NIH Whistleblower Wins Right to Federal Court Trial
Washington, D.C. January 5, 2011. On Monday, the United States Court of Appeals for the Fourth Circuit ruled in favor of a sickle cell disease researcher who blew the whistle on improper cloning of blood cell lines. The decision clears the way Dr. Duane Bonds to proceed with her claim that the National Institutes of Health fired her in retaliation for blowing the whistle on the improper cloning of cell lines without consent.
This is the first case in which a federal employee will be allowed to pursue a whistleblower lawsuit in federal district court. Dr. Bonds’ attorney is Michael Kohn, president of the National Whistleblowers Center and a partner with Kohn, Kohn & Colapinto, LLP, in Washington, DC. Kohn said: “This decision expands the rights of some federal workers to pursue their whistleblower claims in federal district courts around the country. Unfortunately, since Congress continues to treat federal employees as second-class citizens this right is only available to federal employees who are able to bring a race, sex, age, national origin or religion claim in conjunction with a whistleblower claim. Otherwise, a federal employee has no right to a federal court hearing.”
Dr. Bonds, a female African-American medical officer, worked under National Institute of Health’s National Heart Lung and Blood Institute (NHLBI) since 1990. She was responsible for coordinating and overseeing all of NHLBI’s sickle cell disease human clinical trials and epidemiologic studies. Sickle cell disease is the most frequently inherited blood disorder in the United States, which in this country afflicts primarily persons of Sub-Saharan African descent.
Dr. Bonds learned that blood from African-American infants was taken from participants enrolled in the clinical trial for which she was the project officer without proper informed consent in order to create immortalized cell lines for future scientific study. Dr. Bonds was shocked when she learned of the unauthorized cloning and, as the project officer ordered the immediate destruction of all of the improperly created cell lines. Bonds’ supervisor, Dr. Charles Peterson, interceded and overruled Bonds’ order. Dr. Bonds subsequently brought her concerns to NHLBI’s Director, Dr. Elizabeth Nabel, who initially agreed with her, but ultimately failed to take steps to destroy the cell lines.
Retaliation against Dr. Bonds was swift. Within days of raising the issue of the illegally cloned cell lines with Dr. Nabel, a memorandum was handed to Dr. Bonds which stated that she was under investigation and was being summarily removed her from her role as the Sickle Cell Disease Coordinator and was threatened with termination if she raised concerns about the illegally cloned cell lines or discussed that she had been removed from her position with anyone. NHLBI then paid an outside attorney over $100,000 of taxpayer money to conduct the investigation that led to her termination.
Frustrated by the corrupted internal process, Dr. Bonds decided to report the existence of the illegally cloned cell lines to the federal Office of Special Counsel (OSC). The OSC concluded that NHLBI’s failure to destroy the cell lines violated federal law and issued a report to the President to that effect. In the midst of the OSC investigation, NHLBI illegally searched Dr. Bonds’ emails with her attorney and located a copy of the OSC complaint. Bonds was terminated shortly after that when she was blamed for missing expiration dates on drug labels used by outside investigators in one of her studies. Dr. Bonds supervisor, Dr. Peterson, knew that the missing labels had been reported a year earlier to others and ignored this fact in order to blame Dr. Bonds.
The Fourth Circuit ruling means that Dr. Bonds can proceed in a federal district court to prove that her discharge was part of a witch-hunt that was mounted in response to her whistleblowing. Attorney Kohn further stated: “The time has come for NHLBI to answer for its decision to gag Dr. Bonds and terminate her for exposing unethical treatment of study participants.”
The Court of Appeals decision reinstates Dr. Bonds’ claims against NHLBI under the Whistleblower Protection Act and the Civil Service Reform Act (CSRA). However, it let stand the lower court’s summary judgment against Dr. Bonds on her claim of race discrimination.
Dr. Bonds released the following statement: “I am grateful that the Court of Appeals recognized the importance of allowing me to bring my whistleblower case forward. I wish that Congress would provide a new law granting all federal whistleblowers modern legal protections.”
Fourth Circuit Decision in Bonds v. Dept. of Health and Human Services
Letter from Office of Special Counsel to President on findings in Bonds case
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