USDA subverts Animal Welfare Act in whistleblower protection case
ACTION is part of Agency's long-standing pattern of failure to uphold the law.
|USDA subverts Animal Welfare Act in whistleblower protection case|
A Report by In Defense of Animals, 20 August 1996
The Honorable Dan Glickman, Secretary of Agriculture
The Honorable Pat Roberts, Chair, House Agriculture Committee
The Honorable Richard Lugar, Chair, Senate Agriculture Committee
USDA has willfully ignored voluminous and sworn evidence, as well as thefindings of its own Regulatory Enforcement Division, proving that NYUMCretaliated against Dr. Jan Moor-Jankowski, founder and former director ofNew York University's Laboratory for Experimental Medicine and Surgery inPrimates (LEMSIP), and LEMSIP Associate Director, Lou Dinetz. The retaliationviolated whistleblower protection provisions of federal regulations promulgatedunder the Animal Welfare Act. Dr. Moor-Jankowski -- a world-renowned scientistand expert on primate research, winner of the William J. Brennan Defenseof Freedom Award for his seven-year legal battle to defend free speech inthe landmark First Amendment case Immuno v. Moor-Jankowski, and the onlyliving American elected to the French Academy of Medicine -- "blewthe whistle" on extremely serious violations of the Act at NYU. Dr.Moor-Jankowski's whistleblowing activities centered on negligence and misconductin the laboratory of NYU researcher Ron Wood, whose now-defunct crack-smokingexperiments on monkeys were highly controversial. Dr. Moor-Jankowski alsoexposed violations in his own laboratory, LEMSIP, which were caused whenNYU Medical Center administration withheld monies earmarked for LEMSIP expansionand chimpanzee retirement. That action, which was found by USDA's RegulatoryEnforcement Division to be retaliatory in nature, resulted in dozens ofchimpanzees being forced to live in cages too small even to lie down infor several years. Mr. Dinetz, a highly decorated Vietnam veteran and respectedbusiness manager, also blew the whistle on cage size violations at LEMSIP.
On April 11, 1995, the USDA filed formal charges against NYU for 378 violationsof the Animal Welfare Act in Wood's laboratory and NYUMC for Ronald Wood'sviolations. One year later, USDA filed additional charges against NYU forhousing 130 chimpanzees for more than a year in cages that did not meetminimal federal standards, resulting in literally thousands of violationsof the Animal Welfare Act. In June 1996, in a consent decree, the USDA slappedNYU with a $450,000 fine -- the largest ever assessed against a researchinstitution in the history of the Animal Welfare Act.
The charges were a vindication of the whistleblowing of Dr. Moor-Jankowskiand Mr. Dinetz, both of whom were fired, without cause or notification,in August 1995. Their dismissals came one day after the USDA sent NYU presidentDr. Jay Oliva a warning letter that the agency was investigating Dr. Moor-Jankowksi'scomplaint that NYU had violated the Animal Welfare Act by retaliating againsthim for whistleblowing (Exhibit 1). That same day, NYU announced that itwas transferring LEMSIP, Dr. Moor-Jankowski's life work for the past 30years, to The Coulston Foundation (TCF), a New Mexico-based primate facilitywith a long history of violating the Animal Welfare Act (Exhibit 2). TCFwas, itself, facing formal USDA charges for multiple violations of the Act.NYU also posted an armed guard and gave specific instruction to bar bothDr. Moor-Jankowski and Mr. Dinetz from LEMSIP. The article in Exhibit 3,from the highly respected journal Chronicle of Higher Education, explainsin more detail the background of this situation.
A complete chronology of the events surrounding this situation is includedas Exhibit 4 in this report.
USDA's capitulation to political pressure has subverted the law.
On May 14, 1996, Lonnie King, Acting Administrator of the Animal and PlantHealth Inspection Service (APHIS) sent a cursory, two-paragraph letter toDr. Moor-Jankowski (Exhibit 5). The letter claimed that the agency had found"no evidence" to support Dr. Moor-Jankowski's complaint that NYUhad retaliated against him for bringing Animal Welfare Act violations atNYU to the attention of federal authorities. Dr. King's finding is directlycontradicted by USDA's own investigation which found that NYUMC "didin fact bring reprisals against an employee . . . for reporting violationsof the regulations and/or standards under the [Animal Welfare] Act."(Emphasis added) The October 1996 Regulatory Enforcement (RE) report named15 separate instances in which NYUMC retaliated against Dr. Moor-Jankowskiin response to his reporting of animal welfare violations to USDA (Exhibit6).
