CommunityThe Dissenter

Judge Dismisses Lawsuit Filed by FDA Whistleblowers Against Officials for Retaliating & Spying on Them

Judge Reggie Walton (Photo from government website & in public domain)

A federal district court judge has dismissed a civil lawsuit brought by former and current employees of the Food and Drug Administration (FDA), who spoke out against “serious managerial and medical misconduct” at the Center for Devices and Radiological Health and were subsequently placed under surveillance by FDA officials. The judge determined the employees had failed to exhaust all administrative remedies and the court lacked jurisdiction to rule on their claims against the government.

Around November 2008, the employees expressed concern that warnings regarding “potential health hazards” stemming from FDA-approved medical devices were being ignored. The employees allegedly noticed doctors and scientists were being “intimidated and coerced” into “modifying their scientific reviews, conclusions and recommendations in violation of the law.”

The whistleblowers made their concerns known to individuals inside and outside of the FDA. They contacted members of Congress. They contacted news media. They contacted then-President-elect Barack Obama’s transition team and sent him a letter.

On March 28, 2010, the New York Times published a story on FDA’s approval process for medical devices. General Electric Healthcare alleged that there had been a “violation of confidentiality and requested an “internal investigation into how this information was leaked to the press.” This prompted the FDA to place the employees under surveillance.

As the employees claimed in their lawsuit, “The FDA secretly installed or activated spyware on the government-owned computers, hardware and networks used by the plaintiffs. The spyware took real-time pictures, or “screen shots” (aka “snapshot recordings”) of the computer screens being used by the plaintiffs, while the plaintiffs were using the computers or networks. These screen shots enabled FDA officials to secretly view information that appeared on each of the plaintiffs’ computer screens, even if the information was transitory and not stored within the computer itself.”

These individuals were placed under “targeted surveillance” because they were whistleblowers, who were “raising health and safety concerns and allegations of official misconduct.” They were spied upon because of the “viewpoint of their speech, and specifically because these employees” were suspected of having “criticized the FDA to members of Congress, the news media or appropriate law enforcement agencies.” And this surveillance intercepted communications with Congress, confidential attorney-client communications, and confidential complaints filed with the Office of the Inspector General and Office of Special Counsel (OSC), which reviews complaints alleging whistleblower retaliation.

District Court Judge Reggie Walton, who once served as a Foreign Intelligence Surveillance Court judge, acknowledged in his ruling that the employees’ allegation, “if true, are troubling.” However, Walton maintained that the district court could not review their claims.

Walton noted that the employees have complaints being reviewed by the OSC, which were filed in early 2012. On May 31, 2012, the OSC initiated “additional review” of the employees’ claims. The employees filed this lawsuit while the administrative review process was still pending.

The complaints before the Office of Special Counsel deal with “prohibited personnel actions” under the Civil Service Reform Act (CSRA), the same type of allegations that were before the court. These include the “defendants’ approval and use of retaliation against whistleblowers,” according to Walton.

“Confronted by an ongoing administrative proceeding that could potentially avoid piecemeal and duplicative litigation, the court will withhold review of their claims until a later time, if necessary,” Walton stated.

Walton added, “The plaintiffs have alleged no shortage of facts establishing that the defendants took, or threatened to take, a variety of prohibited personnel actions against them for their whistleblower activities.” In fact, he suggested, “Plaintiffs’ allegations lend further support for the court’s conclusion, as they portray the defendants’ “targeted surveillance” as a measure that was implemented to either “discipline” or “correct” the whistleblower activities of the plaintiffs.”

But, according to Walton, under the CSRA the plaintiffs are required to exhaust all administrative remedies as a “jurisdictional prerequisite to suit.”

It does not matter whether the actions against federal employees are unconstitutional in their nature, like “wiretapping, warrantless searches or uncompensated takings,” Walton further argued. They must be handled under CSRA before the courts can address them.

This is all technically reasonable, to some degree, and demonstrates how antiquated whistleblower protection law is in the United States.

The CSRA and the Whistleblower Protection Act do not give federal employees access to courts. They essentially grant employees access to administrative review by the OSC or the Merit Systems Protection Board (MSPB).

According to the Make It Safe Campaign & Coalition, which is composed of various groups working together to push for reforms to whistleblower law, these administrative procedures fail to work [PDF].

…Whistleblowers who try to fight retaliation by appealing to the MSPB face daunting odds. Hearings are conducted by Administrative Judges without any judicial independence who are subject to political pressure.

