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In reality, HHS is not bound to refute the attach on its jurisdiction, but can defer the issue until it has collected all the evidence and had the formal hearing. Such an attack has two benefits, however:
1) A significant advantage of using experts to challenge HHS jurisdiction is that HHS will disclose its misconduct evidence at the hearing about jurisdiction;
2) If the agency is proceeding in good faith, it may be swayed by the expert testimony and reconsider the need for an investigation.
3) If HHS ignores the jurisdictional challenge, the issue can be more effectively raised during subsequent judicial review; and
4) HHS may agree that it lacks jurisdiction over a particular case in order to avoid the possibility of a judicial determination that would restrict HHS jurisdiction more generally.

As discussed in our previous article, "Pillorying Well-Stocked Scientists," IEEE Engineering in Medicine and Biology 14(1), January/February 1995, pp. 96-100, there have been instances in the past where HHS has not acted in good faith. Many, if not most of these improper investigations were driven by publicity seeking staff of Congressman Dingle. While Congressman Dingle has lost his committee chairmanship with the Republican landslide, it remains to be seen if his replacement will resist the temptation to meddle in HHS investigation.

While such congressional meddling is to be abhorred, it also points to an additional tactic for scientists involved in a preliminary phase of a misconduct investigation. Contact your congressperson, use your expert's analysis to convince him or her that you are being unjustly harassed, and ask for help. This is a perfectly legal request for what is called constituent services. A few calls from your congressperson to HHS, bolstered by your expert's report, will probably work wonders for assuring that you get a fair and prompt hearing. If scientists must die by politics, it is only fair that they should try to live by them!



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