Washington, D.C., May 9, 2006.  The United States Merit Systems Protection Board (MSPB) unanimously overturned the decision of an MSPB judge which had stripped all “Title 42” federal employees of their protections under the Whistleblower Protection Act (“WPA”).  The MSPB ruling sets important national precedent ensuring that the thousands of Title 42 federal employees – many working in highly sensitive health and safety positions within the federal government – are fully protected under the whistleblower laws.

The case arose when Dr. Jonathan Fishbein, a high-ranking National Institutes of Health’s Division of AIDS safety manager was terminated after he disclosed serious violations of “Good Clinical Practices” which are designed to protect human subjects who participate in clinical trials concerning AIDS mediations.  After his discharge, Dr. Fishbein sought protection as a whistleblower. The Office of Special Counsel and the MSPB judge threw out his case. In his November 9, 2004 decision, MSPB judge Raphael Ben-Ami, ruled that “Title 42 employees” are not protected under the WPA.

In an order dated April 21, 2006, the MSPB reversed the lower court judge. The full Board held that the Whistleblower Protection Act was “remedial legislation” that should be “liberally” interpreted in order to “strengthen and improve” the rights of federal employees to disclosure wrongdoing [page 4].  The Board further held that Title 42 employees “properly appointed” to their positions would be covered under the WPA [page 9].

Dr. Fishbein’s attorney, Mr. Stephen Kohn, issued the following statement:

The MSPB closed a dangerous loophole. The Board’s decision provides whistleblower protections to thousands of federal employees engaged in highly sensitive work directly related to public health and safety. Dr. Fishbein took a courageous stand in demanding full whistleblower protection in the face of a hostile federal bureaucracy. He is now fully vindicated. Other Title 42 employees with information about wrongdoing can now blow the whistle and obtain protection.

• Govt Doctors Get Whistleblower Protection
  May 2, 2006, By John Solomon AP