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Hardy v. Hamburg

United States District Court, D. Columbia.

September 23, 2014

PAUL T. HARDY, et al., Plaintiffs,
v.
MARGARET A. HAMBURG, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For PAUL T. HARDY, EWA M. CZERSKA, ROBERT C. SMITH, JULIAN J. NICHOLAS, R. LAKSHMI VISHNUVAJJALA, NANCY G. WERSTO, Plaintiffs: David K. Colapinto, Stephen M. Kohn , KOHN, KOHN & COLAPINTO, LLP, Washington, DC.

For JEFFREY E. SHUREN, DONALD J. ST. PIERRE, MARY PASTEL, GREGORY CAMPBELL, ALBERTO GUTIERREZ, KIMBERLY A. HOLDEN, RUTH MCKEE, WILLIAM MAISEL, MARGARET A. HAMBURG, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES OF AMERICA, GREGORY A. STEVENS, Deputy Director, Office of Commissioned Corps Operations, REGINA M. BENJAMIN, Surgeon General, U.S. Public Health Service, UNITED STATES FOOD & DRUG ADMINISTRATION, UNITED STATES PUBLIC HEALTH SERVICE COMMISSIONED CORPS, Defendants: Andrew L. Nolan, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; W. Scott Simpson, LEAD ATTORNEY, Thomas David Zimpleman, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For NATURAL RESOURCES DEFENSE COUNCIL, Movant: Aaron S. Colangelo, LEAD ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC.

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MEMORANDUM OPINION

The plaintiffs, six former and current employees of the Food and Drug Administration (" FDA" ), filed this civil lawsuit against the defendants, Margaret A. Hamburg, the Commissioner of the FDA; the FDA; Kathleen Sebelius, the Secretary of the Department of Health and Human Services (" DHHS" ); the DHHS; Regina Benjamin, the Surgeon General of the Public Health Service (" Public Health Service" ); and the Public Health Service, alleging violations of the First, Fourth, and Fifth Amendments of the Constitution and the Lloyd-LaFollette Act. Second Amended Complaint (" Am. Compl." ) ¶ ¶ 127-97. Currently before the Court is the Defendants' Motion to Dismiss for lack of subject-matter jurisdiction (" Defs.' Mot." ). After carefully considering the parties' submissions,[1] the Court concludes

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that it must grant the motion to dismiss for the reasons set forth below.

I. STATUTORY BACKGROUND

The passage of the Civil Service Reform Act of 1978 (" CSRA" ), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), established a comprehensive framework for federal employees to have " prohibited personnel practices" of agencies reviewed and remedied administratively.[2] 5 U.S.C. § 2302 (2012); see also United States v. Fausto, 484 U.S. 439, 445-49, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (explaining how the comprehensive nature of the CSRA precludes certain judicial review of personnel actions other than as provided by the statute). The Whistleblower Protection Act of 1989 subsequently " amend[ed] the list of prohibited personnel practices under the framework of the CSRA" to include reprisals for whistleblower activity. Heard v. U.S. Dep't of State, No. 08-cv-02123(RBW), 2010 WL 3700184, at *6 n.7 (D.D.C. Sept. 17, 2010) (Walton, J.); see also 5 U.S.C. § 2302(b)(8). " A federal employee who alleges unlawful retaliation for whistleblowing must first bring his claim to the Office of Special Counsel." Heard, 2010 WL 3700184 at *6 (citing 5 U.S.C. § 1214 and Weber v. United States, 209 F.3d 756, 757-58, 341 U.S.App.D.C. 128 (D.C. Cir. 2000)). " If the [Office of Special Counsel] finds an absence of wrongdoing, the employee can appeal that decision to the Merit Systems Protection Board, 5 U.S.C. § § 1214(a)(3), 1221." Id. Without exhausting these administrative remedies, this Court lacks jurisdiction.[3] Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433, 318 U.S.App.D.C. 420 (D.C. Cir. 1996) (" Under the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit." ); Heard, 2010 WL 3700184, at *6 n.7 (Walton, J.) (" Because the [Whistleblower Protection Act] amends the list of prohibited personnel practices under the framework of the CSRA, the exhaustion discussion in Weaver also applies to the [Whistleblower Protection Act]." (internal citation omitted)).

II. FACTUAL BACKGROUND

A. The Plaintiffs

" The [p]laintiffs are a group of six doctors and scientists" who have made public statements about the allegedly " serious managerial and medical misconduct within the [FDA's] Center for Devices and Radiological Health," which is " the unit within the FDA with the responsibility to review and approve the use of medical devices." Pls.' Opp'n at 1; see also Am. Compl. ¶ ¶ 15, 17, 19, 72. Doctor (" Dr." ) R. Lakshmi Vishnuvajjala and Nancy G. Wersto are current employees of the FDA. Am. Compl. ¶ ¶ 7, 8. The other plaintiffs are not. Id. ¶ ¶ 3-6. Dr. Ewa M. Czerska and Dr. Robert C. Smith are both former employees of the FDA. Id. ¶ ¶ 4, 5. Paul T. Hardy is a former officer of the Public Health Service Commissioned Corps. Id. ¶ 3; Pls.' Opp'n at 2. During his tenure as an officer in the Public Health Service Commissioned Corps, Mr. Hardy was assigned to work for the FDA. Am. Compl.

