Chapter 24: To Federal Court

EQUAL JUSTICE UNDER THE LAW
Engraving, U.S. Supreme Court building.
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To give you some idea of the time consumed on administrative appeals, before reaching the federal court system, my first contact with the Office of Special Counsel (OSC) was in January, 1987, a month after being fired by the Bureau of Indian Affairs (BIA). I had contacted the Denver office of the Merit Systems Protection Board (MSPB), an agency related in function to OSC. They told me at the time that I was not eligible to deal with them, and then referred me to OSC, where these appeals began.
Sorry about all these initials to identify federal agencies, sort of an alphabet soup. Just think of the last letter, with the -C- in OSC standing for Counsel (or advocate), and the -B- in MSPB for Board (hearing board, or judge), and the initials will make some sense.
OSC’s final letter, claiming they “could not prove my termination was for other than legitimate management reasons” was dated September 6, 1989. That makes two years and eight months elapsed time, spent on fruitless appeals with OSC, described in the chapter about reprisal and protest. Using OSC was the official route to get a hearing with MSPB, and that route was thwarted, since I had not yet reached MSPB.
No other appeals were available while dealing with OSC, since my possible “administrative remedies” were not yet exhausted. They said I could not deal directly with MSPB, as OSC would do that for me if they decided to handle my case. Their official role is to represent whistleblowers (like an attorney) before the Merit Systems Protection Board, which has Administrative Law Judges to hear federal employment cases.
My second contact with the Merit Systems Protection Board (described below), after the earlier dismissal by OSC, came in November, 1989, and then MSPB dismissed my case without a hearing in April of 1990. The total elapsed time wasted in fruitless appeals with these two related agencies (OSC and MSPB) amounted to three years and three months of frantic effort.
One of the several thousand letters I wrote in my search for justice was a plea to President Bush, who months later referred my letter to MSPB. I don’t think he was serving as an advocate for my problem, but it was a routine clerical matter for one of his mailroom staffers to refer my letter to the agency involved. Still, it was a possible advantage and at this point I would grab at anything, like a person sinking in quick-sand. By using this approach I finally reached MSPB through their back door, after the earlier required route through the Office of Special Counsel had failed.
I had learned that MSPB rarely sides with the whistleblower, and yet there was a ray of hope for a hearing on the merits of my case. The facts were now so well proven with third-party evidence (BIA itself, the Office of Inspector General, etc.) that the chances of success seemed absolute if I could just get a hearing on the merits of the case.
Just a few years earlier, the Government would ship federal whistleblowers to mental hospitals for involuntary confinement and evaluation,” which left them tainted as crazies. Yes, you read that correctly. You may have heard that a similar tactic was used by the Russians. The approach by both governments was identical, although supposedly the Russians subjected their prisoners to brain operations, mind-altering drugs and perhaps physical punishment.
To the best of my knowledge, the United States did not use brain operations or physical punishment on it’s whistleblower prisoners, and the involuntary confinements are now illegal.
I was back to the usual routine of making copies of documents and exhibits, reviewing other MSPB cases to discover how to deal with their rules, and then preparing the written appeal for a hearing. This was all done through the mails, until I had an appointment to see BIA’s lawyer in Billings, Roger W. Thomas.
Thomas is paid by Interior to defend BIA. I was struck with the irony that BIA, found corrupt by all who know it, has a tax supported defender. My side of the case was in support of free speech and human rights, and yet it was impossible for anyone in a position like mine to get legal help.
Thomas, who argued with me in person at his office in the Billings Federal Building, showed no shame in defending BIA, appeared to enjoy twisting the knife in Indian causes, and acted like it was an amusing game to attack someone who could not afford a lawyer. I find it really sick that a man sworn to uphold the Constitution spends his time and effort to tear it down. He told me I’d lose, and he smiled with pleasure when he said it. In this cat and mouse game, I was the mouse, and mice don’t have much power to defend themselves or the Constitution from BIA’s hired guns.
Judge Joseph H. Hartman from MSPB’s Denver office refused a hearing. His written opinion said that as a provisional employee (less that one year), my rights were “limited to martial status or partisan political discrimination,” and to those causes only. He was quite correct, my right of free speech was dead meat because MSPB administrative judges ignore the Bill of Rights.
It follows that federal employees have no rights under the constitution - it’s simply an “administrative matter,” you know, and what does the Constitution have to do with administrative matters - nothing. If your first thought is that a long-term employee might fare better, remember Julie Matt who lost her similar case, after years of BIA employment. In the hands of the BIA’s lawyers and the Justice Department, the Constitution is a joke.
If you learn nothing else from this book, learn how the Constitution is thwarted by federal employees, judges and administrators.
