On Not Giving Up
Occasionally whistleblowers speak of feeling vindicated at
the end of their ordeals[1]. Their years-long battles testify to whistleblowers’
hope for vindication and their reluctance to give up. Even where vindication is lacking, there is ample evidence of their determination.
On March 28, 2014, Evan Howington, an oil services
contractor employee, boarded an oil rig 100 miles south of New Orleans in the
Gulf of Mexico. He happened to see fluid
leaking from the rig into the Gulf water and informed the rig supervisor, who
told him not to worry because it was just hydraulic fluid. A few days later he witnessed three
supervisors of the companies that operated the rig intentionally discharge
hydraulic fluid and then laugh about doing so.
He not only witnessed the men, he recorded them on his phone.
Fearful that he could be charged with complicity if the
company failed to report the discharge, he took his evidence to the
Environmental Protection Agency and later spoke with staff at other federal
agencies. An investigation ensued, and a
year and a half later Walter
Oil & Gas agreed to pay a $400,000 fine for failing to report the
discharge. But this was not enough for
Howington.
In May 2017, Howington sued
the United States of America for the negligence of the Department of
Justice attorney who was in charge of the case against Walters and who
negotiated the settlement, which Howington considered an inadequate penalty for
its intentional misdeed. He figured
that, according to federal regulations, the fine should be closer to $18
million.
Sometimes suing the federal government pays off although
that can take a while. Robert MacLean
was an air marshal when he spoke out against what he believed were unsafe
measures taken by the Department of Homeland Security. He was fired in 2006. Suits, judgments, and appeals took him to the
U.S. Supreme Court, which ruled in his
favor in January 2015. A year later
he was back at work, complaining
again of retaliations.
Suits against private and non-federal government employers
can also drag on through years of appeals by both sides. North Carolina state trooper Reginald
Newberne was fired in 2001 after he spoke out against the misconduct of a
fellow trooper, and it wasn’t until 2016 that a jury finally decided in his
favor. Steven
Babyak, who disclosed illegal kickbacks paid to doctors by his employer,
won only after 8½ years of legal fighting.
Paul
Bishop and Robert Kraus had to battle against Wells Fargo and two acquired banks
for 10 years before the U.S. Supreme Court decided that their False Claims Act suit
could move forward, a suit that may have years more to play out.
Then there are others who engage in extended disputes only to quit in defeat. Robert
Purcell struggled for 18 years before having to give up when the U.S.
Supreme Court refused to hear his appeal.
Laura
King was fired in 2009 by the St. Tammany Parish (Louisiana) Coroner after
she refused to buy him a laptop with grant funds; she finally quit her self-funded
appeals in 2016.
Sometimes, even if the whistleblower appears to win, it is
not enough. Howington is one
example. Another is Eric
Ben-Artzi, who refused his $8.25 million reward for information against
Deutsche Bank’s illegal activities because he thought the wrong people were
paying the fine. Whether the result of
his disclosure is successful is, I suppose, a personal judgment that every
whistleblower makes – from big-time players like Snowden to the many of us
small-time whistleblowers.
When I complained about HomeFirst’s violations of licensing
regulations and food
handler card requirements, I was vindicated by authorities who judged that
the company had operated improperly. The
company was permitted to modify its procedures without penalty, and my
complaints led to my
termination. Some my other
complaints – the master
lease violation, the HUD
overbilling, and the County
overbilling – I continue to play with even though it is pretty clear after
three and more years that no one but me cares.
Throughout our lives we face decisions whether to call out perceived
misdeeds. We sense how far we can push
before bad things will happen to us, then we decide what to do. Usually we stop before we pass the point
where the likely blowback is dangerous.
Once we become whistleblowers, though, we are on an unfamiliar path
where it is harder to tell when we should stop.
Dropping our unsuccessful complaints negates the value of what we have
put into our projects. Stopping means
giving up the pretense of our heroic valor and accepting that we may have had
it wrong. It means getting on with life
as lived by others.
An attorney might prod us to continue if he sees the
prospect of sufficient contingency fees or thinks we still have funds for the
contest. On our own, as I am now, the
thing may eventually yield its disappointing result or starve to death in our
arms. Without apology[2],
we press on, to ultimate success or failure.
