) SS

Vyron Barker, being first duly sworn, deposes and says:

1. This affidavit is made on personal knowledge, information, and belief.

2. The U.S. Army Tank-Automotive Command (TACOM), Warren, Michigan, employed me for twenty-one years in the personnel office.

3. TACOM promoted me to Supervisory Employee Development Specialist, GS-235-13, based on my qualifications.

4. TACOM trained me in the various facets of personnel management, including the laws and rules covering adverse actions (discipline), including the mandatory 30 days advance notice requirements of law and regulations.

5. I first met Leroy Pletten while I was a GS-235-12. I met him while he was a trainee in the 1969-1971 time frame. He worked in my immediate office for five months of his training, and during the two years involved, had to be in periodic contact with our office pursuant to his training.

6. It was a matter of notoriety in the TACOM Personnel Office that Mr. Pletten was blowing the whistle alleging TACOM's non-compliance with regulations, and that TACOM management were not receptive to his doing so.

7. It was a matter of notoriety that others also raised the same subject, but ineffectively, whereas Mr. Pletten, with his Employee Relations experience through the GS-12 level, set out to research the subject matter so as to present his case authoritatively, successfully.


8. It was a matter of notoriety in the TACOM Personnel Office that Mr. Pletten was summarily ousted from the premises never to be allowed to return to duty. It is a small office, and word got around. Nobody cited any 30 days advance notice as having been issued to Mr. Pletten.

9. I have reviewed documents covering the time frame involved, for example, the statements of EEOC/EEO personnel including Messrs. Henry Perez, Jr.,   Kenneth R. Adler,   and Gonzellas Williams. They reference the "decision to terminate" in that time frame.

10. After Mr. Pletten left, nobody else of whom I am aware, raised the same issues as Mr. Pletten had been doing. I would believe that the speedy ouster had the effect of discouraging or intimidating others in that regard.

11. I retired from TACOM in 1987.

/s/Vyron E. Barker
Vyron Barker
19886 Cranbrook Drive
Detroit, MI 48221-1580
(313) 864-4653

Subscribed and sworn before me,
this 1st day of June, 2010,
a Notary Public in and for
Wayne County, Michigan

Delores Hunter
Notary Public, State of Michigan
County of Wayne
My Commission Expires Jun. 08, 2014
Acting in the County of Oakland


Affidavit PDF: Page 1   Page 2
Related Background Information:

(a.) Inconsistencies and Due Process
Violations Warranting Reversal: pdf, html

(b.) Violations of TACOM's
Own Discipline Regulation: pdf, html

(c.) Violations Overview: pdf, html

(d). Dept of Army Inspector General
Letter Acknowledging Receipt

(e). TACOM's Continuing Hostile Work Environment:
Ethnic and Handicap Discrimination Examples: html

Note that the Army's own Equal Employment Opportunity (EEO) Officers do not claim that Mr. Pletten was allowed due process in terms of (a) having been told 30 days in advance the charge(s) against him, nor of (b) the subsequent aspect of due process in terms of being allowed EEO review in the EEO 29 CFR § 1613 (now 1614) system that Mr. Pletten had selected.

Mr. Pletten, as Mr. Williams' admission shows, tried repeatedly to get due process in both regards to occur. However, TACOM well knew, as the herein-cited background references show, that it could not prevail if review were allowed. Higher level officials in the Army at the time, under then Secretary of the Army Clifford L. Alexander, Jr. (an EEO activist and former EEOC Chairman), would never allow nor ratify such massive violations. [And see subsequent article on his activism, a January 2012 article in Military History magazine.]

So, pursuant to TACOM management insubordination en masse tantamount to mutiny against Constitutional Due Process, and against the EEOC, Army, and TACOM's own EEO regulations, TACOM (a) never stated the charge(s) against Mr. Pletten under the TACOM Table of Penalties, (b) thus never allowed Pletten to defend himself (can't defend against unknown charges, especially charges outside the Table of Penalties), and (c) never allowed, not then nor to this day, review to proceed past the first EEO-process Step 1, through to the next steps in the EEOC due process system, e.g,

  • Step 2, Investigation
  • Step 3, Hearing
  • Step 4, Agency Decision, and
  • Step 5, EEOC Decision.
  • The TACOM insubordination/mutiny, then and now, simply did and does not allow Mr. Pletten review beyond Step 1, the mere informal "Counseling" Step 1, notwithstanding Mr. Pletten's numerous efforts (in every conceivable forum, administrative, multi-agency, Inspector General, judicial, and political) to break through the TACOM management insubordination/mutiny. 29 CFR § 1613 (now 1614) specifies mandatory time limits for agencies to act. No meaningful system existed then, nor now, to compel an agency to comply with said time limits.