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¶ 118; Pls.' Opp'n at 2. Dr. Julian Nicholas is a " former federal contractor, [who] work[ed] for the FDA through the Oak Ridge Institute for Science and Education . . . program." Am. Compl. ¶ 6; Pls.' Opp'n at 2.

B. The Plaintiffs' Alleged Whistleblower Activities

Beginning no later than November 2008, the plaintiffs began " rais[ing] significant health and safety concerns regarding the FDA's regulatory review and clearance/approval of [allegedly] unsafe and ineffective medical devices." Pls.' Opp'n at 3; Am. Compl. ¶ ¶ 15, 17, 46-58, 72. The plaintiffs also alleged that FDA doctors and scientists had been " intimidated and coerced" into " modify[ing] their scientific reviews, conclusions[,] and recommendations in violation of law." Pls.' Opp'n at 4 (internal quotations omitted); Am. Compl. ¶ 15. " These concerns were raised both inside and outside the FDA, and were specifically raised with [m]embers of Congress, [then] President-elect Barack Obama's [t]ransition [t]eam, [then-]President[-elect Barack] Obama, and representatives of the news media." Pls.' Opp'n at 3; Am. Compl. ¶ ¶ 15, 17, 19, 46-58, 72.

For example, in November 2008, several of the plaintiffs--Mr. Hardy, Dr. Czerska, Dr. Smith, and Ms. Wersto--" were among a group of FDA scientists who" informed " the House Energy and Commerce Committee about [alleged] managerial misconduct in the FDA." Am. Compl. ¶ 15. Similarly, in January 2009, Mr. Hardy, Dr. Czerska, Dr. Smith, and Ms. Wersto joined five other FDA employees to sign and send a letter to then President-elect Barack Obama's transition team that " raised numerous issues of public concern, including [alleged] corruption within the FDA's device review process, managerial misconduct, dangers to public health and welfare, and retaliation against whistleblowers." Id. ¶ 17. The FDA learned of the letter and its nine signatories, and began allegedly referring to those " signatories as the 'FDA 9.'" Id. ¶ 18. Later that same year, in September 2009, " a group of FDA whistleblowers, including Dr. Nicholas . . . and Dr. Smith," continued to " sp[eak] with members of the House Energy and Commerce Committee" about " their concerns regarding" the FDA's review and approval of allegedly unsafe and ineffective medical devices. Id. ¶ 58. The following year, in March 2010, the New York Times published an article concerning the plaintiffs--" the FDA whistleblowers" --and their warnings to the FDA about its approval of allegedly " ineffective and dangerous devices and ignoring or suppressing the concerns of its own scientists." Pls.' Opp'n at 4; Am. Compl. ¶ ¶ 72-75.

C. The Defendants' Alleged Conduct in Response to the Plaintiffs' Whistleblower Activities

" Sometime between January 2009 and March 2010," under the auspices of the DHHS, the FDA allegedly " commenced '[t]argeted [s]urveillance'" on the plaintiffs in response to their whistleblower activities. Pls.' Opp'n at 5-8; id. at 6 (" This [t]argeted [s]urveillance was directly triggered based on the whistleblower disclosures [that the] [p]laintiffs were making (or suspected of making) to various outside entities . . . ." ); Am. Compl. ¶ ¶ 21-45. According to the plaintiffs:

" Targeted [s]urveillance" was conducted on the plaintiffs (and other similarly situated FDA employees) because these employees were identified as whistleblowers, i.e.[,] employees who raised health and safety concerns and allegations of official misconduct that were protected under federal law and the United States Constitution. Employees [were] selected for [t]argeted [s]urveillance

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based on the viewpoint of their speech, and specifically because these employees have, or are suspected of having, criticized the FDA to Members of Congress, the news media or appropriate law enforcement agencies.

Id. ¶ 28; see also id. ¶ ¶ 26, 33, 99. The plaintiffs further allege that " '[t]argeted [s]urveillance' is distinct from 'routine' system monitoring of employee emails, for which the FDA and HHS also conduct." Id. ¶ 27. They also contend that:

Pursuant to its [t]argeted [s]urveillance operation, the FDA secretly installed or activated spyware on the government-owned computers, hardware, and networks used by the [p]laintiffs. The spyware took real-time pictures, or " screen shots" (a.k.a. " snapshot recordings" ) of the computer screens being used by the [p]laintiffs, while the [p]laintiffs were using the computers or networks. These screen shots enabled FDA officials to secretly view information that appeared on each of the [p]laintiffs' computer screens, even if the information was transitory and not stored within the computer itself.

Id. ¶ 34.

