USDA subverts Animal Welfare Act in whistleblower protection case

Ron Wood's crack-smoking experiments. A case study of waste, fraud and animal abuse

"Scientific Welfare" needs reform. Wasteful, irrelevant and cruel research underwritten by U.S. tax dollars

Retaliation Case of
Jan Moor-Jankowski, M.D.

Top Ten Lies of the Department of Agriculture
In the matter of animal welfare whistleblower - Jan Moor-Jankowski, M.D.

The History of Medical Progress written by Dr. Ray Greek, Director of the Medical Research Modernization Committee

"If I, an internationally recognized scientist and consultant to heads of state and national academies, couldnot secure protection under federal law, how can U.S. citizens believe thatanyone, let alone younger, lesser-known scientists, dare to oppose scientificmisconduct, animal abuse and the misdeeds of corrupt administrations?"- Jan Moor-Jankowski, M.D.

ACTION is part of Agency's long-standing pattern of failure to uphold the law.

Chronology - Retaliation Case of Jan Moor-Jankowski, M.D. (continued)
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September 1995
NYUMC Associate Dean Scotch submits a plan to bring LEMSIP into compliancewith regard to chimpanzee cage size. The plan called for transferring 100chimpanzees to a new housing facility built in New Mexico at the CoulstonFoundation and underwritten with funds from NYU. The plan was never seenor approved by LEMSIP's IACUC, which legally must approve of all mattersrelated to animal care and compliance with federal law.

NOTE: In a perverse irony, NYU had forbidden Dr. Moor-Jankowski from upgradingthe cages at LEMSIP, yet, two years later, paid the Coulston Foundationto build new facilities with the very money it had withheld from Dr. Moor-Jankowski.

September 27, 1995

NYUMC attorneys, Dennis R. Johnson and David L. Durkin of Olsson, Frankand Weeda, submit a letter in response to questions submitted by USDA toNYUMC Associate Dean David Scotch. The letter, which includes Dr. Scotch'sanswers as well as attachments, claims that no retaliation occurred andthat LEMSIP was transferred to the Coulston Foundation for economic reasons.The letter further stated that Dr. Moor-Jankowski's termination, which occurredwithout notice or cause and involved armed guards to bar him from enteringhis own laboratory, "followed common and accepted personnel practices."NYUMC spokesperson Dan Perkes told the Washington Square News, NYU's studentnewspaper, that Dr. Moor-Jankowski's dismissal was part of a routine "reorganization."NYUMC's responses to USDA's questions are easily contradicted by the documentationin Dr. Moor-Jankowski's and USDA's possession.

October 1995

The Government Accountability Project (GAP), a Washington, DC-based, publicinterest, whistleblower defense group, writes a letter to USDA on Dr. Moor-Jankowski'sbehalf.
On 24 October 1995 NYUMC constructively deprived me of my medical benefit
s to which NYUMC faculty is entitled after 20 years of service (I served
30 years): On that date, an uniformed NYUMC guard, to whom I showed my NY
U identification card to obtain information, snatched it from me and told
me that I was "terminated" and that I am forbidden to enter NYUMCproper
ty. Thus, I am now deprived of my health benefits which require the pres
entation of my ID that was confiscated by the guard; the NYUMC health pla
n requires that I use the facilities located at the NYUMC campus.
October 12, 1995

USDA's Regulatory Enforcement and Animal Care (REAC) division completesits investigation and concludes that NYUMC "did in fact bring reprisalsagainst an employee (who is no longer employed by the facility) for reportingviolations of the regulations and/or standards under the [Animal Welfare]Act. These reprisals were in direct violation of 9 CFR Part 2, Subsection2.32(c)(4)." REAC cited 15 instances of retaliation by NYUMC againstDr. Moor-Jankowski in violation of federal law. Among them: making allegationsof financial impropriety against Dr. Moor-Jankowski to discredit him; delayingcontracts and funding for LEMSIP to destroy the laboratory and its research;blocking funding for facility expansion at LEMSIP to discredit Dr. Moor-Jankowskiby forcing his laboratory to be in violation of federal law; forbiddingDr. Moor-Jankowski from speaking with USDA about violations in NYUMC's laboratories;and firing Dr. Moor-Jankowski and forbidding NYU personnel from speakingwith him. The REAC report is issued weeks AFTER the September 27, 1995 letterfrom NYU's attorneys, a factor that clearly indicates that Dr. Moor-Jankowski'saffidavit and accompanying documentation easily refuted NYU's claims. TheREAC report is issued weeks after the September 27, 1995 letter from NYU'sattorneys clearly indicating that Dr. Moor-Jankowski, Mr. Dinetz and Dr.Marx's sworn affidavit and accompanying documentation easily refuted NYU'sunsworn claims.

