Reprisal for Whistleblowing: FDA Former Employees File Federal Lawsuit

Six current and former employees of the Food and Drug Administration (FDA) filed a federal lawsuit against the agency in January, alleging that high-level officials within the FDA intercepted their private correspondence to effectively interfere with their ability to “blow the whistle” on government misconduct.

In 2008, FDA employees, including scientists, experts and physicians, started alerting congressional representatives that senior managers within the FDA were deliberately ignoring scientific data challenging the safety of medical devices. The employees explained that they had expressed their concerns regarding the use of certain devices to detect colon cancer or breast cancer, but that their conclusions were ignored during the review process.

In their complaint, the former employees allege that following their disclosures to Congress, the FDA started to monitor their personal communications, secretly installing spyware on their government-owned computer to have access to personal e-mails sent from their private accounts. Through this monitoring, the FDA was able to gain access to its employees’ communications with Congress and the Office of Special Counsel, the agency in charge of investigating allegations of official corruption. Using this information, the agency sought criminal charges against the employees for disclosure of confidential proprietary information pertaining to medical devices. When the inspector general office found that there was no criminal misconduct, the FDA simply terminated the employment of the whistleblowers.

The complaint raises several issues regarding federal employees’ reasonable expectation of privacy in personal communications sent from government-owned computers. Although the agency authorizes its employees to use work equipment to make personal communications, it also posts warnings that the government may intercept any personal data for lawful purposes. But here lies the catch for the FDA: intercepting communications to congressional authorities in charge of investigating official misconduct and retaliating against the employees responsible for such communications is probably not lawful under whistleblower laws (See Lloyd LaFollette Act, 5 U.S.C. § 7211). Furthermore, as the complaint also points out, the FDA’s conduct may have violated its employees’ First Amendment right to freedom of speech and association.

In the end, the U.S. District Court will have to weigh the FDA’s interest in protecting proprietary information regarding medical devices submitted for its approval, against the right of federal employees to disclose acts of official misconduct to public authorities.