    TACOM management well knew, and knows, that meaningful review would start with an investigator asking for a copy of the pre- "decision to terminate" 30 days advance notice required under the Constitution, federal law, 5 USC § 7513.(b), and implementing regulations. Such a notice is the last step in a series of increasing discipline (from warning through reprimand through suspension) that culminates in "removal" (see definition in F.P.M. 296-33.35-11 (first column, fourth item). Such a 30 days advance notice is mandatory to state the charges supposedly warranting "removal" (the most serious discipline for misconduct in civil service, tantamount to military "dishonorable discharge"). Such a notice is mandatory so as to enable the accused employee to know what charges to defend against. Absent such a notice, any investigator, TACOM well knows, would immediately decalre that Mr. Pletten remains an employee pursuant to law, regulations, and case law.

    EEOC especially under its eighth Chairman, Clarence Thomas, ordered TACOM [in, e.g., Dockets 01800273, 05820275, 03810087, 01910498, 01934758, & 03.81.0087, 83 FEOR 3046, etc.] to allow administrative review to Pletten, but TACOM defied said Orders.

    See pertinent precedents:

    (a) Elchibegoff v U.S., 106 Ct Cl 541 (1946) "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 case. He protested all over the lot." Pletten follows this precedent.

    (b) Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986), on an essential element of a case that “necessarily renders all of the other facts immaterial,” here, the absence of due process, i.e., the absence of a pre-decision 30 days notice of charges.

    (c) No charges were cited pursuant to the TACOM Table of Penalties, p 1,   p 2,   p 3,   p 4,   p 5, and p 6, despite using "removal" terminology of Federal Personnel Manual Supplement 296-33, p 11, notwithstanding that such due process notice is mandatory under 5 USC § 7513.(b),   Gipson v Veterans Administration, 682 F2d 1004, 1011 (CA DC, 1982);   McLeod v Dept of the Army, 714 F2d 918, 922 (CA 9, 1983); and Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950). See also Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953) and Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954).

    (d) "It follows that an employee who has been deprived of a procedural [Constitutional due process] right by the Commission [agency] must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due," Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965); Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed, 1983)

    (e) Pursuant to 5 USC § 7513.(b), notice to constitute due process, must precede by NLT 30 days any "decision to terminate." When same is not provided, "jurisdiction" is lacking, the "decision" is void, and cannot be ratified, pursuant to definition of "void," Black's Law Dictionary (6th ed, 1990), p 1573.

    (f) 5 USC § 552.(a)(l)(C) - (D) makes publication of agency rules “jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986). When an agency acts outside the published rules, it lacks "jurisdiction" to do so.

    (g) Federal subject matter jurisdiction presents an issue which [is] raiseable by a party or adjudicator at any time. Enrich v Touche Ross & Co., 846 F2d 1190 (CA 9, 1988); Fed. R. Civ. P. 12(h)(3).

    (h) A challenge to subject matter jurisdiction may be made at any time, even after disposition, and even collaterally. Fed.R.Civ.P. 12(h) and 60(b)(4); Taubman Co v Webfeats, 319 F3d 770, 773 (CA 6, 2003). It is not equitable, but is extraordinary and exceptional, to ratify an agency ultra vires act so clearly outside agency jurisdiction, the "decision to terminate" as the EEO and EEOC letters show.

    Background on the Pletten case in due process context can be found at "The Human Rights of Due Process and Effective Remedy" (Janet Parker, OpEd News, 4 August 2010).
    See also Joaquin Sapien, Rogue Prosecutors Series: Out of Order (April - July 2013) ("Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody"). Thus U.S. Attorneys can, as here, abuse whistleblowers, aid and abet retaliation including crimes against whistleblowers, with impunity.