November 1995

At a meeting on the Moor-Jankowski case, Ron Stanley, head of the Animaland Plant Health Inspection Service's (APHIS), Regulatory Enforcement (RE)division, hands the RE investigative report on the Moor-Jankowski case toUSDA Office of General Counsel (OGC) representative Robert Ertman. In thepresence of (APHIS) associate administrator Terry Medley, Government AccountabilityProject General Counsel Robert Seldon and In Defense of Animals (IDA) lobbyistMike McGeehee, Mr. Stanley tells Mr. Ertman that Dr. Moor-Jankowski's dismissalis a clear-cut case of retaliation. Mr. Medley promises a retaliation complaintagainst NYU by the end of the year.

November 2, 1995

Mr. Dinetz submits a formal complaint to USDA for serious violations ofthe AWA and NYUMC's unlawful retaliation.

November 14, 1995

Dinetz submits a clarification to his previous letter, specifically requestingprotection as a whistleblower and seeking all remedies allowed under law.

November 21, 1995

APHIS Administrator Lonnie King replies to Dinetz's letters of complaint,writing that "an investigator with our Agency's Regulatory Enforcementstaff is planning to meet with you in the near future to discuss your charges...."The USDA never contacts Dinetz.

November 29, 1995

McGehee writes to Medley, asking why no retaliation complaint has been filed.McGehee states that Medley had promised that the "recommended counts and penalty recommendations would be determined the week of October 16."McGehee also states that, from his November 6 conversation with Medley,McGehee had understood that the complaint would likely be filed before Thanksgiving.

December 1995

OGC attorney Robert Ertman spends two days with Dr. Moor-Jankowski, reviewinghis documentation and questioning him under oath. Dr. Moor-Jankowski's attorneyPhilip Byler is present for one of the two days.

December 1995

Robert Ertman concludes that NYU has been misleading USDA. He decides topostpone the filing of a complaint against NYU until early 1996 to allowtime for discovery.

December 22, 1995

Ertman subpoenas NYU President L. Jay Oliva for all documents relating toDr. Moor-Jankowski's firing and the transfer of LEMSIP. USDA also subpoenasNYUMC Associate Dean David Scotch to appear at a USDA office in New Yorkfor testimony under oath.

November or December 1995

IDA calls OGC to ascertain the status of the USDA formal charges filed againstNYUMC in April 1995 and TCF in July 1995. Robert Ertman tells IDA that USDAis suspending action on both complaints pending the resolution of its investigationinto Dr. Moor-Jankowski's allegations of retaliation. However, the TCF complainthas absolutely nothing to do with anything at NYUMC; all of the violationscited in the TCF charges occurred in New Mexico, before NYUMC announcedthat it was transferring LEMSIP to TCF. Ertman's statement is the firstindication that USDA is looking at the TCF and NYUMC complaints as a "packagedeal" -- despite the lack of legal or administrative connection betweenthe violations. By summer, USDA would carefully structure settlements withboth institutions that amount to little more than slaps on the wrist; TCFwill come out financially ahead by $385,000, and the retaliatory transferof LEMSIP will be, in essence, officially sanctioned by USDA.

Early January 1996

Robert Ertman is removed from a leadership role in the case. He stops returningthe telephone calls of Dr. Moor-Jankowski and Philip Byler.

February 21, 1996

Philip Byler sends a letter to Robert Ertman expressing concern over Ertman'sfailure to respond to repeated inquiries from Dr. Moor-Jankowski.

February 22, 1996

Philip Byler participates in conference call with Terry Medley (AssociateAdministrator of USDA's Animal Plant Health Inspection Service), Ken Vail(USDA's OGC), Bob Seldon (General Counsel, Government Accountability Project)and lobbyist Mike McGehee about Dr. Moor-Jankowski's case. Mysteriously,Robert Ertman is not present on the conference call. It is apparent thatMr. Ertman has been removed from an operational role in the case. Duringthe conference call, Ken Vail professes ignorance about USDA's issuanceof subpoenas to top NYU officials. He suggests that NYUMC Associate DeanScotch be "interviewed" rather than questioned under oath, asdirected by the subpoena.

NOTE: Medley would later tell McGehee that he banished Vail from the casebecause of "unreliability."

February 28, 1996

Medley writes to McGehee about the retaliation case, and states that "Iwant to assure you that the Department is committed to rigorous enforcementof the provisions of the AWA."

