HHS Pressed To Reverse Whistleblowers' Reassignment

Strong pressure is being brought to bear on Department of Health and Human Services (HHS) officials to reverse a May personnel action at the National Institutes of Health. That move, to reassign fraud investigators Walter Stewart and Ned Feder to new jobs, effectively ended the pair's controversial scientific misconduct research at the institutes. Tactics to influence administrators have included a 33-day protest fast by Stewart and letters supporting the two men and their work from prominent members of Congress. At least partly in response to the rising political pressure, department officials acknowledge, HHS agreed June 3 to review the internal personnel transfer. But there are suggestions that neither the scope of the ongoing inquiry nor its eventual outcome will resolve the controversy. Also, no date has been set for completion of the review. "Certainly, their assignment and reassignment are matters we're going to look at," says Harriet Rabb, HHS general counsel, "just to make sure that every `i' was dotted and every `t' was crossed and that whatever the procedures are that people are entitled to, that those procedures were followed.... If we discover that something should be altered, of course, we'll do it." The two misconduct researchers ran into trouble with their bosses when they used a computer system of their own design that compares texts for similarities to accuse historian Stephen Oates of plagiarism (Franklin Hoke, The Scientist, May 17, 1993, page 1). Until then, their efforts had targeted only scientific authors. Oates complained to Sen. Paul Simon (D-Ill.) and others in Congress who took up his cause in March with NIH administrators. The decision to reassign Stewart and Feder was made shortly thereafter. In an April 9 letter, they were told they had moved progressively outside the mission of NIH in their investigations. In the same letter, they were informed that their two-man office was being "abolished" as of May 1. Effective May 10, they were reassigned to new positions and their former offices containing sensitive files on cases were sealed. Also on that day, Stewart and Feder set up a one-day temporary office on the lawn in front of the main NIH administration building to dramatize their predicament. In addition, Stewart focused considerable attention on his and Feder's case with a fast that lasted from May 10 to June 11. Pressure on HHS officials has also taken the form of an extensive letter-writing campaign. While many letters have come from interested scientists and whistle-blowers, several have been written by influential members of Congress. Some of these were the result of concerted telephone canvassing by Stewart's wife, Nancy, a lawyer on leave from the Justice Department. Among those who have written letters in support of the two are Sens. Barbara Mikulski (D-Md.), Bill Bradley (D-N.J.), and David Pryor (D-Ark.), as well as Rep. Constance Morella (R-Md.). Simon also wrote to HHS secretary Donna Shalala on May 18, seeking to mitigate the presumed effect of an earlier letter to NIH director Bernadine Healy on behalf of Oates. In part, he wrote, "My inquiry to Dr. Healy had to do solely with the issue of the use of NIH resources to pursue an investigation of ... historian Stephen Oates. I had no intention to disrupt investigations of fraud in biomedical research." HHS general counsel Rabb says that it may be difficult for the investigation to satisfy all of Stewart and Feder's concerns, in part because these have expanded well beyond a review of their reassignment. By way of example, she points to a list of demands submitted by them May 12 that calls for a commitment to make full investigations of more than a dozen specific misconduct cases that they had in process when their offices were closed. She notes that they also call for assurances as broadly worded as "an institutional commitment to get to the bottom of why these injustices occur so frequently and...to fix what is wrong." Stewart, however, says that five of their six demands call only for an institutional commitment to seriously address important scientific misconduct cases and issues--not completion or closure on them. The sixth demand, which is more concrete than the others, is for "a reopening of our sealed lab and reinstatement of us in our jobs pending a public hearing on the true reasons for its being shut." According to Rabb, such a move is not likely; any decision to reopen the offices would depend on the outcome of the review, she says. Stewart broke his fast on June 11 for several reasons, he says, even though he and Feder had not been restored to their offices. These included the letters from members of Congress on their behalf, he says. "Though we have not gotten what we wanted in terms of progress with HHS," Stewart says, "the fact that we've gotten such strong expressions of senatorial support struck us as a good reason for packing it in on this hunger strike." There were also indications that the fast was more threatening to Stewart's health than useful to his cause. In a letter to Stewart's lawyer dated June 10--the day before Stewart quit the fast--Rep. John Dingell (R-Mich.), a longtime supporter of the two and well known for his pursuit of scientific misconduct issues, called the hunger strike "blackmail" and "counterproductive." And Stewart's doctor advised him on June 11 that he had reached a very dangerous stage in his fast. In an independent move by their supporters, the fast was then taken over, on June 12, by a still-growing group of whistle- blowers and others who are fasting one day each on a rotating basis. The organizer of the continuing fast is Maureen Polsby, a neurologist who had filed a sexual discrimination and research fraud suit in federal court against her former NIH supervisor Thomas Chase. Her case is continuing in U.S. District Court in Maryland. "The end point of our fast is them getting their work back," says Polsby. A basis for a resolution to the conflict, Stewart says, may lie in a June 11 letter written by Pryor and addressed to Rabb. In the letter, Pryor asks two questions: "Is research into the conduct and handling of science and scientific misconduct useful to NIH's mission of providing health care and/or to HHS's role in support of this mission?" and "Has the research of Mr. Stewart and Dr. Feder contributed to the understanding of the conduct of science and scientific misconduct?" Arthur Spitzer, a American Civil Liberties Union lawyer consulted by Stewart and Feder, sees another potential solution to the pair's problems with NIH besides the options under discussion by the principals. He suggests that they might better be able to continue their work with independent funding, perhaps from a foundation. "Working for the government is inherently subject to political decision-making," Spitzer says. "[Yet] it seems to be very important for them to continue working at NIH, and I'm not entirely sure why."

HHS Pressed To Reverse Whistleblowers' Reassignment

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