the world combined, will not begin to equal the damage inflicted upon the human race by the combined activity of the cultivators, manufacturers, and distributors of tobacco.”—Dr. Jesse M. Gehman, Smoke Over America (East Aurora, N.Y: The Roycrofters, 1943), p 216.

    "Tobacco alone is predicted to kill a billion people this [21st] century, 10 times the toll it took in the 20th century, if current trends hold," says the Associated Press article, "Tobacco could kill 1B this century," The Detroit News, p 4A (11 July 2006). Details are at "American Cancer Society CEO Urges United States to Do More to Win Global War Against Cancer in Address to National Press Club" (26 June 2006).

    "Tobacco producers are "terrorists," Seffrin tells Israel Cancer Association," The Jerusalem Post (31 March 2005): "All those involved in the production and marketing of tobacco products are 'terrorists', declared Dr John Seffrin, president of the American Cancer Society and elected president of Geneva-based International Union Against Cancer (UICC)."

    The evidence is ''consistent and clear evidence” of my being “able to return to work” on 17 March 1980 and thereafter. I tried to return on 17 March 1980, and on subsequent occasions, but was turned away, despite my being “able to return to work.”

    “The unlawful discrimination committed in this case was blatant and intolerable. . . . In addition,” I was “verbally abused” and in writing. “It is evident that such conduct . . . cannot be tolerated,” Batavia Lodge No. 196, L.O.M. v. N.Y. St. D. of H. R., 35 N.Y.2d 143, 316 N.E.2d 318 (1974). Note “when damages for mental anguish may be awarded. However, recovery should not be based solely on common-law strictures as would be applied in determining liability for a tort. Recovery here . . . is based on a statute which effectuates a State policy,” p. 319.   Here, recovery is sought based on the law and rules applicable for your agency, as well as on the multiple pertinent legal principles on safety, on mental health, on nuisances, on assault, on malpractice, on negligence, on violence, on abusiveness and harassment, on discrimination, etc., etc., on them separately, and on them collectively.

    At 319, “We have previously had occasion to speak of the strength and importance of the State's policy in combating discrimination”(citations). Here, note “the strength and importance” of all the pertinent laws, rules, and principles. Their violations constitute negligence per se. To briefly reference material stated elsewhere, mental health laws were designed to forestall harm by mentally ill people; OSHA [29 U.S.C. §§ 651 - 678] was designed to control hazards; 32 C.F.R. § 203 was designed to have ventilation to“remove smoke,” etc., etc. Each rule was designed to prevent the type of effects we see here.

    At 319, “there can be no doubt that the extensive powers granted” under each law, rule, and principle, “reflect the broad thrust of . . . fundamental policy” of each of then. Thus “is authorized . . . a variety of sanctions, including the ‘awarding of compensatory damages to the person aggrieved . . . .’”

    At 319, “In Matter of State Comm. for Human Rights v. Sheer, 29 N.Y.2d 555, 324 N.Y.S.2d 297, 272 N.E.2d 884, we held that the statute did authorize the awarding of compensatory damages for mental suffering and anguish to aggrieved individuals.” At 320, “The extremely strong statutory policy of eliminating discrimination,” of controlling mentally ill people, promoting safety, eliminating hazards, controlling nuisances, removing smoke, preventing malpractice, preventing harassment for seeking rule enforcement, etc., etc., “gives . . . more discretion in effecting an appropriate remedy than . . . under strict common-law principles. The main goal of the common-law right . . . was to provide private remedies. In the case at bar, the right is statutory and involves a vindication of public policy as well as a vindication of a particular individual’s rights. . . . this is particularly so where, as here, the discriminatory act” and each and every separate rule violation “is intentionally committed.”

    Please direct an appropriate settlement for each and every violation, and for each segment of duration. Cf. Zarcone v. Perry, 572 F.2d 52 ([CA 2] 1978), and the duration of misconduct there, and use an appropriate multiplier factor considering the duration here.

    Page 210 of ___211____ pages.Affiant's initials _________

    Please reverse the suspension/termination noted by EE0C personnel 9 April 1980 and 8 April 1983. The applicable standards of proof required of an agency were not followed, as EEOC has already confirmed [Docket 03.81.0087, 83 FEOR 3046], i.e., there is no qualification requirement of record, as OPM confirmed 30 Jan. 1984. Hence, MSPB’s jurisdiction is limited to reversing the adverse actions for lack of the threshold condition precedent requirement upon which to initiate them.

    Note that MSPB has severely skewed and misrepresented its jurisdiction. First, it denied any jurisdiction at all. Then, years afterward, it suddenly reversed itself utterly, and insisted on full jurisdiction, while ignoring the merits (no requirement, hence, no MSPB jurisdiction except to reverse the ouster). MSPB has misrepresented its jurisdiction, and fixated on matters over which it has no jurisdiction considering the lack of the threshold condition precedent requirement. As soon as the lack is noted, MSPB must reverse, and instantly, at that point, its jurisdiction ceases.