March 1, 1996

APHIS Associate Administrator Medley and OGC representative Ken Vail meetwith IDA lobbyist Mike McGeehee. Medley promises that a complaint againstNYU for housing chimpanzees in too small cages at LEMSIP will be filed bythe end of the month. He promises a retaliation complaint against NYU withinthe first two weeks of April. Although Medley says USDA has no authorityto stop the transfer of ownership of LEMSIP from NYU to the Coulston Foundation,he does promise that the transfer is part of the retaliation investigation.He adds that he expects the transfer to be part of the retaliation complaint.Medley claims that he has been "undercut" by the Animal Care divisionof APHIS, which approved NYU's plan to transfer LEMSIP chimpanzees to theCoulston Foundation by June of 1996.

NOTE: NYUMC appears not to have been concerned about cage size violationsat LEMSIP until they saw the opportunity to use them against Dr. Moor-Jankowski.As early as March 1994, Scotch had told Dr. Moor-Jankowski "not toworry" about the USDA regarding cage size violations. Scotch said thathe would "handle" the inspector. Although Dr. Moor-Jankowski hadraised the funds necessary for LEMSIP's expansion in 1992 and was preparedto build new facilities in 1993, NYUMC refused to act to correct the violationsat LEMSIP for over two years.

March 14, 1996

At a research conference in Boston, a high-level USDA official acknowledgesthat "pressure from very high up" stalled USDA action on the Moor-Jankowskicase.

March 15, 1996

The deadline for transfer of ownership of LEMSIP from NYU to the CoulstonFoundation passes. Coulston Foundation tells NYU that it will decide whetheror not it will take ownership of LEMSIP by June 15.

April 12, 1996

IDA lobbyist Mike McGehee meets with APHIS associate administrator TerryMedley and Dale Schwindaman, head of APHIS's Regulatory Enforcement andAnimal Care. Mr. Medley informs Mr. McGehee that he is "very unhappy"with OGC. Medley claims that he wants to file a retaliation complaint, butOGC has given him a report claiming that the agency cannot do so. Medleyreports that he is "furious" at OGC. Medley promises a retaliationcomplaint will be filed no later than April 23, 1996.

April 19, 1996

USDA files formal charges against NYUMC for multiple violations of the AnimalWelfare Act stemming from the fact that 130 chimpanzees at LEMSIP were forcedto live in cages too small even to meet minimal federal standards for 314days between 1994 and 1995. The new charges could subject NYUMC to as muchas $26 million in fines. No charges are leveled against NYUMC for its retaliatorywithholding of funds raised by Dr. Moor-Jankowski for LEMSIP's expansion,the act that caused the cage size violations in the first place.

NOTE: The USDA charges are incorrect, misstating the number of chimpanzeesin violation, and the amount of time they were forced to live in noncompliantcaging (in fact, many of them live in noncompliant caging today, despitethe fact that the time frame of the USDA formal charges terminates on April23, 1995).

April 23, 1996

McGehee writes to Medley, complaining that seven months after RE had issuedits report finding retaliation, no complaint has been filed. McGehee alsostates that it is unheard of that OGC would conduct its own investigationafter RE had issued its report specifically requesting formal charges. McGeheealso writes that "Since our first meeting in August [1995], you haverepeatedly assured me and others that at the conclusion of the case, USDAwill have, however belatedly, risen to meet this unprecedented challengeto its authority to enforce the Animal Welfare Act."

NOTE: If OGC really wanted to act in an unprecedented way and conduct itsown investigation, why did it back down from the legally valid subpoenasit issued in December 1995? Why did it not demand sworn testimony from NYUMC?In fact, USDA will make its determination of no retaliation based on unswornstatements from NYUMC that were easily refuted by the sworn statements anddocumentation submitted by Dr. Moor-Jankowski, Dr. Marx and Mr. Dinetz.

May 7, 1996

Philip Byler and Animal Welfare Institute Director Christine Stevens meetwith OGC head James Gilliland. Mr. Byler presents to Mr. Gilliland the factsof Dr. Moor-Jankowski's case. Mr. Byler states that it is a "primafacie case of retaliation." Mr. Gilliland reacts to Mr. Byler's presentationin an extremely defensive manner. He asks, "So you have a prima faciecase, what does that have to do with the USDA?" Mr. Gilliland saysthat USDA has no jurisdiction in the matter and that Mr. Byler should filesuit against NYU. Mr. Gilliland makes this claim despite the fact that retaliationagainst a whistleblower who reports animal welfare violations is a directviolation of the USDA's own regulations, promulgated under the Animal WelfareAct.

