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.

"Top Ten" Lies of the Department of Agriculture
In the matter of animal welfare whistleblower - Jan Moor-Jankowski, M.D.
Prepared By In Defense of Animals, December 6 1996

In August 1995, Jan Moor-Jankowski, M.D. was summarily firedafter years of distinguished service at New York University (NYU) MedicalCenter. The Laboratory for Experimental Medicine and Surgery (LEMSIP), whichDr. Moor-Jankowski founded and ran successfully for three decades, was transferredto The Coulston Foundation, headed by controversial chimpanzee researcherFred Coulston. Fired along with Dr. Moor-Jankowski was Mr. Lou Dinetz, LEMSIP'sassociate director. The dismissals -- without cause or notice -- came afterDr. Moor-Jankowski "blew the whistle" on extensive Animal WelfareAct violations at NYU relating to the monkey crack-smoking research of RonWood, and after both men blew the whistle on cage-size violations at LEMSIP.The USDA eventually fined NYU $450,000 for the literally thousands of AnimalWelfare Act violations exposed by Dr. Moor-Jankowski and Mr. Dinetz.

Dr. Moor-Jankowski and Mr. Dinetz each filed complaints with the U.S. Departmentof Agriculture (USDA) alleging that they were fired from NYU because oftheir whistleblowing activities. Retaliation against whistleblowers is prohibitedunder the Animal Welfare Act regulations (9 CFR Part 2, Subsection 2.32{c}{4}).On October 12, 1995, after an extensive investigation, Regulatory Enforcement(RE), the investigative division of USDA's Animal and Plant Health InspectionService (APHIS), concluded that NYU had illegally retaliated against Dr.Moor-Jankowski for his whistleblowing activities. Yet, seven months later,APHIS Administrator Lonnie King wrote Dr. Moor-Jankowski that USDA had found"no evidence" to support his claim of illegal retaliation. Thisfinding was made based on an analysis of the evidence by USDA's Office ofGeneral Counsel (OGC).

USDA has issue several versions of form letters in response to numerousCongressional inquiries into this matter. In addition, In Defense of Animalshas obtained two memoranda from OGC attorney Ken Vail to former APHIS administratorLonnie King, which set forth USDA's reasons for rejecting Dr. Moor-Jankowski'sretaliation complaint. The following "Top Ten" lies of the USDAare taken from these documents.

Lie #1:
USDA conducted an "extensive, thorough and complete" investigation into this matter.
The agency's own internal memos document its failure to follow proper procedurein this matter. The Vail memos state that anyone who files a complaint allegingretaliation must show that the alleged retaliator's explanation is merepretext, and that the real reason was retaliation. Yet USDA never gave Dr.Moor-Jankowski and Mr. Dinetz the opportunity to review, let alone respondto, NYU's explanation of the alleged retaliation! In fact, USDA never respondedto Mr. Dinetz's complaint at all! Instead, the USDA's Office of GeneralCounsel relied solely on the unsworn testimony of NYU and rejected, outof hand, the sworn, detailed affidavits of Dr. Moor-Jankowski, Mr. Lou Dinetzand leading AIDS researcher Preston Marx, which all attested to NYU's illegalretaliation against Dr. Moor-Jankowski.

Lie #2:
APHIS's original conclusion that NYU illegally retaliated against Dr. Moor-Jankowski was "preliminary and based on incomplete information."
RE's conclusion that NYU Medical Center had illegally retaliated againstDr. Moor-Jankowski, and its identification of 15 separate instances of illegalretaliation, came after an extensive investigation. USDA now claims thatthe conclusion of APHIS's RE' was "based on incomplete information."However, it was made after consideration, not only of the detailed documentationsubmitted by Dr. Moor-Jankowski, Mr. Dinetz and Dr. Marx, but also of thelengthy response to the allegations submitted by NYU's legal counsel. Ironically,the Vail memos that purportedly justify USDA's failure to act in this mattervirtually parrot the unsworn explanations provided to the agency by NYU'slawyers, explanations that Dr. Moor-Jankowski and Mr. Dinetz have easilyrefuted. USDA insinuates that NYU's responses were received after RE madeits finding. In reality, NYU's explanations, submitted to USDA weeks beforeRE issued its report, were thoroughly considered by RE. When weighed againstthe sworn testimony of Dr. Moor-Jankowski and others, RE investigators rightlyconcluded that the evidence supported a claim of retaliation.

LIE #3: NYU, after exploring various options, arranged to transfer LEMSIPto The Coulston Foundation (TCF) because LEMSIP's research did not fallwithin NYU's primary mission area, the lab was unprofitable, and it wouldbe costly to bring it into compliance and care for its chimpanzees.