    MSPB refuses to honor the accurate OPM analysis, refuses to cite the lack of any smoking-related requirement, and ignores my testimony, p. 4, encl. 9. MSPB ignores the misconduct by J. Benacquista, E. Hoover, etc., despite the clear guidance of Sullivan v. Navy, 720 F.2d 1266 (1984). Here, excused absence was clearly cited by [the agency TACOM’s] Dr. Holt as applicable, as in any hazard situation. Note the multiple admissions against interest with which the record is replete. It is clear why every reviewer of integrity has ruled in my favor.

    The necessity for the routing of this came through OPM arises from the facts and data noted herein, particularly pages 136-194. MSPB is clearly unresponsive to me directly. (It even has gone to the extreme of misrepresenting EEOC’s 8 April 1983 findings [[Docket 03.81.0087, 83 FEOR 3046], editing them most unethically). However, OPM is in the direct line of review for MSPB, such that this case must [ultimately] be reviewed by MSPB. This appeal through OPM to MSPB is thus another effort to try to obtain MSPB responsiveness on the merits. MSPB misrepresented what EEOC said. Perhaps an OPM transmittal will have success. Please expedite such.

    The accurate 30 Jan. 1984 OPM letter, encl. 1, is appreciated.

    This letter is requesting reversal of the suspension and termination based on all the foregoing data. The rules of law that apply show MSPB jurisdiction limited to reversal for lack of a threshold condition precedent requirement for commencing the ouster. (That lacking shows a prohibited personnel practice as well). The ex parte communications by themselves warrant reversal, as does the lack of advance notice/specificity. Appropriate remedial action, including but not limited to that cited on pp. 200-211, and/or other or different applicable remedial action, is sought. Please expedite your corrective measures.

    Sincerely yours,
    /s/Leroy J. Pletten
    Leroy J. Pletten
    Encls. 17

    Page 211 of 211 pages.

    Enclosures
    (Click here for pdf. version)

    1. 30 January 1984 OPM letter confirming a lack of merit to my being ousted. I meet all the qualifications and medical form requirements of record, as the examining doctors have repeatedly pointed out.

    2. Analysis that MSPB has jurisdiction only to reverse the ouster; i.e., that it lacks jurisdiction except to reverse; i.e., none for what it has done (denounce the 25 Jan 1980 USACARA analysis, denounce AR 1-8, disregard the difference between not permitting smoking and banning it; disregarding the right standard ("unqualified and absolute" safety duty), etc., etc.

    3. Analysis pointing out the actual sources of my being ousted. Cf. Sullivan v Navy, 720 F2d 1266 (1984). Note Gen. Stallings' deposition admission of not having even read AR 1-8. Clearly, Mr. Hoover orchestrated my being fired. Mr. Hoover opposes having AR 1-8 enforced, as it would affect him personally.

    4. Analysis on expediency vs. integrity.

    5. Another agency effort to misdirect me to MSPB appeals route, dated 14 Dec. 1984, CIRA-JA. The installation fears EEOC integrity ever since 9 April 1980, when Mr. Perez noted that the installation fired me apart from job requirements (a prohibited personnel practice confirmed by OPM 30 Jan. 1984).

    6. Analysis based on FPM Suppl. 831-1,S10

    7. 24 Oct. 1980 memo, consistent with Dr. Holt's deposition that excused absence applies. Dr. Holt was pressured by Col. Benacquistsa and E. Hoover to not continue excused absence for me,. as applies to hazards. Cf. v .

    8. The beginnings of a criminal indictment of Col. Benacquista.

    9. Extract (from p. 3-4) of my deposition.

    10. - 11. Memos from me, 1 June 1983 and 24 July 1984, seeking a criminal investigation of the installation/MSPB misconduct

    12. 19 June 1979 memo from the installation legal office, confirming the full authority involved. Note no reference to a union role, enforcement difficulties, etc., MSPB officials (corrupted and/or bought) fabricated such claims years later.

    13. Analysis of 83-1 ARB 8267 (Schnadig case), refuting MSPB claims

    14. Chronology—context of AR 1-8

    15. Chronology—context of my being ousted

    16. Chronology—police power context

    17. Chronology—smokers are dangerous


    (Exhibits 1 - 13)
    [Exhibit 14]
    Chronology of Events
    Context in Which AR 1-8/32 CFR § 203
    Were Issued

    Mar. 1847Outdoor smoking ban upheld, Com. v. Thompson, 53 Mass. (12 Metc.) 231 [51 LNS 562]   (1847)
     
    Dec. 1880Tobacco is not a necessity, Bradley v. Murray, 66 Ala. 269 [LRA 1917F, 863]   (1880)
     
    21 Apr. 1890Tobacco smoke is dangerous, State v. Heidenhain, 42 La.Ann. 483, 7 So. 621, 21 Am.St.Rep. 388 [51 LNS 562] (1890)
     
    22 Dec. 1898Tobacco smoke is dangerous, including to Army recruits, verified by Army doctors; cigarettes are inherently bad; ban upheld, Austin v. Tenn., 101 Tenn. 563, 48 S.W. 305 [70 Am St Rep 703; 50 LRA 478] (1898), affirmed, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224 (1900)
     