May 14, 1996

Lonnie King, APHIS administrator at USDA, sends Dr. Moor-Jankowski a briefletter stating that "the evidence does not support" a retaliationcomplaint. As a result, USDA is "closing the case" on this matter.Despite Terry Medley's promise to the contrary, no explanation of why Dr.Moor-Jankowski allegedly failed to meet the legal requirements for protectionas a whistleblower under the AWA regulations is forthcoming.

NOTE: USDA was unsuccessful in convincing anybody that the agency did nothave the authority to enforce its own regulations protecting whistleblowes.So, the agency chose to deny that violations of those regulations had occurred.This conclusion was in direct contradiction of the findings of USDA's owninvestigative arm.

May 16, 1996

Lobbyist Michael McGehee writes to Medley in "astonishment" thathe has broken his word and not supplied an explanation of how Moor-Jankowskiallegedly failed to meet the legal standards for protection as a whistleblower.

June 14, 1996

In a consent agreement, USDA fines the Coulston Foundation $40,000 for multipleviolations of the Animal Welfare Act. The fine is the second largest inUSDA's history. But, USDA suspends $20,000 of the fine provided that Coulston"spend this sum on improved housing for non-human primates" within12 months of the order.

June 14, 1996

Congressman Benjamin A. Gilman (R-NY) writes to the House Agriculture Committeeto request investigative hearings on the USDA's handling of the Moor-Jankowskicase. Mr. Gilman states "I am distressed that USDA has failed in thismatter to protect the rights of the "whistleblower" placing injeopardy enforcement of the AWA. I am sure you would agree if individualscannot freely express themselves without fear of retaliation the USDA willbecome nothing more than a rubber stamp."

June 15, 1996

Deadline for transfer of ownership of LEMSIP to the Coulston Foundationagain passes, and is extended for a second time.

June 28, 1996

In a consent agreement , signed just two weeks after the TCF settlement,USDA fines NYU $450,000 -- by far the largest fine ever leveled againsta research institution in agency history -- for multiple violations of theAnimal Welfare Act. However, USDA suspends all but $25,000 of the fine,provided NYUMC spends $425,000 "on improved housing for its nonhumanprimates, at its premises or elsewhere . . . . "[emphasis added] Theprovision allows NYU to pay its USDA fine by carrying out its final actof retaliation against Dr. Moor-Jankowski -- the transfer of LEMSIP andthe giveaway of $425,000 raised by Dr. Moor-Jankowski to the Coulston Foundation.

NOTE: In March, APHIS associate administrator Terry Medley told IDA lobbyistMike McGeehee that he was mindful that he must "set a precedent"on this case in order to "maintain USDA's deterrent capacity"regarding other violations of the Animal Welfare Act. Yet, USDA's settlementswith the Coulston Foundation and NYUMC are, in practice, little more thanslaps on the wrist for the most serious violations in the history of theAct. In addition, when NYU pays its fine by giving money to TCF, Coulstonwill actually come out $385,000 ahead for egregious violations of federallaw!

August 1, 1996

Nearly one year after NYU fired Dr. Moor-Jankowski and physically barredhim from the laboratory he founded and ran for thirty years, ownership ofLEMSIP still has not been transferred to the Coulston Foundation. Fred Coulstonis not on site in New York; he continues to operate out of New Mexico. IfNYU's story is to be believed, and Dr. Moor-Jankowski's termination wasroutine "reorganization," why, then, was he abruptly fired andphysically barred from his laboratory when transfer of that facility toTCF has taken more than one year? Dr. Moor-Jankowski's sudden dismissal,without warning, notice or cause, did not allow for a smooth transitionof management of the laboratory. Indeed, based on the facts, the only logicalconclusion is that Dr. Moor-Jankowski's termination was in direct retaliationfor his whistleblowing activities. As such it constitute a serious violationof federal rules and regulations.

August 8, 1996

On behalf of Dr. Moor-Jankowski and Lou Dinetz, attorney Philip Byler filessuit against NYU and the USDA in U.S. District Court of Southern New York.The suit charges that the two men are "whistleblowers who, having protestedvarious matters at New York University Medical Center ("NYUMC")involving scientific wrongdoing and federal law mandated protections ofanimal care in scientific experimentation, suffered discriminatory and retaliatoryactions at the hands of . . . New York University." The suit also allegesthat Moor-Jankowski and Dinetz "suffered denial of due process at thehands of . . . the USDA." In addition to the Animal Welfare Act, theAdministrative Procedures Act, and New York State employment law, the suitinvokes the False Claims Act, charging that Wood's government-funded researchusing monkeys "was so scientifically flawed in conception and executionas to constitute fraud." The suit also charges NYU with violation ofthe First Amendment and seeks over $20 million in compensation for the plaintiffs.