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The Department of Health and Human Services has filed a legal petition arguing in favor of whistleblower protection for a National Institutes of Health AIDS researcher under fire for going public with criticism of his bosses. Jonathan M. Fishbein, a clinical research specialist who blew the whistle on shoddy research had been recommended for a cash bonus, but his bosses pulled it back and tried to fire him after the scientist raised allegations of interference with his safety work, The Associated Press Reported last month. An administrative law judge recently ruled Fishbein has no whistleblower protections, as normal federal workers do, because he was hired as a special employee at a higher salary outside regular civil service laws. However, in a petition to the Merit Systems Protection Board dated Monday, the general counsel’s office of HHS asked for a review of that decision and argued “there is nothing in the record indicating that there was ever any Congressional intent to exclude” people in Fishbein’s employment status from protections of the Whistleblower Protection Act. The six-page filing was signed by William A. Biglow, an HHS attorney. The NIH is part of HHS, which also oversees other large and well-known agencies such as the Food and Drug Administration and the Centers for Disease Control. “Relying on a technicality to dismiss Dr. Fishbein’s whistleblower case was underhanded and wrong,” said Stephen M. Kohn, Fishbein’s lawyer and chairman of the board of the National Whistleblower Center. “HHS must now order Dr. Fishbein’s immediate reinstatement and must take prompt corrective action to address the ‘chilling effect’ his termination had on other employees,” Kohn said in a statement issued Tuesday evening. Since Fishbein’s allegations of shoddy government research practices and poor patient protections inside NIH were reported by the AP in December, the agency has said he was being fired for poor performance while on probation. It was not immediately clear whether a decision by the merit board law judge to grant Fishbein whistleblower status would automatically win his reinstatement. Whistleblower protection does not necessarily ensure that an employee cannot be fired for any reasons, only that the whistleblowing cannot be the basis for dismissal. Fishbein is one of several employees at the government’s premier health research agency to question an AIDS study in Uganda. He was hired by NIH to improve agency research practices. Fishbein told NIH’s AIDS research chief in 2003 that the Uganda study should not be resumed. The agency had stopped the research for 15 months after auditors, medical experts and others disclosed problems with the project. The concerns were dismissed, and the clinics reopened. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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