LEMSIP, like NYU, is a nonprofit institution, and therefore is by law "unprofitable."Additionally, Dr. Moor-Jankowski had, for thirty years, operated LEMSIPon a financially self-sufficient basis. As for LEMSIP not fitting into NYU's"primary mission area," the laboratory conducted hepatitis andAIDS research, both diseases of significant relevance to a major metropolitanmedical center. Furthermore, several NYUMC faculty members, including Dr.Preston Marx, conducted AIDS research at LEMSIP on a multi-million dollarfederal grant for which NYU was the "performing organization."NOTE: Despite this well-known and easily documentable fact, in an October1994 letter to the USDA's Dr. Joseph Walker, David Scotch claimed that therewas no research being conducted by NYU faculty at LEMSIP!

NYU did not in good faith "explore various options" before arrangingthe transfer to TCF. As Dr. Marx attested to in a sworn affidavit, the AaronDiamond AIDS Research Center (ADARC) was interested in taking over LEMSIP.However, NYU repeatedly failed to supply ADARC with even the most minimalfinancial information about LEMSIP. By contrast, NYU "rolled out thered carpet" for Coulston, providing him with proprietary LEMSIP protocolsand confidential research contracts. ADARC Secretary/Treasurer Vincent McGeewould later publicly state that NYU had never conducted good faith negotiations,and even offered TCF more money.

NOTE: The importance of the sabotaged ADARC negotiations to Dr. Moor-Jankowski'sretaliation case cannot be overstated. ADARC was by far the most logicalchoice for NYU to transfer LEMSIP. ADARC is a leading AIDS research center;TCF has no scientific reputation. ADARC already had a relationship withNYU, and was already conducting research at LEMSIP, with plans to expand.But here is the crucial fact, contained in Dr. Marx's affidavit but convenientlyoverlooked by USDA: ADARC was friendly to Dr. Moor-Jankowski and would haveasked him to stay in an ADARC takeover, while Coulston was a known rivalof Dr. Moor-Jankowski, the polar opposite of Dr. Moor-Jankowski's open researchphilosophy, and had filed an amicus curiae brief against him in the landmarkFirst Amendment case Immuno v. Moor-Jankowski. USDA/NYU can make all ofthe "financial liability" arguments they want; there can onlybe one explanation for NYU's willful sabotage of the ADARC negotiationsand its decision to transfer to TCF: retaliation.

LIE #4: Dr. Moor-Jankowski was terminated because TCF planned to bring inits own management, and his firing was handled in accordance with standardNYU employment practices.

USDA's blithe acceptance of NYU's "standard practices" claim begsbelief. NYU fired Dr. Moor-Jankowski with no notice or cause (both of whichare required by NYU employment policy); physically barred him from a facilityhe had founded and successfully run for 30 years; hired a guard with specificinstructions to keep him out; refused him access to his physical and intellectualproperty; refused to forward his mail and telephone calls; refused to allowLEMSIP employees from contacting him on their own free time; and refusedhim his medical benefits. Similarly, NYU fired Mr. Dinetz with no noticeor cause; physically barred him from the facility; hired a guard with specificinstructions to keep him out; failed to give him the severance pay and insurancehe was entitled to by law; and attempted to obtain his possible testimonyagainst Dr. Moor-Jankowski in exchange for pay and benefits to which hewas already entitled. No amount of twisted logic can turn this egregiousand clearly retaliatory treatment into standard employment practice! Itis similarly nonsensical for USDA to claim that this treatment "may"be attributable to the "complicated transfer of LEMSIP to TCF."More than a year later, that transfer still has not occurred. Clearly, ifthe ultimate goal were transitioning LEMSIP, over a lengthy period of time,to TCF, then there can be no justification for Dr. Moor-Jankowksi's abrupttermination.

LIE #5: "USDA did not withdraw the subpoenas to obtain documents andtestimony from NYU."

On December 22, 1995, at the direction of Robert Ertman in USDA's Officeof General Counsel (OGC), APHIS issued subpoenas to NYU for documents andfor deposition of NYU Medical Center Associate Dean David Scotch. Shortlythereafter, Mr. Ertman was removed from a meaningful role in the case, andreplaced by another OGC representative, Ken Vail. During a February 22,1996 conference call between APHIS officials, Philip Byler (Dr. Moor-Jankowski'sattorney) and Mike McGehee (legislative representative of In Defense ofAnimals), Mr. Vail claimed no knowledge of the subpoenas that had been issuedjust two months before. The subpoenas were never followed up; Dr. Scotchwas never deposed. In fact, no NYU official was ever required to submitsworn testimony. By contrast, Mr. Ertman spent two days questioning Dr.Moor-Jankowski under oath, and USDA was in receipt of the sworn, detailedaffidavits of Dr. Moor-Jankowski, Dr. Marx and Mr. Dinetz.

