This rulling overturns a 2004 decision by an administrative judge who
essentially sanctioned a discriminatory double standard for federal
employees–civil service employees and those hired under Title 42, specially
qualified experts who were brought in from the private sector at higher
saleries than civil employees.

The whistleblower protection law was passed more than decade ago to
strengthen federal workers’ protections when they raise allegations of
federal wrongdoing, giving them outlets such as the board and the U.S.
Office of Special Counsel to seek legal protection.  "The board will
construe its (the law’s) provisions liberally to embrace all cases fairly
with its scope," the ruling said.

The lack of fairness was brought to public attention by Dr. Jonathan
Fishbein, a research safety expert who had been hired by the National
Institute of AIDS.
After blowing the whistle on safety multiple violations in clinical trials
in Africa, and for blowing the whistle on the hostile work environment at
NIAIDS, where senior officials abused their authority, intimidated staff,
including sexually harrassing female NIH safety experts. Dr. Fishbein was
reinstated when the government settled his lawsuit.

Dr. Fishbein’s lawyer said the new decision closed a "dangerous loophole"
that could have kept researchers with knowledge of wrongdoing from coming
forward.
"Dr. Fishbein took a courageous stand in demanding full whistleblower
protection in the face of a hostile federal bureaucracy," Attorney Stephen
Kohn said. "Other Title 42 employees with information about wrongdoing can
now blow the whistle and obtain protection."

If not for whistleblowers the public would be even less informed about
unsafe drugs and conflicts of interest that undermine the public interest.
issues anand armed with the facts
 
Contact: Vera Hassner Sharav
veracare@ahrp.org <mailto:veracare@ahrp.org>  
 
 
http://www.boston.com/news/nation/washington/articles/2006/05/01/govt_doctor
s_get_whistleblower_protection?mode=PF
Associated Press
Gov’t doctors get whistleblower protection
By John Solomon
  May 1, 2006

WASHINGTON –Reversing course, the government has concluded that thousands
of federal doctors and medical researchers who receive higher-than-normal
salaries deserve the same protection to blow the whistle on wrongdoing as
other civil servants.

The decision by the U.S. Merit Systems Protection Board supersedes an
earlier ruling that had denied National Institutes of Health safety expert
Jonathan Fishbein protection from firing under the Whistleblower Protection
Act.

The ruling is too late to affect Fishbein, who was reinstated by the
government recently and settled a lawsuit alleging he was fired for blowing
the whistle on safety problems with federal AIDS research.

But the board’s conclusion has implications for thousands of other federal
researchers and doctors brought in from the private sector to conduct
important government research, medical work and safety reviews.

These so-called Title 42 workers were hired under a special provision of law
that paid them salaries higher than the normal civil service to compensate
them for what they could make in the private sector.

An administrative law judge in late 2004 concluded that the higher paid
workers weren’t entitled to whistleblower protection.

The board, however, disagreed and last month concluded that nothing in the
Title 42 law precluded those workers from enjoying the same protections as
other civil servants.

"The board will construe its (the law’s) provisions liberally to embrace all
cases fairly with its scope," the ruling said.

Allegations by Fishbein and NIH colleagues of a hostile work environment and
shoddy, unsafe research among vulnerable AIDS patients were highlighted in a
series of Associated Press stories that led to several investigations and
changes inside NIH.

The stories documented how a government funded AIDS research project in
Africa violated federal patient safety rules, how foster children were used
to test powerful AIDS drugs without promised protections and how female NIH
safety experts reported being intimidated by sexual harassment from
reporting safety problems.

Fishbein’s lawyer on Monday said the new decision closed a "dangerous
loophole" that could have kept researchers with knowledge of wrongdoing from
coming forward.

"Dr. Fishbein took a courageous stand in demanding full whistleblower
protection in the face of a hostile federal bureaucracy," Attorney Stephen
Kohn said. "Other Title 42 employees with information about wrongdoing can
now blow the whistle and obtain protection."

Senate Finance Committee Chairman Charles Grassley, R-Iowa, who championed
Fishbein’s case, hailed the decision. "Any step that improves the
environment for whistleblowers to come forward is a step in the right
direction. Whistleblowers are patriotic Americans who stick their necks out
and risk it all to commit truth. They deserve rewards, not reprisals," he
said.

Fishbein was hired in 2003 under Section 42 by NIH, the nation’s premier
medical research agency, to help improve AIDS research practices at a salary
of $178,000, slightly more than Cabinet secretaries at the time.

He alleged he was fired for uncovering concerns about sloppy research
practices that might endanger patient safety, including a project in Africa
that violated federal patient safety rules.

NIH said he was fired for poor performance but settled the case late last
year after evidence emerged that Fishbein had been recommended for a
performance award and may have been retaliated against.

The Department of Health and Human Services employs thousands of Title 42
workers in such key research agencies as NIH, the Food and Drug
Administration and the Centers for Disease Control and Prevention.

Its lawyers originally opposed granting whistleblower protection to
Fishbein, leading to the administrative judge’s initial ruling. But the
agency later reversed course amid a public outcry and sided with Fishbein’s
lawyers that Title 42 workers deserved the same protection as other civil
servants.

A spokesman for the department did not immediately return a call Monday
seeking comment.

The whistleblower protection law was passed more than decade ago to
strengthen federal workers’ protections when they raise allegations of
federal wrongdoing, giving them outlets such as the board and the U.S.
Office of Special Counsel to seek legal protection.  

C Copyright <http://www.boston.com/help/bostoncom_info/copyright>  2005 The
New York Times Company

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