December 25, 2004
Judge Limits Protections Allowed to Federal Whistle-Blowers
By THE ASSOCIATED PRESS, NY TIMES

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WASHINGTON, Dec. 24 (AP) - Some federal doctors and medical researchers do not enjoy the same protections to blow the whistle on wrongdoing as other government employees, an administrative law judge has ruled.

The Nov. 9 decision, by Judge Raphael Ben-Ami of the United States Merit Systems Protection Board, held that Dr. Jonathan Fishbein, a specialist for the National Institutes of Health, could not invoke the Whistleblower Protection Act to keep from being fired.

Dr. Fishbein was hired by the institutes in 2003 to help improve AIDS research practices.

He told the protection board that he was being fired because he had raised concerns about sloppy practices that might endanger patient safety. The institutes said that he was being fired for poor performance and that he had failed to complete his two-year probationary period successfully.

The whistle-blower law was enacted more than a decade ago to strengthen federal workers' protections when they make accusations of government wrongdoing. It gives them outlets like the board to seek legal protection.

But Judge Ben-Ami ruled that Dr. Fishbein was not covered by the law, because he was a so-called Title 42 employee and therefore enjoyed "no appeal rights" during his probationary period.

Dr. Fishbein was hired under Title 42 of the federal code, which allows the government to pay research and medical experts as special consultants, giving them salaries higher than the civil servant maximums. The law is intended to help the government compete against high-paying private industries. Dr. Fishbein was paid $178,000 a year, slightly more than the $175,700 that members of President Bush's cabinet receive.

Dr. Fishbein was among several employees of the national institutes who had raised concerns about a study in Africa involving the AIDS drug nevirapine.

Documents showed that the way the research was conducted violated federal patient safety rules and suffered from record-keeping and patient monitoring problems. But the study's general conclusion that the drug could be used safely in single doses to protect babies from H.I.V. was approved.

Dr. Fishbein's lawyers are now appealing Judge Ben-Ami's decision to the full board.

One of them, Steve Kohn, said federal agencies like the national institutes had markedly increased their recruitment and hiring of employees under Title 42 in recent years, leaving an entire class of federal workers without whistle-blower protections.

Kris Kolesnik, executive director of the National Whistleblower Center, an advocacy group in Washington, said of the judge's ruling: "This is a major setback for drug safety. Many of these employees, such as Dr. Fishbein, hold sensitive health- and safety-related positions. Without protections, these employees will not blow the whistle."

More than 3,900 Title 42 employees work for the national institutes, according to the Department of Health and Human Services, the agency's parent.

In February, a House subcommittee chairman, Representative James C. Greenwood of Pennsylvania, expressed concern that Title 42 was being used inappropriately by the institutes to raise administrators' salaries to as much as $225,000 a year.

The law should be reserved for "limited scientific hires," Mr. Greenwood said, "not an alternative compensation scheme that permits high-level N.I.H. officials to continue exercising broad-based, inherently governmental functions while being paid significantly higher salaries than if they had remained in the federal Civil Service system."