The Department of Health and Human Services filed a legal petition this week in support of an employee the department is trying to fire.
HHS told the Merit Systems Protection Board that Jonathan M. Fishbein, a clinical research specialist who has been told he will lose his job at the National Institutes of Health, should be eligible for protection from any official retaliation under federal whistle-blower laws.
"There is nothing in the record indicating that there was ever any Congressional intent to exclude Petitioner from the protections of the WPA [Whistleblower Protection Act]," William A. Biglow, an HHS attorney, wrote in the department's six-page filing.
The petition is in response to a November ruling by an administrative law judge that Fishbein could not seek whistle-blower protection before the MSPB because the department had employed him as a "special consultant" outside regular civil service laws. Attorneys for Fishbein have appealed the ruling to the full board.
The MSPB is an independent agency whose mission is to ensure that federal hiring adheres to merit system principles and that federal employees are protected against abuse by managers.
Fishbein, a medical doctor trained at Johns Hopkins University who helps oversee AIDS research, was hired in 2003 under a special provision in federal law that allows HHS agencies to hire "without regard to the civil service laws." The provision, known as Title 42 209(f), enables NIH to attract high-level scientists by paying them higher salaries than allowed under the standard government payroll system. The agency has used the provision to employ nearly 1,400 people, most of them permanent or long-term workers.
Fishbein said NIH is trying to fire him in retaliation for his refusal to overlook shortcomings in research practices, including not obtaining proper informed consent, in NIH-sponsored studies of the drug nevirapine on African research subjects. NIH officials have said the doctor, who is in a two-year probationary period, is being let go because of poor performance.
Raynard Kington, deputy director of NIH, said agency policy prevented him from discussing Fishbein's case. But, he said it was never the agency's intention to exclude Title 42 employees from whistle-blower protection.
"We believe that any cases that are brought forth by employees who wish whistle-blower protection should be judged on the merits of the individual cases," Kington said in an interview.
Stephen M. Kohn, Fishbein's attorney, called the filing a "major concession" by HHS. He said denying such whistle-blower protection would deter many skilled scientists from working for the government or exposing wrongdoing.
"Before there was a lot of public attention on this, the NIH was very happy to have the MSPB throw the case out on jurisdiction [grounds]," Kohn said in an interview. "Now they've changed their position, and in a way that is helpful to employees. What was really bad about them arguing that the Title 42s were not protected was that, if you were a Title 42, would you blow the whistle? It had a big, chilling effect and it created a big problem."