    29 No v. 1913Start somewhere on controlling tobacco, upheld, State v. Olson, 26 N.D. 304, 144 N.W. 661 (1913), appeal dismissed, 245 U.S. 676, 38 S.Ct. 13, 62 L.Ed. 542 (1917)
     
    9 Apr. 1917Smoker dangerous to himself, compensation upheld, Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335 [LRA 1917E, 324] (1917)
     
    26 Jun. 1923Throw smoker out of the building when he is dangerous, Keyser Canning Co. v. Klots Throwing Co., 94 W.Va. 346, 118 S.E. 521 (1923)
     
    24 Mar. 1924Expulsion of student for smoking, upheld, Tanton v. McKenney, 226 Mich. 245, 197 N.W. 510 [33 ALR 1175] (1924)
     
    1927“Tobacco asthma is well known,” John Harvey Kellogg [M.D., LL.D., F.A.C.S.] in Tobaccoism: How Tobacco Kills, Modern Medicine Publishing Co., Battle Creek, Mich., 1927, p. 55
     
    2 July 1930Smoker-caused fire in restroom compensated, Rushing v. Texas Co., 199 N.C. 173, 154 S.E. 1 (1950)
     
    30 Mar. 1931“Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931)
     
    9 Jun. 1936Compensation for injured nonsmoker upheld despite claim “the legal proposition is a novel one,” Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662, 288 N.Y.S. 523 (1936)
     
    4 June 1941Compensation for endangered nonsmoker upheld on foreseeability issue, McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941)
     
    21 Nov. 1950Smoker “discharged for smoking immediately after” causing harm, Bluestein v. Scoparino, 277 App. Div. 534, 100 N.Y.S.2d 577 (1950)

    Exhibit 14, Page 1 of 2 pages

    Context for 32 CFR § 203 / AR 1-8 (cont’d)

    6 Sep. 1952Smoking is a disease, “one of our most serious diseases,” [Dr. Lennox Johnston, "Tobacco Smoking and Nicotine”] Lancet, Vol. 263, Issue 6732, pp. 480–2
     
    Jan. 1954Army author [Lt. Col. Charles T. Brown] agrees smoking is a disease (addiction), [“Tobacco Addiction: A Suggestion as to Its Remedy"], Tex. St. J. of Med., Vol. 50, Issue 1, pp. 35-36
     
    27 Sep. 1955Smoker dangerous to himself, compensation upheld, Secor v. Penn Service Garage, 19 N.J. 315, 117 A.2d 12 (1955)
     
    12 Oct. 1961Danger to lungs known decades before, medical history overview, Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 [22 NCCA3d 421] (1961)
     
    5 June 1963Strong duty concerning smokers dangerous to themselves, Green v. American Tobacco Co., Fla., 154 So.2d 169 (1963)
     
    26 Oct. 1964Multiple causes of action arising from tobacco smoke harm, Fine v. Philip Morris, Inc., 239 F.Supp. 361 (1964)
     
    21 Nov. 1968Judicial notice of the tobacco hazard as an inherent danger, not dependent on fortuitous conditions,   Banzhaf v. F.C.C., 132 U.S. App. D.C. 14, 405 F.2d 1082 at 1097 (1968), cert denied, 396 U.S. 342, 90 S.Ct. 51, 24 L.Ed.2d 93 (1969)
     
    Aug. 1970Army [Col. Eugene C. Jacobs, "Smoking: Insidious Suicide and Personal Air Pollution”] recognition of the danger published in Military Medicine, Vol. 135, Issue 8, pp. 678-681
     
    20 Aug. 1971Tobacco smoke "detrimental effects" are "beyond controversy," Larus & Bro. Co. v. F.C.C., 447 F.2d 876 (1971)
     
    31 Jan. 1974 20% of vehicle capacity for smoking, upheld, Nat’l. Ass’n. of Motor Bus Owners v. U.S., 370 F.Supp. 408 (1974)
     
    8 Oct. 1976Smoker dangerous to third parties, criminal indictment upheld, Com. v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976)
     
    20 Dec. 1976Smoking dangerous to others, injunction issued, Shimp v. N. J. Bell Tele. Co., 145 N.J.Super. 516, 368 A.2d 408 (1976)
     
    Jan. 1977Workers compensation claim A9-190131 by co-worker Evelyn Bertram due to tobacco smoke danger in installation personnel office. Management then said that smoking is not “a condition of her work.”
     
    May 1977The military command structure “may be our strongest tool in constructing workable anti-smoking campaigns,” due to the great harm tobacco causes the Army, [Major Joseph F. John, Jr., MC, “Smoking, the Soldier, and the Army”] Military Medicine, Vol. 142, Issue 5, pp. 397-398

    In this context, 32 CFR § 203 and AR 1-8 were then issued.

    Exhibit 14, Page 2 of 2 pages


    (Exhibits 15-17)

    In addition to the Briefs to OPM cited at beginning, see subsequent 10 May 1985 Appeal, and Motions including 5 June 1985 Motion and 7 June 1985 Motion.

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