Neither BIA’s attorney, Roger Thomas, nor Judge Hartman showed any compulsion to honor the “law of the land.” That’s how MSPB handles constitutional issues, it looks away. Congress knows this and so do the federal courts, and they have not objected to this open and direct defiance of the Constitution. I would hope that a MSPB judge would sometime dare to support the Constitution, but to the best of my knowledge that has never happened.
Still there was hope, because after the MSPB rejection I had the legal status needed to appeal to the federal courts. Congress is aware of this possibility for whistleblowers, so they have constructed a special hurdle at this point. Rather than appeal to the local Federal District Court (there is one in Billings and in most large cities), a whistleblower case must be appealed to a special court in Washington, DC, created just for this purpose. The judges are political appointees, whose main demonstrated skill, in my opinion, is having sold-out to the political process in the past.
That out of town special court business is enough to stop most appeals. By this time you’re broke, unable to retain an attorney, and you must start over from the beginning with a distant court located, in my case, several thousand miles away, and from past experience you’re suspicious about the honesty of the judges.
The U.S. Court of Appeals for The Federal Circuit, a fancy name, has another set of rules, forms and procedures. After researching into this and reviewing their past cases, once again I was ready to file an appeal. It’s discouraging to see that of the many whistleblower cases filed with them, most all fail. I was unable to find a single whistleblower case that had won; perhaps one did and I missed it.
It was necessary to state my case, attach the findings from all earlier appeals, attach evidence and exhibits, organize and index all of this, reproduce copies, go to a notary, mail several pounds of legal papers, and then wait. This was Case No. 90-3404, so it’s a matter of public record for any interested party who would like to read the original.
It will help you understand my case by hearing some of the arguments that I presented in writing to this federal appeals court:
“Never in thirty years as an accountant (before BIA) had I been pressured to issue a dishonest financial report. My reputation was excellent; there were no complaints or problems in my background. I performed my BIA duties in accordance with the rules of my profession, as you might expect.
“After three years of my life spent on administrative appeals, I find no relief from reprisal, so now I come to you in the name of justice. My actions were no more than honest, and supported the law and the Constitution, and I need you to allow that.
“MSPB excused itself with “thresholds;” a process of avoidance through minutiae, ignoring the profound “merit” of human rights. If you fail me also, the message to federal employees is that the Constitution is cheap compared to political patronage, and they must leave integrity and ethics at the office door.
“I ask the Court to fill the function mandated by our system of government; to serve as the balance which protects the rights of individuals under our Constitution.
“I am reporting scandal, not creating one and if I have a right to free speech, then I ask the Court to allow honest words ... “
“MSPB takes a narrow and strained position, which, should it prevail, defeats the Act and the Constitution. The only question MSPB considered was my length of employment, not my status as a whistleblower (a factor under the law) nor my civil rights - the Constitution itself. By this process, both the law and the Constitution are side-stepped by MSPB.”
This time I was facing another attorney, John Warshawsky of the Department of Justice, who repeated (on paper) the arguments of the earlier attorney, Roger Thomas. This special court, designed to intercept all whistleblower appeals, didn’t waste much time on my case, if indeed they read it. A notice from the court stated that my case was to be heard at 10:00 AM on November 7, 1990, along with seven other cases. Under the time allotted to hear my case it listed “none,” also listing “none” for several other whistleblower appeals. On November 13, the court issued it’s judgment; simply one word:

AFFIRMED
meaning they approved the MSPB decision which refused to hear my case.
This special whistleblower court does not have to give reasons and it gave none, so the issues were not answered. As far as I know, they were not seriously considered. The judges were Glenn L. Archer, Jr., Daniel M. Friedman, and a third judge listed simply as Markey. After reading what I could find out about them, I wouldn’t hire any of them to judge a dog fight. Their order was issued “per curium,” which means that each of them agreed with the decision.
I felt rotten about this, and day to day problems included keeping my utility connections turned on. I thought about giving it up as a lost cause. But there was a chance, still one more appeal available, to the U.S. Supreme Court. If anyone supports the Constitution, certainly it must be the Supreme Court.
The odds are slim. I found that the Supreme Court hears only one case out of two hundred, a long shot at best. Still, I owed it to myself and to the Indian people I care about, so I decided it was worth the trouble. The “trouble” included preparing the brief, which included a synopsis of earlier cases related to my issues, copies of the law, Senate and House Reports, my exhibits, a bibliography, copies of the earlier decisions by the Court of Appeals and MSPB, a comprehensive index of all of this, and so forth.
To do all that the Supreme Court required, with no legal help, takes months of time and, for someone living in poverty, a relative huge expense for copies and postage. At least there is no filing fee, it was simply required to show that I was a pauper, which was easy to do. To recognize that you have become a pauper is no fun, and when you read about the Supreme Court you also discover that they don’t look very long or hard at cases filed by petitioners who can’t afford an attorney. I was a pauper, and had been broke now for several years. I elected to follow my ideals, so the unavoidable price had to be paid.
