Judge Removes Hurdle for Corps of Engineers Whistleblower

As reported by the Associated Press, U.S. District Judge James J. Brady ruled on July 7 that Ivor van Heerden's whistleblower claims against Louisiana State University (SLU) can move forward.

Dr. Van Heerden, coastal scientist and former Deputy Director of the LSU Hurricane Center, alleges that LSU officials fired him in retaliation for his criticism of the U.S. Army Corps of Engineers' workmanship, which led to massive and widespread levee failures during Katrina. Van Heerden claims the flagship university was worried that federal funding would be put in jeopardy.

Louisiana State University receives large federal grants from the Corps of Engineers.

Since the AP story by Cain Burdeau was a tad short on details, we interviewed Dr. van Heerden, co-founder of the now-closed LSU Hurricane Center, for this exclusive report.

LEVEES.ORG: Generally speaking what did you think when you heard this news about Judge Brady's ruling?

VAN HEERDEN: This is a stunning decision for us because the judge has acknowledged that LSU tried to stop my reporting of the Corps' faulty design of the flood protection levees and of the MRGO (Mississippi River Gulf Outlet). This is very important because the judge has determined that there is enough evidence both state and federal to proceed. Judge Brady has determined that my whistleblower rights have been violated, that is my right to speak about injustices that the government or any agency may be doing.

LEVEES.ORG: Are you claiming civil rights violation?

VAN HEERDEN: I am sure there are civil rights violations in terms of the way I was treated. But I believe Whistleblower rights are different.

LEVEES.ORG: Has discovery been completed?

VAN HEERDEN: We wrapped up discovery last week. It's been very difficult to get documents from LSU and many documents are still outstanding. But we recently were able to get access to documents which show that LSU tried to fire me in 2006 before Team Louisiana (the levee investigation led by Van Heerden and funded by the Louisiana Dept of Transportation) had really done most of its work. Memos show that LSU had gone as far as preparing a letter notifying me in January of 2006 that I was fired. Had LSU succeeded, Team Louisiana's findings would never have been published and our cooperation with the Independent Levee Investigation Team out of Berkeley California could not have happened. All of the findings of Team Louisiana and some of the findings of the ILIT would have been kept from the public.

LEVEES.ORG: Did you find any other important documents during discovery?

VAN HEERDEN: Yes. If you recall, LSU claimed they fired me due to budgetary issues. LSU claimed that its primary mission was teaching not research and that factored into the decision to non-renew my contract. However, new documents reveal that it's impossible to use the savings from my salary to cut the budget because my salary wasn't paid by the College of Engineering. The money belonged to the Office of Research controlled by the Vice Chancellor. Furthermore, no one but me was fired for these so-called budgetary reasons.

LEVEES.ORG: Judge Brady has ruled that your whistleblower claims can proceed.
What exactly does that mean?

VAN HEERDEN: When we filed suit, we claimed a number of things. LSU has been trying to get various claims dismissed one by one. I was very relieved over the latest ruling because we have been "taking it on the chin" from LSU until now. Previously, they had convinced the judge I didn't have tenure and could not have my job back. It seems to me that LSU'S strategy is to try and get Judge Brady to try this case in bits in pieces in order to circumvent a jury trial.

LEVEES.ORG: Judge Brady ruled July 7 that he will "keep the case open." What does that mean?

VAN HEERDEN: This is ongoing litigation and it's mulit faceted in federal court. We just ended the discovery period., and now we start preparing for a trial. I am not sure when the trial will be, but we are preparing for a jury trial in federal court in Baton Rouge. I am looking forward to the trial, and I can finally state my case. The ruling last week is just one ruling and specifically the whistleblower ruling.

LEVEES.ORG: This is one ruling. Not THE ruling.

VAN HEERDEN: That's right.

LEVEES.ORG: What are you hoping for?

For other people, the reason I filed this suit is so that academics like myself can speak out without fear of reprisal. First and foremost, I did this to let university administrators know they cannot get away with it.

Second, my reputation has been irreparably damaged. Because if you get fired, that doesn't happen every day. And to be the only one fired looks bad. LSU tried even using the New York Times and the New Orleans Times Picayune to debase my qualifications. And more than once. And so it's impossible for me to find an academic position in Louisiana. Naturally I am concerned about my future, employment, health care, my children. LSU owes me compensation. And if there is a settlement, I will request that LSU acknowledge Mark Levitan, and all the hard working staff of the LSU Hurricane Center. These people gave so much time and effort during the months after the levees failed, and not one of them ever got even one word of thanks from LSU. LSU must honor these people.

LEVEES.ORG: When I post this interview on our Levees.org blog, I am going to include that cartoon by Fred Mulhearn that depicts robed LSU officials tossing you off the boat.

VAN HEERDEN: (Laughter)

LEVEES.ORG: Cain Burdeau of the AP described Judge Brady's July 7th ruling as providing a 'glimmer of hope.' Is that accurate?

VAN HEERDEN: Well I think it's a whole lot more than a glimmer of hope. This is just one part. As I mentioned, the discovery is going extremely well. We now know LSU tried to fire me in Jan 2006.

LEVEES.ORG: LSU declined to comment for the story. What do you think of that?

VAN HEERDEN: Well, that's their right. But as long as they felt they were winning, they were making the most of media. Now things may be going the opposite way, and LSU is shying away from media.

LEVEES.ORG: What is the status of AAUP (Association of American University Professors) investigation of your firing? Have you heard any word?

VAN HEERDEN: Yes, I have. They are expected to issue their final report on July 19th. I have seen a draft and I believe they did a good thorough job. I believe the information in the report will surprise a lot of people. And I don't believe the information will be very flattering of LSU. I can tell you they will be bringing some things to light that have not ever before been in the media.

LEVEES.ORG: Just one last question, Ivor because we hear this question constantly. As a consultant in the MRGO lawsuit, can you give us any update on the MRGO lawsuit appeal?

VAN HEERDEN: As far as I know, the Corps of Engineers, which was found guilty of negligent maintenance, has filed an appeal. The case is working its way through the appeal circuit. A panel of judges is reviewing Judge Stanwood Duval's decision. The lawyers on the case say the appeal is based on facts of law, not science. The appeal court judges are reviewing whether Judge Duval conducted his trial properly.

LEVEES.ORG: Thank you for your time and good luck!

VAN HEERDEN: Thank you.