The Board is not structured or funded to address complex, high-stakes conflicts that can require lengthy proceedings. Judges are under pressure to process as many cases as possible. Realistically, a minor league forum cannot and will not provide justice for those challenging major league government breakdowns…

Government Accountability Project (GAP) legal director Tom Devine stated in testimony [PDF] presented to the House Oversight and Government Reform Committee:

…Since 2002 Congress has passed twelve whistleblower statutes, all providing for de novo jury trials in district court if the employee does not receive a timely administrative ruling. This was necessary, because the administrative hearing system does not have the structure, resources or time for cases with the most public policy significance, and/or involving complex or highly technical issues. That applies equally or more to resolution of civil service whistleblower cases, but the widespread mandate for district court access was blocked by threat of a Senate procedural hold…

Access to courts for whistleblowers, like the FDA employees who were spied upon as a service to General Electric, is an open issue.

Not only were the FDA employees subject to spying but the employees allegedly suffered retaliation that included receiving warning letters and negative performance reviews. They were were also allegedly fired. But the employees cannot move on with their lives by filing a claim in a district court that will review their claims in a more timely manner than an administrative body.

Whistleblower law also does not guarantee that review of their case will be free from political interference and delay, especially since the body operates from within the Executive Branch. It is not positioned to check the power of a government agency like a district court.

It is worth noting that the House Oversight and Government Reform Committee Chairman Darrell Issa and Senate House Oversight and Government Reform Committee Chairman Darrell Issa and Senate Judiciary Committee Ranking Member Chuck Grassley released a joint report on the unlawful spying operation directed at the FDA whistleblowers in February.

The report found, “The FDA violated the Privacy Act of 1974 and disclosed records collected in their surveillance operation to agency and non-agency employees who had ‘no need to review the records.’  A US Department of Health and Human Services (HHS) contractor, Quality Associates, Inc, obtained 80,000 pages of documents ‘associated with FDA employee monitoring’ and, in May 2012, posted them on a public Internet site. The records included ‘confidential and proprietary FDA documents, as well as confidential communications between FDA employees and Congress, the Office of Special Counsel (OSC) and personal attorneys.”

All of this obviously illegal activity occurred, and on top of that, the FDA still never found out who leaked to the press.

This is utterly scandalous conduct for any government agency, and yet, for now, the best federal employees have is the slow-turning gears of the OSC or MSPB. And they are scarcely capable of dealing with corruption of any sizable magnitude.

CommunityFDL Main BlogThe Dissenter

Judge Dismisses Lawsuit Filed by FDA Whistleblowers Against Officials for Retaliating & Spying on Them

Judge Reggie Walton

A federal district court judge has dismissed a civil lawsuit brought by former and current employees of the Food and Drug Administration (FDA), who spoke out against “serious managerial and medical misconduct” at the Center for Devices and Radiological Health and were subsequently placed under surveillance by FDA officials. The judge determined the employees had failed to exhaust all administrative remedies and the court lacked jurisdiction to rule on their claims against the government.

Around November 2008, the employees expressed concern that warnings regarding “potential health hazards” stemming from FDA-approved medical devices were being ignored. The employees allegedly noticed doctors and scientists were being “intimidated and coerced” into “modifying their scientific reviews, conclusions and recommendations in violation of the law.”

The whistleblowers made their concerns known to individuals inside and outside of the FDA. They contacted members of Congress. They contacted news media. They contacted then-President-elect Barack Obama’s transition team and sent him a letter.

On March 28, 2010, the New York Times published a story on FDA’s approval process for medical devices. General Electric Healthcare alleged that there had been a “violation of confidentiality and requested an “internal investigation into how this information was leaked to the press.” This prompted the FDA to place the employees under surveillance.

As the employees claimed in their lawsuit, “The FDA secretly installed or activated spyware on the government-owned computers, hardware and networks used by the plaintiffs. The spyware took real-time pictures, or “screen shots” (aka “snapshot recordings”) of the computer screens being used by the plaintiffs, while the plaintiffs were using the computers or networks. These screen shots enabled FDA officials to secretly view information that appeared on each of the plaintiffs’ computer screens, even if the information was transitory and not stored within the computer itself.”

These individuals were placed under “targeted surveillance” because they were whistleblowers, who were “raising health and safety concerns and allegations of official misconduct.” They were spied upon because of the “viewpoint of their speech, and specifically because these employees” were suspected of having “criticized the FDA to members of Congress, the news media or appropriate law enforcement agencies.” And this surveillance intercepted communications with Congress, confidential attorney-client communications, and confidential complaints filed with the Office of the Inspector General and Office of Special Counsel (OSC), which reviews complaints alleging whistleblower retaliation.

District Court Judge Reggie Walton, who once served as a Foreign Intelligence Surveillance Court judge, acknowledged in his ruling that the employees’ allegation, “if true, are troubling.” However, Walton maintained that the district court could not review their claims.

Walton noted that the employees have complaints being reviewed by the OSC, which were filed in early 2012. On May 31, 2012, the OSC initiated “additional review” of the employees’ claims. The employees filed this lawsuit while the administrative review process was still pending. (more…)

Previous post

The Roundup for September 24th, 2014

Next post

What If Your City Was Hit by Raytheon-made Cruise Missiles?

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

5 Comments