A copy of my Supreme Court brief also went to my opponent, the Justice Department, and I was encouraged when a reply came back from them signed by the Solicitor General, the attorney who represents the United States. It said:
“The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court.”
That sounded great, that the Government wasn’t opposing my case, and did not disagree with any of the facts or arguments I presented. It sounds like I’m guaranteed to win. Rather than describe this appeal to you, I’ll print parts of Supreme Court case 90-7189 for you to read in the Appendix. The references and exhibits referred to in the case are not enclosed here because of the space that would take, but I have not deleted the citations and exhibit numbers so you can see that my arguments were supported with evidence.
I want you to see exactly what the Supreme Court Justices read, omitting the routine parts of the brief. You will find repetition of facts you already know, but this will give you a look at the case exactly as the Supreme Court saw it. They were going to read it and vote on it, so be thinking about how you would vote if you were one of the Justices. If you’re a military veteran, as I am, or if any of your family members have ever taken the oath to support the Constitution, what you read there should make you cringe. Further on I will ask you to do something in a very direct way to support the Constitution, so if you are feeling anger save it for later, and then direct that anger in a positive manner as suggested later in this book.
Custom and usage establish the tone and content for briefs, and limit strong language and emotional displays, and within those limits I made my appeal as best I could, in terms relating to the Constitution and past Court decisions. If you look for whistleblower cases in digests of Supreme Court cases, you won’t find any. Whistleblower cases just aren’t heard.
If you delve into the operations of this Court, you find that for each “pauper” case their law clerks prepare a one-page summary. The clerks are law school graduates, most often selected from top students of the ivy league schools. The case summaries are presented to the justices in private session, and they vote whether or not to hear each case. At first blush, that sounds fair, but remember that the justices get their jobs based on political considerations, and their clerks are an elitist bunch who frequently come from a privileged and wealthy class. The poor and the unwashed are not taken seriously.
The justices have taken the oath to support the Constitution, and yet they refuse to hear one hundred and ninety-nine of every two hundred appeals that come their way because they’re too busy. I don’t find that a so help me God effort to support the Constitution.
The Supreme Court was designed for a small country with a fraction of the population that we have today, and it has not been expanded to meet changed conditions. Perhaps they could remain in session longer than their present nine months annually, or maybe work longer hours, but still that wouldn’t make a dent in the huge percentage of cases that go unheard.
Other courts have found solutions to the problem. They hire referees and assistants to iron out agreements between the parties, and a much higher percentage of the cases reach a conclusion acceptable to all parties. For those where the parties simply can’t agree, at least part of the problems are resolved before the case continues on to court. Our U.S. Supreme Court hasn’t done this, and I suggest that it should, if the Justices take their oaths seriously. It’s an inexpensive and just solution to a real and terrible problem.
For all cases, we know that the Justices discuss the one-page summary, vote and then issue a Court Order. My Supreme Court order dated April 1, 1991 said:
“The petition for a writ of certiorari is denied”

followed by the signature of the clerk, from a rubber stamp.

The earlier waiver (decision not to oppose my case) by the Solicitor General now looked entirely different. It showed their inside knowledge that appeals like mine are most always denied by the court, and it wasn’t necessary to go to the bother of opposing my case. They knew in advance that the Court wouldn’t grant a hearing.
Still, in reading the fine print, there was one more appeal available, a request for the Court to reconsider. Taking that choice, I prepared the request for reconsideration, which is also in the appendix for you to read.
The Court didn’t waste much time with that. They voted again and issued an order, dated May 13, 1991:
“The petition for rehearing is denied.”
The Court uses it’s judicial discretion to decide which cases to hear, and mine didn’t make it. The RIGHT to go to court does not apply to federal whistleblowers. Now the door was firmly slammed shut, with the warning from the Court that further appeals would lead to a fine for bothering them, a risk I could not take. After more than six years of appeals, there was nowhere to go within the legal processes of the United States; I had gone as far as I could go, and my best efforts had failed.
If this case stands as is, there is an effective “gag-rule” that continues to silence all Federal employees and prevent them from honoring their ethical and religious standards. The hierarchy and military mind-set which gives prime value to loyalty to the boss, right or wrong, outranks all standards of honesty and morality.
Am I ready to give in and give up? No way, that’s what this book is about. If our legal system offers no hope in the search for freedom and justice in this case, for me or for my Indian brothers and sisters then I must carry my appeal to you, the People. Otherwise, the “American Way” is a delusion, a myth to cover injustice.
Americans have a fine sense of justice and fair play, and I hope that you are deeply disturbed to see that our Constitution is dishonored. The concept of “equal justice,” where it comes to Indian matters or to whistleblower appeals, does not apply. If you wonder sometimes why many children do not respect their parents, but see them as being “phony” hypocrites, here is a prime example of that which causes our children to have contempt for society.