LIE #6: USDA attorney Robert Ertman was not pulled from this case and maintaineda "meaningful role" in the investigation.

Shortly after informing Dr. Moor-Jankowski of his conclusion that NYU wasmisleading the USDA, Mr. Ertman stopped returning Dr. Moor-Jankowski's telephonecalls. He also failed to appear for a pre-scheduled appointment with Dr.Moor-Jankowski. On February 21, 1996, Dr. Moor-Jankowski's attorney, PhilipA. Byler, wrote to Mr. Ertman expressing concern over his non-responsiveness.In a February 22, 1996 conference call on the matter, Mr. Ertman was conspicuouslyabsent, having been replaced by Mr. Vail. It was during this conferencecall that Mr. Vail professed ignorance about the subpoenas. Mr. Ertman'sname is noticeably absent from the memos from OGC on which USDA purportsto have based its final decision to reject Dr. Moor-Jankowski's retaliationcomplaint.

LIE #7: Dr. Moor-Jankowski's whistleblowing related to water deprivationand use of chimpanzees in the research of former NYU researcher Ron Wood.

This statement, contained in the Vail memos, demonstrates USDA's total lackof understanding of basic facts of this case. The research in question wasconducted on macaque monkeys, not on chimpanzees. USDA's inability to geteven the species of animal correct case demonstrates the sloppiness andcarelessness that have characterized the agency's actions in this matter.This is just one of the numerous basic factual errors that permeate USDA'sexplanations of its actions in this case.

LIE #8: Personality conflicts, not retaliation, accounted for Dr. Moor-Jankowski'stroubles at NYU.

This claim of USDA is patently absurd. A chronological statement of thefacts makes clear that Dr. Moor-Jankowski has a clear and compelling caseof retaliation. No personality conflict can explain the escalating retaliatoryactions against Dr. Moor-Jankowski and their direct correspondence to thetiming of his whistleblowing activities. It is almost laughable that theUSDA would grasp at such straws to discredit its own investigative division'sfindings of illegal retaliation.

LIE #9: Some of the alleged retaliatory incidents occurred before Dr. Moor-Jankowski'swhistleblowing activities.

This statement is not true. One of Dr. Moor-Jankowski's most important whistleblowingefforts dates back to January 1993 -- before NYU's retaliatory actions started.It was at this time that Dr. Moor-Jankowski brought to the NYU administration'sattention that surgeries were being conducted on monkeys by an incompetentveterinarian in an ill-equipped facility. Three monkeys from the laboratoryof controversial crack cocaine researcher Ron Wood died as a result of thesesurgeries. Information provided by Dr. Moor-Jankowski to USDA helped convincethe agency to file charges against NYU for multiple violations of the AnimalWelfare Act for, among other things, failure to provide adequate veterinarycare to the three monkeys who died.

LIE #10: Retaliation was not the reason for NYU's failure to release buildingfunds for facility improvement at LEMSIP, and in any case, the delay didnot personally injure Dr. Moor-Jankowski.

In fact, following Dr. Moor-Jankowski's complaints about Ron Wood's researchand treatment of monkeys in early 1993, NYU began to withhold $550,000 infunds that Dr. Moor-Jankowski had secured from private industry in January1993 to expand facilities at LEMSIP. At the same time, NYU administrationalso blocked Dr. Moor-Jankowski's plans to establish a retirement facilityfor chimpanzees in Texas. Both expansion at LEMSIP and the Texas facilitywere necessary for LEMSIP to remain compliant with cage-size regulationsfor the housing of chimpanzees. Because of NYU's actions, dozens of chimpanzeesat LEMSIP were forced to live in cages too small even to lie down in forseveral years. The university was eventually charged with literally thousandsof Animal Welfare Act violations because of the cage-size problems.

NOTE: It is interesting that NYU withheld the $550,000 for more than twoyears, until it could claim that it was too late because of the transferto TCF. Then, in a document signed by Coulston and NYU, and provided toUSDA, it pledged that exact same amount -- $550,000 -- to TCF to erect anew housing facility in New Mexico for LEMSIP chimpanzees.

USDA claims that Dr. Moor-Jankowski suffered no personal injury becauseof actions taken against his laboratory. But LEMSIP was Dr. Moor-Jankowski'slife's work for 30 years. In the landmark First Amendment suit, Immuno vs.Moor-Jankowksi, the court referred to LEMSIP as Dr. Moor-Jankowski's alterego. Therefore, obstruction of his efforts to achieve compliance with animalwelfare laws hurt him personally, as well as his reputation with regulatoryagencies and humane organizations. Delays in signing standard business contractscrippled LEMSIP financially, and therefore also harmed Dr. Moor-Jankowskipersonally.

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