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Protection Denied In NIH Dismissal

By Christopher Lee
Washington Post Staff Writer
Wednesday, December 29, 2004; Page A17

Some of the most skilled doctors and scientists in the federal government lack the legal protections afforded to many federal employees who expose wrongdoing in the workplace, an administrative law judge has ruled.

Judge Raphael Ben-Ami of the Merit Systems Protection Board ruled Nov. 9 that Jonathan Fishbein, a clinical research specialist at the National Institutes of Health, could not seek whistle-blower protection before the board because he was employed as a "special consultant" outside regular civil service laws. The board is an independent agency whose mission is to ensure that federal hiring adheres to merit system principles and that federal employees are protected against abuses by managers.

Jonathan Fishbein is considered to be outside rules on whistle-blowers.

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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 agencies in the Department of Health and Human Services 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, the vast majority of them permanent or long-term employees. That has drawn criticism from some in Congress who say it was designed to facilitate hiring consultants and other temporary employees.

Although pay for General Schedule employees in the Washington area peaks at about $127,000 a year, Fishbein earns about $178,000 annually, according to the Associated Press, which first reported on the case last week.

Fishbein contends that NIH is trying to fire him in retaliation for his refusal to overlook shortcomings in research practices, including failure to obtain proper informed consent, in NIH-sponsored studies of the drug nevirapine on African research subjects.

The Washington Post called the agency for comment yesterday, and a reporter traded several e-mails with a spokeswoman, but as of early evening, the spokeswoman had not provided a response. NIH officials have said Fishbein, who is still in a two-year probationary period, is being let go because of poor performance, AP has reported.

In his six-page opinion, Ben-Ami wrote that Fishbein was not entitled to a hearing before the board, which adjudicates appeals of federal personnel actions, because it lacks jurisdiction over such "special status" employees.

"[T]he appellant's Title 42 appointment was, by definition, not an appointment to a civil service position," Ben-Ami wrote. "Thus the appellant was not 'appointed in the civil service' and he therefore was not an 'employee' under [civil service law] entitled to file an . . . appeal."

Ben-Ami noted, however, that NIH rules protect employees from reprisal for whistle-blowing.

Fishbein's attorney, Stephen M. Kohn, said such rules are not enforced and has appealed Ben-Ami's ruling to the full board.

"Our position is simply, the law says you can hire [specialists] outside of civil service, but it does not say you can fire them outside of civil service," he said in an interview.

Kohn said Ben-Ami's ruling will prevent thousands of high-level government employees from reporting problems in important government programs, making it harder to attract and retain such specialists.

"The higher up you go on the food chain, the more you are in a position to witness major misconduct," Kohn said. "What they've done is, specifically at the NIH, they've taken an entire class of employees at the top of the food chain and stripped them of protection."

Kris J. Kolesnik, executive director of the National Whistleblower Center, an advocacy group for which Kohn is chairman of the board, said the decision will muzzle employees who handle sensitive information related to public health.

"This is a major setback for drug safety," Kolesnik said in a statement posted on the group's Web site. " . . . Many of these employees, such as Dr. Fishbein, hold sensitive health and safety-related positions. Without protection, these employees will not blow the whistle."

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