Andrew Lapin | February 3, 2012 | 0 Comments

Senator steps up scrutiny of FDA over whistleblower treatment

J. Scott Applewhite/AP

A Senate Republican is once again pressuring the Food and Drug Administration on its treatment of whistleblowers, after current and former employees filed suit over alleged improper monitoring of emails to Congress.

Sen. Charles Grassley, R-Iowa, the ranking member of the Senate Judiciary Committee, wrote a five-page letter to FDA Commissioner Margaret Hamburg earlier this week opening an investigation into the agency’s surveillance of the emails. He demanded that Hamburg disclose who at the agency had authorized the monitoring of whistleblowers’ personal emails to Congress, including his own office, as well as how many employees were under surveillance and whether FDA obtained personal passwords in the process.

Grassley’s interest in FDA’s handling of whistleblowers is long-standing. In March 2009, the senator wrote then-acting Commissioner Frank Torti in response to internal FDA memos warning employees not to spread confidential information. Grassley said he feared management retaliation against whistleblowers would escalate under the policy.

“I have serious concerns that your memorandum goes beyond legitimate privacy concerns and appears to run contrary to many statutes protecting executive branch communications with members of Congress,” he wrote in 2009.

FDA began monitoring emails sent by the scientists and doctors represented in the lawsuit from their work computers to Congress and the news media as early as January 2009, according to Stephen Kohn, the attorney representing the whistleblowers and the executive director of the National Whistleblowers Center. The surveillance came in response to a 2008 letter from the employees to President Obama’s transition team regarding the agency’s lax approval processes for potentially ineffective medical devices, he said.

Following these events, the inspector general at the Health and Human Services Department, which houses FDA, began a review of general FDA conduct, briefing congressional staffers along the way, according to Grassley’s office. Due to personnel turnover, the senator’s office was unable to verify whether his staff members were among those being briefed.

The IG ultimately relayed in a letter to FDA managers that the whistleblower communications were protected, according to Kohn. But the IG failed to properly follow up with an investigation into unlawful management monitoring of emails, he said.

“The IG is a Dr. Jekyll and Mr. Hyde,” Kohn told Government Executive. “On the one hand, they were going against the whistleblowers and the other times they were going for the whistleblowers . . . The IG at the end of the day had significant information about public health and safety and did nothing and they, in my view, are disqualified from any involvement in this particular case.”

Ineffective or dangerous FDA-approved medical devices that the agency’s employees sought to draw attention to included underperforming mammograms and CT scans that posed radiation risks to patients, according to reports by The Washington Post and The New York Times.

All six employees were either harassed or dismissed from work following the surveillance, the lawsuit claims. FDA declined to comment on anything related to the ongoing investigation.

Though FDA had intercepted employee correspondence with the senator’s office, a spokeswoman for his office clarified that Grassley is less concerned with his own privacy rights than he is with how the monitoring interfered with his job.

“We have an interest that was violated, but we wouldn’t call it ‘privacy,’ ” the spokeswoman wrote to Government Executive on Thursday. “It is in [sic] an intrusion into our inherent constitutional power to conduct oversight for the executive branch to interfere with our ability to have direct, confidential communications with executive branch employees in the course of our oversight duties.”

In the letter sent Wednesday, Grassley said whistleblowers “are often treated like skunks at a picnic,” even though they “have played a critical role in exposing harmful government actions and retaliation against whistleblowers should never be tolerated.”

His office compared the situation to a 2011 case involving Gary Aguirre, a whistleblower for the Securities and Exchange Commission who wrote to Grassley regarding the agency illegally destroying 20 years’ worth of documents related to Wall Street criminal investigations. According to the senator’s office, the Justice Department, representing the SEC inspector general, called for a subpoena of Aguirre’s emails with Grassley, but eventually backed down.

“The same principle we were defending in that case is at issue here,” Grassley’s spokeswoman said about the current FDA investigation. “Except rather than using legal process (which would have given us an opportunity to object), they simply intercepted the emails.”


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