Silencing The Whistleblowers

by Merrill Goozner

Two recent government whistleblower cases reveal how much we now depend on individual bravery to protect the public's health and safety. Unfortunately, they also reveal public employees' vulnerability when they go public about government's failure to do its job. Indeed, the legal landscape has become so tilted against public employees that it's a miracle anyone blows the whistle at all.

Last month, the National Institutes of Health tried to fire AIDS research coordinator Jonathan Fishbein after he revealed gross misconduct in an African clinical trial of nevirapine, which is manufactured by Boehringer-Ingelheim. Johns Hopkins researchers claimed the drug was effective in preventing mother-child transmission of the HIV-AIDS virus and, based on that evidence, NIH officials advised President Bush to include it in his $15 billion AIDS initiative.

Fishbein alleged that senior officials at NIH conspired to alter the conclusions of his internal audit of the trial, which turned up thousands of instances where researchers failed to report adverse events -- including some deaths. Their goal in suppressing his findings, he said, was to spare the reputations of the researchers, Johns Hopkins and NIH, which funded the work. The Food and Drug Administration backed the essence of his charges when it rejected Boehringer-Ingelheim's petition for U.S. approval of the drug for preventing mother-child transmission, which had rested largely on the African trial.

The second case involved David Graham, the FDA safety official who blew the whistle on Vioxx. Merck pulled the painkiller from the market after a cancer study showed it raized the risk of heart attacks. But as early as 2001, researchers had pointed out data suggesting the deadly side effects of the drug. Graham, working in the understaffed and overlooked safety office, spent three years pulling hundreds of thousands of records from a West Coast health maintenance organization to prove the connection.

When he brought his results to the attention of senior FDA officials, they tried to prevent him from publishing. When Congress held hearings to determine why the FDA didn't act sooner, agency officials tried to stop him from testifying. When he sought legal help, those same officials tried to scare the lawyers off the case by calling his professional competence into question.

There's a law that is supposed to protect government workers when their agencies retaliate against them simply for doing their jobs. It's called the Whistleblower Protection Act, passed unanimously by Congress in 1989 and signed into law by the first President Bush. In theory, it encourages public employees to go outside the chain of command -- to Capitol Hill, for instance -- to expose bureaucrats or political appointees who ignore public safety or waste taxpayer money. It even provides them with legal representation by the Office of the Special Counsel.

But those protections have eroded for years, with the current Bush administration seeking to finish them off. Scott Bloch, who runs the Special Counsel office for Bush, has forbidden his investigators from talking to anyone outside the office without his permission. And just last week, he ordered 12 employees -- or 20 percent of his staff -- to either accept positions outside Washington or leave government service.

According to Tom Devine, an attorney with the Government Accountability Project, these moves are just the latest in a long line of bureaucratic maneuvers and legal setbacks that have turned the public employee law into its opposite -- a whistleblower dismissal act. The Justice Department -- which defends the government agencies against its internal critics -- has won all but one of the 95 cases that have reached the U.S. Court of Appeals, which is the final arbiter of whistleblower cases. One of the judges who sits on that panel, Robert Mayer, was dismissed from his post in the Reagan White House for tutoring then-Interior Secretary James Watt in how to dismiss whistle-blowing employees.

The track record at the Merit Systems Protection Board, where public employees must first turn, isn't much better. Last month, the board (formerly known as the Civil Service Commission) ruled that Fishbein had no whistleblower protection act rights because he was a special hire under a law that gives agencies like NIH salary flexibility to recruit highly skilled employees. The 1,400 physician/researchers at NIH hired under that provision -- in essence, anyone high enough to know what is going on -- now have no protection if they go public with negative information about the agency.

"Whistle blowers don't get a day in real court, they get a day before a board of hearing officer who don't have any judicial independence," said Devine. "Only one whistleblower has saved his job under the law -- a maintenance worker who blew the whistle on inadequate lighting at his workplace. Anybody whose dissent created a headline was dead meat. That's why we see the law as a trap rather than a shield."

Even many Republicans in Congress realize something is out of whack. Sen. Charles Grassley (R-Iowa) has provided bipartisan leadership toward passing a whistleblower reform bill, which would create a real judicial review for whistle blowers. He also warned the FDA not to retaliate against Graham. But the Republican leadership blocked votes on the bill in the House and Senate last year after pressure from John Ashcroft's Justice Department. Alberto Gonzales is unlikely to champion the issue in the new Congress.

Despite the hostile legal environment, every month scores of government workers contact non-profits like the Government Accountability Project, the National Whistleblower Center, the Project on Government Oversight and Public Employees for Environmental Responsibility with evidence that top government officials aren't doing their jobs properly. About a third, in Devine's view, are legitimate cases -- where the government actions, if left unexposed, would leave some segment of the public unprotected from unsafe drugs, dangerous food or defrauded by military contractors.

What does he tell them? For most, "We tell them that their legal rights are so weak that they might prefer to just tell their supervisor and try to maintain a supportive work environment."

Dr. Fishbein chose to work outside the system. He recently set up a website called HonestDoctor.org for NIH-funded researchers who want to report evidence of misconduct in clinical trials.