The Regulatory Enforcement report was referred to Robert Ertman in USDA'sOffice of General Counsel (OGC). After reviewing the case, Mr. Ertman determinedthat NYU had been misleading USDA. He issued subpoena's to NYU PresidentL. Jay Oliva for documents and to Medical Center Associate Dean David Scotch(Exhibit 7). However, these subpoenas were never followed up, and Mr. Ertmanwas removed from a leadership role on the case. Taking over for Mr. Ertmanwas Ken Vail, who claimed no knowledge of the subpoenas. In March, a topREAC official acknowledged that "pressure from very high up" stalledUSDA action in this case. APHIS Associate Administrator Terry Medley acknowledgedthat "political" reasons prevented USDA from taking punitive actionagainst NYU Medical Center, as required by federal law.
USDA officials demonstrated bad faith throughout
the entire course of the retaliation investigation.
Throughout the course of USDA's one-year investigation, the agency's conductwas marked by bad faith. APHIS Associate Administrator Terry Medley repeatedlybroke promises to representatives of Dr. Moor-Jankowski, In Defense of Animalsand the Government Accountability Project that NYU would be held accountablefor its violation of the whistleblower protection statute of the AnimalWelfare Act. Mr. Medley first vowed that a complaint would be filed againstNYU by the end of 1995. Subsequently, Mr. Medley revised that deadline sofrequently as to erode his own credibility. Throughout the investigation,even as the agency dropped subpoenas and pulled the chief counsel from thecase, Mr. Medley professed his commitment to bringing punitive action againstNYU. When it became apparent that USDA had no intention of bringing a retaliationcharges against NYU, Mr. Medley was asked to provide the criteria by whichhis agency decided to reject Dr. Moor-Jankowski's complaint. Despite Mr.Medley's personal assurance to the contrary, neither he nor any other USDAofficial have, to date, explained how Dr. Moor-Jankowski and Mr. Dinetzallegedly failed to meet the legal standard of retaliation.
Mr. Medley's actions in the Moor-Jankowski matter, and in the case of anotherwhistleblower, RE inspector Marshall Smith, prompted Robert Seldon, GeneralCounsel of the Government Accountability Project (GAP) to write:
"In my 19 years of practice of law in Washington - nine as an AssistantUnited States Attorney in the service of cabinet department and officers- I cannot recall having been led on for so long with so little being delivered.Both the Moor-Jankowski and Smith cases followed precisely the same pattern:quick response by you, prompt investigation by RE, promises of remedialaction, and anguish at being unable to deliver much of anything. The onlydifference is that in the first case APHIS tolerated gross violations ofthe animal welfare laws. In the second, APHIS committed them.." (Exhibit8)
USDA settlements with NYU and The Coulston Foundation represent mere slaps on the wrist for the most egregious violations in the history of theAnimal Welfare Act.
In June, the USDA agreed to settlements of the formal USDA complaints againstNYU Medical Center, as well as the formal USDA complaint against the CoulstonFoundation (Exhibit 9). On paper, the settlements include the largest everfines levied against research institutions for violations of the AnimalWelfare Act. In reality, however, they amount to little more than slapson the wrist for the most egregious violations in the history of the Act.The record $450,000 fine levied by USDA against NYUMC -- which is more thanten times larger than the second-largest fine in history -- clearly demonstratesthe serious nature of NYU's violations of federal law. USDA, however, decreedthat $425,000 of the "fine" would be held in abeyance, providedthat NYU " expends that amount on improved housing for its nonhumanprimates, at its premises or elsewhere, or donates that amount to a non-profitsanctuary for nonhuman primates, within one year from the effective dateof this order." The net result is that NYU must pay only $25,000 --little more than the cost of doing business -- for literally thousands ofviolations of the Animal Welfare Act!
In addition, the provision allowing NYU to spend the $425,000 to improveprimate housing at its facility or elsewhere allows the institution to countas payment of its fine money it was already scheduled to pay to TCF fortaking over LEMSIP. Even worse, the settlement appears to allow NYU to giveTCF the money it withheld from Dr. Moor-Jankowski for LEMSIP expansion andchimpanzee retirement. The medical center's withholding of these funds wasfound to be retaliatory, and therefore illegal, by USDA's Regulatory Enforcementbranch. As a result, by agreeing to this provision, USDA has, in essence,allowed NYU to settle its case by carrying out its final act of retaliationagainst Dr. Moor-Jankowski - the transfer of LEMSIP's chimpanzees to a facilityrun by the nation's most notorious chimpanzee researcher, toxicologist FredCoulston!
