Regulatory Focus™ > News Articles > Department of Justice Seeks Dismissal of Whistleblowers' Case Against FDA

Department of Justice Seeks Dismissal of Whistleblowers' Case Against FDA

Posted 02 October 2012 | By Alexander Gaffney, RAC 

The Department of Justice (DOJ) has filed a motion to dismiss a lawsuit brought against the US Food and Drug Administration (FDA) by several current and former agency employees after FDA allegedly spied on their whistleblowing activities to members of Congress and other oversight agencies.

DOJ's motion, filed on 1 October-almost exactly a year after the case was first filed-seeks dismissal based on a "lack of jurisdiction."

Bloomberg explains DOJ argues that any whistleblowing claims must first be reviewed through an administrative process run by the Office of Special Counsel (OSC). Before those processes are exhausted, the plaintiffs should not be allowed to seek judicial relief, argues DOJ.

Presiding Justice Robert L. Wilkins did not make any ruling on the motion, giving the plaintiffs, represented by Steven Kohn of the National Whistleblowers Foundation, time to respond.

If the motion is granted, it could prove to be more of a delaying tactic than anything else. In previous statements, OSC-an Executive Branch agency charged with protecting whistleblowers-has seemed to side with the FDA whistleblowers.

OSC's head, Special Counsel Carolyn Lerner, wrote in a February 2012 press release that she believed FDA's activities could potentially, "Dissuade employees from making important disclosures," and may have broken the law. A follow-up guidance released in June 2012 by the agency seemed to again take aim at FDA, calling on federal agencies to, "Heed whistleblower rights" when monitoring potentially protected activities.

The case is Paul T. Hardy v. Jeffery E. Shuren, case number 1:2011cv0139.


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