By JOHN SOLOMON
Associated Press Writer
12:52 AM
PDT, May 2, 2006
WASHINGTON Thousands of federal doctors and medical
researchers who receive higher-than-normal salaries are finally getting 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 the law that paid them salaries higher than the normal
civil service but more in line with 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 that protection.
"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.
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, or slightly more than Cabinet
secretaries made at the time.
He alleged he was fired for uncovering
concerns about sloppy research practices that might endanger patient safety,
including a project in
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.
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.