The Washington Post reported that, according to Congressional investigators, the Food and Drug Administration’s Chief Counsel’s office authorized the agency to secretly monitor the emails and online activity of FDA scientists who were potentially engaged in protected whistleblowing activity. Since January 2012, Sen. Charles E. Grassley and the Senate Judiciary Committee have been investigating the FDA’s recent admission that, beginning in 2010 it authorized the surveillance of employees’ government computers and even personal email accounts. The FDA has claimed it began the surveillance solely for the purpose of determining whether the scientists had improperly leaked confidential and trade secret protected information for a 2010 New York Times article about the FDA’s review procedures for medical imaging devices. In that article, the scientists took issue with FDA’s process, alleging that it led to the improper approval of devices which exposed patients to dangerous radiation. The FDA’s surveillance, conducted by a third-party contractor, cataloged the activity of dozens of employees, media outlets, and elected officials, including members of Congress. The contractor also collected protected communications between employees and their attorneys, as well as drafts of employee grievances and complaints, and disclosures made to members of Congress.
In addition to the Senate Judiciary Committee, the Office of Special Counsel has also been investigating the FDA’s surveillance efforts to determine whether FDA violated federal anti-whistleblowing laws. Several of the scientists being monitored filed employee grievances and a federal lawsuit, and were either fired or passed over for promotions after the surveillance program began. OSC made an initial determination that the employee’s grievances about whistleblowing warranted a full investigation. OSC Special Counsel Carolyn Lerner issued a warning to federal agencies in June 2012, stating that while monitoring federal employee’s official government emails and computers is in some cases permitted, it violates the law if the intent of the surveillance is to retaliate against whistleblowers. The White House re-issued OSC’s warning across the government, indicating there are limits on employee surveillance, particularly when protected whistleblowing activity is involved.
If you believe you have been retaliated for protected whistleblowing, contact Kator, Parks, and Weiser. Our firm has experience protecting and defending the rights of federal employees.