A federal judge last week tossed a lawsuit brought by 6 of the so-called "FDA 9" whistleblowers accusing the government of violating their constitutional rights with surveillance of their private email accounts.
The staffers alleged that the FDA spied on the private email accounts they accessed using their government-issued computers, after they warned Congress and the president that unsafe medical devices were being allowed onto the U.S. market.
The lawsuit, filed in 2011 in the U.S. District Court for the District of Columbia, leveled 12 counts against the agency, its chief Dr. Margaret Hamburg, medical device chief Dr. Jeffrey Shuren, the Dept. of Health & Human Services and its then-head, Kathleen Sebelius, and other government officials. It accused them of enacting the secret surveillance after learning of a letter the staffers sent to then-President-elect Barack Obama’s transition team Jan. 7, 2009, and of using the information gleaned from the tapped email accounts to harass and, in some cases, fire the whistleblowers.
After learning of the letter, the FDA set up a secret file on its database labelled "FDA 9" to collect the surveillance data. The agency took screenshots of the staffers’ computers as they accessed their private Gmail accounts, according to the lawsuit. Although the government has the right to surveil any activity on the computers it issues, it’s unclear whether it’s legal to secretly gain access to private email accounts used on government-issued devices.
The staffers later wrote an open letter to Obama asking him to hold former and current officials accountable for their alleged wrongdoing. The Jan. 7 letter to John Podesta, the transition team leader, warned that potentially unsafe radiological devices were being allowed to hit the market. The FDA staffers also communicated with aides of Sen. Charles Grassley (R-Iowa), who then warned the FDA not to retaliate against the whistleblowers.
But Judge Reggie Walton ruled Sept. 23 that although the plaintiffs "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," his court lacks jurisdiction because the whistleblowers haven’t exhausted their avenues of redress within the FDA.
"If the administrative and remedial scheme set forth under the [Civil Service Reform Act] can resolve the claims that the plaintiffs have alleged in their complaint before this court, then the plaintiffs must use that scheme to seek redress and the court is precluded from exercising jurisdiction over the plaintiffs’ claims," Walton wrote.