The USDA also settled charges against the Coulston Foundation in June. Theagency assessed against TCF the second largest fine in its history. But,again, USDA allowed $20,000 of the $40,000 "fine" to be held inabeyance provided that TCF spend it on improving its primate housing. Thissettlement, along with the NYU settlement which permits a $425,000 paymentfrom NYU to TCF, virtually guarantees that TCF will come out $385,000 aheadfor chronic and repeated violations of the Animal Welfare Act!
The USDA settlements with NYU and TCF are impressive on paper, but, in reality,represent little more than the cost of doing business for these researchinstitutions. USDA's actions in these cases have sent a strong message thatviolations of the Animal Welfare Act will not be met with serious punitiveaction. Research facilities appear to be able to violate the law of theland with impunity.
USDA Has a History of Failing to Enforce the Animal Welfare Act
The USDA's failure to properly enforce the Animal Welfare Act in these caseis not unique; internal USDA findings confirm that the agency's latest negligenceis part of a long-standing pattern. In recent years, USDA has come underincreasing criticism from both the public and the Congress about its apparentlack of commitment to enforcing the Animal Welfare Act. Since 1992, multipleinvestigations by USDA's Office of Inspector General have found that USDAhas neither the staff nor the commitment to enforce the Act. USDA's ownSeptember 1995 internal audit found that inspectors were instructed notto cite violations of the Animal Welfare Act, resulting in a "uniformlyhigh" rate of undocumented violations. Inspectors were also told whatfacilities to inspect and when to inspect them; in some cases, inspectorswere ordered "not to stop" at known problem facilities. The auditalso found that inspectors would discuss violations with facilities butwould not document them, and that USDA investigators were frustrated becauseof inspectors' failure to document violations of the Act.
With its record of abject and willful failure to uphold the law documentedin its own internal reports, as well as the increasing scrutiny of boththe public and Congress, taxpayers and concerned citizens have every rightto expect that USDA would try to address these fundamental problems. Instead,the agency has further subverted the law by failing to act seriously andpunitively against the most serious violations in the history of the AnimalWelfare Act, even in the face of voluminous and sworn evidence proving thecase. In the cases of NYU, TCF, Dr. Moor-Jankowski and Mr. Dinetz, USDAhas thumbed its nose at the public and Congress. The agency has given itsofficial imprimatur to NYUMC's blatant retaliation and done little morethan slap NYUMC and TCF on the wrist while subsidizing TCF and facilitatingits takeover of LEMSIP. The agency has demonstrated that it has neitherthe ability nor the desire to uphold the law.
On June 14, 1996, Rep. Benjamin Gilman (R-NY) wrote to Rep. Pat Roberts,Chair of the House Committee on Agriculture requesting investigative hearingsinto this matter. (Exhibit 10). His letter, written nearly one year afterReps. James T. Walsh (R-NY) and Nita M. Lowey (D-NY) had written to USDAon Dr. Moor-Jankowksi's behalf (Exhibit 10), stated in part:
". . . I am distressed that USDA has failed in this matter to protectthe rights of the `whistleblower,' placing in jeopardy the enforcement ofthe Animal Welfare Act. I am sure you would agree if individuals cannotfreely express themselves without fear of retaliation, the USDA will becomenothing more than a rubber stamp. . . ."
Clearly, USDA's settlements with NYU and TCF, as well as USDA's failureto find that NYUMC retaliated against Dr. Moor-Jankowski and Mr. Dinetzdespite the findings of its own enforcement division, mandate Congressionaloversight hearings and an investigation by an independent entity interestedin justice and the enforcement of the Animal Welfare Act. Among other things,such an investigation should examine:
the total disconnect between the strong case of retaliation that USDA RegulatoryEnforcement investigators found and sent to OGC, and OGC's politically orchestrated"finding" that Dr. Moor-Jankowski and Mr. Dinetz were not retaliatedagainst;
the numerous instances of bad faith and broken promises committed by highUSDA officials, including APHIS Administrator Terry Medley, as witnessedby representatives of IDA and Dr. Moor-Jankowski, including J. Michael McGehee(703-691-2257), Philip Byler, J.D. (212-980-8500), and the Government AccountabilityProject (202-408-0034);
how the TCF and NYUMC settlements sanctioned by USDA facilitated NYUMC'sretaliation against Dr. Moor-Jankowski and Mr. Dinetz, helped to financiallysubsidize TCF to the tune of $385,000 despite its own violations of theAnimal Welfare Act, and gave the USDA's imprimatur to the retaliatory transferof LEMSIP;
how political pressure, and not any finding of fact, resulted in RobertErtman being "reined in" from pursuing not only legally validsubpoenas issued by USDA upon Dr. Jay Oliva and Dr. David Scotch, but alsoa strong, thoroughly documented case against NYUMC for retaliating againstDr. Moor-Jankowski and Mr. Dinetz.