Justice and Mercy

December, 2017

Washington -- A few years ago I attended a speech given in a small Washington auditorium by Nobel laureate Wole Soyinka, who won the great prize in 1986 for literature. After his speech he remained by the podium. Seeing no one else approaching him, I went up to chat and we exchanged a few pleasantries. He asked me what I thought of his speech. Politely I said it was a fine speech, but perhaps there were too many references to "justice." How could that be, he asked. I offered that one person's justice is often another's revenge, in an endless cycle. But if not justice, he asked, what? Mercy, I suggested. We can only strive for justice, but we can grant mercy. He smiled and assured me he would think about that for future speeches.

Whether or not he did, I don't know. But for me the exchange has always been memorable, because I truly am not much of a believer in justice. Look around; too often it doesn't happen. Always be prepared to live with injustice. Think instead of mercy.

So I have gone into ten years worth of lawsuits not optimistic that justice would prevail. The fact that we came out with a 7-1-1 record was a big surprise to me.

Justice in the final case would have resulted in getting back, for taxpayers, the student-loan lender PHEAA's false claims plus damages. I would have received a fraction for my time and expenses and trouble (all significant, I assure you). Anything left over would have gone anonymously to charities, as did quite large sums from earlier settlement victories.

I have permission to mention one of the charities: Veterans Education Success (VES) a charity I have been associated with since its beginning. It does wonderful work to protect veterans and military members from becoming victims of shoddy for-profit schools that target veterans to squeeze their GI Bill benefits from them, often leaving the veterans in debt with no education to show for it. VES does its work on a bi-partisan basis and has several legislative and regulatory victories to show for its hard work. I am a veteran, as readers of this blog likely know, and have taught active duty personnel for many years through public university programs.

Unfortunately, we did not prevail in the final case and there will be fewer funds from my charity for VES and other such organizations in the future. Had we done better in the final case, I was also looking forward to paying off the student loans of three borrowers who, trapped in student-loan hell, had turned to me for help in resolving their intractable paperwork problems. When I was at the U.S. Department of Education many years ago, I was able often to solve such problems with a phone call or two. In retirement, I'm not able to do that. In the end, as it turns out, these borrowers will just remain in hell, probably forever, along with thousands of others. Nothing is coming back from PHEAA.

Of course I knew going into the lawsuits that I would personally be targeted by those I sued, and if we got any lenders to trial, their attacks on me would be made publicly to a jury. I was not disappointed; PHEAA told the jury that I brought the case against them because of personal greed. I was not satisfied, PHEAA told the jury, with having success in getting Congress to shut off PHEAA's false claims prospectively, because I did not get a share of that victory. So, according to PHEAA, I filed a false claims suit because that was the only way I could get a share of the proceeds.

That was PHEAA's closing statement to the jury. Earlier in the trial, PHEAA was successful in keeping out evidence of its documented record of self-reward at the expense of its mission to aid students. The jury never saw Pennsylvania Auditor General Jack Wagner's condemnation of PHEAA for the way it used its revenues for extravagent bonuses and executive retirement packages. Those revenues came from the very false claims I had attempted to stop.

Many whistleblowers go into their good causes with the expectation that there will be justice somewhere down the line. Maybe, maybe not. What is almost a certainty in the process is that the whistleblower, sooner or later, will become the defendant. That's the way the world works. Justice is elusive. Whistleblowers, do what you have to do as citizens and patriots. I am with you, but don't expect justice. Think instead of mercy, if it is ever in your power to grant.