Further, the plaintiffs allege that using " targeted surveillance," the FDA acquired " confidential and/or privileged work product, tactics and strategy that the [p]laintiffs were using or planning to use as a result of [the] FDA intercepting [p]laintiffs' [p]rivate [e]-mail communications with" third parties including " private attorneys" and " other proper authorities." [4] Id. ¶ 40; see also id. ¶ ¶ 42-44 (alleging instances where the FDA discovered existence of " confidential work product" and " intercepted [p]rivate [e]-mails" from various plaintiffs); Pls.' Opp'n at 11-12.

In addition to " [t]argeted surveillance," the plaintiffs represent that the defendants took several " other retaliatory actions" against the plaintiffs for their whistleblower activities. Am. Compl. ¶ 126 (emphasis added); id. ¶ ¶ 30, 158, 160, 164, 165, 169, 170, 196. For example, the plaintiffs contend that several of the plaintiffs found themselves unemployed as a " direct result" of their whistleblower activities. Pls.' Opp'n at 9-10 (" As a direct result of retaliation based on the protected speech of the [p]laintiffs, or based directly on information obtained by the FDA as part of the [t]argeted [s]urveillance, four of the [p]laintiffs, Drs. Smith, Czerska and Nicholas, and Mr. Hardy, were either fired by the FDA or had their employment contracts terminated." ); id. at 9 (" The FDA [t]erminated, or [c]aused the [t]ermination, of [f]our [w]histleblowers[.]" ); Am. Compl. ¶ ¶ 61-65 (alleging that Dr. Nicholas did not have his employment contract renewed); id. ¶ ¶ 87-91 (alleging that Dr. Smith did not have his employment contract renewed); id. ¶ 103 (alleging that the FDA terminated Dr. Czerska after 23 years of service); Pls.' Opp'n at 3 (same); Am. Compl. ¶ ¶ 107-114 (alleging that Mr. Hardy was removed from the Public Health Service).

Other retaliatory actions alleged by the plaintiffs included the issuance of warning letters or negative performance reviews, e.g., Am. Compl. ¶ 104 (" On or about February 25, 2011, Dr. Vishnuvajjala received a warning letter from her FDA supervisor . . . that the FDA had intercepted [p]rivate [e]mails sent to [her] . . . and that [she] should have reported those conversations

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to FDA management." ); id. ¶ 158 (alleging " extremely negative performance review" for Mr. Hardy), and threats of disciplinary action, e.g., id. ¶ 88 (alleging that during administrative leave, the FDA instructed Dr. Smith " not to conduct, transact[,] or speak to any FDA employees and others about FDA business matters" and " threatened [him] with disciplinary action if he disobeyed this instruction" (internal quotations omitted)); id. ¶ ¶ 174-76 (alleging " threats of disciplinary action against [Dr. Vishnuvajjala and Ms. Wersto]" ).

D. Complaints Filed by the Plaintiffs With the Office of Special Counsel

On or about February 14, 2012, the plaintiffs filed a complaint with the Office of Special Counsel " concerning FDA misconduct." Defs.' Mem., ECF No. 31-4, Exhibit (" Ex." ) 4 (Nat'l Whistleblowers Ctr. Press Release) at 1 (" On January 25, 2012, and February 14, 2012, six federal employee whistleblowers filed complaints in U.S. District Court . . . and before the U.S. Office of Special Counsel demonstrating that the federal government targeted whistleblowers for intrusive, covert surveillance." ); see also Am. Compl. ¶ 121.[5]

Following allegations that " the [FDA] reviewed disclosures intended specifically for [the Office of Special Counsel]," and that " the [FDA] also monitored communications of employees who were suspected of blowing the whistle on [the] FDA's approval of unsafe medical devices," the Office of Special Counsel " broadened the scope of [its] . . . investigation into the surveillance of employees' emails by the [FDA]." Defs.' Mem., ECF No. 31-6, Ex. 6 (Office of Special Counsel Press Release) at 1; see also Defs.' Mem., ECF No. 31-5, Ex. 5 (Office of Special Counsel Letter to Congressional Members) at 1 (" [The Office of Special Counsel] is troubled by evidence suggesting that the FDA used covert surveillance as a tool to retaliate against whistleblowers and the pattern of retaliation alleged by complainants . . . . [The Office of Special Counsel] has broadened the scope of an existing reprisal investigation . . . ." ); id. at 1 n.1 (noting that the broadened investigation will focus on the " prohibited personnel practices that the complainants have alleged" ).

On May 31, 2012, the Office of Special Counsel made certain findings with respect to the plaintiffs' grievances identified in their complaints, " trigger[ing] a number of additional review procedures." Id. ¶ ¶ 121-23. While this administrative review process was pending, the plaintiffs concurrently filed this lawsuit. See generally, id.; Defs.' Mem., ECF No. 31-4, Ex. 4 (Nat'l Whistleblowers Ctr. Press Release) at 1 (" On January 25, 2012, and February 14, 2012, six federal employee whistleblowers filed complaints in U.S. District Court . . . and before the U.S. Office of Special Counsel demonstrating that the federal government targeted whistleblowers for intrusive, covert surveillance." (emphasis added)).

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss " for lack of subject-matter jurisdiction." Fed.R.Civ.P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) " presents a threshold ...


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